(a) Judicial measures
10. Describe the types of provisional measures that judicial authorities may order, and the legal basis for such authority.
Copyright and related rights
The court has discretionary powers to order interlocutory injunctions pending the final outcome of a case. The court will only grant an interlocutory injunction if the applicant can show:
- there is a serious issue to be tried;
- damages alone will not be an adequate remedy; for example the applicants reputation will suffer if immediate intervention is not made;
- on a balance of convenience, the applicant would stand to lose more if the injunction were not granted.
Trademarks and designs
The type of provisional measures that may be ordered by the court are as follows:
- Preservation of custody of subject-matter of the contract
This measure is applicable where by any contract prima facie a case of liability is established.
Section 459 of the Consolidated Judicature (Civil Procedure Code) Law, Chapter 177, speaks to this:
"When by any contract a prima facie case of liability is established, and there is alleged as matter of defence a right to be relieved wholly or partially from such liability, the court or a judge may make an order for the preservation or interim custody of the subject-matter of the litigation, or may order that amount in dispute be brought into court or otherwise secured.
- Order for sale for perishable articles
Section 460 of the Civil Procedure Code, speaks to this:
"It shall be lawful for a court or a judge on the application by any party, to make any order for the sale, by any person or persons named in such order, and in such manner and or such terms as the court or judge may think desirable, of any goods, wares or merchandise, which may be of a perishable nature, or likely to injure from keeping, or which for any other just and sufficient reason it may be desirable to have sold at once".
- Order for detention, preservation, or inspection, of any property the subject of the cause
Section 461 of the Civil Procedure Code speaks to this:
"It shall be lawful for the court or a judge, upon the application of any party to a cause or matter, and upon such terms as may be just, to make any order for the detention, preservation or inspection, of any property or thing, being the subject of such cause or matter, or as to which any question may arise therein, and for all or any of the purpose aforesaid, to authorise any person to enter upon or into any land or building in the possession of any party to such cause or matter, and for all or any of the purses aforesaid to authorise any sample to be taken, or any observation to be made, or experiment to be tried, which may be necessary or expedient to the purpose of obtaining full information or evidence …..".
- Order for recovery of property subject to claim for lien on terms
Section 466 of the Civil Procedure Code speaks to this:
"Where an action is brought to recover, or a defendant in his defence seeks by way of counter-claim to recover, specific property other than land, and the party from whom such recovery is sought does not dispute the title of the party seeking to recover the same, but claims to retain the property by virtue of a lien, or otherwise, as security for any sum of money, the court or a judge may, at any time after such last-mentioned claim appears from the pleading, or, if there be no pleadings, by affidavit or otherwise to the satisfaction of such court or judge, order that the party claiming to recover the property be at liberty to pay into the court, to abide the event of the action, the amount of the money in respect of which the lien or security is claimed, and such further sum (if any) for interest and costs as such court or judge may direct, and upon such payment into court being made the property claimed to be given up to the party claiming it."
- Allowance out of income of property pendente lite
Section 467 of the Civil Procedure Code speaks to this:
"Where any real or personal estate forms the subject to any proceedings in equity, and the judge is satisfied that the same will be more than sufficient to answer all the claims thereon which ought to be provided for in such proceedings, the judge may, at any time after the commencement of the proceedings, allow to the parties interested therein, or any one or more of them, the whole or part of the income of the real estate, or a part of the personal estate, or the whole part of the income thereof, up to such time as the judge shall direct."
- Conduct of sale of trust property
Section 468 of the Civil Procedure Code speaks to this:
"Whenever in an action for the administration of the estate of a deceased person, or execution of the trusts of a written instrument, a sale is ordered of any property vested in any executor, administrator or trustee, the conduct of such sale be given to such executor, administrator or trustee, unless the court or a judge shall otherwise direct.
- Injunction (by judgement or order)
Section 469 of the Civil Procedure Code states:
"….. an injunction shall be by a judgement or order, and any such judgement or order shall have the effect which a writ of injunction previously had."
"An injunction against a corporation may be enforced either by attachment against the directors or other officers thereof as in the case of a mandamus or by a writ of sequestration against their property and effects to be issued in such form and tested "and returnable in like manner as writs of venditioni exponas and to be proceeded upon and executed like manner as writs issuing order of the Supreme Court."
- Injunction against continuance or repetition of wrong
Section 470 of the Civil Procedure Code speaks to this:
"In any cause or matter in which an injunction has been or rights have been claimed, the plaintiff may, before or after judgement, apply for an injunction restraining the defendant or respondent from the repetition or continuance of the wrongful act or breach of contract complained of, or from the commission of an injury or breach of contract of a like kind relating to the same contract; and the court or judge may grant the injunction, either upon or without terms as may be just."
