Gary Keville Transport Ltd v MSC (Mediterranean Shipping Company) Ltd

JurisdictionIreland
JudgeMr. Justice Dignam
Judgment Date08 March 2022
Neutral Citation[2022] IEHC 130
CourtHigh Court
Docket Number[RECORD NO. 2021 5055 P]
Between
Gary Keville Transport Ltd
Plaintiff
and
MSC (Mediterranean Shipping Compan)] Limited

and

MSC (Mediterranean Shipping Company) SA
Defendants

[2022] IEHC 130

[RECORD NO. 2021 5055 P]

THE HIGH COURT

Interlocutory injunction – Unlawful interference – Balance of convenience – Plaintiff seeking an interlocutory injunction – Whether the balance of convenience favoured the granting of the injunction

Facts: The plaintiff, Gary Keville Transport Ltd (GKT), applied to the High Court for an interlocutory injunction. An interim injunction in the following terms was granted on consent by Barr J on the 17th August 2021: “that the Defendant be restrained until after the 11th day of October 2021 or until further Order in the meantime from exercising any embargo on the Plaintiff delivering and/or collecting the Defendants’ containers from any depot within Ireland and in particular to revoke and/or cease any instruction or business practice which has the consequence of prohibiting the Plaintiff company from transporting collecting and/or carrying the Defendants containers”. It was clarified that GKT was seeking an interlocutory order in the same terms as the interim order, suitably adapted for the interlocutory stage. GKT contended that what was sought was a prohibitory interlocutory injunction which sought to prohibit the defendants, MSC (Mediterranean Shipping Company) Ltd and MSC (Mediterranean Shipping Company) SA (MSC), from instructing depots not to allow GKT to drop off or collect MSC containers; this would have the effect of maintaining the status quo pending the trial of the action. GKT contended that as it was a prohibitory injunction all that was required of GKT was to establish that there was a fair, bona fide or serious question to be tried, that the plaintiff had pleaded five causes of action and that it had established a fair question in respect of each of them: (a) unlawful interference with GKT’s commercial activities; (b) interference with economic interest; (c)defamation; (d) abuse of a dominant position; and (e) breach of GKT’s property rights and right to a good name. GKT contended that damages would not be an adequate remedy because containers were an essential part of GKT’s business and denial of those containers may cause irreparable damage to the business and break GKT’s entire chain of operation. It was also contended that as a small family business trading on its name and goodwill the reputational harm done by a “ban” would have extremely grave consequences. GKT contended that the balance of convenience favoured the granting of the injunction because it maintained the status quo that had been in place since the mid-1990s; the Defendant would suffer no prejudice if the order was granted whereas the “re-instatement” of the “ban” could be catastrophic to GKT’s business.

Held by Dignam J that (e) was not a separate cause of action but refers to the constitutional rights which underlay the causes of action referred to in (a)-(d). He was not satisfied that GKT had established to the required standard of proof that there was a fair question to be tried that MSC was guilty of an abuse of a dominant position. He held that even if GKT had a fair case to be tried that the actions of the defendant were defamatory of GKT there was no nexus between that and the need for or entitlement to an injunction. He held that GKT had established a fair question to be tried that MSC’s action was wrongful/unlawful. He held that damages would be an adequate remedy. In his view when all aspects of the consideration of the balance of convenience or justice were taken into account the balance favoured the refusal of the injunction sought.

Dignam J refused the relief sought.

Application refused.

JUDGMENT of Mr. Justice Dignam delivered on the 8th day of March, 2022.

Introduction.
1

This matter comes before the Court by way of an application by the Plaintiff (“GKT”) for an interlocutory injunction. An interim injunction in the following terms was granted on consent by Barr J on the 17th August 2021:

“that the Defendant be restrained until after the 11th day of October 2021 or until further Order in the meantime from exercising any embargo on the Plaintiff delivering and/or collecting the Defendants' containers from any depot within Ireland and in particular to revoke and/or cease any instruction or business practice which has the consequence of prohibiting the Plaintiff company from transporting collecting and/or carrying the Defendants containers”.

2

The application comes before the Court in a somewhat unusual fashion in that a Notice of Motion was not issued following the granting of the interim injunction by Barr J. The matter simply proceeded by way of exchange of affidavits and was then given a hearing date of the 12th January 2022. It was clarified during the hearing that GKT was seeking an interlocutory Order in the same terms as the interim Order, suitably adapted for the interlocutory stage. The Defendants (“MSC”) did not suffer any prejudice from the absence of a Notice of Motion as they had proceeded on the basis that GKT was asking the Court to continue the interim Order pending trial.

