English courts explain the use of ‘quia timet’ injunctions to pre-empt damages

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By Raymond L Sweigart

In London Borough of Islington v Elliot and Morris [2012] EWCA Civ 56, the Court of Appeal reviewed the principles that apply when considering the power of a court under English law to grant injunctions before damage has taken place. These are known as quia timet (‘because he fears’) injunctions.

The decision overturning the County Court’s assessment that such an injunction was warranted illustrates the reluctance of English courts to take such action at least in nuisance cases. It also strongly suggests that common law actions may generally be ill-suited as a preemptive defensive measure. In contrast, the Patents Court recently handed down its decision in Merck Sharp Dohme Corp and Bristol-Myers Squibb Pharmaceuticals Limited v Teva Pharma BV [2013] EWHC 1958 (Pat), in which a quia timet injunction was granted to stop threatened and intended patent infringement. The analyses in both cases are instructive on the potential benefits and limits of this procedural tool.

In the Islington case, tree roots from a property owned by the council were allegedly encroaching on a neighbour’s property with the perceived potential for severe damage to the neighbouring structures. Despite repeated notice and complaints, the council did nothing for three years and stated it would not act to remove the trees until it was proven the roots were actually causing significant damage…

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