of law that covers the case, but also asserts that such a rule would not cover
the plaintiff.
Typically in this case, the facts of the plaintiff’s case would satisfy a number
of the elements of this new rule but fail to satisfy one or more
of them.
Because of this element, or these elements, the new rule does not apply to the
plaintiff.
140
However, this alternative rule is still constituted by a generalisation
of facts, it is just that not all of the facts that are so generalised consist of facts
from the case before the court.
Consequences
Consequences have two major components. One consists of the type of
consequences provided. The other consists of the parties -
the party for
whose benefit these consequences are imposed, and the party who has the
burden imposed by the consequences.
Types of Consequences
Laws can impose any of a range of consequences on parties.
141
In theory a
court can choose any consequences it likes, but in reality it is constrained by
the spirit of common law, so that it
will generally choose unusual
consequences only when it is necessary to regulate unusual circumstances.
Otherwise it will stick to the general remedies of which the main types are
damages and injunction.
Damages consist of an amount of money that the defendant has to pay to the
plaintiff to compensate them for their loss or injury. An injunction is an order
to a party to refrain from doing something and sometimes (but not often)
requiring them to do something. In each case the “something” to be done or
not done is in the order of preventing the committing of a wrong, or the
continuing, repeating or compounding of a wrong that has been committed.
One illustration of a court creating a special remedy to deal with special cases
consists of the Anton Piller order. This is named after the case when it was
forcefully formulated.
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Some background
is necessary to explain this
remedy. A court is generally far more willing to grant a restraining in junction
(ordering someone not to do something) than a mandatory injunction (ordering
someone to do something). The Anton Piller injunction is a mandatory
injunction used in cases involving illegal or bootleg copies of musical
recordings. The injunction requires the defendant to permit the plaintiff to
inspect the defendant’s premises in order to determine if there is any material
140
A classic example is Hedley Byrne v Heller [1964] AC 465.
141
Chapter 11 Effects
142
Anton Piller KG v Manufacturing Processes Ltd [1976] 1 Ch 55
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