Injunctions Flashcards
Injunctions
Injunctions are court orders that require someone to either a) refrain from doing something or b) positively do something.
Injunction take two forms
An injunction is an order which restrains the performance or continuance of a wrongful act (prohibitory injunction) or has the effect of requiring the performance of an act (mandatory injunction).
At common law the main remedy is
At common law the main remedy is an award of damages. Damages are often inadequate or inappropriate, and typically equity has supplemented the legal remedies available.
Injunctions are only granted
To protect a right(s) of the plaintiff
Quia timet Injunctions
Quia timet injunctions are injunctions that are granted in respect of wrongs apprehended or threatened (but have not happened yet).
Redland Bricks Ltd
The rationale for this type of injunction is to “prevent the jurisdiction of the courts being stultified”. They are relatively difficult to obtain because the courts require the plaintiff to establish that the threatened injury is either certain or very imminent to occur.
Tests for Quia Timet Injunctions
Various tests have been applied by the courts in determining what is required to warrant a quia timet injunction, that is the level of probability of the threatened action occurring before such injunction is granted.
AG (boshwell) v Rathmines and Pembroke joint hospital board
Local residents sought to restrain the construction of a quarantine hospital on the basis that there was a risk of infection. No risk of infection was established and the court stated that the plaintiff required “proof of actual or real danger, a strong probability almost amount to a moral certainty”.
Independent newspapers ltd v Irish press
A lesser standard was required in this case. The standard applied was that a quia timet injunction would not be granted unless there was a reasonable probability of what was threatened to be done.
In AG v Manchester Corporation
It was said that the applicant must show a “strong case of probability that the apprehended mischief will, in fact, arise”.
Szabo v Esat Digifone
In this seminal case the plaintiff sought an injunction restraining the defendant from erecting mobile telephone base stations in the grounds of a garda station that was adjacent to their school. Geoghegan j held that the test in AG v Manchester Corporation probably went too far and that the plaintiff instead would have to prove a “substantial risk of danger”. He did not find that such a danger existed here.
Ryanair v Aer Rianta
Szabo was approved in this case where Kelly j referred to the need for a proven substantial risk of injury before a quia timet injunction would be granted.
Garrahy v Bord Na Gcon
It was held that there is no difference in the principles to be applied to interlocutory quia timet injunctions and any other kind of interlocutory injunction. However he accepted it may be more difficult to establish that there is a serious risk of future injury. Consequently, the test applied is that you must show a substantial risk of real danger.
Relevance of Campus Oil principles
In terms of the relevance of the campus oil principles to quia timet injunctions, in Szabo Geoghegan j held that the principles were not of application because he felt there was something distasteful in balancing the convenience of the defendant in being able to carry on his business against the alleged health risks to the plaintiffs. However, he did note that if he was wrong not to apply the campus oil principles, he would have refused the injunction nonetheless.
Place of Quia timet Injunctions
It is a discretionary relief and a judge is not bound by any legislative criteria. As a result, I cannot advise with 100% certainty that the applicant will receive the relief of an injunction, because it is generally determined on a case-by-case basis.
Mandatory interlocutory injunction
Considered as the most rigorous of all injunctions, a mandatory injunction directs the defendant to perform an act.
American Cynamid v Ethicon
The principles underlying the granting of a mandatory interlocutory injunction were first laid down in American Cyanamid v Ethicon and then subsequently approved in this jurisdiction in Campus Oil v Ethicon
The Campus Oil test asks three questions which are;
- Is there a fair bona fide question to be tried?
- Are damages an adequate remedy?
- Where does the balance of convenience lie?
How often are mandatory interlocutory injunctions granted?
Mandatory interlocutory injunctions are rarely granted. When seeking a mandatory interlocutory injunction, the primary issue to be consider is whether the courts should apply the Campus Oil test, or whether the court should have regard to the strengths of the party’s cases.
Merck Sharp & Dohme Corp v Clonmel
The SC decision has recently clarified this test, signalling a move away from the three step test laid out in Campus oil towards a two-step test instead.
Shepherd Homes Ltd v Sandham
In the UK, the courts look at the strength of the parties cases, as evidenced in this case, where the court held that the plaintiff must establish an unusually strong clear case that, at the trial the court will find that the injunction was correctly granted.
In Ireland prior to the decision in MSD v Clonmel
The Irish courts appeared to be inconsistent with which approach they favoured
Bula v Tara Mines
Murphy J held that the court was not entitled to look at the strength of the party’s case.
However, in Boylan v Tribunal of inquiry into the Beef industry
Denham J held that a mandatory interlocutory injunction would only be granted if the plaintiff made out a clear strong case.
Sheehy v Ryan
The court applied the Campus Oil principles and then applied the SC decision which required the plaintiff to establish a strong case that he was likely to succeed at trial.
