Freney v Freney

JurisdictionIreland
JudgeMs. Justice Laffoy
Judgment Date22 October 2008
Neutral Citation[2008] IEHC 330
CourtHigh Court
Docket Number[No.5292P/2008]
Date22 October 2008

[2008] IEHC 330

THE HIGH COURT

[No.5292P/2008]
Freney v Freney

BETWEEN

BRIAN FRENEY AND GERARD FRENEY
PLAINTIFFS

AND

MYLES FRENEY AND PAUL FRENEY
DEFENDANTS

AMERICAN CYANAMID v ETHICON LTD 1975 AC 396

RSC O.52 r3

ADAMS v DPP 2001 2 ILRM 401 2001 1IR 47 2001/1/57

BAMBRICK v COBLEY 2006 ILRM 81

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S2

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S4

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S5

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S9

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S10

AG v PAPERLINK 1984 ILRM 373

O'CONNOR v WILLIAMS 2001 1 IR 248 1996 2 ILRM 382 1996/14/4287

POST OFFICE ACT 1908

ROAD TRAFFIC (PUBLIC SERVICE VEHICLE) REGS SI 191/1963

NEWS DATACOM LTD v DAVID LYONS 1994 1 ILRM 450 1994/5/1539

ST. GEORGE'S HEALTHCARE NHS TRUST v S 1998 3 WLR 936

INJUNCTIONS

Interim

Discharge - Order restraining defendants from threatening and intimidating plaintiffs - Discretion of court - Conflict of evidence - Whether failure on the part of plaintiffs to make full and frank disclosure - Nature of relief sought - Nature of court's jurisdiction - Non-disclosure - Materiality of facts not disclosed - Circumstances of case - Whether any breach on part of plaintiffs of duty of full and frank disclosure - Whether relief sought inappropriate - Evidence - Whether interim application based on evidence as distinct from mere suspicion - Whether sufficient evidence to support application for interim injunction - American Cyanamid v Ethicon Ltd [1975] AC 396, Adams v Director of Public Prosecutions [2001] 2 ILRM 401, Bambrick v Cobley [2005] IEHC 43, [2006] 1 ILRM 81 and News Datacom Ltd v Lyons (Unrep, Flood J, 20/1/1994) considered; Attorney General v Paperlink [1984] ILRM 373 and O'Connor v Williams [2001] 1 IR 248 distinguished - Rules of the Superior Courts 1986 (SI 15/1986), O 52, r 3- Interim injunction discharged (2008/5292P - Laffoy J - 22/10/2008) [2008] IEHC 330

Freney v Freney

Facts: An interim injunction restraining the defendants from threatening or intimidating the plaintiffs was granted by the High Court on ex parte application to it by the plaintiffs. The defendants applied to have the interim injunction discharged, on the basis that: there had been a breach of duty of full and frank disclosure by the plaintiffs in applying ex parte for the injunction; that the relief was inappropriate in that it sought to restrain the commission of a criminal offence rather than a civil wrong; there was insufficient evidence tendered by the plaintiffs to support the grant of the injunction and; the court should exercise its discretion to discharge the injunction as it was unnecessary.

Held by Laffoy J in discharging the interim injunction that an order obtained on an ex parte application could be set aside on the ground of breach of the duty of full and frank disclosure. That an assertion that threatening wrongful behaviour on the part of defendants was likely to continue was a sound basis for seeking an interim injunction to restrain such behaviour. That there had been sufficient evidence to support the application for an interim injunction. That the defendants had tendered sufficient evidence from which it was reasonable to conclude that the continuation of the interim injunction was unnecessary.

Reporter: P.C.

Judgment of
Ms. Justice Laffoy
1

delivered on the 22nd day of October, 2008.

2

The plaintiffs in these proceedings are brothers. The first defendant is their father and the second defendant is their brother.

3

There is a long history of contention between the parties which culminated in the settlement of proceedings in the Commercial division of this Court (Record No. 2007/569IP) (the 2007 proceedings) in which the defendants and another sibling of the plaintiffs were plaintiffs and the plaintiffs were defendants. The 2007 proceedings were settled on 16th April, 2008. Under the terms of the settlement the defendants, as plaintiffs in the 2007 proceedings, confirmed that "they no longer maintain and will not in future assert any claim or interest of whatsoever nature against or in any of the assets of Lauro Enterprises Limited and/or its subsidiaries". Subsequently, by order dated 22nd April, 2008 made by Kelly J., having recited that a settlement had been reached therein, it was ordered, by consent, that the claim of the plaintiffs in the 2007 proceedings be dismissed.

