INJUNCTIONS AGAINST THE STATE

11 Halsburys Laws of England (3rd edition) page 16 states that an

injunction or order for specific performance may not be granted against the
Crown, but the court may instead make an order declaratory of the rights of the
parties.
In the local jurisdiction the above statement is seen in the State Liability and
Proceedings Act at section 22(2).
Section 22(2) of the State Liability and Proceedings Act (State Liability Act)
provides that:
(2) Where in any proceedings against the State any relief is sought as might in
proceedings between subjects be granted by way of injunction or specific
performance the Court shall not grant an injunction or make an order for
specific performance, but may in lieu thereof make an order declaratory of the
rights of the parties.

The case of Attorney General v Sumair Bansraj 38 WIR 286 dealt with
section 22(2) of the State Liability Act. In that case, the Court of Appeal
recognised that it was prevented by section 22(2) of the State Liability and
Proceedings Act Chap. 8:02, from granting an interlocutory injunction against
the State, a Minister, or officers of the State. However, the court considered that
if the State could not be prevented from destroying or disposing of the
respondents property until the determination of the constitutional proceedings,
the object of the constitution would be defeated in the event that the respondent
succeeded in asserting his right to the enjoyment of his property. In those
circumstances, the court fashioned a remedy, which it called a conservatory
order for the purpose of preserving the property and maintaining the status quo
pending the determination of the motion. Kelsick CJ (at 291 H) expressly
recognised that although the order was not called an injunction, it might be
argued that the effect was the same.
Brathwaite JA in Bansraj laid down the terms of the conservatory order at
page 302 as follows:
Now to the formula. Both remedies of an interim injunction and an interim
declaratory order are excluded by the State Liability and Proceedings Act, as applied
by section 14(2) and (3) of the Constitution and also by high judicial authority. The
only judicial remedy is that of what has become to be known as the 'conservatory
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order' in the strictest sense of that term. The order would direct both parties to
undertake that no action of any kind to enforce their respective rights will be taken
until the substantive originating motion has been determined; that the status quo of
the subject matter will remain intact. The order would not then be in the nature of an
injunction which would offend the provisions of section 22 of the State Liability and
Proceedings Act, as applied by the Constitution; but on the other hand it would be
well within the competence and the jurisdiction of the High Court to 'give such
directions as it may consider appropriate for the purpose of ... securing the
enforcement of ... the provisions' of the Constitution which are designed to protect the
individual against unwarranted invasions of his rights by the State (section 14(2) of
the Constitution).
In the exercise of its discretion given under section 14(2) of the Constitution, the High
Court would be required to deal expeditiously with the application inter partes, and
not ex parte, and to set down the substantive motion for hearing within a week at most
of the interim conservatory order. The substantive motion must be heard forthwith and
the rights of the parties determined. In the event of an appeal, priority must be given
to the hearing of the appeal.

In the Jamaican case Phillip Waite v The Chief Electoral Officer and the
Returning Officer for Kingston Eastern and Port Royal 24 WIR 416, the
Supreme Court of Jamaica examined whether section 16 of the Crown
Proceedings Act, of which section 16(2) was in pari materia with section 22(2)
of the State Liability Act, is in contravention of the Constitution of Jamaica. It
was held that even though the Crown Proceedings Act prohibited the grant of an
interlocutory against the Crown without providing an alternative remedy, it was
not in breach of the spirit of the Constitution since the prospective plaintiff
could be granted an earlier date for trial and the court could not accede to the
plaintiffs application.

