In the nineteenth century, numerous treatises were published on the law of injunctions in England and Wales – see, for example, Charles Drewry, A Treatise on the Law and Practice of Injunctions (London 1841); William Joyce, The Doctrines and Principles of the Law of Injunctions (London 1877); and William Kerr, A Treatise on the Law and Practice of Injunctions in Equity, 3rd ed., (London 1888). But, in the twentieth century, and into the early part of the twenty-first century, sustained book-length treatment of the law of injunctions was rare. Professor David Capper’s Injunctions in Private Law, alongside other works such as Stephen Gee, Commercial Injunctions, 7th ed., (London 2022) and Yaaser Vanderman, Manual on Protest Injunctions (online book, version 3, 2025), demonstrates that injunctions scholarship is enjoying something of a renaissance. This renewed interest in the law of injunctions is timely. The Supreme Court and the Privy Council have in recent years grappled with difficult questions about the availability of injunctive relief in radically different contexts – Convoy Collateral Ltd. v Broad Idea International Ltd. [2023] A.C. 389; Wolverhampton City Council v London Gypsies and Travellers [2024] A.C. 983; and Abbasi and another v Newcastle upon Tyne Hospitals NHS Foundation Trust [2025] UKSC 15.
What Capper’s book offers is a comprehensive and meticulous account of the principles governing the award of injunctions in private law. Although Capper does not define the concept of “private law”, the book is focused on the availability of interim and final injunctive relief in respect of private and public nuisance, trespass to land, breach of confidence, intellectual property infringements and breach of contract. The book is structured as follows. After an introductory chapter, Chapter 2 analyses the general principles governing the award of interim injunctions as set out in American Cyanamid Co. v Ethicon Ltd. [1975] A.C. 396. Chapter 3 focuses on the cases in which interim injunctions have been granted in particular categories of case. In the same vein, Chapter 4 analyses the general principles governing the award of final injunctions (which includes a discussion about whether damages should be awarded in lieu of an injunction and how such damages should be calculated) and Chapter 5 examines final injunctions that have been granted in respect of discrete causes of action. Chapter 6 analyses the law governing when an injunction can be granted in respect of a negative contractual right, with a particular focus on contracts for personal services.
Capper should be commended for the depth and breadth of his analysis of the case law. It goes far beyond any of the general equity texts that consider the topic of injunctions more generally. Moreover, by focusing exclusively on injunctions in aid of private law rights, Capper’s book covers new ground that is not dealt with in any text devoted exclusively to the law of injunctions.
One of the book’s distinguishing features is Capper’s method of, in one chapter, analysing the general principles governing the award of a particular type of injunction and, in the next chapter, examining discrete categories of case in which such injunctions have been granted. This technique enables Capper to show with precision how high-level principle is applied to particular fact scenarios and how sometimes that principle requires amendment in order to meet the justice of a certain case (see e.g. Capper’s analysis of injunctions against persons unknown (particularly pp. 265–66)). This is especially helpful in understanding, from a broader level of abstraction, how equity moulds itself to the specific legal right that a claimant seeks to be enforced by an injunction. Capper’s technique also makes the book more practical as its focus is on the categories of case in which injunctions have in fact been granted. Practitioners can therefore turn to sections in the book that are context-specific and that consider fact scenarios that are not usually considered in standard equity texts (notable examples are: (1) interim injunctions in freedom of expression cases (pp. 97–118); (2) final injunctions to restrain a breach of a restrictive covenant affecting land (pp. 216–23); and (3) final injunctions to restrain a breach of confidence (pp. 235–40)). Capper articulates the principles governing the award of injunctions by analysing closely and in chronological order, the decisions and the reasoning in the leading cases in the specific topic area under discussion. The book is therefore an excellent resource for practitioners to understand the development of the law of injunctions in particular categories of case.
Many arguments could be advanced in favour of, and against, Capper’s synthesis of the general principles in each of the book’s chapters. But what is much more profitable is to consider some of the claims made by Capper about important legal issues in the law of injunctions that are of significance to both practitioners and academics. While there are many, two deserve exclusive attention.
