“29. The purpose of interim relief, as Lord Diplock articulated it in American Cyanamid at 406E, is to protect the claimant against injury by a violation of its right for which it could not be adequately compensated in damages if the claimant were to succeed at trial. That is why, if damages are indeed an adequate remedy, there are no grounds for interference with the defendant’s freedom of action by grant of an injunction: National Commercial Bank Jamaica v Olint[2009] UKPC 16 ,[2009] 1 WLR 1405 , §16. 30. That does not necessarily require a loss which would sound in damages. Indeed, a loss for which damages may not be recoverable is a classic example of a case where damages would not be adequate compensation: SmithKline Beecham v Apotex Europe[2003] EWCA Civ 137 , per Carnwath LJ, and AB v CD[2014] EWCA Civ 229 , §27. The foundation of the injunction must, however, always be a risk of harm to the claimant that is caused by the infringement of the claimant’s right of which vindication is sought in the underlying claim. As Lord Diplock emphasised in Bremer Vulkan v South India Shipping[1981] AC 909 , 979–80, the jurisdiction to grant an infringement injunction is confined to injunctions ‘granted for the enforcement or protection of some legal or equitable right’. That is, indeed, the reason why the first question that must be considered by the court in determining an application for an interim injunction is whether there is a serious question to be tried on the merits of the claim in question.”
“The disconnect between the alleged infringement and the loss relied on by Lenovo can be illustrated in this way: if Ericsson were to be enjoined by this court in the manner sought in paragraph 1 of the draft order, that would not have any impact whatsoever on the proceedings in Brazil and Colombia, or any injunctions granted in those jurisdictions. It is, therefore, transparently not the alleged infringement that is the cause of Lenovo’s loss. That is why, of course, Lenovo does not actually want the outcome of this application to be an order in the terms of paragraph 1. What it wants is for Ericsson to avoid that outcome by agreeing to one of the Preferred Alternatives. But that merely emphasises the fact that this application has nothing to do with the protection of Lenovo’s right under the EP 649 patent. What Lenovo is actually seeking is an outcome that does nothing at all to protect its rights under EP 649.”
“One can ask why would Lenovo persevere with litigation once it is enjoined in two of its important markets, the answer is evident, it is because the rates on the table from Ericsson would cause significantly more damage than the short term pain which is being inflicted in those jurisdictions.”
“i) The power to grant injunctions stated in s.37(1) [of theSenior Courts Act 1981 ] merely confirms and restates the power of the courts to grant injunctions which existed before theSupreme Court of Judicature Act 1873 and still exists (Wolverhampton, [17]). ii) It is necessary to distinguish between two senses of the word ‘jurisdiction’: the power to grant an injunction and the principles and practice governing the exercise of that power. The former is the only really correct sense of the expression (Wolverhampton, [16]). The power of the courts with equitable jurisdiction to grant injunctions is, subject to any relevant statutory restrictions, unlimited (Wolverhampton, [17]). As a court of inherent jurisdiction, the High Court possesses the power, and bears the responsibility, to act so as to maintain the rule of law (Wolverhampton, [18]). iii) Like any judicial power, the power to grant an injunction must be exercised in accordance with principle and any restrictions established by judicial precedent and rules of court (Wolverhampton, [19]). Nevertheless, the principles and practice governing the exercise of the power to grant injunctions need to and do evolve over time as circumstances change (Wolverhampton, [19]-[20]). iv) The width and flexibility of the equitable jurisdiction to issue injunctions are not to be cut down by categorisations based on previous practice (Wolverhampton, [21]). That is not to undermine the importance of precedent, or to suggest that established categories of injunction are unimportant. However, injunctions may be issued in new circumstances when the principles underlying the existing law so require (Wolverhampton, [22]). v) The exercise of the jurisdiction must be principled, but the criterion is injustice. Injustice is to be viewed and decided in the light of today’s conditions and standards, not those of yester-year (Wolverhampton, [21] …).”