Tutorial One

What is the appropriate test applied by the Irish Superior Courts in granting an interlocutory
injunction? In discussing the development of this test, students should also consider whether
the judgment of O’Higgins CJ in Campus Oil Ltd v Minister for Industry and Energy [1984]
ILRM 45 altered the standard applied in the United Kingdom by virtue of American
Cyanamid v Ethicon Ltd [1975] AC 396.

Inductions are “Orders of the courts to a party to do or refrain from doing a particular
act.
 It’s the most Flexible equitable remedy, v wide ranging

Interlocutory injunctions is a court order to compel or prevent a party from doing certain acts
pending the final determination of the case. It is an order made at an interim stage during the
trial, and is usually issued to maintain the status quo until judgment can be made.
▸ Freezes the ‘state of play’ until an action has ended.
▸ Allows for a hearing to take place whilst maintaining equilibrium between
both parties.
▸ Preserves the rights of the plaintiff by continuing the circumstances which
exist at the time they institute proceedings.
▸ Prevents the plaintiff from suffering irreparable prejudice by reason of delay
which must occur between the proceedings being instigated and being heard at
trial.

Criteria for Granting an Interlocutory Injunction

▸ The original test applied by the Courts in Ireland and the UK was quite severe.
▸ It was so severe in fact, that most could not satisfy it procedurally, and this
itself led to injustices occurring.
▸ The plaintiff was required to establish that they had a prima facie cause of action
before an interlocutory injunction could possibly be granted.
▸ Therefore, in addition to the balance of convenience (every other factor)
favouring the injunction, the plaintiff had to establish that they had better
than 50/50 odds of winning the case before the case had been heard.
▸ Stratford and son ltd v Lindley [1975] AC 396.

