High Court of Ireland Decisions

Judgment Title: Chieftain Construction Ltd & Anor -v- Ryan & Ors

Neutral Citation: [2008] IEHC 147


High Court Record Number: 2008 3184 P

Date of Delivery: 01 May 2008

Court: High Court

“An Act to make further and better provision for promoting harmonious relations between workers and employers, and to amend the law relating to trade unions and for these and other purposes to amend the Industrial Relations Acts 1946 to 1976 and the Trade Union Acts, 1871 to 1982.”

“employer” means a person for whom one or more workers work or have worked or normally work or seek to work having previously worked for that person;
“trade dispute” means any dispute between employers and workers which is connected with the employment or non-employment, or the terms or conditions of or affecting the employment, of any person;
“trade union” means a trade union which is the holder of a negotiation licence under Part II of the Trade Union Act, 1941 ;
"worker" means any person who is or was employed whether or not in the employment of the employer with whom a trade dispute arises, but does not include a member of the Defence Forces or of the Garda Síochána;

“(1) It shall be lawful for one or more persons, acting on their own behalf or on behalf of a trade union in contemplation or furtherance of a trade dispute, to attend at, or where that is not practicable, at the approaches to, a place where their employer works or carries on business, if they so attend merely for the purpose of peacefully obtaining or communicating information or of peacefully persuading any person to work or abstain from working.”

“Mr. Fitzsimons, on behalf of those plaintiffs, argued that the existence of …. a probability test as a guide to the granting of interlocutory relief was recognised by the former Supreme Court in Educational Company of Ireland Ltd. v. Fitzpatrick [1961] I.R.323. In particular, he relied on the judgment of Lavery J. in that case. I must say at once that I do not agree. In my opinion, the judgments in that case do not support this argument. It is true that there is one reference to "probability" contained in an extract from Kerr on Injunctions (6th ed.) which was quoted by Lavery J. at p. 336 of the report. That reference, in its context, is of doubtful significance. However, at p. 337 of the report, Lavery J. clearly laid down what he regarded as the proper test when he said:—
“The plaintiffs have to establish that there is a fair question raised to be decided at the trial. The arguments, lasting three days in this Court, show I think that there is such a question to be determined.”
In any event, I would regard the application of the suggested test as contrary to principle. As I have already mentioned, interlocutory relief is intended to keep matters in statu quo until the trial, and to do no more. No rights are determined nor are issues decided. I think that the principle is stated correctly in the following passage from Kerr on Injunctions (6th ed. p. 2), which was noted by Lavery J. in the Educational Company Case :—
“In interfering by interlocutory injunction, the Court does not in general profess to anticipate the determination of the right, but merely gives it as its opinion that there is a substantial question to be tried, and that till the question is ripe for trial, a case has been made out for the preservation of the property in the meantime in statu quo .”
The application of the plaintiffs' criterion on a motion for interlocutory relief would involve the Court in a determination of an issue which properly arises for determination at the trial of the action. In my view, the test to be applied is whether a fair bona fide question has been raised by the person seeking the relief. If such a question has been raised, it is not for the Court to determine that question on an interlocutory application: that remains to be decided at the trial. Once a fair question has been raised, in the manner in which I have indicated, then the Court should consider the other matters which are appropriate to the exercise of its discretion to grant interlocutory relief. In this regard, 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 said.”

