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Injunctions and Damages – Taking Shelfer off the Shelf

Michael Bryan

(2016) 28 SAcLJ 921

In Lawrence v Fen Tigers Ltd the UK Supreme Court reviewed the criteria for awarding damages in substitution for an injunction in the exercise of discretion under s 50 of the Senior Courts Act 1981 (c 54), commonly known as Lord Cairns’ Act. The decision is significant because equivalent provisions have been enacted by many other common law jurisdictions. The Supreme Court held that public interest considerations were relevant to the exercise of the statutory discretion. The article argues that the public interest should have only a small role to play in determining the outcome of “damages versus injunction” disputes in modern private law litigation. Moreover, the public interest should rarely, if ever, be a decisive factor in private law remedy selection. The article concludes by identifying some unresolved issues in quantifying damages awards under the Act.