The first is an issue considered by the Privy Council in Convoy Collateral Ltd. v Broad Idea International Ltd. [2023] A.C. 389: do courts have the power to grant an injunction if a claimant is unable to show that an injunction they seek is in aid of a legal or equitable right? Capper, with his usual rigour, analyses in chronological order the cases that have considered this issue, including Convoy Collateral. In that case, Lord Leggatt, giving the leading judgment, advised obiter dicta that “there is no reason in principle to link the grant of … an injunction to the existence of a cause of action” (at [90]). His Lordship reasoned that “there was and is no limit on the power of courts with equitable jurisdiction to grant injunctions except where restrictions have been imposed by statute” and that “provided the court has in personam jurisdiction over the person against whom an injunction … is sought, the court has jurisdiction, in the strict sense, to grant it” (at [78]). Capper defends this reasoning. He observes that, in the older case law, “not once does any reason appear to have been given explaining why an injunction should only be available in support of a traditional cause of action” (pp. 28–29). In Capper’s view, it is incorrect to think that injunctions can only be granted in certain categories of case (p. 23) and “free-standing injunctions” can and should be awarded (pp. 29–30). Once an applicant for an injunction has shown that a court has personal jurisdiction over a defendant, the question becomes one of the exercise of the court’s discretion. That is, “the court may grant an injunction” and “the applicant will bear a heavy onus of convincing the court that the case is appropriate for the grant of an injunction” (p. 23).
Capper is right to observe that injunctions are not restricted to being granted in certain established categories (as this would stifle necessary incremental development). However, it is difficult to accept his contention that there is no good reason for requiring an applicant to demonstrate that the injunction they seek is in aid of a legal or an equitable right.
This requirement ensures that courts do not exceed their judicial function. It is axiomatic that, even in England and Wales, judicial power is not unlimited. While section 37(1) of the Senior Courts Act 1981 confirms and restates powers of the Chancery (and common law) courts to grant injunctions which existed before the Supreme Court of Judicature Act 1873, orders made pursuant to section 37(1) must therefore be a proper exercise of judicial power. It is well established that “[a] Court of law has no power to give effect to any but rights recognised by law”: Waterside Workers’ Federation of Australia v J W Alexander Ltd. (1918) 25 C.L.R. 434, 464 (see also Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd. (2001) 208 C.L.R. 199, at [60]). As Lord Macnaghten observed in the House of Lords in 1887, “I apprehend that it is not the function of a Court of justice to enforce or give effect to moral obligations which do not carry with them legal or equitable rights” (Blackburn v Vigors (1887) 12 App. Cas. 531, 543). This constraint on judicial power affects the courts’ power to grant injunctions. For example, in Day v Brownrigg (1878) 10 Ch. D. 294, it was argued by the claimant that section 25(8) of the Judicature Act 1873 provided the High Court with the power to create “a legal right to the exclusive use of any name [a person] chooses to affix to any part of his landed property” that could be enforced by an injunction. Jessel M.R. rejected explicitly this contention, stating (on p. 302): “I disclaim the power of legislation which is asserted to exist in this Court, and I say that if such a right is to be created it must be created by the Legislature properly so called.” It is therefore unsurprising that in the seminal case of North London Railway Co. v Great Northern Railway Co. (1883) 11 Q.B.D. 30, Cotton L.J. observed that section 25(8) of the Judicature Act 1873 provided power to courts to grant a remedy that formerly could not have been awarded, “but still only a remedy to enforce rights which according to law were previously existing and capable of being enforced in … the High Court” (pp. 39–40).
