The Relevane of Constitutional Rights to the Granting of an Interlocutory Injunction

• Date: 01 January 2013
• Author: James Roche

The Relevance of Constitutional Rights to

the Granting of an Interlocutory Injunction

JAMES ROCHE

Introduction

It is axiomatic that an injunction is a f‌lexible and versatile equitable remedy.

However it also has potentially far-reaching consequences. As a result, a

court, when invoking its inherent discretion to grant an injunction, may in

certain circumstances take cognisance of a range of pertinent issues in order

to do justice between the parties. One such area where additional factors

may be considered by the court is the relevance of constitutional rights and

principles.

The purpose of this article is to critically analyse the relevance of such

rights to the issuance of interlocutory injunctions. The impact of constitutional

rights on judicial decisions will be assessed, inconsistencies will be highlighted,

and potential avenues for reform will be explored. Reference will be made

to the position in other common-law countries1 and, furthermore, how the

European Convention on Human Rights has contributed to the formation

of the present arrangement in this jurisdiction.2

Principles Governing the Grant of Interlocutory Injunctions

An injunction has been def‌ined as an order of the court requiring a person

to refrain from doing, or to do, a particular act.3 It developed initially as a

means of doing justice in cases where the traditional common law remedy

of damages could not achieve such an aim.4 The exercise of granting an

interlocutory injunction is now regulated by Order 50 Rule 6 of the Rules

of the Superior Courts 1986.5

1 In particular the position in England, which, despite not having a single written

constitutional document, has had particular inf‌luence on the Irish position.

2

The ECHR was incorporated into Irish law by the European Convention on Human

Rights Act, 2003. The Irish courts must, as per s.2(1) of the Act, interpret domestic

legislation “in a manner compatible with the State’s obligations under the Convention

provisions.”

3 Keane, Equity and the Law of Trusts in the Republic of Ireland, 2nd edn (Dublin:

Bloomsbury Professional, 2011), p.275

4 Delany, Equity and the Law of Trusts in Ireland, 5th ed (Dublin: Round Hall, 2011),

p.514

5 Order 60 rule 6 RSC states that a court may grant an injunction “by an interlocutory

order in all cases in which it appears to the Court to be just or convenient so to do.”

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Constitutional Rights and the Granting of an Interlocutory Injunction 65

At the outset, it is important to note that as with all equitable remedies,

the granting of an interlocutory injunction is at the discretion of the court,

although the area is governed by certain well established principles. Also,

where an interlocutory injunction is sought, a plaintiff will “almost invariably

be required to give an undertaking as to damages and the court will have to

be satisf‌ied about the plaintiff’s ability to honour such an undertaking should

this become necessary.”6

In general, two overarching considerations will be assessed when an

application for an interlocutory injunction is made. The plaintiff must f‌irst

prove that there is a serious issue to be tried and then show that the balance

of convenience favours granting an injunction. Traditionally, a plaintiff would

be granted an interlocutory injunction only if he could establish a prima facie

case,7 although this was rejected by the House of Lords in favour of the less

rigid “serious question to be tried” test in the seminal American Cyanamid

case.

8

The view expounded by Lord Diplock in American Cyanamid

9

was

expressly approved by the Irish Supreme Court in the Campus Oil decision.

10

In this case, O’Higgins CJ held that “the test to be applied is whether a fair

bona f‌ide question has been raised by the person seeking the relief… In this

regard I note the views expressed by Lord Diplock in American Cyanamid.

I merely say that I agree entirely with what he said.”11 According to Gray,

Lord Diplock’s test, that there should be a serious question to be tried, “in

spite of his warnings against mini-trials, clearly provides an opportunity for

judges to decide for or against an interlocutory injunction according to their

view of the merits of the case.”

12

However she also notes that “it seems in

practice they have been fairly scrupulous in not using this to get round

Cyanamid or in not making it obvious that they are doing so.”13

Although the “serious question to be tried” test as adopted in Campus Oil14

is “practical and workable”15 it is not immune from criticism. As noted by

Kirwan

16

the nature of the injunction sought in American Cyanamid

17

was

6

Delany, Equity and the Law of Trusts in Ireland, 5th edn (Dublin: Round Hall, 2011),

p.538. This requirement is not unique to interlocutory injunctions. For example, it is

also necessary when applying for a Mareva injunction and an Anton Pillar order.

7 In other words a probability that he would succeed in his claim at the hearing of the

action.

8

American Cyanamid v Ethicon Ltd [1975] AC 396 [Hereinafter “American Cyanamid”]

9 Ibid.

10

Campus Oil v Minister for Industry and Energy (No. 2) [1983] IR 88 [Hereinafter

“Campus Oil”]

11 Ibid, p.107. Griff‌in and Hederman JJ concurred with the Chief Justice.

12 Gray, “Interlocutory Injunctions Since Cyanamid” (1981) 40 Cambridge Law Journal

307, p.314

13 Ibid, p.315

14 Campus Oil, supra note 11

15 Keane, Equity and the Law of Trusts in the Republic of Ireland, 2nd edn (Dublin:

Bloomsbury Professional, 2011), p.301

16

Kirwan, “Campus Oil Turns Twenty-Five: Is There Much to Celebrate?” (2008) 15

Dublin University Law Journal 325, p.328

17 American Cyanamid, supra note 9

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