Ch 5 Injunctions

They were careless people, Tom and Daisy—they smashed up things and creatures and then retreated back into their money or their vast carelessness, or whatever it was that kept them together, and let other people clean up the mess they had made – F. Scott Fitzgerald  ‘The Great Gatsby’

Practice Direction 11.1 – Ex parte, Interim and Interlocutory Applications for Injunctions’ and Practice Direction 11.2  – Mareva Injunctions and Anton Pillar Orders – apply to the District Court by virtue of Practice Direction 27. The reference to the ‘Clerk of Court’ should accordingly be read as ‘Listing Officer, District Court’

Injunctions Generally

The court has power to grant injunctions (1) to enforce existing legal or equitable rights; (2) relating to properties; (3) relating to children; (4) relating to foreign proceedings; (5) and against domestic violence. In matrimonial and family proceedings, the decision to seek injunctive relief from the court is a draconian step. It involves careful consideration of a wide range of procedural and other factors dependent upon the facts of the case and type of relief sought, for example, whether an application is urgent or non-urgent, ex parte or on notice, or whether ‘undertakings’ would resolve the issue and whether or not such an application will escalate matters. Whilst the scope of injunctions may be very widely drawn, they are usually directed against narrow and immediate issues, limited to what is necessary to prevent or to achieve and for a limited period. Full and frank disclosure must be made in every application. An injunction may be enforced by committal even without a penal notice, if the respondent was well aware of the consequences of disobedience, Sofroniou v Szgetti [1991] FCR 332n, CA.

Freezing Orders

President approved guidelines and some robust advice and  to all lawyers – ex-parte ‘freezing orders’ a warning from UK  on avoiding ‘nuclear winter’.

UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] EWHC 1735 (Fam)

“It is worth remembering not only that the ex parte procedure is intrinsically unfair but also, and very importantly, that a case which begins with an ex parte order is usually poisoned from that point onwards. The unilateral step taken at the beginning of case echoes down its history. Often the respondent is enraged by the step taken against him and looks to take counter-offensive measures. Every single subsequent step is coloured by that fateful first step. Costs tend to mount exponentially. And even after the lawyers close their files and render their final bills the personal relations of the spouses will likely remain forever soured. A nuclear winter often ensues”

Domestic Violence

The Domestic Violence (Amendment) Bill 2009, which was gazetted on 5 June 2009 and tabled at the Legislative Council on 17 June 2009 resulted in the promulgation of the Domestic and Cohabitation Relationships Violence Ordinance (Cap 189). It extended the scope of the domestic violence Ordinance to same-sex cohabitants, providing them with additional civil remedies alongside the existing criminal legislative framework. Under the amendments, a new definition of cohabitation relationship as ‘a relationship between two persons who live together as a couple in an intimate relationship’ was introduced along with structural changes made to delineate the categories of protected people under legislation’s coverage. In making this announcement the Secretary of State for Labour and Welfare took the opportunity to reiterate the Hong Kong Government’s view, that the proposed amendments would not affect the Government’s stance of not recognising same-sex marriage, civil partnership or any same- sex relationship as a matter of legal status. In the light of the decisions on discrimination in the criminal law in William Roy Leung v SJ [2006] 4 HKLRD 211; [2006] HKCU 1585, CA and indeed in Secretary for Justice v Yau Yuk Lung [2007] 3 HKLRD 903, [2007] 3 HKC 545, where the CFA found that discrimination on the basis of sexual orientation may be unconstitutional, the Government’s continued opposition to ‘civil partnerships’ and equality before the law for same sex couples looks increasingly untenable. See also Dantes Leung, ‘The Prospect of Same-Sex Marriage in Hong Kong’, Hong Kong Lawyer (March 2008).