Authors: Shane Campbell, Jeremy Johnson
Published: 9 November 2022
Pages: 46

Introduction

How many times is a case won on liability but lost on remedy because a legal advisor has given no or inadequate thought to where the finding of liability might lead? Unfortunately, all too often.

The question of relief looms large in every dispute. Even if certain rights are established (ie liability) what does that sound in for a client? Has the client had a forensic triumph or a pyrrhic victory? Can execution issue against a full judgment sum. Is the prospective debtor seeking to abscond the country or exfiltrate assets abroad? Will a defendant seek to sell land against which a proprietary claim is made? Will trustees or directors make decisions that irretrievably alter the position of the trust fund or company? These questions deserve primacy of thought at the outset of any dispute or commencement of proceedings; what outcome can a client obtain at the conclusion of a proceeding.

The rare exception to this primacy of remedy is where clients embark upon a path of litigation seeking vindication, for example by obtaining declarations, or seeking a judgment on liability only. This, it is claimed by the client, is to vindicate their position. Such a course, more often than not, quickly becomes perilous; often clients realise their principles alone are not worth the price of litigation.

The purpose of this paper is to explore the steps that a client can take to ensure that their triumph is not pyrrhic following trial of a main action. These are steps that can be taken urgently. Although the concept of urgency now has a degree of relativism given the current caseload of the civil limb of the judiciary.

When embarking on this presentation we sought, as many lawyers do, to draw some definitional lines. Our overarching definition or description is that interim relief is “essentially a holding remedy to address a present position until the merits of the case can be fully adjudicated”.

This book was not intended as a comprehensive guide to interim relief and it has met that aspiration; it is far from comprehensive. However, it does contain a whirlwind precis of different kinds of interim relief available in civil litigation. It starts with the orthodox and quickly devolves to a traverse of the more obscure.

In addition to articulating the legal principles, we endeavour at the conclusion of each section to have a degree of pragmatism and practicality. We set out steps that should be taken, including checklists (where we can reduce complex legal processes to checklist form). We occasionally seek to proscribe certain steps as well – this falls into our “what not to do” sections.

Content outline

• On notice and without notice (ex parte) applications
• Injunctions
• Freezing orders (mareva injunctions)
• Search orders
• Preservation order
• Sale of perishable property
• Interim payments
• Receivers
• Trusts
• Interim steps in relation to property
• Interim liquidation