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Introduction "This is clearly an area which would benefit from clarification by the Supreme Court given the conflicting

lines of authority which have developed over the years and the continuing uncertainty which prevails."1 An interlocutory injunction is one which is used to preserve the status quo between two parties. The most common type of interlocutory injunction is a prohibitory interlocutory injunction. This is a court order which compels a defendant to refrain from doing certain acts2 As this injunction naturally takes place before an issue comes before the court, the initial position was one of whether the case was likely to succeed at trial. If it was, the injunction would be granted. However some courts have found this to be an unfair principle as it involves essentially judging a case before the appropriate time. In England, the seminal case which set out the rules for interlocutory injunctions was the American Cyanamid v. Ethicon Ltd. 3case. In this case, Lord Diplock set out the test for interlocutory injunctions. Namely; a) The issue was a serious question to be tried b) Whether damages would be an adequate remedy c) Whether the defendant could pay the possible damages. This was important as it then set out the framework for all interlocutory injunctions to follow. This was the definitive case in the Irish courts until 1983 when the case of Campus Oil v Minister for Industry and Energy (No. 2)4 came to the fore. This case concerned an order compelling oil companies to purchase a certain amount of oil from a state owned body. The plaintiff in this case claimed that this was a breach of EC law. The defendant Minister sought to have an interlocutory injunction compelling the plaintiff company to continue buying said oil until such a time as the case was heard. OHiggins CJ asserted that the Irish courts were now in line with the English decision by stating that; I note the views expressed by Lord Diplock, with the concurrence of the other members of the House of Lords, at p. 407 of the report of American Cyanamid v. Ethicon Ltd [1975] AC 396. I merely say that I entirely agree with what he said5.

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Delany, Equity and the Law of Trusts in Ireland, 5th ed. (Dublin: Round Hall, 2011) p.585: Ibid. at 576 3 [1975] 1 All ER 574. 4 [1983] IR 88 5 Ibid

However this is the definition of a basic interlocutory injunction, one which seeks to restore the status quo. There is another type of interlocutory injunction referred to as a mandatory interlocutory injunction. A mandatory injunction is one which compels a person to restore the status quo by performing a specific act (known as a restorative injunction) or the on-going performance of a positive act (an enforcing mandatory injunction). The logical assumption with regards mandatory interlocutory injunctions is that, on the basis that they are a facet of interlocutory injunctions, the Campus Oil test would apply as it does in all previous interlocutory injunctions. However, this is not always the case. Some courts have followed the Campus Oil, and others have set a higher test. One final point to be made in this introduction is a definition of the balance of convenience. The principle involved in this balance of convenience was set out in the American Cyanamid case by Lord Diplock as; the plaintiffs need for protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights, for which he could not be adequately compensated under the plaintiffs undertaking in damages if the uncertainty was resolved in the defendants favour at the trial. The court must weigh one need against the other and determine where the balance of convenience lies.6 Put into plain English, the balance of convenience is one where the court must weigh up who stands to be more in detriment of the granting, or indeed the refusal of the sought after injunction. As a basic example; if a worker seeks an interlocutory injunction preventing his employer from dismissing him prior to a court appearance, is the employee more in detriment having lost the earnings he would have accrued up until the date of the trial, or would the employer be more inconvenienced having to pay a worker who is not fully committed to his job. This is where the courts look to balance the convenience of the parties Analysis of Case Law In reference to the most important case with which this discussion is concerned, namely the National Commercial Bank Jamaica Ltd v Olint Corp Ltd (Jamaica)7 the Privy Council hearing an appeal, had an important decision to make regarding the facts and ultimately the outcome of this particular case. It had to decide whether this case was regarding a mandatory or prohibitory interlocutory injunction. While this may seem like a trivial issue to pursue, it meant a different level of proof would be required. The court looked at which rule they should apply. Specifically that if it was mandatory, a "high degree of assurance" was required, while if it was prohibitory, all that was needed was a
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Ibid 2 [2009] UKPC 16 (28 April 2009)

"serious issue to be tried." Jones J thought it was mandatory and refused the injunction while the Court of Appeal thought it was prohibitory and granted it.8 One of the important cases in the Irish jurisdiction is the case of Bula v Tara Mines (no.2)9. This case concerned itself with the defendant mining ore under the plaintiff company. A mandatory interlocutory injunction was sought to try and allow the plaintiff company to investigate the mining operation and ascertain whether or not there was a trespass on their land and thus the mining company was extracting ore which was not theirs to extract. Murphy J in this case followed the Campus Oil test stating that he was reluctant to grant such an injunction based solely on the strength of the case in front of him. However there are other cases in which the courts have decided to lend weight to the chances of success at trial which seem to deviate from the Campus Oil test. In a similar vein, the more recent case of Cronin v Minister for Education10 was in connection to a child with Attention Deficit Disorder was being home schooled in the prelude to his attending a preschool. The Minister for Education stated that in order for him to meet his particular educational requirements, he would need an additional 29 hours of one to one tuition. The Minister rejected the costs for such a system on the basis that the test for the granting of a mandatory interlocutory injunction was whether the plaintiff was likely to succeed at the trial of the action.11 However Laffoy J stated that the test was not whether the case was likely to be successful at trial, instead that the only requirement was to show that there was a fair issue to be tried12. This again is in line with the Campus Oil test. In the case of Boyhan v The Beef Tribunal13, the plaintiff were awarded limited legal representation and sought to have full legal representation at the tribunal which was hearing certain allegations within the beef industry. The trial judge in this case stated that in order for a mandatory injunction to be granted at an interlocutory stage, there would need to be strong evidence to support the likely outcome of the case going in favour of the applicant, in this case the U.F.A. By comparison to the previous cases, this seems to be veering away from the Campus Oil test and setting the bar much higher. Specifically, that there must be a clear assertion that the case would be likely to succeed if it were to go to trial. Regarding Employer/Employee Relationships

