Ex-parte injunctions essentially breach the law of natural justice Should only be granted in special circumstances

Ex-parte injunctions essentially breach the law of natural justice Should only be granted in special circumstances – Senior Counsel

Oct 22, 2016 News

An undetermined number of ex-parte injunctions are granted by Judges of the High Court each year.
Such an order has become a source of concern for many individuals and entities seeking litigation since whenever an ex parte injunction is granted it is based on hearing the case of one party in the matter, a procedure which is essentially in breach of the laws of natural justice.
According to certain legal definitions, an injunction can be simply described as a judicial order that prohibits a party of litigation from beginning or continuing an act threatening or invading the legal right of another, or that compels a person to carry out an act.
An ex parte order or injunction is granted whether prohibitive or mandatory on an application of one party without the other party (adversely affected) is heard.
But the law of natural justice requires that both should be given a hearing before the court can make a ruling or determination in a matter.
Attorney-at-law Edward Luckhoo, S.C explained that such an order by the court, ought to be only granted in exceptional circumstances and where the party applying for the injunction would suffer irreparable harm that cannot be compensated through damages or a settlement.
For example, an ex-parte injunction should be granted in instances where a person’s possession or property is in receipt of a credible threat that the property is about to be destroyed.
However, where such harm is not likely to occur unless there is clear breach of legal right, an ex-parte injunction should not be granted and the court ought to grant service on the other party to be heard before any order is made.
Mr Luckhoo stressed that an important facet of an application for an ex parte injunction is that there must be full disclosure of all material facts, both in favour of and against applicant.
If it established that there is no full disclosure of the material facts, the ex parte order is discharged for that reason alone. Senior Counsel Luckhoo explained that an ex parte order is generally made until a short returnable date to give the other party are opportunity to show cause why the injunction ought not be continued.
He contended that mandatory ex-parte injunctions ought not to be granted by the Court except in incomparable (extreme) circumstances.
Kaieteur News has had its share of lawsuits, all of which featured a number of ex parte orders. One such instance involved former Commissioner-General of the Guyana Revenue Authority (GRA) Khurshid Sattaur.
In 2014, Sattaur filed a suit against the Kaieteur News seeking in excess of $500 million in damages for what he claims was libel contained in its ‘Dem Boys Seh’ columns and news reports.
Sattaur, had an ex-Parte application filed by the firm Satram and Satram. He also managed to secure an interim injunction retraining publisher Glenn Lall, editor Adam Harris and the National Media and Publishing Company Limited—named as the defendants in the action—from further writing, printing, publishing or circulating the alleged defamatory words contained in editions published between August 31 and September 23, 2014.
Sattaur had contended that after he initiated an investigation into the importation of two vehicles by remigrants Narootandeo and Gharbassi Brijnanan that resulted in the seizure of the two vehicles, Lall, Harris and the newspaper began a campaign to “defame, malign, degrade and humiliate” him in the performance of his duties as Commissioner-General and in his personal life.
He asked for the injunction out of fear that the newspaper would continue to be used to defame him.
In that matter, Justice Sandra Kertzious granted the injunction and an in-chambers hearing was set on Sattaur’s application to determine whether the injunction would be continued until the hearing and determination of the action.

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Ex-parte injunctions essentially breach the law of natural justice Should only be granted in special circumstances – Senior Counsel

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