TOPIC 3 (Injunctions I): Case Law

Question 1

Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287

Answer 1

Introduction to the role of injunctions

1. If the injury to the plaintiff’s legal rights is small,
2. And is one which is capable of being estimated in money,
3. And is one which can be adequately compensated by a small money payment,
4. And the case is one in which it would be oppressive to the defendant to grant an injunction: –
   then damages in substitution for an injunction may be given.”

Question 2

Maxwell v Hogg (1867) 2 Ch App 307

Answer 2

General principles: serve to protect legal rights

Passing off case, plaintiff and defendant both registered the name “Belgravia” for a magazine”, plaintiff sought an injunction to prevent the defendant from publishing;
No magazine had been published by either party, both merely sought to advertise;
Injunction wanted to restrict the other party from using the name - prohibitory injunction
Not granted: No property rights yet, purely intentional, there was no right that needed protection yet.
Preemptive injunction - no proof that you will suffer any breach of rights yet, not applicable here

Question 3

Shelfer v City of London Electric Lighting Co:

Answer 3

General principles: adequacy of damages

Defendant caused structural damage to plaintiff’s premises;
Initially an injunction to restrain the use of machinery that was causing vibrations that damaged the plaintiff’s property was refused in lieu of damages, on appeal an injunction was granted;
Can you quantify the slow destruction of a building, noise, disruption etc - continuous nuisance
Stopping the works completely was easier.

Question 4

Westman Holdings Ltd v McCormack [1992] 2 IR 151

Answer 4

General principles: adequacy of damages

Employees of a restaurant were served their notice of termination when the restaurant was sold to the plaintiff;
Employees (defendants) picketed the restaurant, the plaintiff was granted an interlocutory injunction to prohibit the picket; injunction until trail started.
In dismissing the defendant’s appeal of the grant of an injunction, the Court held that one of the factors taken into account was that an award of damages to the plaintiff would not have been adequate as the defendant’s would likely be unable to pay the loss of the plaintiff (which was entirely pecuniary);
Loss was quantifiable (business loss), however, defendants have no money - damages not applicable

Question 5

Curust Financial Services Ltd v Loewe-Lack-Werke Otto Loewe GmbH [1994] 1 IR 450 (important case)

Answer 5

General principles: Adequacy of damages

High bar of whether damages are applicable , must be nearly impossible to quantify.

Case establishing the level to which damages must be deemed inadequate;
Plaintiff had sole exclusive right to manufacture, market, sell, and distribute goods manufactured by the defendant;
Plaintiff sold rust primer under the Loewe brand name;
Dispute arose as to whether or not the defendant could grant a right to another party to sell a specific rust primer within Ireland;
Plaintiff sought a series of injunctions to uphold the terms of the agreement (restraining the defendant from granting the second defendant a right to manufacture, sell or distribute products, including the rust primer, in Ireland);
In the High Court, injunctive relief was granted;
The Supreme Court allowed an appeal, one reasons being that it was difficult, but not a complete impossibility to assess damages in this instance;
What level of damages needed
Defendant looking to restrain defendant from breaking his contract - prohibitory injunction
How could you possibly assess this loss
Very high bar of whether damages are applicable
For damages to not be applicable they need to be impossible to determine basically

Question 6

Lynch v HSE [2010] IEHC 346

Answer 6

General principles: adequacy of damages

Plaintiffs were dentists providing services under the Dental Treatment Services Scheme (DTSS);
Cap proposed to be placed on the DTSS expenditure;
Plaintiffs sought interlocutory injunction restraining the defendants from giving effect to the Circular issued by the HSE introducing the cap;
Court held that damages were an adequate remedy in this instance and that an injunction should not be granted;
To claim damages are not appropriate, point needs to be made that business will fail - then it is difficult to determine losses, anything before that point in relation to loss of business can be awarded damages

Question 7

Shell (U.K.) Ltd v Lostock Garage Ltd. ]1976] 1 WLR 1187

Answer 7

General principles: conduct of the parties

“Clean hands” maxim in action; stopping plaintiff from getting injunctive relief
Defendants entered into a solus agreement (buy from a single supplier) with the plaintiff;
Bound to sell petrol at 75p per gallon;
Petrol war begun, neighboring garages that were supplied by the plaintiff were selling petrol at a price of 70p per gallon under a support scheme provided by the plaintiff;
Defendants ultimately obtained cheaper supplies from elsewhere;
Plaintiff initiated proceedings seeking an injunction to restrain the defendant from using an alternative supplier contrary to their agreement;
In refusing equitable relief, it was noted that the plaintiff’s conduct was “unfair and unreasonable” and that they had not come to equity with clean hands
What they were doing to the plaintiff is unfair and unreasonable

Question 8

Chappell v Times Newspapers Ltd [1975] 1 WLR 482

Answer 8

General principles: conduct of the parties

Example of “he who seeks equity must do equity” acting as a bar to relief;
Striking newspaper workers who sought injunction to restrain their employers from treating them as having terminated their contracts;
Refused to give undertaking to not engage in disruptive activity;
Equitable relief refused;
REFUSING TO ACT EQUITABLE IN THE FUTURE

