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Last Thursday @TheBarofIreland ran an excellent CPD on Advocacy in Injunctions. The speakers were Brendan Kirwan SC and Kelley Smyth SC with Marguerite Bolger SC in the Chair.
The session was a useful reminder of what the requirements are before going to court seeking injunctive relief. The importance of brevity, candour and clarity on the docket with a full and frank exposition of the issues arising giving rise to the requirement for relief.
There were three points worth reflecting here.
First, is the position on interim injunctions.
The test is different to the interlocutory relief test or Campus Oil. It is a balance of convenience test based on what is placed before the court.
First, is the position on interim injunctions.
The test is different to the interlocutory relief test or Campus Oil. It is a balance of convenience test based on what is placed before the court.
Interim injunctions are not going to be granted like confetti and a wedding, but are designed to “hold the ring” pending final determination of the merits or other disposal of a dispute see United States of America v Abacha [2015] 1 WLR 1917.
Denning MR made the point in Fellowes & Son v Fisher [1976] QB 122 at 129G that: “Nearly always …these cases do not go to trial. The parties accept the prima facie view of the court or settle the case. At any rate, in 99 out of 100, it goes no further.” Same in Ireland.
Second, the issue of alternative reliefs. If a Court is not satisfied that a matter is so urgent as to warrant urgent interim relief, then the party seeking an ex parte order should set out alternatives for a Court. The neatest including a short service option.
The example cited to this end was a judgment by Clarke J (as he was then in) Dowling v Minister for Finance [2013] IESC 37: https://www.courts.ie/acc/alfresco/128c61dd-b37a-4a17-8c57-92192c49e45c/2013_IESC_37_1.pdf/pdf#view=fitH
Of course, short service comes with it court directions requiring the notice of the making of return to court order to the respondent to the application, which are often very time sensitive and on a motion docket.
Third, which were well covered, the duty of candour and requirement to make full and frank disclosure should not be underestimated.
The speakers also made reference to the main cases, which can be found in Practice Direction HC97 at part (x) here: https://www.courts.ie/acc/alfresco/e384051f-f1aa-4aa5-aa49-b5f21c1149ed/Court%20Book%20of%20Authorities%20for%20HC97%20Submissions%20and%20Issue%20Papers.pdf/pdf#view=fitH
Two cases worthy of mention are:
1. Campus Oil v Minister for Industry and Energy No 2; and
2. what might be termed the restatement in Merck Sharpe & Dhome Corporation v Clonmel Health Care Limited https://www.courts.ie/acc/alfresco/128c61dd-b37a-4a17-8c57-92192c49e45c/2013_IESC_37_1.pdf/pdf#view=fitH
1. Campus Oil v Minister for Industry and Energy No 2; and
2. what might be termed the restatement in Merck Sharpe & Dhome Corporation v Clonmel Health Care Limited https://www.courts.ie/acc/alfresco/128c61dd-b37a-4a17-8c57-92192c49e45c/2013_IESC_37_1.pdf/pdf#view=fitH
Sessions on advocacy and procedure like this are extremely valuable, particularly where modes of practice have shifted to remote hearings, and where new practitioners 'devils' are unable to get the same levels of exposure to live court hearings during Covid-19 lockdown. /End
