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INTRODUCTION An interlocutory injunction is granted prior to the trial of action or until a further order is made. 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 an injunction 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 the defendant form marketing surgical products in an alleged infringements of the plaintiffs 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 do not 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 with very 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 not the proper test. It was instead that 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 noted in 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 Cyanamid which some would view as a slight stretch of the imagination. It was upheld in subsequent supreme court decisions such as Westman Holdings Ltd(1992)
In the case of Clane Hospital Ltd (1998) Quirke J. set out the principles governing the granting of interlocutory injunctions. 1. Whether or not A has raised a fair, substantial bone fide question for determination. 2. Whether if A got a permanent injunction, he could be adequately compensated by an award of damages. 3. Whether if R could be adequately compensated by damages for any loss which he would 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 courts discretion. In the case of Chieftain Construction Ltd v Ryan (2008) Edwards J. questioned what was meant 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 as a 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 the adequacy of damages and the balance of convenience are two distinct concepts of if the latter or 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 would be 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 an injunction 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 Cyanamid should 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 contentious aspect” 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‟ cases could be considered if the arguments were finely balanced. Despite this it would seem that the current position in this jurisdiction with regards to taking the strength 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.
EXCEPTIONS The legal issues are straight forward.
The parties agree that the hearing of the interlocutory injunction application will constitute the trial of action.
An interlocutory injunction is sought in proceedings for defamation or where the right to the freedom of expression is at issue. (Libel) Libel is defamation and a written or permanent form. Courts in this jurisdiction have shown a reluctance to grant interlocutory injunctions restraining the publication of possibly defamatory material. The reasoning for this is that it may interfere with the freedom of expression which has constitutional protection under A. 40.6.1. As well as this there are the defendant‟s possible defences to worry about, for example privilege, fair comment or justification. In this jurisdiction, possibly defamatory publications will only be subject to an interlocutory injunction “for clear and compelling reasons”. TV3 v Fahey (1999). In these circumstances the campus oil principles apply. As Delany notes, it is now acknowledged that departure from the Cyanamid principles is justified in certain circumstances, she also states that the principles which apply in the case where an interlocutory injunction is sought in proceedings for defamation are well established and predate Cyanamid by almost a century. Bonnard v Perryman (1891). Reynolds v Malocco (1999) The defendant here was publishing a magazine which claimed that the plaintiff was permitting drugs into his nightclub and that he was a homosexual. The injunction here was granted as the defendant attempted to plead justification but failed and couldn‟t afford to pay damages. Kelly J. noted that it was possible to get an injunction if the material was clearly untrue and the defendant was not claiming that it was true. He also noted that the rules of Cyanamid/Campus Oil have a “wide but not universal application”. The test in this case was that the plaintiff 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.
Cogley v RTE (2005) Allegations concerning a nursing home called „Leas Cross‟. Suggested Reynolds case was a “high water mark”. Application for injunction refused. The test here was whether or not there is any reasonable basis on which the defendant might succeed at trial. Clarke J. said that a plaintiff would fail the initial hurdle if it appeared that there was only a reasonable basis for contending that the defendant might succeed at the trial of action. This reasoning is in line with earlier decisions in this area.
He also noted the importance of encouraging and preserving public debate on issues of importance. Delany feels that Cogley strikes a “good balance”.
Traditionally when it came to the plea of justification all that was needed to be done by the defendant was to show that he intended to justify the statement at issue. The approach here is more flexible and the traditional English approach is treated with more caution. Now the intention is not sufficient. The case is unlikely to come to final trial. Injunctions relating to labour disputes. Injunctions to restrain the presentation of a petition to wind up a company. Mareva injunctions. Anton Pillar orders. RE-INTERPRETATION OF THE MODERN TEST The position in England has changed somewhat in the light of the Series 5 Software Ltd v Clarke (1996). Basically in this case it was stated that it is ok for a judge to state his view as to the merits of the relative strength of each party‟s cases, if thought fit. In this case, Laddie J rather controversially stated that in the Cyanamid case, Lode Diplock did not mean to say that you could not consider the relative strength of each party‟s case. He noted 4 factors with regard to interlocutory injunctions: 1. 2. 3. 4. The granting of an interlocutory injunction is a matter of discretion. There are no fixed rules, relief is flexible. The court should not attempt to resolve complex issues of law or fact. The major factors to be considered are: i. The adequacy of damages. ii. The balance of convenience. iii. Maintaining the status quo. iv. Any Clear view that the court has as to the relative strength of the parties cases.
It is worth pointing out that in the Chieftain case, Edwards J said that Laddie J‟s reasoning was both “provocative and seductive”. Bean holds the view that although on the face of it this is a revolutionary decision, it in fact merely “represented what many judges were doing already".