Variations on a Theme: Georgia's Evolving Test for Interlocutory Injunctive Relief

JurisdictionGeorgia,United States
CitationVol. 28 No. 1 Pg. 0016
Publication year2022
Variations on a Theme: Georgia's Evolving Test for Interlocutory Injunctive Relief
Vol. 28 No. 1 Pg. 16
Georgia Bar Journal
August, 2022

The Legal

Variations on a Theme: Georgia's Evolving Test for Interlocutory Injunctive Relief Over the years, Georgia's appellate courts have struggled to adopt a clear rule for the grant or denial of an interlocutory injunction. This article looks at the different tests the courts use to make their rulings.


When it comes to granting or denying temporary injunctive relief, it has been wryly suggested that there seem to be almost as many tests as there are jurisdictions.[1] To add credence to this claim, it is likely that no jurisdiction has embraced only one test throughout its legal history. That is certainly the case in Georgia, where a number of tests have been employed over the years. This article will explore the evolution of Georgia's interlocutory injunction test, from its genesis to its most recent iteration. It will demonstrate that Georgia's courts have reexamined, refined and attempted to improve its test—a task with which they continue to grapple.

The main purpose of an interlocutory injunction is to preserve the status quo pending a trial on the merits.[2] That means preserving the situation as it existed before the alleged harm to the plaintiff occurred, not preserving the status quo after the plaintiff filed suit.[3] Also, the quest for an interlocutory injunction need not be the beginning, nor the end, of a lawsuit seeking injunctive relief. That is because a plaintiff can first begin his or her action with a

An adequate legal remedy must be as practical and efficient as the equitable remedy a claimant seeks.

request for a temporary restraining order, although he or she need not do so.[4] Also, a claimant can seek a permanent injunction, whether or not he or she is successful in obtaining interlocutory relief.[5]

The test for interlocutory injunctive relief differs from the tests for a temporary restraining order and a permanent injunction. A temporary restraining order, which under Georgia law cannot exceed 30 days, may be granted without notice to the adverse party if the applicant can demonstrate that "immediate and irreparable injury, loss or damage will result to the applicant before the adverse party can be heard in opposition."[6] The test for a permanent injunction requires the movant to prove actual harm and succeed on the merits, rather than merely demonstrating a likelihood of success on the merits and the potential for irreparable harm.[7]

The Traditional Test and the Sliding Scale Test

Although numerous interlocutory injunction tests have been applied throughout the United States, many jurisdictions have adopted either of two basic tests— the "traditional test" or the "sliding scale test"—or have tweaked them to their liking.[8] Georgia's courts appear to have embraced elements of both tests in their test at one time or another.

To obtain interlocutory injunctive relief, the traditional test requires the plaintiff to satisfy four prongs: (1) the likelihood of success on the merits of the case; (2) the potential for irreparable harm to the plaintiff if the injunction is denied; (3) the balance of hardships to the parties (i.e., the hardship to the defendant if the injunction is granted as measured against the hardship to the plaintiff if no injunction issues); and (4) the effect of an injunction, or the denial of an injunction, on the public interest.[9]

Under the more lenient sliding scale test, the plaintiff must demonstrate that (1) in the absence of injunctive relief he or she will suffer irreparable injury; and (2) either (a) the likelihood that the plaintiff will succeed on the merits or (b) serious questions on the merits of the case exist, justifying an order for injunctive relief, coupled with a showing that the balance of hardships tip in the plaintiff's favor.[10]

The primary difference between the two tests is that under the traditional test, the moving party must demonstrate the likelihood of prevailing on the merits, while under the sliding scale test, no such showing need be made. The sliding scale movant must only raise a serious legal question and demonstrate that the balance of harms lies in his or her favor. Thus, the sliding scale approach balances the interests of the parties and significantly lessens the burden upon a movant seeking an interlocutory injunction.

It is axiomatic that a party cannot seek equitable relief if he or she has an adequate legal remedy.[11] Yet, "an adequate legal remedy does not mean any legal remedy."[12] An adequate legal remedy must be as practical and efficient as the equitable remedy a claimant seeks.

Note that under both the traditional and the sliding scale tests, the party seeking a temporary injunction must show he or she will be irreparably injured in the absence of injunctive relief.[13] Georgia's courts have given the plaintiff more leeway in this regard. Indeed, the Supreme Court has stated that when "the equities favor the party seeking the injunction ... a demonstration of irreparable injury is not an absolute prerequisite to interlocutory injunctive relief."[14]

Early Attempts to Forge a Workable Test

Georgia's Supreme Court was not established until 1845. Thus, we must look to the early decisions of Georgia's superior courts, which were reported beginning in 1805, to ascertain how requests for injunctive relief were first weighed.[15]

The earliest reported test for injunctive relief reported in Georgia was articulated by Judge Charlton in Ex Parte Grimball.[16] There, he set forth an overly broad test, writing that an injunction was "a prohibitory writ, restraining a person committing or doing a thing which appears to be against equity and good conscience."[17] Charlton recognized that "[t]his is a simple definition given by one of the elementary compilers;" nevertheless, he found it "sufficiently comprehensive to adopt it."[18]

Thirteen years later, Charlton attempted to refine the Grimball test in Albritton v. Bird.[19] In Albritton, the judge wrote:

"[N]o stage of a common law proceeding, no matter what appellation it may assume, can present an insurmountable barrier to the energies of an injunction. Let the foundation of the application be any species of inequity, which a Court of common law cannot remedy, and if the party, upon whom it operates, can step forth with clean hands, and exhibit himself ... [a] victim of fraud, oppression, perfidy, and injustice, equity will interpose and take him under the protection of her abstract principles of right."[20]

The tests proposed by Charlton were long on words and short on specifics, providing no real guidance for the grant or denial of injunctive relief. Ten years later, a clearer, more refined standard was announced by Judge Law in Read v. Dews (II).[21] Adopting his test from an unidentified opinion of the U.S. Supreme Court,[22] Law opined that whether a petition for equitable relief should be granted or denied depended on whether it alleged a "probable right and a probable danger that the right would be defeated" without injunctive relief.[23] And while Law deemed the use of injunctive relief necessary for the preservation of an equitable remedy, he decreed that it was to be used with care so as not to "hinder the enjoyment of a legal right."[24]

Law's approach can be seen as an early attempt to weigh the twin goals of the sliding scale test: a likelihood of success on the merits—what Law called "a probable right"—and a balancing of the equities—what he deemed "a probable danger." Nevertheless, it lacked a hard and fast equation. It would take a number of years for the Supreme Court of Georgia to step in and propose clearer guidelines for the grant or denial of a temporary injunction.

The Supreme Court Establishes Guidelines Embodying Elements of the Sliding Scale Test

In Everett v. Tabor,[25] the Supreme Court of Georgia held:

If the evidence for the complainant is weak, and that for the defendant strong, the injunction could be refused. If that for the complainant is strong, and that for the defendant weak, or even if it be in practical equipoise, the injunction should be granted or refused according to the peculiar circumstances of the particular case. There should be a balance of conveniences in such cases, and a consideration whether greater harm might result from refusing than from granting the [injunction]. If the grant of an injunction in such a case would operate oppressively to the defendant, the restraining order should be refused; but if it appears that if the injunction were denied the complainant would be practically remediless in the event he should thereafter establish the truth of his contention, it would be strong reason why interlocutory relief should be granted.[26]

This "balancing of conveniences" test set out in Everett matched well with the sliding scale test in that it distinctly permits a court to grant or deny a temporary injunction even...

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