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Ibid. [1987] IR 95 10 [2004] IEHC 255 11 ibid 12 Ibid 13 [1992] ILRM 545, 556

The courts are quite reluctant to apply the campus oil principles to cases which involve an employee losing his or her job and attempting to take out a mandatory interlocutory injunction until the case is brought before the courts. The courts in these cases will lean more towards the proof that success is likely to be achieved when the case is heard rather than proving there is a fair issue to be tried. The logic behind this is that the courts do not want every disgruntled employee taking out interlocutory injunctions against their employer and having them granted solely on the basis that there is a fair issue to be tried. This is because, by its nature, a case of unfair dismissal, or indeed alleged unfair dismissal, is one where there is a fair issue to be tried. In Maha Lingam v Health Services Executive, a case arose relating to travellers living on a halting site in very poor conditions. After the plaintiff was brought to hospital with pneumonia, it was recommended that she have access to hot water, a bathroom and other amenities which heretofore she did not have access to. Again this case was judged based on the strength of the facts, or in other words its likely outcome, once again veering from the Campus Oil test. In the case of Nolan v EMO Oil, the plaintiff was employed as a credit manager in the defendant firm. The defendant attempted to make the plaintiff redundant pursuant to the economic downturn but the plaintiff argued that this was not only impossible based on his job title, but also if redundancy was possible, he had been unfairly chosen. Laffoy J noted that the first hurdle that the employee must overcome is that he must show at least that he has a strong case that he is likely to succeed at the hearing of the action. The plaintiff argued that he could meet this test, however Laffoy J argued that he could not as it was almost impossible to demonstrate that he had been unfairly selected for redundancy and recommended that the plaintiff seek relief under the Unfair Dismissals Act instead. In the case of Buckley v NUI Maynooth, the plaintiff here was a fellow at the college. She had two fixed term contracts, both for 3 years. She made a request to the college to assert that she should be regarded as a full time employee under the Protection of Employees (Fixed-Term Work) Act, 2003. The university disagreed with this and the plaintiff took her case to the rights commissioner. During this time the University decided that as she was not a full time employee. They would terminate her employment. The plaintiff took her case to court and the Murphy J had to decide whether there was a strong enough case to grant an interlocutory injunction. The plaintiff was relying on the basis of mutual trust between herself and the employer and Murphy J ruled against the injunction on the basis that she had not satisfied the first limb of the test for mandatory interlocutory injunctions, namely that she was likely to succeed at trial. He quoted Fennelly J in the Maha Lingam case stating that t he principle that there is an implied term of mutual trust and good faith in contracts of employment does

not extend so as to prevent the employer terminating a contract of employment by giving proper notice and for this reason refused the injunction. Conclusion It is clear that in reference to Delanys statement which precedes this discussion, the law regarding mandatory interlocutory injunctions is one which is very much unclear. There has been no definitive line of authority set down by the Supreme Court which could clarify this grey area of the law. It would seem, prima facie that the Supreme Court does not want to be fettered in its decision making by introducing precedent which would therefore bind the lower courts to a strict test for the granting or refusing of interlocutory injunctions. The judiciary seem content to allow each separate case be judged on its merits and retrospectively apply the principles as it sees fit. An example of this would be where two cases of similar facts are distinguished by the courts on the basis of some trivial matter which is only used to vindicate the courts from their obligations to stick to one test. The case of the Commercial Bank of Jamaica v Olint Corporation was one where the Lords involved had decided to stringently adhere to the test of whether there was a serious issue to be tried. A decision to adhere strictly to this one particular test would be beneficial if it were to be the sole test amongst all common law countries when applying a test for interlocutory injunctions. Conversely, it can also be said that without a codified test the courts have the power to judge cases based purely on the facts. It may seem unjust to decide whether or not to grant an injunction based solely on the presumption that the applicant is unlikely to win their case, but the obverse is also true; that it would be unfair to allow the status quo continue for the respondent despite the fact that it may be patently clear that he will win the case. This situation is equally as unfair as prejudgement of the case based on the facts. It can be noted that the Supreme Court has avoided setting down a test which will apply in the future relating to mandatory interlocutory injunctions. It has also been demonstrated that without an agreed test, the courts are essentially running as autonomous entities, deciding the rules relating to cases as they see fit with no discernible justification. However it is worth noting that the current position regarding mandatory injunctions would seem to be the lesser of two evils as it were. If the supreme court were to set out a specific test relating to injunctions which was binding to the lower courts, there would be no room for interpretation and even if there was a high risk of loss or detriment to one party in the case, the granting of the injunction would hinge solely on the fact that there is a serious issue to be tried for example and the injunction would be granted. Unless there is a case in the near future which results in a definitive set of rules and

a non-biased and just test being laid down, it can be argued that the status quo should remain in place as it would appear to be the lesser of two evils in the present legal climate.

As was stated in the case of Shelbourne Hotel Holdings Ltd v Torriam Hotel Operating Company Ltd, there was an inconsistency of approach in Ireland on the standard that must be met in order to obtain an interlocutory mandatory injunction: on one view it was the demonstration of a fair case or serious issue for trial, on the other a higher standard was required, described as a strong case likely to succeed at the hearing, or a strong and clear case. Until this was clarified, the court should adopt whatever course would carry the lower risk of injustice if it turned out to have been the "wrong" decision14.


[2008] IEHC 376 (18 December 2008)