Law of Torts
Damages and Injunction: Paying for a Wrong and Being Stopped From Committing It
Damages are the common law remedy and they look backwards: they put a price on a wrong already done. An injunction is an equitable remedy and it looks forwards: it orders the defendant to stop, or to undo what he has done, and its object is that the wrong shall not continue. The consequences of that difference run through the whole subject. Damages are available as of right to a plaintiff who proves his case; an injunction is discretionary and may be refused to a plaintiff who has delayed, acquiesced or come to the court with unclean hands. And because it is discretionary, the court may award damages in substitution, which in a continuing nuisance amounts to licensing the defendant to go on.
1. The Comparison
Damages | Injunction | |
Origin | Common law | Equity |
Direction | Backwards, at a wrong already done | Forwards, at a wrong continuing or threatened |
Availability | As of right on proof of the tort | Discretionary |
What the plaintiff gets | Money | Compliance |
Suitability for a continuing wrong | Poor. He must sue again and again | The natural remedy |
Suitability for a completed wrong | The natural remedy | Nothing left to restrain |
Bars | Limitation, and the ordinary defences | Delay, acquiescence, unclean hands, hardship, and the adequacy of damages |
Enforcement | Execution against property | Contempt of court, with imprisonment and attachment |
Statutory basis in India | The common law | Sections 36 to 42 of the Specific Relief Act, 1963 |
Effect on the defendant's activity | He may continue and pay | He must stop |
2. The Injunction in Indian Law
- Section 36 of the Specific Relief Act, 1963 provides that preventive relief is granted at the discretion of the court by injunction, temporary or perpetual.
- A temporary injunction continues until a specified time or further order and is regulated by the Code of Civil Procedure, 1908; a perpetual injunction is granted by the decree at the hearing and on the merits.
- Section 38 governs the perpetual injunction, which may be granted to prevent the breach of an obligation existing in favour of the plaintiff, and in particular where the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, and where compensation in money would not afford adequate relief, or where the injunction is necessary to prevent a multiplicity of judicial proceedings.
- Section 39 governs the mandatory injunction, compelling the performance of acts which the court is capable of enforcing, in order to prevent the breach of an obligation.
- Section 40 allows damages to be awarded in addition to, or in substitution for, an injunction, and requires that damages be claimed in the plaint if they are to be awarded.
- Section 41 lists the cases in which an injunction cannot be granted, including where the plaintiff has no personal interest in the matter, where equally efficacious relief can certainly be obtained by any other usual mode of proceeding, and where the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court.
- The subject is examined fully in TORT 095 and TORT 096.
3. The Kinds of Injunction
The kind | What it does |
Temporary or interim | Preserves the position until the suit is decided. Granted on a prima facie case, the balance of convenience and irreparable injury |
Perpetual | Granted by the decree, after the merits have been determined |
Prohibitory | Restrains the defendant from doing something |
Mandatory | Compels him to do something, typically to undo what he has done. Granted more cautiously, and the court must be able to supervise compliance |
Quia timet | Granted before any wrong has been committed, where the plaintiff shows an imminent danger of substantial damage |
Ex parte | Granted without notice, in cases of urgency, and ordinarily for a short period pending notice |
4. When Damages Are Awarded in Place of an Injunction
📖 Shelfer v. City of London Electric Lighting Co., [1895] 1 Ch 287 Facts The plaintiffs occupied premises adjoining an electricity generating station. Vibration and noise from the defendants' engines caused structural damage and made the premises uncomfortable. The defendants argued that an injunction would interrupt the electricity supply of a large district, and that damages should be awarded instead. Held An injunction was granted. Ratio A. L. Smith L.J. laid down a good working rule: damages may be given in substitution for an injunction where the injury to the plaintiff's legal rights is small; and is capable of being estimated in money; and can be adequately compensated by a small money payment; and the case is one in which it would be oppressive to the defendant to grant an injunction. All four conditions must be satisfied. The public importance of the defendant's undertaking is not by itself a reason to refuse an injunction, and a court should not allow a wrongdoer to purchase the right to continue a wrong. |
- The last sentence is the heart of it. If damages were freely substituted, a defendant with money could buy the right to commit a continuing tort, and the plaintiff's right would in substance be converted into a right to be paid.
- The four conditions are cumulative, and the fourth, oppression, is not established merely by showing that the injunction would be expensive or inconvenient to comply with.
- The rule is not a statutory formula and has been applied more flexibly in modern cases, with the public interest in the defendant's activity carrying more weight than A. L. Smith L.J. allowed, but it remains the starting point.
5. Interim Injunctions and Defamation
- The ordinary test for an interim injunction is a prima facie case, the balance of convenience, and irreparable injury not compensable in damages.
