Campus Oil v Minister for Industry & Energy

Judgment Date01 January 1984
Neutral Citation[1983] IESC 2
Date01 January 1984
Docket Number[S.C. No. 19 of 1983]
CourtSupreme Court



[1983] IESC 2

O'Higgins C.J.

Griffin J.

Hederman J.



Subject Headings:

INJUNCTION: interlocutory




I agree with the judgment of the Chief Justice. I would however liketo add some observations of my own.


Mr. Fitzsimons on behalf of the plaintiffs submitted that, as theprovisions of the Treaty Establishing the European Community (the E.E.C.Treaty) forms part of the domestic law of the State, before determiningwhether or not the interlocutory injunction sought by thedefendants'should ,be granted, this Courtshould first interpret Articles 31, 31 and 36 of that Treaty. Thisshould be done, they say, for the purpose of determining whetherArticles 30 and 31 apply to a system such as that established by the Fuels (Control of Supplies) Order 1982, and, if they did, whether such asystem is exempt by the provisions of Article 36. These are the precisematters which, at the instance of the plaintiffs, Murphy J., pursuant to Article 177 of the E.E.C. Treaty,.referred to the Court of Justice of the European Communities at Luxembourg ("the E.E.C. Court")for the preliminary rulings of that Court. Before doing so, he had todetermine that the ruling of the E.E.C. Court is necessary toenable him to give judgment on the issues in dispute between the partiesin this Action. The plaintiffs stood over and successfully defended hisorder of referral on the defendants1 appeal to this Court against themaking of that order.


In my opinion, it would be highly undesirable, to put it at its lowest,for this Court to interpret those Articles in anticipation of therulings of the E.E.C. Court me the plaintiffs should not be allowed toblow hot and cold in the course of the same proceedings between the sameparties. It is for the E.E.C. Courtto interpret the provisions of the E.E.C. Treaty, and it is forour courts to apply it. Mr. Fennlly was in my opinion correctin pointing out that the primary object of Article 177 is to ensureuniform interpretation of Community law within all member states, asotherwise the application of Community law by the national courts of themember states could lead to divergent application in different memberstates, or even to application which would be contrary to the principlesof Community law. It is for this reason that although national courts,other than the court of last instance, have a discretion of seekpreliminary rulings under Article 177, the courts of last instance,whose cases set the important precedents, are obliged to refer to theE.E.C. Court any questions of Community law raised.


On the question of the principles to be applied in the granting orrefusing of an interlocutory injunction, Mr. Fitzsimons sought to relyon the judgment of Lavery 0. in the Educational Company of IrelandLimited v. Fitzpatrick and Others 1M1 I.PL 323 as establishing that the plaintiffs seeking the injunction must satisfy the Court that theprobability is in favour of the defendants' case ultimately failing inthe final issue of the suit. An analysisof the judgments in that case is of interest. Lavery J. cited withapproval two passages in Kerr on Injunctions, (6th Edn., 2 and pp. 15/16respectively) as settling the principles on which an interlocutoryinjunction will be granted. These passages are fully set out in thejudgment of Keane J. and I do not propose to repeat them. In the firstpassage, reference is made to the necessity of there being "asubstantial question to be tried1", and "a fair question toraise' as to the existence of the right alleged. In the second passagethe requirement of there being a fair question to raise as to theexistence of the right which the party seeking the injunction sets up isrepeated, and then reference is made to the requirement that the Courtmust, before disturbing any man's legal right or stripping him of any of the rights with which the law has clothed him, be satisfied that the probability is in favour of his case ultimately failing in thefinal issue of the suit.


Having cited the two passages referred to, Lavsry J. dealt with theissues that arose in the case. He referred to the requirement that theplaintiffs have to establish "that there is a fair question raisedto be decided at the trial", and gave as hisopinion "that the issues raised a question and a difficultone". And at p. 336 he said that "In this case there waywell be further facts elicited at the trial, but there can be no doubtthat a serious question of law arises", but he did not deal withthe question of whether or not the "probability" test hadbeen satisfied.