3

A further unusual feature of the case is that in fact the interim Order expired on the 11th October 2021, so while the parties proceeded on the basis that this hearing was concerned with an application to continue that interim Order that is not in fact the case. Again, given that both parties proceeded on the same basis, this does not appear to have caused any difficulty and I have treated it as an application for an interlocutory injunction. It must also be noted that MSC, notwithstanding the expiry of Barr J's Order, continued not to exercise any “embargo” (as described in the Order) on GKT delivering and/or collecting MSC's containers from any depot within Ireland.

4

Finally, it must be noted that there is a considerable dispute between the parties as to the circumstances of the making of the consent interim Order. There are a number of aspects to this dispute, one of which is whether the Order was properly made against the Second-named Defendant. I do not propose to address this at this stage. GKT's case is that the First-named Defendant was at all material times dealing as agent of the Second-named Defendant. The First-named Defendant accepts that it presents itself to be the agent of the Second-named Defendant but says that all relevant operations in Ireland are conducted by the First-named Defendant and that the Second-named Defendant has not participated in any of the matters complained of by GKT. At the time of the making of the consent interim Order against both Defendants, the First-named Defendant's solicitor was not on record for the Second-named Defendant. In light of my conclusion below I do not need to address the legal consequences of this dispute and these averments. In the meantime, I will refer to the Defendants either separately or together as “MSC” save where it is necessary to distinguish between them. I will refer to the Plaintiff as “GKT”.

5

The application is grounded on an affidavit of Mr Gary Keville, a director of GKT, sworn on the 17th August 2021. A replying affidavit on behalf of MSC was sworn by Mr. Seán Douglas on the 18th October 2021. As noted above, there was an issue in relation to the inclusion of the Second-named Defendant and therefore at the time of swearing Mr Douglas swore the affidavit on behalf of the First-named Defendant only. An affidavit was also sworn by Mr. Gearóid Carey on the 18th October 2021. Mr. Carey was the solicitor for the First-named Defendant at that time and later came on record for the Second-named Defendant. His affidavit deals with events surrounding the application for the interim Order, discussions between the parties on that occasion and the grant of same by Barr J.

6

As I understand it, the matter appeared in the Chancery list from time to time and when it appeared in that list on the 16th December 2021, the Court gave it a date for hearing on the 12th January 2021 and directed that a Statement of Claim be delivered. That was delivered on the 21st December 2021. The Court did not give liberty for the filing of any further affidavits. However, an affidavit was sworn by Ms Helen Noble, solicitor for GKT on the 4th January 2022 and by Mr Gary Keville on the 6th January 2022 and they were delivered to the solicitors for MSC shortly thereafter. On the first day of the hearing MSC objected to these affidavits being admitted in circumstances where they were filed and delivered (after the date for hearing had been set) without leave of the Court and, indeed, without the Court being informed that further affidavits would be delivered. I heard submissions from the parties as to whether these affidavits should be admitted. Counsel for MSC made it clear that they were not seeking to adjourn the matter in order to reply to these affidavits, despite the fact that they would have things to say in reply, because they were anxious that the matter should proceed in order to bring some finality to the situation which had prevailed since the making of the Order in August 2021. They were, therefore, objecting to the admission of the affidavits. I decided that these affidavits should be admitted with the caveat that their contents were disputed. I did so on the basis that the objective of the Court when dealing with the late delivery of affidavits is to ensure that justice and fairness is done between the parties; that there was a risk of unfairness if GKT was not permitted to address the affidavits of Mr Douglas and Mr Carey but there was a particular risk to MSC in the affidavits being delivered in the manner in which these affidavits were because, if MSC looked for time to reply, the hearing of the interlocutory injunction would have to be adjourned and MSC would remain constrained, or at least would feel...

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1 cases
  • Gary Keville Transport Ltd v MSC [Mediterranean Shipping Company] Ltd
    • Ireland
    • High Court
    • 21 September 2022
    ...Justice Dignam delivered on the 21 st day of September 2022 . INTRODUCTION 1 This judgment follows on my earlier judgment in this case ( [2022] IEHC 130) and should be read therewith. In my earlier judgment I refused the plaintiff's application for an interlocutory injunction and the questi......

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