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
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
has raised a fair, substantial bone fide question fordetermination.2.
got a permanent injunction, he could be adequately compensated byan award of damages.3.
could be adequately compensated by damages for any loss which hewould have sustained by reason of the injunction.4.
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.