Baínne Aláinn Ltd and Another v Glanbia Plc

• Jurisdiction: Ireland
• Judge: Mr. Justice Max Barrett
• Judgment Date: 24 October 2014
• Neutral Citation: [2014] IEHC 482
• Court: High Court
• Date: 24 October 2014

Baínne Aláinn Ltd & Anor v Glanbia Plc

Approved Judgment

No Redaction Needed

BETWEEN:

BAÍNNE ALÁINN LIMITED AND SHAY HAYDEN

PLAINTIFFS

AND

GLANBIA PLC

DEFENDANT

[2014] IEHC 482

[No. 7691 P/2014]

THE HIGH COURT

Interlocutory injunctions – Interim injunctions – Application to discharge – Plaintiff seeking interlocutory injunction restraining the defendant – Whether plaintiff”s interim injunction should be discharged

Facts: The plaintiffs were Mr Hayden and Baínne Aláinn Ltd, the latter being the former”s company incorporated in the furtherance of his dairy distribution business. The plaintiffs started delivering Snowcream dairy products in 2009, the Snowcream milk plant then being owned by Waterford Foods plc, the ownership of which subsequently devolved to the defendant, Glanbia plc. He subsequently bought up other dairy rounds. In the absence of objection from Glanbia, he acquired a large dairy round in Gorey, Co. Wexford in 2010. In August, 2014, Mr Hayden met with Glanbia and was advised that as a consequence of the acquisition of Wexford Creamery by Glanbia and the need to accommodate the Wexford Creamery agent, Mr Hayden”s Gorey round was to be cut, with a substantial portion going instead to the Wexford Creamery agent. Mr Hayden secured an ex parte injunction whereby it was ordered by the High Court that Glanbia be restrained from taking any action to remove the plaintiffs from their current duties. Mr Hayden claimed that: 1) the proposed arrangements were in breach of his existing contractual arrangements; 2) he would suffer an immediate and ongoing financial loss and a loss of commercial reputation; 3) he procured at least part of the distribution business which is now proposed to be moved, distinguishing between “contract business” and “private business”. Glanbia contended that the Gorey route, because it was acquired in 2010, must have been governed by the standard-form distribution agreements that it issued around that time. Mr Hayden contends that the 1995 agreement applies to the entirety of his dealings with Glanbia and that Glanbia by its proposed actions is acting in breach of same. The plaintiffs applied to the High Court for an interlocutory injunction restraining Glanbia. There was also a related application to discharge the interim injunction granted on 1st September, sought on the basis of an alleged failure by the plaintiffs to disclose material information when making the ex parte application for the interim injunction, namely the failure to detail the meeting of 27th August in the affidavit that grounded the application. Mr Hayden disputed that any financial compensation was offered at the meeting.

Held by Barrett J that the court did not consider that the non-disclosure that arose justified the discharge of the interim injunction or the refusal of the interlocutory injunction, applying Bambrick v Cobley [2005] IEHC 43. Barrett J held that Mr Hayden has shown that he will suffer damages which are completely impossible to quantify with the necessary degree of probability, considering Curust Financial Services Ltd v Loewe-Lack-Werk [1994] 1 IR 450. Barrett J held that the material available does not fail to disclose that Mr Hayden has any real prospect of succeeding in a claim for a permanent injunction at the trial of the action. Barrett J did not consider that if Mr Hayden succeeds at the plenary hearings, damages would be adequate compensation for the non-issuance of an interlocutory injunction. In balancing the risk of injustice Barrett J held that the potential injustice to be suffered by Mr Hayden were the injunction refused would be the greater. The court concluded as a matter of probability that if the injunction sought is not granted, Mr Hayden”s business will not survive to the full trial of the action and that the only way of preserving the status quo ante between the parties is to grant the injunctive relief sought.

Barrett J held that it is appropriate to grant relief to Mr Hayden by way of interlocutory injunction as the balance of convenience and the scales of justice were weighted heavily in Mr Hayden”s favour. The court noted that Mr Hayden expressed a willingness to give the usual undertaking in damages and was satisfied to accept his offer that such undertaking be given. The court did not consider that the exact terms of the injunction sought were appropriate in that the proposed terms would capture actions the lawfulness and legitimacy of which was not in dispute. Barrett J held that the court would consider with counsel the appropriate wording of the interlocutory injunction that was to issue pursuant to the judgment.

Application granted.

