R
I
11
rarely cause "damages" (in the legal sense) to the Crown itself
although it will likely cause enormous harm or inconvenience to the
public.
30.
If, for instance, an applicant was to restrain the
construction of a road for several months then the Crown (i.e. the
Queen and the Hong Kong Government) would suffer little loss that
would be compensatible by damages. Nevertheless, the general public might be greatly inconvenienced. In such cases an undertaking by a plaintiff to pay the Crown's damages resulting from an interim releif
is worthless. It follows that potentially the remedy could be abused
by applicants who know that in seeking an interim declaration and
giving an undertaking as to damages they have little to lose.
31.
Equally, and for much the same reasons, the Crown is rarely
able to show that interim relief should not be granted "on the
balance of convenience". The Crown, as distinct from the general
public, rarely suffers any inconvenience if the Crown's actions are
restrained.
32.
Alternative Remedies
The next argument against the
recommendation is that, even without interim declarations, a person
affected by Government actions has alternative remedies.
33.
Firstly, virtually every piece of legislation empowering
the Government to act, other than emergency procedures, also provides
to affected persons a right to appeal against any decision to so act.
34.
Secondly, if the Government acts illegally, it will always
be liable to pay compensation to persons affected.
35.
Thirdly, if an applicant could show a real risk that the
Government was about to act so as to cause irreparably loss, the
Courts have power to order an expedited hearing. Pursuant to such an
order a party could apply for a final declaration and could have his case prepared for trial and decided in only a matter of weeks.
In
some cases final declarations have even been obtained in a matter of
days.
/... 12