High Court of Ireland Decisions

1. The Applicant seeks two injunctions against the Respondent pending the trial of these proceedings.

2. The first injunction seeks to restrain the Respondent from imposing and recovering certain monetary charges which were notified to the Applicant on the 7th of December, 2000, relating to its activities at Dublin Airport.

3. The second injunction seeks to restrain the operation of ‘ Rules of Conduct ’ promulgated by the Respondent on the 15th of December, 2000.

4. On the 22nd of December, 2000, leave was granted by Kinlen J to seek Judicial Review of each of these decisions of the Respondent. The principal relief sought is an Order of Certiorari seeking to have both the charges and the ‘ Rules of Conduct ’ quashed by this Court.

5. At the time that he granted leave Kinlen J also granted interim injunctions restraining the implementation of both the charges and the ‘ Rules of Conduct ’ and these injunctions have, subject to a modification agreed before the President at a hearing on the 29th of December, 2000, continued in force ever since.

6. This application seeks to continue these injunctions until the trial of these Judicial Review proceedings.

7. Mr. Hogan S.C. on behalf of the Applicant invited me to depart from the well established principles which apply to the grant of interlocutory injunctions in considering the Applicant’s case. These principles are well known. They are that in the exercise of its discretionary jurisdiction the Court ought to grant an interlocutory injunction only when satisfied that the Applicant has demonstrated:-

8. Mr. Hogan contends that his case in law both as to the invalidity of the charges and the ‘ Rules of Conduct ’ is so strong that I ought not to apply these well established principles but should proceed to grant an injunction pending trial based on the strength of his case alone and without regard to either adequacy of damages as a remedy or balance of convenience.

9. I reject this invitation. I do so on two grounds. First, such an approach is unprecedented. No case was cited in support of it. It is an invitation which is extended in the teeth of authoritative statements from the highest Courts both in this jurisdiction and in England.

10. Later in his speech an American Cyanamid V Ethicon Lord Diplock said “the governing principle is that Court should first consider whether if the Plaintiff were to succeed at the trial in establishing his right to a permanent injunction he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the Defendant’s continuing to do what was sought to be enjoined between the time of the application and the time of the trial. If damages in the measure recoverable at common law would be adequate remedy and the Defendant would be in a financial position to pay them no interlocutory injunction should normally be granted, however strong the Plaintiff’s claim appeared to be at that stage”.

11. This last quotation is relevant not merely to this aspect of the matter but to a further aspect of this case which I will consider under the heading of adequacy of damages.

12. These quotations make it clear that the Court ought not to attempt an evaluation of the strengths or weaknesses of either sides case at this stage of the proceedings save in the limited circumstances identified subsequently in the speech of Lord Diplock which are not relevant here.

13. My second reason for rejecting the invitation is that even if Mr. Hogan were correct and there was such a principle which would enable me to depart from the normal rules governing the grant of interlocutory injunctive relief on the basis of the Applicant having made out a virtually unanswerable case in law it would not be applicable here. I am not at all satisfied that the Applicant’s case is so clear at law as to be unanswerable by the Respondent. It follows therefore that even if there was a legal basis for this approach urged upon me by Mr. Hogan it would have no application to the present case.

14. I will therefore deal with this case on the conventional and well established basis upon which the Court exercises this discretionary jurisdiction.

15. The Applicant has already satisfied Kinlen J of the existence of an arguable case in respect of its complaints against the Respondent. If it had not done so, leave to seek Judicial Review would not have been granted. A higher standard of proof is applicable on this application for an interlocutory injunction pending trial. In my view it has been achieved both in respect of the charges and the ‘ Rules of Conduct ’. Indeed that much is not seriously disputed by the Respondent’s for the purpose of this application. I am therefore satisfied that the Applicant has demonstrated a serious issue for trial in respect of each of the decisions which are sought to impugned in these proceedings.