BAMBRICK v COBLEY 2006 1 ILRM 81 2005/3/573 2005 IEHC 43

TATE ACCESS FLOORS INC v BOSWELL 1991 CH 512 1990 3 AER 303 1991 2 WLR 304

AMERICAN CYANAMID CO v ETHICON LTD (NO1) 1975 AC 396 1975 2 WLR 316 1975 1 AER 504

RSC O.50 r6

CAMPUS OIL v MIN FOR INDUSTRY (NO 2) 1983 IR 88 1984 1984 ILRM 47

OKUNADE v MIN FOR JUSTICE & ORS 2012 3 IR 152 2013 1 ILRM 1 2012/37/10891 2012 IESC 49

CURUST FINANCIAL SERVICES LTD v LOEWE- LACK- WERK OTTO LOEWE GMBH 1994 1 IR 450 1992/6/1603

FITZPATRICK v CMSR OF AN GARDA SIOCHANA 1996 ELR 244 1997/3/985

O MURCHU T/A TALKNOLOGY v EIRCELL LTD UNREP SUPREME 21.2.2001 2001/20/5410

MCGRATH EVIDENCE 2005 295

RSC O.40 r4

1 1. This is an application for an interlocutory injunction restraining Glanbia plc and its servants or agents from taking certain actions in respect of either or both of the plaintiffs. There is also a related application to discharge an interim injunction that was granted on 1 ^st September last in terms similar to the proposed interlocutory injunction. The discharge is sought on the basis of an alleged failure by the plaintiffs and their advisors to disclose material information when making the ex parte application for the interim injunction. Any views expressed in this judgment are tentative in terms of the strength or weakness of any case that might be made by either side at plenary hearing.

Plaintiffs

2 2. The application is brought by Mr. Shay Hayden and Baínne Aláinn Limited. The latter is a company that Mr. Hayden has incorporated in the furtherance of his dairy distribution business and is the company to which, for example, Glanbia issues the regular statements of account arising from its dealings with what is, in effect, Mr. Hayden's dairy distribution business. There is some suggestion from Glanbia that it ought properly to be construed as having dealt at all times with Mr. Hayden and not with Baínne Aláinn Limited. Any confusion arising in this regard, at least on the part of Glanbia staff, is perhaps understandable. Mr. Hayden established his dairy distribution business, later incorporated a company to operate some or all of that business, left in his own name at least one significant agreement under which that business is operated, and remains the principal actor in the dairy distribution business. So it may be that in their everyday dealings Glanbia staff consider themselves always to be treating with Mr. Hayden in a personal capacity. However, it is clear from the statements of account that issue from Glanbia that it, as a company, recognises itself to be dealing directly, at least sometimes, with Baínne Aláinn Limited. Any such dealings as there are between Glanbia and Baínne Aláinn Limited appear to proceed on exactly the same basis as dealings between Glanbia and Mr. Hayden and thus it would seem appropriate that any injunction that issues pursuant to the instant proceedings ought to affect Glanbia, its servants and agents in respect of their dealings with both Mr. Hayden and Bainne Aláinn Limited.

Background

3 3. Sometime around 1991, Mr. Hayden started delivering 'Snowcream' dairy products in Wexford, the Snowcream milk plant then being owned by Waterford Foods plc, the ownership of which subsequently devolved to Glanbia. In order to commence in business, Mr. Hayden bought his own van and built up a dairy-round through dint of his own efforts. In the years since, he has built up business partly by acquiring new clients and partly by buying up the dairy-rounds of other individuals as they come up for sale. He has worked hard and he has done reasonably well.

4 4. In terms of buying up other dairy-rounds, Mr. Hayden's first foray in this regard came in 1993. At the time he made this first acquisition, Mr. Hayden did so with the comfort that the relevant dairy products supplier, then Premier Dairies, knew what was being done and made no objection to same. The distribution arrangements between Mr. Hayden and Premier Dairies were subsequently documented in a distribution agreement of 20 ^th September, 1995, which agreement is returned to later below. Following the 1993 acquisition, a flurry of later acquisitions further swelled Mr. Hayden's burgeoning dairy distribution business. All of these acquisitions, it is claimed, were done with the knowledge of, and without any objection from, Premier Dairies or indeed by Glanbia, after the latter came ultimately to own the Premier business. In affidavit evidence provided on behalf of Glanbia, reference is made to "approval" being given to an acquisition that took place in 2010.

5 5. There is some controversy in the affidavit evidence as to whether certain persons named by Mr. Hayden could in fact have indicated any lack of objection or granted any approval to all of Mr. Hayden's dairy-round acquisitions over the years. The court accepts that the individuals so named could not have been involved in all of the alleged pre-purchase discussions for the simple reason that all of them were not employed by Premier and/or Glanbia at the relevant times. The court notes that some of the named individuals are acknowledged in the affidavit evidence supplied by Glanbia as having...