TNAG-1596-FCO40-2181-Constitutional-development-in-Hong-Kong-1988 — Page 61

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5.

In civil proceedings between private citizens the courts of Hong Kong may, in appropriate circumstances, issue "injunctions" to restrain a defendant permanently from doing a disputed action. For

instance, if a defendant was threatening to demolish a structure

which the applicant claimed was his property, the applicant could

apply for an order directing the defendant to desist. The Court

would decide this issue at a trial.

6.

Sometimes, however, an applicant may not wish to wait for the dispute to be heard at trial. He may fear that if the defendant proceeds immediately with his intended action then it will cause substantial and irreparable loss. In such circumstances an applicant

may apply to the Court for an "interim injunction" temporarily to

restrain a defendant from undertaking his intended action until the dispute is brought to trial.

7.

Upon an application for an interim injunction the Court has

a difficult task. Both parties may stand to lose according to

whether the interim injunction is granted or refused. For instance,

an applicant might apply for an interim injunction to halt a commercial development because, he alleges, it will threaten the safety of his property. If the interim injunction is granted and the development cannot proceed the property developer may lose millions of dollars because of the ensuing delay. If it is not granted, the

applicant's property may be put at risk.

8.

Before considering whether to grant an interim injunction

the Court will require an applicant to give an undertaking that if he

loses at the eventual trial he will compensate the defendant for any

"damages" suffered by defendant as a result of being temporarily

restrained by the interim injunction. Of course, that undertaking will not be given lightly for the applicant potentially might be

liable to pay a very substantial amount. Once that undertaking is -

given, the Court must then decide :

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