4

These proceedings were initiated by a plenary summons which issued on 1st July, 2008 wherein the plaintiffs claim various injunctive reliefs, including an order restraining the defendants from breaching the terms of the settlement of the 2007 proceedings and an order restraining the defendants, their servants and/or agents or persons acting on their behalf from threatening and intimidating the plaintiffs or contacting them or howsoever inflicting emotional suffering on them concerning or relating to their interest in the assets of Lauro Enterprises Limited or its subsidiaries. The plaintiffs also claim damages for trespass, nuisance, assault and the tort of inflicting emotional suffering in the plenary summons.

5

On 1st July, 2008 the plaintiffs applied to this Court ex parte for an interim injunction and for short service of a notice of motion seeking interlocutory injunctions in the terms, inter alia of the orders referred to above. The application for the interim injunction was grounded on an affidavit sworn on 1st July, 2008 by the first plaintiff. On the basis of the plaintiffs' undertaking as to damages, I made an interim order until Monday, 7th July, 2008 or until further order in the meantime restraining the defendants, their servants or agents or persons acting on their behalf, from threatening and intimidating the plaintiffs, contacting them or howsoever before inflicting emotional suffering on them relating to their interest in the assets of Lauro Enterprises Limited or its subsidiaries. The order provided that the defendants should be at liberty to apply to vary or discharge the order on giving the plaintiffs twenty four hours notice of their intention so to do. The plaintiffs were given leave to issue their notice of motion claiming interlocutory relief for 7th July, 2008. The notice of motion was, in fact, issued on 1st July, 2008.

6

The interlocutory application was adjourned from time to time, the interim order continuing. Each of the defendants brought a motion to discharge the order of 1st July, 2008. The affidavits grounding those applications also responded to the plaintiffs' claim for an interlocutory injunction.

7

Eventually, the defendants' motions and the plaintiffs' application for an interlocutory injunction were listed for hearing on 31st July, 2008. On that occasion, I heard the defendants' motions. Having done so, I made an order discharging the interim order made on 1st July, 2008 against each of the defendants, indicating that I would give my reasons later. The purpose of this judgment is to set out those reasons. The plaintiffs' application for the interlocutory injunction stands adjourned.

8

The factual basis on which the plaintiffs sought interim relief as averred to in the grounding affidavit of the first plaintiff sworn on 1st July, 2008 was quite narrow. The starting point was the settlement of the 2007 proceedings.

9

The first event thereafter relied on in support of the application was the receipt by both plaintiffs of letters from the first defendant on 30th May, 2008. In each letter the first defendant recognised that there had been "finality in the legal sense" but appealed to the plaintiffs to give him a business asset or some money towards the acquisition of another business asset. On the face of it, there was nothing menacing or sinister or threatening about that letter.

10

However, subsequently each of the plaintiffs received two text messages on their respective mobile phones. The first was received on 16th June, 2008 from an anonymous sender, who represented himself or herself as "associates of your father". The thrust of the message was that the sender had examined the situation and was suggesting that the plaintiffs pay the first defendant for what they had "taken" or do a deal. The plaintiffs were requested to contact "an intermediary" without delay. The second text message was received on 24th June, 2008 and was stated to be sent by "Pat". It stated that the "association" had passed the first defendant's problem on to him. It stated that what the plaintiffs did "was wrong and stupid" and that they would have to come to an arrangement with their father. It was stated that their father would be paid what he was owed and that the sooner the plaintiffs did this "the easier it will be on everyone".

11

The first plaintiff averred that both he and the second plaintiff believed that the threats were genuine and that they constituted a real threat to their safety and to the safety of their respective families. They reported the matters to the Garda Síochána and were advised that the text messages were sent from pre-paid mobile phones. The first plaintiff averred that he contacted the first defendant by mobile phone following receipt of the second text message. While the first defendant denied any knowledge of the text messages, the first plaintiff averred that in the course of the conversation he got the clear impression from the manner of the first defendant's responses and tone that he was aware of the text messages.

12

The final incident of which the first plaintiff complained occurred in Dundrum Shopping Centre on 25th June, 2008. The first plaintiff averred that he met the second defendant there. When he greeted him, the second defendant became very aggressive, shouted at him, pushed him in the chest and came in...

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