Shelbourne Hotel Holdings Ltd v Torriam hotel operating company
Kelly J attempted to clarify the test in Ireland where there seemed to be an inconsistency in the approach the courts took in regards the standard that must be met in order to obtain a mandatory interlocutory injunction. One side of the view required a demonstration of a fair case or serious issue for trial, while the other higher standard of proof was that there had to be a strong case that was likely to succeed at the hearing of the action. He stated that whichever standard does apply, it is clear that the granting of a mandatory interlocutory relief is exceptional, and said that in many if not all cases, the mandatory nature of the relief will also be a factor to be considered when the balance of convenience falls to be considered.
Maha Lingham v HSE
The Supreme Court stated it was “necessary for the applicant to show at least that he has a strong case that he is likely to succeed at the hearing of the action”. Following Lingham, the position was that thean plaintiff must prove that there was a fair bona fide question to be tried. This higher threshold may be justified on the basis that a mandatory interlocutory injunction is more onerous on the Defendant than a prohibitory interlocutory injunction.
Merck v Sharpe & Dohme Corp v Clonmel Health Care
The SC sought to clarify the Campus oil principles. The court set out an 8-part test that should be applied when an interlocutory injunctive relief is being sought.
In setting the test in Merck Sharp and Dohme the Supreme court signalled a move away from the 3-step Campus Oil test to a two step test, requring the following quesitons to be addressed:
- Is there a fair bono fide question to be tried?
- The adequacy of damages is to be considered as part of the balance of convenience.
Where are Anton Piller orders granted?
Particularly useful in the context of intellectual property, and specifically for infringement of patents and copyright, and exploitation of trade secrets.
Columbia picture industries inc v robinson
Stated that anton piller orders are used to prevent the defendant, when warned of impending litigation from destroying all documentary evidence in their possession, which might support plaintiffs case.
Requirements for an Anton Piller
An anton piller order requires defendants to consent to the plaintiff to enter their premises to inspect and if necessary to take away documents or articles specified in the order.
Pre conditions before an Anton Piller can be made
a) Plaintiff must have an extremely strong prima facie case
b) Potential or actual damage must be very serious for plaintiff
c) Must be clear evidence that defendant has incriminating documents or articles in their possession [don’t have to necessarily expose someone to criminal charge].
d) There must be a real possibility that these will be destroyed before any application inter partes can be made.
Purpose of Anton Piller
An Anton Piller Order is an injunction that permits the plaintiff to search and seize assets of the defendant in order to prevent their destruction before trial. These orders were originally developed in response to the needs of intellectual-property owners who wished to institute proceedings against those they believed were infringing their rights.
General use of Anton Piller
These orders are today most commonly made in the context of intellectual property disputes where the defendants may seek to destroy the allegedly infringing or forged goods before the matter goes to trial, so as to get rid of any evidence. The orders are normally granted on an ex parte basis and applications are heard in camera. This is to maintain the element of surprise.
Anton Piller KG v Manufacturing processes ltd the COA set out three essential preconditions which must exist before such an order can be made:
- The plaintiff must have an extremely strong prima facie case
- The potential or actual damage must be very serious for the plaintiff
- There must be clear evidence that the defendant has incriminating articles in its possession and that there is a real possibility these will be destroyed
In what negative way have Anton Piller orders been compared to Mareva Injunctions
Similar to mareva injunctions, anton piller orders have also been described as ‘draconian’ and their very nature makes them susceptible to abuse by claimants.
Lock international plc v Beswick
The claimants solicitors searched the business premises and homes of the defendants and removed not only documents containing confidential information but also nearly all their commercial papers, computer records and prototypes. The search order should never have been granted and was later discharged.
Why gave the courts adopted a strict approach regarding Anton Piller orders?
Because of the potential for abuse, the courts have adopted a relatively strict approach when granting anton piller orders and have also developed certain safeguards to protect the position of the defendant. The plaintiff must make a full and frank disclosure at the ex parte application and also will be required to give an undertaking in damages to the defendant.
Universal Thermosensors ltd v Hibbon Nicholls
VC set out a number of specific safeguards to prevent Anton Piller orders being abused. He stated the order should only be carried out during working hours so that the defendant could obtain legal advice if they wished. He further suggested that the order is served and supervised by an experienced solicitor rather than a member of the firm representing the plaintiff.
Microsoft Corporation v Brightpoint Ireland
The defendant was breaching the terms of software licenses by making unauthorised copies of various compute programmes. The HC held that the APO had been rightly granted as there was strong prima facie evidence of dishonest conduct which indicated a likelihood that it would attempt to destroy records.
Mareva Injunctions
Mareva Injunctions operate in personam preventing a respondent from removing assets from the jurisdiction or dissipating assets in order to defeat judgment against him or her. It is noteworthy that general equitable principles apply and thus the remedy is discretionary.