Esso Petroleum Co (Ireland) v Fogarty [1965] IR 531

▸ Within a decade, this test was abandoned in favour of one which was more balanced.
▸ American Cyanamid v Ethicon Ltd [1975] AC 396.
▸ Plaintiff must instead establish that:
1. The claim was not frivolous or vexatious, in other words that there was ‘a
serious question to be tried,’ and where this was established, the court had to
go on to;
 2. Consider the balance of convenience which involved assessing the probable
implications for both parties should relief be granted or refused. In considering
the balance of convenience the most important factor is
3. The adequacy of damages. Another related issue is whether the plaintiff
would be able to pay any damages which would be awarded at the trial of the
action.
 If you are granted an injunction that you shouldn’t have been given, can you pay the
other party sufficient damages, and vice versa. Also, would damages simply be an
adequate remedy overall for both plaintiff and defendant.
 Campus Oil Ltd v Minister for Industry and Energy [1984] ILRM 45.
o American Cyanamid test adopted in Ireland (with slight amendments?)
o “In my view, the test to be applied is whether a fair bona fide question has
been raised by the person seeking the relief. If such a question has been raised,
it is not for the Court to determine that question on an interlocutory
application; that remains to be decided at trial.
o Once a fair question has been raised… then the Court should consider the
other matters which are appropriate to the exercise of its discretion to
grant interlocutory relief. In this regard, I note the views expressed by Lord
Diplock in American Cyanamid v Ethicon Ltd. I merely say that I entirely
agree with what he said.
o Therefore, we may state that in both this jurisdiction and in England the rule is
that the court must be satisfied that plaintiff’s case is not frivolous or
vexatious and that there is a serious question to be tried. Once that is
established, the governing consideration is the balance of convenience. If the
balance of convenience does not clearly favour either party, then the
preservation of the status quo will be decisive.”
 Private Research Ltd v Brosnan [1996] 1 ILRM 27.
o “weighing heavily in favour of the plaintiff is the general rule that, where
possible, the court should strive to maintain the status quo.
o However, this is only one element in considering the balance of convenience
and there is no absolute rule that the status quo must be maintained.”
 Clane Hospital Ltd v Voluntary Health Insurance Board (1998) unreported.
o “it seems clear that in general when considering applications for interlocutory
relief, the Court should adopt the following sequence of consideration, that is
to say: -
 Whether or not the applicant has raised a fair, substantial bona fide
question for determination;
 Whether, if the application were to succeed at trial in establishing his
right to a permanent injunction, he could be adequately compensated
by an award of damages;
 Whether, if the respondent were to be successful at the trial, he could
be adequately compensated under the applicant’s undertaking as to
 damages for any loss which he would have sustained by reason of the
grant of interlocutory relief;
 If either party both have, by way of evidence, raised a real and
substantial doubt as to the adequacy of the respective remedies in
damages available to either party, there where does the ‘balance of
convenience’ lie?
 In some instances are there any ‘special factors’ (usually technical in
nature) which may influence the exercise of discretion and the grant of
the relief sought?’
Exceptions to the Current Criteria
▸ Except in exceptional circumstances, the current test should apply to the granting of
interlocutory injunctions.
▸ Irish Shell v Elm Motors [1984] IR 200.
▸ Where there is no arguable defence
▸ For example, where the plaintiff has clear title to lands and the defendant
continues to trespass upon those lands, there is no need to apply the Campus
Oil test.
▸ Patel v WH Smith (Eziot) Ltd [1987] 1 WLR 853.
▸ “However the defendant may put in evidence to seek to establish that he has
a right to do what would otherwise be a trespass. Then the court must
consider the application of the principles set out in American Cyanamid…
in relation to the grant or refusal of an interlocutory injunction.”
▸ Where defamation and the freedom of expression are at issue
▸ Article 40.5.1.i of the Constitution
▸ Article 10 of the ECHR
▸ Bonnard v Perryman [1891] 2 Ch 269.
▸ “the subject-matter of an action for defamation is so special as to require
exceptional caution in exercising the jurisdiction to interfere by injunction
before the trial of an action to prevent an anticipated wrong…
Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been
infringed; and the importance of leaving free speech unfettered is a strong reason in
cases of libel for dealing most cautiously and warily with the granting of interim
injunctions’’
▸ Sinclair v Gogarty [1937] IR 377.
▸ “an interlocutory injunction should only be granted in the clearest cases where
any jury would say that the matter complained of was libellous, and where if
the jury did not so find, the court would set aside the verdict as unreasonable.”
▸ Connolly v RTE [1991] 2 IR 446.
▸ “in considering the balance of convenience, the court must take into account
the right to freedom of expression balanced against the plaintiff’s right to a
good name in the light of the law on injunctive relief in defamation cases.”
▸ Reynolds v Malocco [1999] 2 IR 203.
 ▸ “A plaintiff in an action such as this, in order to obtain an interlocutory
injunction must show not merely that he has raised a serious issue concerning
the words complained of but that there is no doubt that they are defamatory.
▸ Furthermore, if the defendant intends to plead justification or any other
recognised defence, normally an injunction of this type will be refused.”

Where the case is unlikely to come to a final trial

▸ This is particularly true where the granting of the interlocutory injunction will
destroy the need for a full case.
▸ NWL Ltd v Woods [1979] 1 WLR 1294.
▸ “Where, however, the grant or refusal of the interlocutory injunction will have
the practical effect of putting an end to the action because the harm that will
have been already caused to the losing party by its grant or its refusal is
complete and of a kind for which money cannot constitute any worthwhile
recompense, the degree of likelihood that the plaintiff would have succeeded
in establishing his right to an injunction if the action had gone to trial, is a
factor to be brought into the balance by the judge in weighing the risk that
injustice may result from his deciding the application one way rather than the
other.”

▸ Cayne v Global Network Resources plc [1984] 1 All ER 225.

▸ “The practical realities… are that, if the plaintiffs succeed in obtaining an
injunction, they will never take this case to trial.”
▸ Merger agreement between two companies. Shareholders object, so the
companies sought to rush through the merger before an AGM vote (which
they would lose as the majority of shareholders did not support it).
▸ Whether special consideration must be given where the presumption of
constitutionality is involved
▸ Short answer - no.
▸ No special rules in seeking an injunction against the State.
▸ Cannot be impossible to injunct the State or an arm or emanation of it.