‘Equity Does Not Act in Vain’: An Analysis of Futility Arguments in Claims for Injunctions

Abstract

A court exercising equitable jurisdiction can deny specific relief if the order is likely to lack practical effect. This article examines the application of the doctrine of futility to injunctive relief. It will first consider the validity of futility arguments in Australian and UK domestic litigation and then analyse international litigation, where futility is often coupled with jurisdictional questions. The article will argue that the success of futility arguments depends on the likelihood that the order will lack practical utility for the plaintiff as well as the strength of other discretionary considerations. In international litigation, concerns about comity can combine with futility to make it appropriate to deny the exercise of the court’s jurisdiction. The recent Japanese Whaling Case demonstrates that futility concerns are also relevant in the case of statutory injunctions. In that context, the question of futility is linked intimately with the objects of the statute in question. A court should not refuse to exercise its jurisdiction on the basis of alleged futility where the mere granting of an injunction promotes the objects of the statute even if the likelihood of enforcement is small.

Keywords: Law of equity; remedies; injunctions; futility

JEL Classification: K10, K13, K39, K42, K43