Ó Murchú T/A Talknology v Eircell Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 21 February 2001
• Neutral Citation: [2001] IESC 15
• Docket Number: 336/00
• Court: Supreme Court
• Date: 21 February 2001

O MURCHU T/A TALKNOLOGY v. EIRCELL LTD

BETWEEN/

NOEL Ó MURCH Ú TRADING AS TALKNOLOGY

Appellant

and

EIRCELL LIMITED

Respondent

[2001] IESC 15

McGuinness J.

Hardiman J.

Geoghegan J.

336/00

THE SUPREME COURT

Synopsis

Contract Law

Interlocutory injunctions; appellant seeks interlocutory injunctions to compel respondent, until further order, to continue supplying or permitting supply of “Ready to Go” mobile phones to appellant and to treat appellant as an authorised agent for this purpose; whether a contract exists between the parties in specific terms; whether an oral or implied agency agreement exists; whether it is a term of that agency agreement that the appellant would enter into written agency agreement, the form of which was to be prepared by respondent, whenever requested by respondent to do so; whether appellant has an arguable case that the agreement had not been terminated by reasonable notice or by respondent treating and accepting a serious breach by the appellant as a repudiation of the contract; whether damages are adequate remedy; whether damages could be confined within a limited period; whether balance of convenience favours granting rather than refusing injunction; whether granting of an injunction would involve ongoing supervision or compel two parties to trade with one another when one, for rational reasons, did not want to carry on such trading; whether practical for court to force such continued trading;

Held: Order of High Court affirmed.

Ó Murchú v. Eircell Ltd. - Supreme Court: Geoghegan J., McGuinness J., Hardiman J. - 21/02/2001

The appellant trader was refused interlocutory injunctions in the High Court against Eircell. The appellant had a business relationship with Eircell but owing to certain difficulties Eircell declined to supply the appellant with goods namely “ready to go” mobile phones for the Christmas market. Kearns J refused to grant the appellant the injunction sought. On appeal the Supreme Court, Geoghegan J delivering judgment, held that there was a serious issue to be tried. However as the appellant’s alleged loss was essentially financial damages would be an adequate remedy and affirmed the High Court decision to refuse to grant the injunction sought.

Citations

COMPETITION ACT 1991

Judgment of

Mr. Justice Geoghegan

delivered the 21st day of February 2001 [nem diss]

1 This an appeal from an order of High Court (Kearns J.) refusing a number of interlocutory injunctions, the effect of which would have been to compel the respondent, until further order, to continue supplying or permitting the supply of "Ready to Go Mobile Phones" to the appellant and treat the appellant as an authorised agent for this purpose.

2 There is a very substantial factual background to this application, but I am satisfied that for the purposes of considering the question of whether injunctions should be granted or not it is neither necessary nor desirable that I should set out detailed particulars of all the facts in this judgment. The following skeleton outline of facts is sufficient.

3 The appellant carried on the business of selling mobile phones in a number of outlets in the south of Ireland, mostly in Co. Kerry. He had a history of expanding his business and opening additional shops. The appellant maintains that at all material times as and from May, 1998 he acted as an authorised agent of the respondent. The system was that by arrangement with the respondent the appellant purchased prepaid"Ready to Go" phones from a company called Sigma Telecom Limited, through which the "Ready to Go"mobile phones were exclusively channelled by the respondent. There was a different system and a different company involved in relation to contract or bill pay phones. The appellant alleges in his first grounding affidavit that the nature of his agency was that he bought the product from Eircell supply lines and that then he, as a retailer, brought customers to Eircell, whether by way of contract customers (bill payers) or by way of "Ready to Go" customers. If, however, a customer connected to the Eircell network failed to pay his or her bill for a period of six months the respondent charged the appellant a claw back penalty. The appellant alleges that he attended agent conferences, arranged by the respondent, and that he was supplied with agent signs. He also had a special agent code number.

4 In the summer of 2000 a considerable problem of indebtedness had arisen between the respondent and the appellant when schemes were entered into for the repayment of the debt owing to the respondent by the appellant. Around about the same time the respondent demanded that the appellant enter into standard form agency agreements which were prepared, and indeed, it is suggested that as part and parcel of the rescheduling of the indebtedness the appellant undertook to sign these agreements. However, in the event, the appellant refused to do so allegedly on the grounds that the proposed agent's agreement was for a period of six months and might be renewed for a further period of up to six months. The appellant claimed that in the context of his liabilities under commercial leases etc. in relation to his shops, these periods were too short and not viable from his point of view. The respondent then threatened to cease dealing with the appellant, but despite this threat the appellant claims that he continued to purchase the respondent's goods from Sigma Telecom and he has exhibited a statement dated 26th of November, 2000 bearing this out. It is unnecessary to go into all the details of what happened then. It is sufficient to state that at a stage when the appellant wanted to make a large order for the Christmas sales the respondent refused to allow the Ready to Go Phones...