By Evarist Baimu Nyaga Mawalla - Home

c. against injury by violation of his right for which he could not be adequatelycompensated in damages recoverable in the action if the uncertainty wereresolved in his favour at the trial but the plaintiff need of the defendant tobe protected against injury resulting from his having been prevented fromexercising his own legal rights fore which he could not be adequatelycompensated under the plaintiff undertaking in damaged if the uncertaintywere resolved in the defendant’ favour at the trial The court must weighone need against another and determine where the balance ofconvenience lies. In those cases where the legal rights of the partiesdepend on facts that are in dispute between them the evidence availableto the court at the hearing of thed. application for an interlocutory injunction is incomplete. It is given onaffidavit and has not been tested by oral cross-examination. The purposesought to be achieved by giving to the court deviation to grant suchinjunction would be stultified if the discretion wee clogged by a technicalrule forbidding its exercise if on that incomplete infested evidence thecourt evaluated the chances of the plaintiff ultimate success in the actionat 50 per cent or less but permitting its exercise if the court evaluated hischances at more than 50 per cente. The notion that it is incumbent on he court to undertake what is in effect apreliminary trial of the action on evidential material different from that onwhich the actual trial will be conducted is I thin of comparatively recentorigin though it can be supported by references in earlier cases to theneed to show a probability that the plaintiff is entitled to relief (Preston vluck per cotton LJ) or a strong prima facia case that the right which heseeks to protect in fact exists (smith v Grigg ltd per Atkin LJ). These are tobe contrasted with expressions in to her cases indicating a mush seekonerous criterion such a the need to show that a probability rp a strongprima facie case applied only to the establishment by the plaintiff of hisright and that the lesser burden of showing an arguable case to be triadapplied to the alleged violation of he right by the defendant (don marproductions ltd v bart4 per ungoed Thomas J Harman pictures NV vOsborne per Goff. The suggested distinction between what the plaintiffmust establish as respects his right and what heMust show as respects its violation did not long survive. It was rejected it by thecourt of Appeal in Hubbard v Vosper – a case in which the plaintiff entitlement tocopy right was undisputed be an injunction was refused despite the apparentweakness of the suggested defense Te court however expressly deprecated anyattempt to fetter the discretion of the court by laying down any rules which wouldhave the effect of limiting the flexibility of the remedy as means of achieving the304