An injunction is effectively an order restraining a party to which it is directed from taking a particular act or requiring it to take a particular course of action. The remedy developed as a means of doing justice as between the parties where the traditional common law remedy of damages proved to be inadequate or unsuitable. Today, injunctions are generally recognised as a flexible and versatile form of remedy and are used with increasing frequency in modern litigation.
Types of injunction
Various types of injunction can be obtained under Irish law, depending on the relevant circumstances. Injunctions may, in the first instance, be differentiated between those which impose negative and positive obligations. The most common form falls into the first category, which is known as a 'prohibitory injunction', restraining the performance or continuance of a wrongful act. Conversely, an injunction which directs the positive performance of a particular step is known as a 'mandatory injunction', which is rarer. A further classification – even beyond the nature of the injunction sought – relates to when, in the context of a dispute, the injunction is sought. In this regard, a distinction applies as between interim or interlocutory injunctions on the one hand and perpetual injunctions on the other. The former are granted before the trial of the action. An interim injunction is typically granted on an ex parte basis and for a limited period – usually only until a further order is made. An interlocutory injunction, which is often made as that further order, will apply until the trial of the action to maintain the status quo pending final determination by the court. By contrast, a perpetual injunction will be granted only at the trial of the action once the right requiring protection through an injunction has been established. This update looks at a recent decision regarding the test applicable for the grant of a mandatory interlocutory injunction.
The nature of mandatory injunctions
As summarised above, a mandatory injunction compels a party to which it is directed to carry out a specific obligation or perform a specified act. Where one is dealing with a perpetual injunction, the case law would suggest that, in theory at least, there is little difference as to whether the nature of the injunction is prohibitory or mandatory. In practice, however, a mandatory order imposes an additional degree of hardship or expense on a defendant, which can influence a...