(a) Judicial measures
10. Describe the types of provisional measures that judicial authorities may order, and the legal basis for such authority.
Copyright and related rights
The court has discretionary powers to order interlocutory injunctions pending the final outcome of a case. The court will only grant an interlocutory injunction if the applicant can show:
- there is a serious issue to be tried;
- damages alone will not be an adequate remedy; for example the applicants reputation will suffer if immediate intervention is not made;
- on a balance of convenience, the applicant would stand to lose more if the injunction were not granted.
Trademarks and designs
The type of provisional measures that may be ordered by the court are as follows:
- Preservation of custody of subject-matter of the contract
This measure is applicable where by any contract prima facie a case of liability is established.
Section 459 of the Consolidated Judicature (Civil Procedure Code) Law, Chapter 177, speaks to this:
"When by any contract a prima facie case of liability is established, and there is alleged as matter of defence a right to be relieved wholly or partially from such liability, the court or a judge may make an order for the preservation or interim custody of the subject-matter of the litigation, or may order that amount in dispute be brought into court or otherwise secured.
- Order for sale for perishable articles
Section 460 of the Civil Procedure Code, speaks to this:
"It shall be lawful for a court or a judge on the application by any party, to make any order for the sale, by any person or persons named in such order, and in such manner and or such terms as the court or judge may think desirable, of any goods, wares or merchandise, which may be of a perishable nature, or likely to injure from keeping, or which for any other just and sufficient reason it may be desirable to have sold at once".
- Order for detention, preservation, or inspection, of any property the subject of the cause
Section 461 of the Civil Procedure Code speaks to this:
"It shall be lawful for the court or a judge, upon the application of any party to a cause or matter, and upon such terms as may be just, to make any order for the detention, preservation or inspection, of any property or thing, being the subject of such cause or matter, or as to which any question may arise therein, and for all or any of the purpose aforesaid, to authorise any person to enter upon or into any land or building in the possession of any party to such cause or matter, and for all or any of the purses aforesaid to authorise any sample to be taken, or any observation to be made, or experiment to be tried, which may be necessary or expedient to the purpose of obtaining full information or evidence …..".
- Order for recovery of property subject to claim for lien on terms
Section 466 of the Civil Procedure Code speaks to this:
"Where an action is brought to recover, or a defendant in his defence seeks by way of counter-claim to recover, specific property other than land, and the party from whom such recovery is sought does not dispute the title of the party seeking to recover the same, but claims to retain the property by virtue of a lien, or otherwise, as security for any sum of money, the court or a judge may, at any time after such last-mentioned claim appears from the pleading, or, if there be no pleadings, by affidavit or otherwise to the satisfaction of such court or judge, order that the party claiming to recover the property be at liberty to pay into the court, to abide the event of the action, the amount of the money in respect of which the lien or security is claimed, and such further sum (if any) for interest and costs as such court or judge may direct, and upon such payment into court being made the property claimed to be given up to the party claiming it."
- Allowance out of income of property pendente lite
Section 467 of the Civil Procedure Code speaks to this:
"Where any real or personal estate forms the subject to any proceedings in equity, and the judge is satisfied that the same will be more than sufficient to answer all the claims thereon which ought to be provided for in such proceedings, the judge may, at any time after the commencement of the proceedings, allow to the parties interested therein, or any one or more of them, the whole or part of the income of the real estate, or a part of the personal estate, or the whole part of the income thereof, up to such time as the judge shall direct."
- Conduct of sale of trust property
Section 468 of the Civil Procedure Code speaks to this:
"Whenever in an action for the administration of the estate of a deceased person, or execution of the trusts of a written instrument, a sale is ordered of any property vested in any executor, administrator or trustee, the conduct of such sale be given to such executor, administrator or trustee, unless the court or a judge shall otherwise direct.
- Injunction (by judgement or order)
Section 469 of the Civil Procedure Code states:
"….. an injunction shall be by a judgement or order, and any such judgement or order shall have the effect which a writ of injunction previously had."
"An injunction against a corporation may be enforced either by attachment against the directors or other officers thereof as in the case of a mandamus or by a writ of sequestration against their property and effects to be issued in such form and tested "and returnable in like manner as writs of venditioni exponas and to be proceeded upon and executed like manner as writs issuing order of the Supreme Court."
- Injunction against continuance or repetition of wrong
Section 470 of the Civil Procedure Code speaks to this:
"In any cause or matter in which an injunction has been or rights have been claimed, the plaintiff may, before or after judgement, apply for an injunction restraining the defendant or respondent from the repetition or continuance of the wrongful act or breach of contract complained of, or from the commission of an injury or breach of contract of a like kind relating to the same contract; and the court or judge may grant the injunction, either upon or without terms as may be just."