What the foregoing judicial statements indicate is that, as judicial power is not unlimited, there is a corresponding limit on the courts’ power to grant injunctions. That limit is distinct from the idea that orders made pursuant to section 37(1) must be capable of properly being seen as “just and convenient”, which is determined by the ordinary practice of courts applying equitable principles in the exercise of their discretion. Specifically, the power in section 37(1) of the Senior Courts Act 1981 is enlivened only where the injunction sought by a claimant is in aid of a legal or equitable right. This book review is not the place to examine the precise effects of this limitation on the power contained in section 37(1). But two short points are worth highlighting. First, the limitation is of lesser importance in those cases in which injunctions are awarded pursuant to the courts’ inherent power to guard against abuse of processes. Second, courts should not take a restrictive view on what is a legal or an equitable right. Such a right can be a traditional one related to a cause of action, as envisaged in North London Railway. But it may also be, among other things, a statutory right, a prior or future order made by a court that a litigant seeks to enforce (as a court’s order generates a legal right: see Stephen Smith, Rights, Wrongs and Injustices: The Structure of Remedial Law (Oxford 2019), ch. 4) or a right in another jurisdiction that an English court would regard as legally sustainable.
The next issue considered by Capper that deserves exclusive attention is one that is frequently debated among tort scholars: is an award of damages or an injunction the appropriate remedy for a continuing invasion of property rights? After analysing the cases that have considered this issue from Shelfer v City of London Electric Lighting Co. [1895] 1 Ch. 287 to Coventry v Lawrence [2014] A.C. 822, Capper concludes that Lord Sumption’s and Lord Clarke’s contention in Coventry v Lawrence that damages should be the primary remedy for a continuing nuisance “is unprincipled and cannot be accepted” (p. 171). In Capper’s view, “people whose rights are being infringed should in principle be given a remedy that allows them to enjoy their rights, instead of being compensated for the loss of them” (p. 173). Capper also highlights that the decision and the reasoning in Coventry v Lawrence has had little impact on subsequent case law (pp. 171–72).
There is much to be said for Capper’s view. One point that can be added to his analysis is that once a defendant is proven to have invaded a claimant’s legal right and intends to continue to do so in the future, courts only rarely and reluctantly permit a rights violation to continue by awarding damages in lieu of an injunction. Since the House of Lords decision in Imperial Gas and Coke Company v Broadbent (1859) 11 E.R. 239, it has been well established orthodoxy that it is not appropriate for courts to permit a rights violation to continue where it would be more convenient for the defendant, as against the claimant, to do so. Lord Sumption’s and Lord Clarke’s reasoning in Coventry v Lawrence is inconsistent with this orthodoxy. If their approach were adopted, it would raise the question of whether it would be correct to describe common law rights as “rights” at all.
As Capper identifies, this is not to say that there are no cases in which damages should be awarded in lieu of an injunction. If a defendant can show that a monetary sum would adequately remedy the damage and/or loss that the claimant would suffer if the defendant continued to commit his or her tort against the claimant, this fact may persuade a court to exercise its discretion to award damages in lieu of an injunction. For example, damages have been held to be an adequate remedy for: the building of an extension to a house that encroached onto a wall owned by the claimant (Jones v Ruth [2011] EWCA Civ 804), a continuing private nuisance caused by a defendant permitting its customers to hit golf balls into the claimant’s paddocks (Goode v Owen & Four Ashes Golf Centre Ltd. [2001] EWCA Civ 2101) and repeated trespasses on land (Pilford v Greenmanor [2012] EWCA Civ 756). Nevertheless, it is important to recognise that, even if a court is satisfied that an award of damages would adequately remedy the claimant’s future damage or loss, this fact may not be sufficiently weighty in the discretionary analysis to persuade the court that damages should be awarded in lieu of an injunction (see e.g. Jacklin v Chief Constable of West Yorkshire [2007] EWCA Civ 181, at [29], [52]; HKRUK II (CHC) Ltd. v Heaney [2010] EWHC 2245 (Ch), at [85]). As Capper shows persuasively in his analysis of the case law, the central point is that ordinarily a claimant whose rights are being violated continuously is entitled to an injunction to stop the defendant from continuing to infringe the claimant’s rights.
At a time when traditional doctrinal scholarship seems to be falling out of fashion, Injunctions in Private Law serves as a reminder to the academy that there are large swathes of modern case law that remain underexplored and deserve academic attention. Capper’s book is a timely and essential resource for judges, practitioners and academics who require a clear statement of the positive law governing the award of injunctions in private law. Furthermore, it provides a rich foundation for difficult theoretical questions about the law of injunctions and the role of equity to be explored.
