In this article, Dhruv Shekhar discusses the American Cyanamid case.
The law of injunction in our country is one which owes its origins to the Equity jurisprudence as present and borrowed from English law[1]. The basic principle that an injunction is reliant upon is the latin maxim of ubi jus ibi remedium which translates to where there is a right there is a remedy[2].
Thus an injunction is a judicial remedy which either ensures that the party is required to refrain from doing a particular act or conversely is supposed to carry out a particular act[3]. In the former case it is referred to as a restrictive injunction and in the latter as a mandatory injunction. Injunctions find statutory basis in Order XXXIX of The Code of Civil Procedure[4], § 94 & 95 of The Code Of Civil Procedure[5] and § 36 & 42 OF The Specific Relief Act[6]
A further classification of the type of injunctions can be as the following (1) temporary or perpetual; (ii) prohibitory or mandatory; (iii) negative or positive; (iv) ad-interim or interim[7]. For the purpose of this article the focus is going to be on temporary/ interlocutory injunctions and one condition which used for granting it (as a part of the three pronged test laid down in American Cyanamid[8]).
An interlocutory or temporary injunction may be granted when the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit. The Court in such circumstances is posited to grant an injunction to prevent either dispossession of the plaintiff’s property or to prevent any damage being inflicted in regard to the aforesaid property.
The central theme that is being explored in this article is an explanation of the American Cyanamid case and how it set a strong basis of the prima facie criterion for granting of a temporary injunction in a matter.
The Pre Cyanamid Era
The concept of prima facie criterion in the Pre- Cyanamid era was present, however there was rarely if ever a stringent imposition of this criterion. The case of Stratford v. Lindley[9] was one of the first cases where the concept of a prima facie case was strongly asserted. Even in the case of F. Hoffman[10], Lord Diplock stated the need to prove a strong prima facie case as being essential in determining the application for interim injunctions. However the uniformity in the assertion of the same principle was not the same in all cases.
The American Cyanamid Case
Interim injunction have often served as the edifice for Intellectual Property disputes[11]. The principle setting case of American Cyanamid also contented with an application for interim injunction against the respondent company Ethicon to bring about a product which infringed upon the plaintiffs patent ( i.e. absorbable surgical sutures of filaments made of a particular kind of chain polymer known as “a poly-hydroxyacetic ester” (“PHAE”).
The principles that were discussed upon in this case now serve as a trite law for it has established the three mandatory conditions that an applicant must fulfill for the court to grant his/her application for temporary injunction. They are as follows, 1) there is a prima facie case to be tried 2) the applicant will suffer irreparable damage if the interlocutory relief is refused 3) Balance of convenience resulting from granting or denying the interlocutory relief[12].
While the questions pertaining to the latter two aspects of irreparable injury/damage and balance of convenience have been assessed on a case by case basis. The perplexing issue has however often been confined as to what constitutes a prima facie case. In the aforesaid matter, Lord Diplock in his judgment states that a prima facie case would be made out if the plaintiffs raised a serious question to be tried. Thus the requirement to be satisfied appears as being that the plaintiff has to raise a serious question to be tried, rather than having to show a possibility of reasonable success at the trial[13].
Thus a serious question would be considered to be made as long as it the plaintiff’s case is not of frivolous and vexatious nature. This requirement imposes a very low burden as the assessment of the case at this stage does not take into account the relative merits of the case. In the years hence forth an interesting change took place in regard to the meaning of the prima facie case.
The 1996 Court of Appeals decision of Series 5 Software[14]serves as a very interesting interlude in this entire discussion. For on the question of prima facie case, this case states that relative strength of the claims made by the parties would be examined to determine this question. However since this was a Court of Appeals decision, English Courts have largely treated this matter as an anomaly and instead followed the principles established in the Cyanamid case .
Thus what can be perused from the multitude of English cases is that there appears little to separate the prima facie test as well the serious question test. While any attempt to use the second test would automatically entail an assessment of the parties in regard to the relative strengths of their respective positions, however the extent to which this is done appears to be far from clear.