In Kublalsingh and Ors v The Attorney General of Trinidad and

Tobago CV 2012-03205 dealt with an appeal from an order of the High Court
refusing the appellant's application for a conservatory order staying the
continuation of works on the Debe to Mon Desir segment of the Solomon
Hochoy Highway extension pending the hearing and determination of the
appellants' application for constitutional relief. In refusing the application for
the conservatory order the trial judge followed the Privy Council decision in
BACONGO v The Department of the Environment and another [2003] UKPC
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63 where the Board applied the principles laid down in the House of Lords
decision American Cyanamid v Ethicon [1975] AC 396 for the grant of
interlocutory injunctions.
The appellants submitted that the trial judge was wrong to apply the
American Cyanamid principles and that the application was grounded in section
14(2) of the Constitution which gave the High Court an original jurisdiction to
make such orders as it saw fit for the purposes of protecting and securing the
constitutional rights of the appellants. It would therefore mean that the court
was not restricted by the principles that apply under the general law for the
grant of interlocutory injunctions. The appellants relied on Bansraj (above).
However, the court said that the very nature of a conservatory order involved
the exercise of a judicial discretion and as mentioned before by Kelsick CJ, the
effect of a conservatory order is arguably the same as that of an injunction. The
court said that the trial judge was correct to apply the American Cyanamid
principles in deciding whether to grant the conservatory order. The court
therefore dismissed the appeal.
In the case of Robinson Crusoe Limited v The Attorney General of
Trinidad and Tobago Suit No. 1965 of 2003 the applicant sought, inter alia, a
conservatory order to preserve the property and business as its private property
until the hearing and determination of the motion and an injunction against the
respondent as representing the State by itself, its servants and/or agents and/or
its instrumentalities from acquiring the property and business or any part
thereof.
The issue in this case was whether the applicant was entitled to the conservatory
order that it sought.
The Court referred to basic principles which emerged from the authorities
presented before the court which are as follows (page 5 of the case):
(a) That the Court should not grant an injunction against the State;
(b) That the Court can make a conservatory order against the State in cases where, but for
the making of that order, the jurisdiction of the Court is likely to be frustrated if the
State proceeds with the proposed act (See: the decision of the Court of Appeal in AG
v. Sumair Bansraj [1985] 38 WIR 286);
(c) That in exercising its discretion whether to grant or refuse the application for a
conservatory order, the Court must examine and consider factors similar to those that
it is required to consider on an application for an interim injunction, but with
modifications appropriate to the public law element of the case, namely (i)

Whether the applicant has shown that it has a cause of action in law that
entitles it to substantive relief;

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(ii)

Whether there is urgency in that there is an impending threat to its legal

rights; and

(iii)

Whether the relief sought is obtainable against the named respondent (in this
case the Attorney General)

(See: HCA No. 1478 of 1994 Central Trinidad Steel Limited v. Iron and Steel
Company Limited and others)

In examining the nature of the relief the court was of the view that the real
nature of the interim relief sought by the applicant was injunctive and was not a
true conservative order. This was so since as part of the relief which the
applicant sought was "an injunction against the respondent herein as
representing the State by itself, its servants and or agents and or its
instrumentalities from acquiring the property and business of the applicant at
Pigeon Point or any part or parts thereof". This was "clearly in the nature of
injunctive relief and is not aimed at the preservation of the property". The Court
was of the view that the applicant failed to demonstrate that there was any
special circumstance that warranted the making of a conservatory order. The
court then examined whether a cause of action in law entitled the applicant to
substantive relief. In order to prevent the State from proceeding with any plan to
acquire property, the applicant would have had to show that the State was
unlikely to follow due process and there was no evidence before the Court that
the State will not follow due process. On this point the Court said that there was
no serious issue to be tried in relation to a breach of the applicant's rights under
the Constitution. The issue of urgency was then examined where the Court
decided that it was unlikely that there would be any acquisition before the
substantive motion was heard and completed.
Since the Court found that the nature of the interim relief sought was
injunctive in nature and not conservatory the order sought against the Attorney
General was not obtainable.

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Charles v Attorney General et al H.C.A. No. 237 of 2001

FACTS:
Winston Charles ("Sergeant Charles"), the applicant has been a full time member of the
Special Reserve Police of Trinidad and Tobago with a period of service of twenty-four (24)
years.
He claims that he has been discriminated against and treated unfairly by his employers the
Minister of National Security, a Public Authority, in that despite performing identical police
functions as members of the Trinidad and Tobago Police Service, his terms and conditions of
employment are grossly inferior to those of the members of the Trinidad and Tobago Police
Service.
The respondents have recently placed the applicant in the undesirable position of choosing
either absorption into the Regular Police Service at a demoted level of constable or accepting
the separation package offered by the respondents. In the interim the respondents agent
and/or servant, Superintendent Thomas has ordered the applicant to proceed on vacation
leave with pay.
As a consequence, the applicant claims that his rights as contained in sections 4 (b) and (d) of
the Constitution of Trinidad and Tobago, i.e. the right of equality before the law and the
protection of the law and to equality of treatment from a public authority in the exercise of its
functions, have been violated and infringed and he has suffered grave inconvenience, loss and
damage.
He filed a Constitutional Motion ("the Constitutional Motion") against the Attorney General,
the Minister of National Security and the Commissioner of Police (collectively "the
respondents").
He later sought the following interlocutory relief to preserve his position pending the
outcome of the Constitutional Motion:
An injunction or in the alternative a conservatory order prohibiting the respondents either by
themselves or through their agents and/or servants from ordering the applicant herein to
either accept absorption into the Trinidad and Tobago Police Service at the rank of constable
or in default thereof to proceed on vacation leave contrary to his desires and with a view to
terminating him thereupon,
An injunction or in the alternative a conservatory order prohibiting the respondents either by
themselves or through their agents and/or servants from terminating the services of the
applicant herein.

