Gerard Dowling and Others v Minister for Finance and Others
Jurisdiction | Ireland |
Judge | Clarke J. |
Judgment Date | 31 July 2013 |
Neutral Citation | [2013] IESC 37 |
Court | Supreme Court |
Docket Number | [SC No. 292 of 2013] |
Date | 31 July 2013 |
AND
[2013] IESC 37
Denham C.J.
Murray J.
Clarke J.
THE SUPREME COURT
INJUNCTIONS
Interlocutory injunction
Appeal against refusal of claim for interlocutory injunction to restrain sale of company - Injunction - Related constitutional challenge to underlying legislation - Related challenge to ownership of company - Standing - Delay - Applicable principles for consideration of delay - Bias - Test for establishment of objective bias - Whether trial judge correct to refuse interlocutory injunction - Whether arguable defence - Whether irreparable harm might be caused - Question of damages - Balance of justice - Where least risk of injustice lay - Whether court obliged to refer question to ECJ - Discretion of court - Dowling v The Minister for Finance [2014] IEHC 418, (Unrep, O'Malley J, 16/7/2013); Campus Oil Ltd v Minister for Industry (No 2) [1983] IR 88; Okunade v The Minister for Justice Equality and Law Reform [2012] IESC 49, [2012] 3 IR 152; Gilroy v Flynn [2004] IESC 98. (Unrep, SC, 3/12/2004); Union Ailmentaria SA v Spain [1990] 12 EHRR 24; Santex Spa v USSL (Case C-327/00) [2003] ECR I-1877; Universale-Bau (Case C-470/99) [2002] ECR I-11617; Bula v Tara Mines Ltd (No 6) [2000] 4 IR 412; Johnson v Chief Constable of Royal Ulster Constabulary [1986] ECR 1651; Amministrazione Delle Finanze Dell Stato v Simmenthal SpA [1978] ECR 629; Queen v Secretary of State for Transport [1990] ECR I-2433; Zuckerfabrik Suderdithmarschen AG v Hauptzollamt Itzehoe (Case C-143/88) (Unrep, ECR, 21/12/1991); Zuckerfabrik Soest GmbH v Hauptzollamt Paderborn [1991] ECR 1-145; Unibet (London) Ltd and Unibet (International) Ltd v Justitiaekanslern [2007] ECR 1-2271; Pringle v Government of Ireland [2012] IESC 57, (Unrep, SC, 19/10/2012); Le Pen v Parliament (Case C-208/03) [2003] ECR I-7939; Pafitis v Trapeza Kentrikis Ellados AE (Case C-441/93) [1996] ECR I-01347; AIB v. Diamond [2011] IEHC 505, (Unrep, Clarke J, 14/10/2011) and Fratelli Pardini SpA v Minister O Del Commercio Con Lestro (Case C-338/85) (Unrep, ECJ, 21/4/1988) considered - Credit Institutions (Stabilisation) Act 2010 (No 36), ss 9, 11 and 64 - Appeal dismissed (292/2013 - SC - 31/7/2013) [2013] IESC 37
Dowling v Minister for Finance
Facts: Permanent TSB Group Holdings plc and Permanent TSB were a holding company and related bank respectively that had received a cash injection of €2.7 billion in 2011 following a decision of the respondent/defendant due to the economic recession at the time. In return, the respondent acquired the life assurance business of these entities. It was the applicants"/plaintiffs" view that the respondent"s decision, made pursuant to the Credit Institutions (Stabilisation) Act 2010 (the '2010 Act'), was unreasonable and had resulted in a severe drop in the value of shares they held in the holding company. This was despite the fact that the holding company had held an extraordinary general meeting in July 2011 and voted against the planned intervention of the respondent. The appellants initiated a significant amount of litigation against the respondent.
These proceedings concerned an interlocutory application brought by the appellants to prevent the respondent from selling off Irish Life Group Ltd. ("Irish Life") which had been part of the transfer to the respondent. It was the appellants" case that the sale of Irish Life should be restrained until the conclusion of the related proceedings. The application was rejected before the High Court on the basis that by applying the principles of Campus Oil Limited v. Minister for Industry and Energy (No. 2) [1983] I.R. 88 it was held that although the appellants had legal standing to make the application and there was a fair issue to be tried, the balance of convenience lay in favour of rejecting the application. An appeal of that decision was subsequently launched.
The appellants argued that the principles of Campus Oil Limited v. Minister for Industry and Energy (No. 2) had not been correctly applied, and if they had, interlocutory relief would have been granted. Two preliminary points were also raised. Firstly, the respondent argued that the appellants had unreasonably delayed applying for the type of interlocutory relief sought thereby disentitling them from receiving it now. This was denied by the appellants who argued that sufficient expediency had been taken in bringing the application in all the circumstances of the case. Secondly, the appellants argued that the trial judge had been biased in hearing the interlocutory application which was derived from the fact that she had said in her decision by stating that 'there is no way I would have made an interim order in this matter because of the importance of the underlying issue"
Held by Clarke J. (with Denham C.J. and Murray J. concurring) that on the issue of delay, there was an expectation that a party seeking interim or interlocutory relief should move with sufficient expediency to enable the court to give adequate consideration to the issues and to allow the defendant to make adequate submissions. However, this did not mean a late application would be dismissed for delay as long as such delay was not considered unreasonable in the circumstances. In the circumstances of this case, it was held that the appellants had unreasonably delayed making their interlocutory application because of the fact the respondent had made it clear at an early stage that he intended to sell Irish Life but the interlocutory application had not been made until a late stage.