Another interesting interlude that appears in a number of the reported English cases on interlocutory injunctions is the interchangeability with which Lord Diplock’s words were used to deal with the prima facie test[15]. The various terms used by Lord Diplock are as follows “frivolous or vexatious,” there must be a “serious question to be tried”, “real prospect of succeeding” and “an arguable case”.
The meaning of these phrases have been examined in two cases, namely Smith v. I.L.E.A [16]and Mother Care Ltd. v. Robson Brooks Ltd.[17]. When adjudicated upon by Browne L.J for the former matter and Sir Robert Megarry-V.C for the latter one, they were of the opinion that the three different wordings in Lord Diplock’s test should be treated as equivalents. Thus while the prima facie case principle is an essential part of the three pronged test for granting interlocutory injunctions. It’s arguable that this term has become an “umbrella term” which is inclusive of all the four statements to be used either as equivalents or on case by case and need basis[18]. Thus the rich jurisprudence of the English courts serve as a tool in the hands of the judiciary who can use any of the strains of the concept of a Prima Facie case, while assessing an application for interlocutory injunction. The question worth positing now is whether a similar development in the concept of prima facie case has taken place in the Indian legal landscape.
[1] A summary of a workshop on the Law of Injunctions held at Maharashtra Judicial Academy (18/01/2015), Page 1- http://mja.gov.in/Site/Upload/GR/Summary%20-%20%20workshop%20dt.%2018.01.2015.(Civil).pdf
[2] Shamnad Basheer, Jay Sanklecha and Prakruthi Gowda, Pharmaceutical Patent Enforcement: A Developmental Perspective, 603-635(2014) . This was Chapter 19 of the book Ruth L. Okediji and Margo A. Bagley, PATENT LAW IN GLOBAL PERSPECTIVE 603-635 (2004)
[3]B. Chandra Sekhar Reddy And Others v. K. Naga Raju Yadav & Anr. 2013(2) ALD 626 84, para. 8. derived from Halsbury’s Laws of England (4th Edn.), Vol. 24, para 901, p. 511
[4] Order XXXIX of The Code of Civil Procedure
[5] § 94 & 95 of The Code Of Civil Procedure
[6] § 36 & 42 OF The Specific Relief Act- the conditions as present in English law ( as developed in the American Cyanamid matter ) have not been directly embedded into the provisions of various Indian statutes providing injunctive reliefs
[7] B. Chandra Sekhar Reddy And Others v. K. Naga Raju Yadav & Anr. 2013(2) ALD 626 84, para. 9
[8] American Cyanamid v. Ethicon Ltd [1975] AC 396
[9] JT Stratford & Son Ltd v Lindley [1965] AC 269
[10] F. Hofmann-La Roche A.G. v Secretary of State for Trade and Industry [1975] A.C. 295
[11] Feroz Ali K, Patent Infringement and the Law, THE HINDU BUISNESS LINE( Feb.28,2008), http://www.thehindubusinessline.com/todays-paper/tp-opinion/patent-infringement-and-the-law/article1617248.ece
[12] American Cyanamid v. Ethicon Ltd [1975] AC 396, pg. 404-408 of the judgment as well as discussed in
Jean-Philippe Groleau, Interlocutory Injunctions: Revisiting the Three-Pronged Test,53, McGill L.J., 269, 269-71(2008)
[13] Mohir Naniwadekar, On ‘Prima Facie’ cases and ‘Originality’: Part I, SPICY IP( Nov.8, 2008), https://spicyip.com/2008/11/on-prima-facie-cases-and-originality.html
[14] Series 5 Software v. Clark 1996 C.L.C. 631
[15] Christine Gray, Interlocutory Injunctions since Cyanamid, 40, CLJ, 307, 307 (1981)
[16] Smith v. I.L.E.A [1978] 1 All E.R. 411
[17] Mother Care Ltd. v. Robson Brooks Ltd [1979] F.S.R. 466
[18] Thus, the term of “prima facie case” serves as the genus and those 4 terms serve as its species.