16. I have already quoted a passage from the speech of Lord Diplock setting forth how the Court ought to approach the question of adequacy of damages. It is clear that if the Court concludes that damages would be an adequate remedy for the mischief complained of by the Applicant and the Respondent would be in a financial position to pay them then no interlocutory injunction should normally be granted however strong the Plaintiff’s claim appears to be. That is the test which is applicable here.

17. Insofar as the question of the charges which are being imposed by the Respondent are concerned there can be no doubt but that damages would provide a complete remedy to the Applicant should it have to pay them in the meantime in circumstances where the charges are subsequently at trial found to be unlawful. There is no doubt but the Respondent could repay such monies together with interest thereon and that is not in question. Not merely are damages an adequate remedy but in the Affidavit evidence before the Court they have even at this stage actually been quantified. Such being the case it is fatal to the claim of the Applicants for an interlocutory injunction and indeed was always so.

18. Accordingly insofar as the injunction concerning the imposition of these charges is concerned it is refused and indeed it is difficult to see how it could ever have been sought.

19. The position in respect of the ‘ Rules of Conduct ’ is not so clear. It might well be said that any damage which might occur from the imposition of this code would not be capable of compensation in damages. But the gravamen of the Applicant’s case is not that it is at present being damnified by any provision of the code. Rather it is that one part of the code would permit the Respondents to unilaterally alter existing alleged contractual rights which the Applicant contends that it has with the Respondent in respect of pier A at Dublin Airport. It is not however in dispute that to date no attempt had been made by the Respondent to operate the provisions of the code which would allegedly enable it to bring about such a unilateral alteration to the Applicant’s contractual rights. Not merely that but the position of the Respondent is dealt with at paragraph 59 of the Affidavit of the Deputy Chief Executive of the Respondent as follows:-

20. Such being the position it is clear that the injunction which is sought in respect of the rules of conduct is sought quia timet.

21. The principles which are applied by the Court in the grant of interlocutory quia timet injunctions have most recently been considered by Geoghegan J (when a Judge of this Court) in Szabo and others v Esat Digifone Limited and others [1999] 2 LIRM 102 . In that case Geoghegan J held as follows:-

22. I am not satisfied that this test has been met by the Applicant here. There is not in my view a sufficient risk of future injury to justify the immediate grant of an injunction. The application for this injunctive relief is premature.

23. Even if I am wrong in the view which I have expressed concerning the injunction relating to the ‘ Rules of Conduct ’ I would nevertheless in any event refuse such injunction on the balance of convenience.

24. It appears to me to be highly undesirable that at an Airport catering for 117 airlines and 14 million passengers per annum a clear and comprehensive set of rules should apply to 116 of those airlines and another set of rules (which depend on a mixture of custom, practice, informal rules and agreements of varying types) should apply to 117th airline. That in my view could not be regarded as good, sensible or orderly management of an airport facility and ought not to be forced on the Respondent by the Court. The Respondent is responsible for the management of Dublin Airport, not this Court. It follows therefore that on this ground also I refuse the injunction sought concerning the ‘ Rules of Conduct ’.

25. Both injunctions are therefore refused.

26. There is one other matter to which I ought to allude. An allegation was made by the Respondent to the effect that in seeking the interim orders from Kinlen J there was non disclosure of material matters by the Applicant. Three such species of non disclosure were identified and I have considered them.

27. I do not depart one iota from the observations which I made in the case of Adams v The Director of Public Prosecutions and others (unreported 12th April 2000) concerning the duty of disclosure in ex parte applications. There I said

28. I am not satisfied that there has in the present case been a departure from these obligations. The Applicant might perhaps have been more prudent to have put the relevant material before the Court if only to avoid an allegation of the sort which was made, being made. But the failure to do so does not appear to me to have amounted to a non- disclosure of material facts. Consequently this complaint does not give rise to further consideration.

29. The order of the Court will be to refuse both injunctions pending the trial of these proceedings.