Damages in lieu of an injunction in New Zealand: Closing your ears to the public interest?

Abstract

An award of damages in lieu of an injunction can have vast and far-reaching consequences. It can undermine legal rights by permitting an offensive activity.. On the other hand, that activity may benefit society through employment or public utility, and awarding damages in lieu would allow society to be better off than if an injunction was awarded.

For over a century, the court's discretion to award damages in lieu was restricted in Shelfer v City of London Electric. The UK Supreme Court in Lawrence v Fen Tigers did away with the restrictions around the discretion, opening up the area to an endless range of considerations. This essay examines the position of damages in lieu in New Zealand. A range of different jurisdictions are examined, leading to the conclusion that New Zealand will adopt that law shift in Fen Tigers. A range of non-exclusive considerations are formulated. Finally, the quantum of a damages in lieu award is examined with reference to 'wrongful use' damages.