Davis v Walshe & Plynth Ltd T/A Dew Wholesale

• Jurisdiction: Ireland
• Judge: Mr. Justice Roderick Murphy
• Judgment Date: 14 May 2002
• Neutral Citation: [2002] IEHC 31
• Docket Number: 4977P/2002
• Court: High Court
• Date: 14 May 2002

[2002] IEHC 31

THE HIGH COURT

4977P/2002

DAVIS v. WALSHE & PLYNTH LTD T/A DEW WHOLESALE

BETWEEN

CON DAVIS

PLAINTIFF

AND

SEAN WALSHE

AND

PLYNTH LIMITED TRADING AS DEW WHOLESALE

DEFENDANTS

Citations:

COMPANIES ACT 1963 S205

PHILPOTT V O'GILVY 2000 3 IR 206

PHILPOTT V O'GILVY 2000 3 IR 213

BATTINI V GUY

Synopsis:

EMPLOYMENT

Injunction

Termination of employment - Wrongful dismissal - Interlocutory Injunction - Balance of convenience - Whether plaintiff entitled to injunctive relief in the absence of claim for damages for wrongful dismissal - Whether damages adequate remedy (2002/4977P - Murphy J - 14/5/2002)

Davis v Walshe and Plynth Ltd

Facts: The plaintiff sought an interlocutory injunction which would continue the effects of an interim injunction which he had previously obtained. The plaintiff sought an order restraining the defendants from terminating his employment contract or from taking any steps on foot of a purported dismissal or suspension. In addition declarations were sought that the plaintiff continued to be in the employment of the first defendant and damages for breach of constitutional rights, distress, defamation, together with a claim for accounts of sums found to be due and owing to the plaintiff. The defendant claimed that as the plaintiff had not sought damages for dismissal no injunction could be given and in any event that the balance of convenience was against the continuation of the interim injunction.

Held by Murphy J in refusing the interlocutory relief for declarations and the permanent injunction sought. Where there was a claim for damages for wrongful dismissal the plaintiff might also be entitled to declarations and injunctions in aid of that common law remedy but equitable relief had no independent existence apart from a claim for damages for wrongful dismissal. As the plaintiff denied he had been dismissed and contended that his contract of employment was extent and had not claimed damages for wrongful dismissal - insofar as no proper notice was given - he had undermined his right to equitable relief. Whether or not there was a serious issue to be tried damages would be an adequate remedy.

Mr. Justice Roderick Murphy

1.ISSUE

1 In this employment case the Applicant seeks an interlocutory injunction. The Applicant obtained an interim injunction on the 4th of April, 2002 restraining the Defendants from terminating the Applicants contract of employment or taking any steps whatsoever on foot of a purported dismissal or suspension of the Applicant; interfering with the employment of the Applicant or interfering with the discharge by the Applicant of the role and functions of sales director; interfering with the remuneration of the Applicant or other emoluments of the Applicant in his capacity as Sales Director; publishing in any manner whatsoever any statement or other communication to the effect that the Applicant had been dismissed from his employment had been or would be terminated and, appointing any person to the position of sales director or to carry out the functions of the same save with the consent of the Applicant or by Order of the Court. An undertaking as to damages was given.

2 Interlocutory relief was sought in the same terms.

3 The general endorsement of claim dated the 4th of April, 2002 originally claimed those injunctive relief together with damages for breach of constitutional rights, damages for reckless infliction of emotional suffering, trauma, distress and upset, damages for conspiracy, damages for defamation and injurious falsehoods, together with a claim for accounts of sums found to be due and owing to the Plaintiff. By amended plenary summons bearing the same date the Plaintiff claimed as follows:

4 1. A declaration that the Plaintiff is and continues to be in the employment of the first named Defendant as its Sales Director.

5 2. A declaration that the purported dismissal of the Plaintiff communicated to him on the 25th of March, 2002, is null and void and of no efficacy being in breach of the principals of natural and constitutional justice and being in breach of the Plaintiff's contract of employment with the Defendant.

6 A Statement of Claim delivered the 29th of April, 2002 prayed for such declarations and injunctive reliefs. This statements described the first Defendant as the principal shareholder and Managing Director of the second Defendant.

2.FACTS:

7 Both the Statement of Claim and the grounding Affidavit for this motion refer to the first named Defendant on his own behalf and on behalf of the second named Defendant inducing the Plaintiff to enter into a contract for services for twelve months. On satisfactory completion of such contract the Plaintiff would then commence working with the second named Defendant from the first named Defendant in consideration of the Plaintiff entering into the aforesaid contract. This was confirmed to the Plaintiff at the end of the first year of his relationship with the Defendants.

8 On Monday 25th of March, 2002 the Plaintiff alleges that the first named Defendant wrongfully and in breach of the Plaintiff's constitutional rights to natural and constitutional justice in attempting to terminate the Plaintiff's said contract of employment. The plaintiff was informed that he was suspended without pay with immediate effect. This was confirmed in writing. The Plaintiff did not and does not accept the aforesaid repudiation but contends that his contract of employment is extant. It is not capable of being terminated save on the giving of reasonable notice of twelve months and save only for valid reasons. There are no objective grounds for any loss of trust or confidence between the parties. The Plaintiff contends that by reason of the wrongful and unlawful acts he has suffered loss, damage, inconvenience and expense, including damage to his reputation and an inference that he was guilty of some misconduct justifying his immediate removal.

9 Two days later, on the 27th of March, 2002 the Plaintiff was offered redundancy or another position as Sales Representative as the company needed to cut back. The Defendant's denied that the...