Question 9

Bambrick v Cobley [2006] 1 ILRM 81

Answer 9

General principles: conduct of the parties

Importance of full and frank disclosure when applying for an interim injunction on an ex parte basis;
Full and frank disclosure during interim injunction applications = “the golden rule”;
In this case, a mareva injunction was sought on the same terms as an interim injunction that was in place;
The interim injunction was discharged and no interlocutory relief was granted due to a lack of candor in the manner in which it was sought;
Court weighed up the following matters: materiality of facts not disclosed; culpability in failing to disclose; circumstances of the application;

Question 10

Lennon v Ganly [1981] ILRM 84

Answer 10

General principles: conduct of the parties

Plaintiff sought interlocutory injunction restraining defendant (president and secretary of the IRFU) from using the word “Irish” when touring South Africa during apartheid;
Will not give the court enough time to assess the issues due to the delay of seeking the interlocutory injunction
As its too close to the tour the interlocutory injunction could actually act as an injunction stopping the event - this is not the point

Question 11

Nolan Transport (Oaklands) v Halligan [1994] WJSC-HC 1550

Answer 11

General principles: conduct of the parties

Application for an interlocutory injunction to restrain a trade union from pocketing a business where details of a secret ballot have not been given to members;
Provided an outlook of the general principles for delay in relation to interlocutory injunctions;

Question 12

Dowling v Minister for Finance [2013] 4 IR 576

Answer 12

General principles: conduct of the parties

Difference in how courts assess delay in seeking interim/interlocutory injunctions as opposed to perpetual injunctions;
Key difference – Court has less time to assess and determine the issues and the defendant has less of an opportunity to be heard;
Where time is tighter delay is more important

Question 13

Irish Times Ltd v Times Newspapers Ltd [2015] IEHC 490

Answer 13

General principles: conduct of the parties

Plaintiff seeks interlocutory relief restraining the defendant from launching a digital paper in Ireland off the back of passing off proceedings by the plaintiff;
In citing Nolan Transport (Oaklands) Ltd, the Court refused interlocutory relief on the grounds of delay;
Irish times should have known that they were looking for this service, relief not sought fast enough

Question 14

Sayers v Collyer [1884] 28 Ch D 103

Answer 14

General principles: conduct of the parties

acquiescence

Plaintiff sought an injunction against the defendant to restrain him from running a beer shop contrary to the covenants attached to the estate in addition to seeking damages;
The plaintiff had waited three years to commence this action and had known the defendant was using the premises as an off license during this time contrary to the relevant covenants (had bought beer in the shop himself);
Held the plaintiff has lost his right to an injunction and damages through acquiescence;
He was using the off-license, he was aware previously

Question 15

O’Hare v Dundalk Racing (1999) Ltd [2015] IEHC 198

Answer 15

General principles: conduct of the parties

Plaintiff sought injunctive relief for the restoration of his original pitch as a bookmaker at the defendant’s racecourse;
The plaintiff was awarded damages as opposed to injunctive relief due to excessive and unreasonable delay;
Adequacy of damages and delay/conduct of the parties

Question 16

Miller v Jackson [1977] QB 966 UK Case

Answer 16

Impact on third parties

Homeowner sought injunction to prevent cricket club continuing its activities where balls were landing in the applicant’s property;
Continued nuisance found, but damages awarded instead of an injunction;
Disproportionately large impact on the community - third party

Question 17

Bellew v Cement Ltd [1948] IR 61

Answer 17

Impact on third parties

Ireland has a contrasting view to the role of third-parties in injunctive relief;
Plaintiff sought an injunction to restrain blasting being undertaken by the defendant which was causing damage to the plaintiff’s home;
At the time the defendant was the only manufacturer of cement in Ireland;
An injunction was granted at first instance and on appeal;
Court noted they could not take issues of public convenience into account when dealing with the rights of private parties;

Question 18

Howard v Commissioners for Public Works [2002] IEHC 2

Answer 18

Impact on third parties

Exception where third parties are taken into account
Interlocutory injunction sought to prevent an arbitrator from hearing a claim for compensation where it was alleged bribery occurred;
An injunction was granted with heavy reliance being placed on public interest;

Question 19

American Cyanamid Co v Ethicon Ltd [1975] AC 396;

Answer 19

Test for whether or not interlocutory relief should be granted

1. Is there a serious question to be tried;
2. Are damages an adequate remedy for the plaintiff if the defendant’s conduct is not restrained;
3. Would the defendant be adequately compensated by the plaintiff’s cross-undertaking in damages if the injunction were granted;
4. Where does the balance of convenience lie;
5. If the balance of convenience is even, the status quo should be preserved

Question 20

Campus Oil v Minister for Industry and Energy (No.2) [1983] IR 88;

Answer 20

American Cyanamid test adopted in Ireland in this case

1. Is there a bona fide question raised by the person seeking relief;
2. Are damages an adequate remedy for the plaintiff if the defendant’s conduct is not restrained;
   3.. Would the defendant be adequately compensated by the plaintiff’s cross-undertaking in damages if the injunction were granted;
3. Where does the balance of convenience lie;
4. If the balance of convenience is even, the status quo should be preserved.