- Defamation is a special case. The rule in Bonnard v. Perryman, [1891] 2 Ch 269 is that an interim injunction restraining publication should not be granted where the defendant says he will justify, unless the statement is unarguably defamatory and there is no conceivable defence.
- Bloomberg Television Production Services India Pvt. Ltd. v. Zee Entertainment Enterprises Ltd., 2024 INSC 224, decided 22 March 2024, adopts the rule in India. The Court held that the three fold test is not a mantra to be mechanically applied; that an injunction before trial has the effect of a death sentence on the material, since the delay itself defeats publication; and it expressly recognised the danger of SLAPP suits brought to silence rather than to vindicate.
- The reason for the exception is free speech. In every other tort an interim injunction merely preserves the position; in defamation it suppresses the publication, and by the time the trial decides the truth the occasion has passed: TORT 070.
6. Which to Seek
The situation | The remedy |
A completed wrong: an assault, a single escape, a past conversion | Damages. There is nothing to restrain |
A continuing nuisance: noise, fumes, an encroachment | An injunction, with damages for the past |
A threatened wrong: a structure about to be built, a publication about to be made | A quia timet injunction, on proof of imminent and substantial danger |
An encroachment already built | A mandatory injunction to remove it, and damages in the alternative |
A breach of confidence or misuse of information | An injunction, damages being plainly inadequate once the information is out |
A defamatory publication | Damages after trial. An interim injunction only within Bonnard v. Perryman |
Where the plaintiff has delayed or acquiesced | Damages. The injunction will be refused on the discretionary grounds |
7. What to Plead
- Claim damages expressly in the plaint even where the injunction is the real object, since section 40 of the Specific Relief Act, 1963 requires damages to be claimed if they are to be awarded in substitution or in addition.
- Plead the continuing character of the wrong, since a continuing nuisance or trespass gives a fresh cause of action from day to day and supports both the injunction and a claim for the whole period within limitation.
- Plead the inadequacy of damages specifically, identifying why money will not do: the wrong is continuing, the harm is to health or enjoyment, the property is unique, or a multiplicity of suits would follow.
- Explain any delay, since acquiescence is the commonest ground on which an injunction is refused.
- Frame a mandatory injunction precisely, identifying exactly what is to be done, since a court will not grant relief it cannot supervise.
- Apply for interim relief at once, because a plaintiff who waits weakens both the urgency he asserts and his eventual claim to a perpetual injunction.
⚠ Why a court is reluctant to let a defendant buy the right to continue The argument for substituting damages in a continuing nuisance case is superficially compelling and is made in almost every such suit: the defendant runs a factory employing hundreds, the plaintiff owns one house, the harm can be valued, and an injunction destroys far more than it protects. Shelfer refuses that argument except in the narrowest case, and the reason is that accepting it would change what a legal right is. A right protected only by damages is not really a right to be free of the interference; it is a right to be paid for it, and the decision whether the interference continues passes from the holder of the right to the person willing to pay. That is a compulsory purchase, and compulsory purchase is something legislatures authorise after weighing the public interest, with procedures and compensation rules attached, rather than something a court confers on a private defendant because his enterprise is larger than his neighbour's house. The four conditions confine the substitution to cases where nothing much is being taken from the plaintiff: a small injury, measurable in money, adequately met by a small payment. Where those are satisfied the court is not really licensing a wrong; it is declining to use a heavy remedy for a trivial complaint. Where they are not, the answer to the defendant who says the injunction will be ruinous is that he should have thought about the neighbour before he built the factory. |
8. The Position Stated Shortly
1. Damages are a common law remedy available as of right and look backwards; an injunction is an equitable remedy, discretionary, and looks forwards.
2. Sections 36 to 42 of the Specific Relief Act, 1963 govern injunctions in India.
3. Section 38 governs the perpetual injunction, section 39 the mandatory injunction, section 40 damages in addition or substitution, and section 41 the cases in which an injunction cannot be granted.
4. Damages must be claimed in the plaint if they are to be awarded in substitution for an injunction.
5. Shelfer v. City of London Electric Lighting lays down the good working rule: a small injury, estimable in money, adequately compensated by a small payment, and oppressive to restrain.
6. All four conditions must be satisfied, and a court should not allow a wrongdoer to purchase the right to continue a wrong.
7. The ordinary interim test is a prima facie case, the balance of convenience, and irreparable injury.
8. Defamation is an exception: Bonnard v. Perryman, adopted in Bloomberg v. Zee Entertainment, requires the statement to be unarguably defamatory with no conceivable defence.
9. Bloomberg holds that the three fold test is not a mantra, that an interim injunction is a death sentence on the material, and recognises SLAPP suits.
10. An injunction is the natural remedy for a continuing or threatened wrong, and damages for a completed one.