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Interlocutory Injunctions Notes

Interlocutory Injunctions Notes

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Published by Jason Mcwalter
A discussion of interlocutory injunctions under irish law, the principles of the cyanamid/campus oil cases and how this area of law has developed. Includes the exeption of Libel and academic commentary.
A discussion of interlocutory injunctions under irish law, the principles of the cyanamid/campus oil cases and how this area of law has developed. Includes the exeption of Libel and academic commentary.

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Published by: Jason Mcwalter on Nov 23, 2011
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05/07/2013

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Interlocutory InjunctionsEquity
INTRODUCTION
An interlocutory injunction is granted prior to the trial of action or until a further order ismade.Its function is to preserve the status quo until the court can hear the dispute.They have inherent problems stemming from the fact that the court is being asked to grant aninjunction prior to any examination of any of the legal or factual issues in question.
PRINCIPLES FOR THE GRANTING OF INTERLOCUTORY INJUNCTIONS
 
Stratford and Son Ltd (1965)
 
Original case
 
Old English test
 – 
plaintiff must show a
 prima facie
case, that is on the balance of probabilities.
 
2 part test:1.
 
Prima facie
case (50%+)2.
 
That the balance of convince favours granting the injunction.This test was adopted into Irish law by Esso v Fogarty (1965)American Cyanamid v Ethicon Ltd (1975)
 
The traditional test was rejected here.
 
The plaintiff sought (and obtained) an interlocutory injunction to restrain thedefendant form marketing surgical products in an alleged infringements of theplaintiffs patent rights.
 
Lord Diplock introduced a new test, the purpose of which was to take the weight of the consideration of the strength of the
 parties‟
case.
 
New conditions:1.
 
Plaintiff had to show that there
was a “serious question to be tried”.
 2.
 
Balance of convenience favours injunction.
 
As Delany notes, this test received a mixed reception in this jurisdiction because damages donot suit everybody and cases are often decided on the basis of law so a preliminary look at the
law isn‟t necessarily a bad idea.
 Nevertheless, this position was subsequently followed in Ireland (Kirwan
 – 
imported withvery little analysis) in the case of Campus Oil v Minister for Industry and Energy (1984)
 
Here Keane J. granted the injunction and stated that the probability of success was notthe proper test. It was instead t
hat there must be a “fair question to be tried” and that
the balance of convenience favours granting injunction.
 
This is slightly different language but it follows the English position. In the case of 
Lonergon v Saller, Townsend Macken J noted that the use of the word “fair” avoided
the impression that the plaintiff had to show a strong case, as was created by the use
of the word “serious”.
 
 
This new test does consider the strength of the
 parties‟
cases but as Edwards J notedin Chieftain
, it is only in terms of the claims “
substance in the broad sense
”.
 
 
The court in this case attempted to re-interpret or stretch old case law to fit Cyanamidwhich some would view as a slight stretch of the imagination.
 
It was upheld in subsequent supreme court decisions such as Westman HoldingsLtd(1992)In the case of Clane Hospital Ltd (1998) Quirke J. set out the principles governing thegranting of interlocutory injunctions.1.
 
Whether or not
A
has raised a fair, substantial bone fide question fordetermination.2.
 
Whether if 
A
got a permanent injunction, he could be adequately compensated byan award of damages.3.
 
Whether if 
R
could be adequately compensated by damages for any loss which hewould have sustained by reason of the injunction.4.
 
If either/both
A
and
R
raise a real and substantial doubt as to the adequacy of damages then where does the BOC lie?5.
 
There may be “special factors” which may influence the exercise of the court
sdiscretion.In the case of Chieftain Construction Ltd v Ryan (2008) Edwards J. questioned what wasmeant by a serious or fair question to be tried and stated that the initial threshold test was
causing him “some difficulty”
.As Delany notes, these principles are merely guidelines and they are discretionary.In the case of Cambridge Nutrition Ltd v BBC Kerr LJ Said that justice should not be used asa strait jacket.Grey is of the opinion that the Cyanamid principles amount to a significant restriction of  judges discretion and this belief is backed up by Kirwan.
 
 
THE IRISH TREATMENT OF THE BALANCE OF CONVENIENCE
As Delany notes there is considerable debate surrounding the question of whether theadequacy of damages and the balance of convenience are two distinct concepts of if the latteror merely an aspect of the former.The most common approach is to ask, as Clarke J. did in Evans v IRFB Services (Ireland) Ltd(2005) whether the plaintiff has made out a fair question to be tried, whether damages wouldbe adequate and if not then ask where the balance of convenience lies.In the case of Yates v Minister for Post and Telegraphs (1978), Kenny J. held that aninjunction is granted an assessment of damages would be extremely difficult, in terms of precise amount.
ISSUES WITH THE MODERN TEST
It can be quite hard to figure out what the status quo is.It can be very pro- plaintiff.It does not take the relative strength of the
 parties‟
case into account, perhaps Cyanamidshould be altered in this respect.Kirwan believes that the new lower threshold has a higher risk of causing injustice.Kirwan also holds the view that the strength of the
 parties‟
 
case issue is a “very contentiousaspect” of the Cyanamid/Campus Oil decisions and submits that being able to consider the
strength of the
 parties‟
 
cases is “attractive”.
 Even in the Cyanamid decision, Lord Diplock noted that the strength of the
 parties‟
casescould be considered if the arguments were finely balanced.Despite this it would seem that the current position in this jurisdiction with regards to takingthe streng
th of the parties‟ cases into account is the one expounded by Laffoy J. in Westman
Holdings. He stated here that such an option was not open to the court.
EXCEPTIONSThe legal issues are straight forward.
 
The parties agree that the hearing of the interlocutory injunction application willconstitute the trial of action.
 

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