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ISSUE:
Whether the injunction or conservatory order should be granted at this interlocutory stage.

JUDGMENT:
Section 14 of the Constitution is designed to give the judge the power and the means by
which to ensure that the certain rights and freedoms (provided for in sections 4 and 5 of the
Constitution) may ultimately be protected, or on occasion, may temporarily be protected,
pending a determination by the Court at a later stage, of the merits of a Citizen's case that the
State breached a right of his under the Constitution.
Section 14(3) brings the State Liability and Proceedings Act Chapter 8:02 into play. S. 22 of
that Act is as follows:
22.(1) In any civil proceedings by or against the State the Court, subject to this
Act, may make such orders as it may make in proceedings between subjects, and
otherwise to give the appropriate relief as the case may require.
(2) Where in any proceedings against the State any relief is sought as might in
proceedings between subjects be granted by way of injunction or specific
performance the Court shall not grant an injunction or make an order for specific
performance, but may in lieu thereof make an order declaratory of the rights of the
parties.
(3) In any proceedings against the State for the recovery of land or other property,
the Court shall not make an order for the recovery of land or the delivery of the
property, but may in lieu thereof make an order declaring that the plaintiff is
entitled as against the State to the land or property or to the possession thereof.
(end of page 16)
(4) The Court shall not in any civil proceedings grant any injunction or make any
order against an officer of the State if the effect of granting the injunction or
making the order would be to give any relief against the State which would not
have been obtained in proceedings against the State."

Myers J referred to the case of Attorneys General v. Sumair Bansraj (1985) 38 W.I.R.
286 where it was decided that:

Firstly, the remedies of an interim injunction and an interim declaratory order

against any officer of the State are excluded by the State Liability and
Proceeding Act, as applied by section 14(2) and (3) of the Constitution.
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 Second, the only judicial remedy available under section 14 of the

Constitution is a "conservatory order" in the strictest sense of the term, that is
to say, an order directing both parties to undertake no action of any kind to
enforce their respective rights will be taken until the substantive originating
motion has been determined; that the status quo of the subject matter will
remain intact. The order would not then be in the nature of an injunction and
would not be in breach of s. 22 of the State Liability and Proceedings Act and
it would be well within the competence and jurisdiction of the High Court.
An applicant seeking relief under section 14 of the Constitution has to
demonstrate that his or her substantive originating motion has some reasonable
foundation, just as there is a threshold in cases where a plaintiff is applying for
an interlocutory injunction, namely that the plaintiff must show that there is a
"real issue to be tried".

Myers J developed a template of questions to consider when faced with an application for an
injunction and/or conservatory order under section 14:

1. Does section 22 of the State Liability and Proceedings Act apply? If the answer to that
question is "yes", then injunctive relief properly so-called will be unavailable.
2. The first question having been answered in the affirmative, the trial judge must then turn to
consider: in the circumstances of the case before me, should I make a Bansrai order?
3. Does the applicant have a cause of action in law entitling him to substantive relief, that is
to say, can he say that there is a serious issue to be tried as to the reality of whether his rights
under the Fundamental Rights Provisions of the Constitution have been breached?
If the answer to that question is "yes", then:
4. Is there any status quo to "conserve"? The horse may, for instance, have bolted. If the
answer to that question is in the negative, it is difficult to see how a conservatory order would
lie: Courts do not act in vain.

Application to Facts:
Myers J was not persuaded that the alleged breach of section 4(d) would properly support the
grant of a conservatory order. This because that breach would vest in Sgt. Charles an accrued
right to compensation for the breach: what would the Court be conserving in order to support
that right to compensation?
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All that Sgt. Charles could arguably have legitimately expected was that Regulations would
have been made, not that he would be kept on for all time on a temporary whole time basis.
Sgt. Charles own evidence suggests that he was crystal clear that the Special Reserve Police
were not a body where a member being used on a temporary whole time basis, would be kept
on that basis for all time. He himself accepts that they were being used to plug a gap left by
the inadequate strength of the regular police service until the Reserve Police decided to return
to its original function as a reserve body.
In summary, it was decided that Sgt. Charles' application failed to surmount the threshold of
showing that there is a "serious issue to be tried.
DECISION:
The injunction or conservatory order was not granted.

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