Maguire C. J., who dissented, cited with approval the passage at p. 15in Kerr of which Lavery J. approved, but he omitted that portion of itwhich dealt with the probability of success at the trial. Although hebased his decision on the ground that the plaintiffs had not shown thatthere were substantial grounds for doubting the existence of a tradedispute, he did, however, say that "on the other pointargued" he was not satisfied from what had been said on that pointthat it was probable that the plaintiffs would establish it.


Kingsmill Moore J. at p. 342 said that it appeared to him that a veryimportant and difficult question of law was involved and one whichrequired the most careful consideration. He cited Smyth and Anotherv. Beirne and Another (unreported) in which the Court unanimouslyheld that on the facts as accepted by the Judge of first, instance aserious question of law arose as to whether atrade dispute existed and that this warranted the granting of an interlocutory injunction, where the balance of convenience was in favourof granting it. He said:-

"Mr. Costello for the plaintiffs does not accept that all relevantfacts have been established and says that there are further facts whichhe hopes to establish if the case goes to a full Hearing, and if he canavail himself of discovery, interrogatories, and cross-examination toelicit them. I am of opinion that a plaintiff is entitled to have hiscase fully investigated in the ordinary course of legal procedure andthat it would be undesirable in the absence of consent to decide a legalquestion of this magnitude merely on the affidavits filed for thepurpose of the interlocutory motion."


O'Dalaigh J. said that he inclined to the view that the constitutionalissue raised by the plaintiffs is prima facie sufficient to turn thescales in their favour, and that accordingly the only remaining matterwas the balance of convenience. Maguire J. agreed with Lavery J., andalso with Kingsmill Moore and O'Dalaifh JJ.


It would appear therefore that the Chief Justice, who dissented,impliedly accepted the probability test, that Lavery J. stated but doesnot seem to have applied it, and that Kingsmill Moore J. and O'DalaighJ. were satisfied that there was a serious question to be tried.


Subsequently, in Esso Petroleum Company (Ireland) Limited v.Fogarty 1965 I.R. 531, O'Dalaigh C.J., with whom Lavery J. agreed,accepted that the principles to be applied are well summarised in thepassages from Kerr cited in the judgment of Lavery J. in the Educational Company of Ireland Limited case. Having stated that the plaintiffs were required to show that in the language of Kerr thereare substantial grounds for doubting the existence of the alleged legalright of the defendant, the exercise of which they seek to prevent, hesaid at p..539:-


"The Court before stripping him of this right must be satisfiedthat the probability is in favour of the defendants' case ultimatelyfailing in the final issue of this suit".


On the other hand, Walsh J., at p. 541, stated the principle applicableas follows:-


"The principles upon which interlocutory injunctions are grantedare well established and a Court will grant one when a case hasbeen made out for the preservation of property in statu quopending the trial of the action if it is of opinion that there is asubstantial question to be tried".


This is a clear and concise statement of the principles to be applied insuch cases.


The question was also considered by the House of Lords some ten yearslater in American Cyanamid v. Ethicon Ltd. 1975 A.C. 396. Itwas there laid down that the Court in exercising its discretion as togranting or refusing an interlocutory injunction, ought not to weigh upthe relative strengths of the parties' cases on the evidence availableat the interlocutory stage, that evidence being then necessarilyincomplete. Lord Diplock, with whose speech the other members of theHouse agreed, referred at p. 407 to what he called "the supposedrule that the Court is not entitled to take any account of the balanceof convenience unless it has first been satisfied that if the case wentto trial on no other evidence than is before the Court at the hearing of the application the plaintiff would be entitled to judgment for apermanent injunction in the same terms as the interlocutory injunctionsought".


He then continued:-


"Your Lerds was should in my view take this opportunity ofdeclaring that there is such rule. The use of such expressions as suchexpressions as "a probability", "a prima faciecase", or "a strong prima facie case" in the contextof the exercise of a discretionary power to grant an interlocutoryinjunction leads to confusion as to the object sought to be achieved bythis 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 aserious question to be tried.


It is no part of the court's function at this stage of...

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