Injunctions, land and the cynical breach

Abstract

AbstractAn injunction is typically characterised as the primary remedy to prevent a continuing interference with a claimant's property rights. It can be easier to obtain such a remedy against a cynical defendant who knowingly interfered with those rights, as opposed to a naïve or unwitting party who was unaware of them. It is not obvious, however, why the defendant's state of mind should affect what remedy the claimant is afforded in vindicating their property rights. This paper examines the role played by the defendant's state of mind when considering whether to grant an injunction. It argues that a defendant who knowingly infringes a property right in respect of land for material gain assumes the risk that an injunction will be granted to stop that infringement. As a consequence, the question of whether such an order will create hardship or oppression is either diminished or eliminated as a factor. This approach also vindicates the proprietary nature of such rights, which may be difficult to assess in financial terms.