In regards to the appellants" assertion that the trial judge had been biased in hearing the interlocutory application, it was held that the appellants" point was misconceived. It was said that the term "interim order" as used in Irish procedural law meant an order that was to determine the temporary situation until a final determination could be made on a case and which was made on an ex parte basis. It was held that all this statement conveyed was that the court would not be prepared to consider granting an injunction until the substantive hearing without the respondent being allowed to make submissions. This was a statement that the Supreme Court agreed with entirely.
Finally, on the application of the Campus Oil Limited v. Minister for Industry and Energy (No. 2) principles, it was held that it was clear that there was the potential risk of irreparable damage to both the appellants and respondent depending on whether the interlocutory relief was granted or not. As the court was satisfied that the appellants had raised a fair issue to be tried and the respondent had an arguable defence, the key issue that had to be determined was therefore where the balance of convenience lay. It was held that the determining factor was the fact that if the injunction was granted, there would be a potential risk of irreparable damage to the national finances which the appellants acknowledged they would be unable to compensate. It was also held that if the injunction was refused, the court was satisfied that the respondent would be able to sufficiently compensate the appellants. The appeal would therefore be dismissed and a decision on the impact of the appellants" delay in bringing the application did not have to be determined.
Appeal dismissed
DOWLING & ORS v MIN FOR FINANCE UNREP 16.7.2013 2013 IEHC 299
COMPANIES ACT 1963 S205
TREATY ON FUNCTIONING OF EUROPEAN UNION ART S267
CREDIT INSTITUTIONS (STABILISATION) ACT 2010 S9
CAMPUS OIL LTD v MIN FOR INDUSTRY (NO 2) 1983 IR 88
OKUNADE v MIN FOR JUSTICE 2013 1 ILRM 1 2012/37/10891 2012 IESC 49
GILROY v FLYNN UNREP SUPREME 3.12.2004 2004/19/4269 2004 IESC 98
UNION AILMENTARIA SA v SPAIN 1990 12 EHRR 24
SPRY PRINCIPLE OF EQUITABLE REMEDIES 8ED 2010
SANTEX SPA v USSL C-327/00 2003 ECR I-1877
UNIVERSALE-BAU & ORS C-470/99 2002 ECR I-11617
CREDIT INSTITUTIONS (STABILISATION) ACT 2010 S11(4)
CREDIT INSTITUTIONS (STABILISATION) ACT 2010 S64
BULA LTD v TARA MINES LTD (NO 6) 2000 4 IR 412
JOHNSON v CHIEF CONSTABLE OF ROYAL ULSTER CONSTABULARY 1986 ECR 1651 1986 3 A ER 135
AMMINISTRAZIONE DELLE FINANZE DELL STATO v SIMMENTHAL SPA 1978 ECR 629
QUEEN v SECREATARY OF STATE FOR TRANSPORT EXPARTE FACTORTAME 1990 ECR I-2433
UNIBET (LONDON) LTD & UNIBET (INTERNATIONAL) LTD v JUSTITIEKANSLERN 2007 ECR I-2271
ZUCKERFABRIK SUDERITHMARSCHEN AG v HAUPTZOLLAMPT ITZEHOE C-143/88 21.2.1991 ECJ
ZUCKERFABRIK SOEST GMBH v HAUPTZOLLAMPT PADERBORN 1991 ECR I-415
PRINGLE v GOVT OF IRELAND UNREP SUPREME 19.10.2012 2012/39/11518 ...
To continue reading
Request your trial-
Dowling v Minister for Finance
...That relief was initially refused in the High Court [2013] IEHC 299 (Laffoy J.) and an appeal to the Supreme Court was dismissed [2013] IESC 37 (Clarke J., nem diss.). This, it might be thought, rendered this appeal moot, because the sale of Irish Life to the Canada Life cannot be undone, b......
- Permanent TSB Group Holdings Pls v Skoczylas
-
Permanent TSB Group Holdings Plc, Permanent TSB Group Holdings Plc_2
...not appear either necessary oor appropriate to make any further reference to those proceedings here. 13 Dowling v Minister for Finance [2013] IESC 37 14Para 15 Hardiman J considered that the evidence suggested that the Tribunal had made a judgment as to credibility or, as he put it at para......
-
Teva Pharmaceutical Industries Ltd v Mylan Teoranta t/a Mylan Institutional
...Keane J at p.6) 182 To similar effect are the observations of Clarke J. in the Supreme Court in Dowling v. the Minister for Finance [2013] 4 I.R. 576 where he stated: 'The factors, ... which come into play in assessing whether a party has moved with reasonable expedition in applying for an......