Re-examining The Siskina Doctrine: Recent Developments

In The Siskina, the House of Lords propounded the view that a right to obtain an interlocutory injunction is not a cause of action and is dependent upon a pre-existing cause of action against the party enjoined. Although the decision engaged a narrow point of construction, this pronouncement has been adopted as a general prescription for granting interlocutory injunctions. This fails to recognise the fundamental distinction between jurisdiction to grant an injunction and discretion or power to do so. The Siskina falls in the latter category. The court's jurisdiction is largely unconstrained and in most cases the principal issue is not whether an injunction can be granted, but whether, on the particular facts, it should. In this setting The Siskina has a limited function in contributing to a body of principles which guide the court's power to grant interlocutory injunctions. The diverse circumstances in which injunctive relief is sought are not susceptible to a single formula. This is evident in recent judgments, which have renounced The Siskina's restrictive doctrine as being inconsistent with the inherent nature of discretionary relief.