Nippon Yusen Kaisha v Karageorgis
The jurisdiction for granting mareva injunctions has evolved from this case. The courts of appeal stated that where there is a prima facie case that the plaintiff is owed money by the defendant within the jurisdiction and he has reason to believe that assets may be dissipated ot removed from the jurisdiction, the court may grant an interlocutory injunction preventing the defendant from doing so.
Mareva Compania Naviera SA v International Bulk Carriers SA
The principle was approved in this case
Eugene F Collins v Gharion
The question of balancing rights between plaintiff and defendants in cases concerning mareva injunctions was recently considered in Eugene F Collins v Gharion (2013). To succeed in obtaining a MI, the plaintiff must be able to establish that the defendants have a clear intention to dissipate assets in order to frustrate the judgement of the courts.
It is essential that both elements of the standard tests are established by the plaintiff:
- That the defendant has a clear intention to dissipate assets; and
- That the intention is for the purpose of avoiding his obligation to the plaintiff and frustrating the anticipated judgment of the court.
In Eugene F Collins case, Birmingham J
Refused a MI which was sought to restrain the defendant from reducing cash balance below a particular figure, on the basis that the defendant was an unlimited company and the directors and shareholders remained liable for its debts, The court also refused a declaration that fees owed to the plaintiff were charged over the assets of the defendant, in circumstances where there was a dispute as to whether the fees were actually due. This position might be regarded as a retrenchment from previous judicial tendencies toward reducing the obligation of the plaintiff to show ‘nefarious intention’.
Fleming Ranks v Ireland (1983)
The court emphasised that an intended dissipation of assets must be shown to be for the purpose of preventing the plaintiff from recovering damages and not simply for the purpose of carrying on a business or discharging of lawful debts.
O’Mahony v Horgan
The same point was made by the SC in O’Mahony v Horgan. In that case the directors of a company in liquidation were appealing to the SC against the decision of the HC to grant MI against them, restraining them from paying a sum of money owed on an insurance policy. The SC reiterated the approach adopted in Fleming Ranks and held that the plaintiff must prove the respondents sought to dissipate assets with the intention of frustrating the anticipated court order.
Delaney notes with intention:
Delaney notes that establishing “the intention” of the respondents in an ex parte application can be a difficult task. The English courts have tended to adopt a broader approach looking at the effect of defendant’s actions rather than solely his intention.
Evidence of a more flexible approach in this jurisdiction is seen in Bennet Enterprises Inc v Lipton.
In that case O’Sullivan J qualified the requirement of requisite intention by adding that he accepted that direct evidence of an intention to evade would rarely be available at the interlocutory stage. Moreover, he considered it reasonable for the court to consider all the circumstances of the case, consistent with the decision in O’Mahony.
The more pragmatic approach was taken further by Clarke J in Hughes v Hitachi Koki Imaging solutions Europe
In that case he held that the “requisite intention” would in most cases have to be established by reference to other facts. He held that in the context of a company which might be insolvent, a p could seek a MI where it could show that the insolvent comp intended to deal w assets in a manner incompatible to its obligations under insolvency law. In such circumstances, where it could be shown the plaintiffs position would be affected by such actions, the requisite intention to dissipate assets will have been satisfied.
Brussels Convention
The courts have held that the fact a defendant may be planning to move its assets from the jurisdiction to another country party to the Brussels Convention will be relevant in determining whether he intends to avoid his obligations to the plaintiff.
Bambrick v Cooley
Clarke J stated that while evidence of an intention to move assets to another jurisdiction could allow the courts to draw an inference that the defendant intended to evade his obligation to the plaintiff, such interference will be less strong where the country is party to the Brussels Convention.
Effect of the Brussels Convention
Where a country is party to the Brussels Convention, a judgment of the Irish courts is as enforceable in that Country as it is in Ireland.
Article 31 of the Brussels Convention
Allows for the making of an application to the courts of a member state for such provisional measures, including protective measures, which may be available under that state, even if the court of the other member state has jurisdiction in respect of the substantive proceedings.
In addition, s13(1) of the Jurisdiction of Courts and Enforcements of Judgments Act 1998 also provides
That the Irish courts have jurisdiction to grant provisional measures, including protective measures (Mareva injunctions) where the proceedings have, or are about, to commence in another member state, even where the plaintiff has no independent cause of action within this jurisdiction.
Effect of Eugene F Collins v Gharion
It would seem reasonable to suggest that the decision in the Irish High Court case of Eugene F Collins v Gharion represented a judicial opposition to prior tendencies toward the adoption of a less restrictive approach to the requirement that a plaintiff seeking a mareva injunction must show that there is a real risk that the defendant will dispose of their assets for the purposes of preventing the plaintiff from recovering damages. This approach would appear to follow closely the concerns of the court in the quoted passage from the decision in O’Mahony v Horgan.
