TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Tuesday, November 23, 2021

Nolan on Injunctions

Donal Nolan has posted to SSRN Injunctions.  The abstract provides:

This chapter is concerned with the availability of injunctions in nuisance cases following Coventry v Lawrence. In that case, the Supreme Court introduced a more flexible approach to the exercise of the discretion to refuse an injunction and significantly degraded the authority of the Court of Appeal decision in Shelfer v City of London Electric Lighting Co. I consider the previous case law and academic writing on the topic, as well as arguments for and against a radical reappraisal of the role of the injunction remedy. I also consider whether the more general shift away from the Shelfer criteria towards a broader discretion is to be welcomed, and which factors should be taken into account when that discretion is exercised. I conclude that while there are good reasons why injunctions should continue to be the default remedy in cases of continuing wrongs, the remedial flexibility signaled in Coventry is to be welcomed. I also argue that, in determining whether to issue an injunction, the courts should take into account at least three factors in addition to more well-established considerations: (1) the possibility that injunctive relief will incentivise the defendant to seek out alternative beneficial ameliorative measures; (2) whether the claimant’s motivation in litigating is primarily financial; and (3) the ease of assessing damages in lieu of an injunction on the facts.

https://lawprofessors.typepad.com/tortsprof/2021/11/nolan-on-injunctions.html

Scholarship | Permalink

Comments