“The question was also considered by the House of Lords some ten years later in American Cyanamid v. Ethicon Ltd . It was there laid down that a court, in exercising its discretion to grant or to refuse an interlocutory injunction, ought not to weigh up the relative strengths of the parties' cases on the evidence available at the interlocutory stage - that evidence being then necessarily incomplete. Lord Diplock, with whose speech the other members of the House agreed, referred at p. 407 to what he called the supposed rule that the court is not entitled to take any account of the balance of convenience unless it has first been satisfied that if the case went to trial upon no other evidence than is before the court at the hearing of the application the plaintiff would be entitled to judgment for a permanent injunction in the same terms as the interlocutory injunction sought.”
Lord Diplock then continued at pp. 407-8 of the report:— “Your Lordships should in my view take this opportunity of declaring that there is no such rule. The use of such expressions as ‘a probability’, ‘a prima facie case’, or 'a strong prima facie case' in the context of the exercise of a discretionary power to grant an interlocutory injunction leads to confusion as to the object sought to be achieved by this form of temporary relief. The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried. It is no part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial. One of the reasons for the introduction of the practice of requiring an undertaking as to damages upon the grant of an interlocutory injunction was that 'it aided the court in doing that which was its great object, viz. abstaining from expressing any opinion upon the merits of the case until the hearing’: ( Wakefield v. Duke of Buccleugh (1865) 12 L.T. 628 ). So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought."
It was submitted on behalf of the plaintiffs that there are differences between the test applied in the American Cyanamid Case and those applied in the Educational Company Case and [Esso Petroleum Co (Ir) Ltd v. Fogarty [1965] I.R. 531] but any such differences are more apparent than real, as Mr. Justice Murphy noted in his judgment ruling the plaintiffs’ application for an interlocutory injunction. The tests applied by Lavery J. (“that there is a fair question raised to be decided at the trial”), by Kingsmill Moore J. (“that a serious question of law arose”), by Mr. Justice Walsh (“that there is a substantial question to be tried”) and by Lord Diplock (“that there is a serious question to be tried”) are essentially the same. A similar view was taken by the President of the High Court in Rex Pet Foods Ltd. v. Lamb Brothers (Dublin) Ltd (unreported, High Court, 26th August, 1982) where he stated that the statement of principles contained in these decisions do not differ but that, to some extent, each complements the other in certain aspects of the questions raised.
It seems to me that the passage which I have cited from the speech of Lord Diplock has much to recommend it in logic, common sense and principle. I would respectfully adopt it as being a correct statement of the law to be applied in cases of this kind. In a number of cases in recent years this Court has applied, as the true test, the test of determining whether a fair or serious question has been raised for decision at the trial and, if so, whether the balance of convenience was in favour of granting or refusing the interlocutory injunction sought. The latest of these cases was T.M.G. Group Ltd. v. Al Babtain Trading and Contracting Company (unreported, Supreme Court, 28th March, 1980). By reason of their extremely urgent nature, in none of them was judgment reserved.”

“On the face of it this judgment was revolutionary, even heretical. But in truth it represented what many judges were doing already, and since 1996 has stood the test of time.”

“I now turn to whether on a balance of convenience an interlocutory injunction should be granted. The leading case on the test to be applied on this point are set out by Lord Diplock in American Cyanamid v. Ethicon Ltd. [1975] AC 396. These tests have been applied and approved many times in this jurisdiction, and can be summarised that if it is shown there is a serious issue to be tried then:—
1. An interlocutory injunction should be refused if damages would adequately compensate the plaintiff for any loss suffered between the hearing of the interlocutory injunction and the trial of the action, provided the defendant would be in a position to pay such damages.
2. Should this test be answered in the negative, an interlocutory injunction should be granted if the plaintiff's undertaking as to damages would adequately compensate the defendant, should he be successful at the trial, in respect of any loss suffered by him due to the injunction being in force between the date of application for the interlocutory injunction and the trial, again assuming that the plaintiff would be in a position to pay such damages.
3. If damages would not fully compensate either party, then the court may consider all relevant matters in determining where the balance of convenience lies, but these will vary depending on the facts of each case.
4. It is normally a counsel of prudence, although not a fixed rule, that if all other matters are equally balanced, the court should preserve the status quo.
5. Again, where the arguments are finely balanced, the court may consider the relative strength of each party's case as revealed by the affidavit evidence adduced at the interlocutory stage where the strength of one party's case is disproportionate to that of the other.”

“I am satisfied that, having regard to the decision of the Supreme Court in Westman Holdings Ltd v. McCormack, it is not open to this Court, assuming the plaintiff has established that there is a fair and bona fide question to be tried, to express any view on the strength of the contending submissions in this case. In any event, even if it were open to the court at this interlocutory stage to evaluate the likely outcome of the trial, in my view it would be impossible to do so in this matter, which is bristling with difficult issues of fact arising from conflicting affidavit evidence and difficult issues of law.”

“In my view Lord Diplock did not intend … to exclude consideration of the strength of the cases in most applications for interlocutory relief. It appears to me that what is intended is that the court should not attempt to resolve difficult issues of fact or law on an application for interlocutory relief. If, on the other hand, the court is able to come to a view as to the strength of the parties' cases on the credible evidence, then it can do so. In fact, as any lawyer who has experience of interlocutory proceedings will know, it is frequently the case that it is easy to determine who is most likely to win the trial on the basis of the affidavit evidence and any exhibited contemporaneous documents. If it is apparent from that material that one party's case is much stronger than the other's then that is a matter the court should not ignore.”