Lower standard compared to that seen in American Cyanamid;
Reason lower standard applied – not for the court to determine the merits of the case to such a high standard at the interlocutory stage.

Question 21

Merck Sharp & Dohme Corporation v Clonmel Healthcare Ltd [2020] 2 IR 1;

Answer 21

Key Test for interlocutory injunctions

Ireland’s willingness to adopt a flexible approach to applications for interlocutory relief was seen in this case

1. Is there a bona fide question raised by the person seeking relief;
2. Where does the balance of convenience lie (taking into account the adequacy of damages)
3. If the balance of convenience is even, the status quo should be preserved.

Question 22

Chieftain Construction Limited v Ryan [2008] IEHC 147

Answer 22

Interlocutory Injunctions: Breaking down the test

A . Serious/Bona Fide Question to be Answered

Plaintiff builders sought interlocutory relief to prevent the defendant from carrying out alleged acts of trespass/nuisance on their site; continuous nuisance
Defendants said they were lawfully picketing the sights under the Industrial Relations Act 1990;
In refusing the plaintiff’s application for an injunction, the Court held that the plaintiff’s application lacked the sufficient subst
ance to persuade the Court that there was a fair or substantial or serious issue to be tried;

Question 23

Metro International SA v. Independent News & Media Plc [2005] IEHC 309:

Answer 23

Interlocutory Injunctions: Breaking down the test

B. Assessing the adequacy of damages

Case concerned whether or not the plaintiff could seek an injunction restraining the defendant from using the word “metro” in a newspaper when the word was already trademarked;
Court held that damages would not be adequate compensation for the plaintiff in this instance (looked at the prospect of launching in a market free of competition against launching in one with competition and the plaintiff having to postpone the launch of its newspaper until after trial) and so assessed the balance of convenience and granted an injunction;
Injunction must be very factually dependent, launching in a marlet with no competition - impossible to see the scale of damages and post-ponong launch of newspaper - impossible to tell
How impossible is it to assess the damages?

Question 24

DSG Retail Limited v PC World Limited [1998] IEHC 3

Answer 24

Interlocutory Injunctions: Breaking down the test
B. Assessing adequacy of damages

Plaintiff sought to obtain an interlocutory injunction to prevent the defendant from passing off their goods/services as those of the plaintiff;
Interlocutory relief was not granted in circumstances where the defendant agreed to give a number of undertakings (inform all customers that they are not the plaintiff’s business and to keep weekly records of all transactions);
Defendants agreed to take certain steps to avoid injunction
Loss is 100% quantifiable, if passing off happened, defendant is willing to disclose how much

Question 25

Teva Pharmaceutical Industries Ltd v Mylan Teoranta [2018] IEHC 324

Answer 25

Interlocutory Injunctions: Breaking down the test

B. Assessing adequacy of damages

Interlocutory injunction sought to restrain a patent infringement;
Court held that damages could be an adequate remedy and so an interlocutory injunction was refused;
Unable to mitigate the issue of generics coming onto the market, overly oppressive
Counterweight to property rights in this case – entry onto the market of other generic manufacturers.

Question 26

Okunade v Minister for Justice, Equality and Law Reform [2012] 3 IR 152

Answer 26

Interlocutory Injunction: Breaking down the test

C. balance of convenience

Plaintiff sought interlocutory injunction preventing their deportation until the return of his judicial review proceedings of of refugee status;
Interlocutory injunction was ultimately granted;
Seeking an interlocutory injunction while his case is being reviewed
Here the court stressed the importance of not attempting to resolve conflicts of evidence at the interlocutory stage
Where does prejudice lie - by not granting him relief he would be deported - he majorly benefits from the injunction

Question 27

B & S Ltd v Irish Auto Trader Ltd [1995] 2 ILRM 152

Answer 27

Interlocutory Injunctions: Breaking down the test

D. preserving the status quo

Plaintiff sought an interlocutory injunction restraining the defendant from publishing/distributing magazines within the jurisdiction;
Both parties trading magazines under the name “Autotrader”;
Justice McKracken refused injunctive relief by finding that even though there was a serious issue and that damages would be an inadequate remedy, the court would maintain the status quo by allowing the defendant to extend its established business in a bona fide manner, particularly where the confusion between the publications would be minimal;
Coming to the market without ill-will, no clash or confusion, not reasonable to believe car fans could not tell the difference between magazines

Question 28

Private Research Ltd v Brosnan [1996] 1 ILRM 27

Answer 28

Interlocutory Injunctions: Breaking down the test
D. Preserving the status quo

Plaintiff initiated proceedings for breach of copyright, passing off and misuse of confidential information in circumstances where the defendants (former employees of the plaintiff) left the plaintiff’s publication and used some of the subscriber details of the plaintiff to set up a similar publication;
An injunction was initially granted but on appeal this was overturned by Justice McCracken;
Along with saying there was not a serious issue to be tried, Justice McCracken noted that the balance of convenience did not favor the grant of an injunction;