- 11 A
A
matter of contract. In the premises, whether Chor’s wife should also be
B
C
made a plaintiff does not affect Chor’s capacity to sue.
Higher standard of proof
D
C
D
35.
E
B
Mr Hughes submitted that demonstrating that the above
constitute serious questions to be tried would not suffice. As far as the
E
mandatory part of the injunction was concerned, Chor had to satisfy the
F
F
court that it has a real prospect of success at the trial. This would be a
G
higher standard of proof.
G
H
36.
H
I
That the injunction being sought is mandatory in nature does
not per se entail the application of a different test in the consideration of
I
the merits of the claim. It is the finality effect of the grant or refusal of the
J
K
interlocutory relief that matters. An interlocutory order would have such
effect if its grant or refusal would effectively dispose of the action: see TKI
J
K
Ltd v New Happy Ltd [1995] 1 HKC 551 at 554B-C. As such, the finality
L
M
effect may well exist in the case of a prohibitory injunction. An instance
would be an interlocutory injunction in an action to enforce a contractual
L
M
restraint of trade or anti-competition clause that would expire before the
N
O
P
trial of the action.
37.
After all, it is the consideration of the risk of injustice in
withholding and granting the interlocutory injunction in the circumstances
N
O
P
of the particular case: see Music Advance Ltd v The Incorporated Owners
Q
R
of Argyle Centre Phase I [2010] 2 HKLRD 1041 at §12. In the present
case, the interlocutory injunction sought, both the mandatory and the
Q
R
prohibitory part of it, does not have the finality character of effectively
S
T
disposing of the case. If the injunction is granted, the availability of the
Video and the caption in the Article would effectively been suspended from
S
T
U
U
V
V
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