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

Date01 January 2013
AuthorJames Roche
The Relevance of Constitutional Rights to
the Granting of an Interlocutory Injunction
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
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
1 In particular the position in England, which, despite not having a single written
constitutional document, has had particular inf‌luence on the Irish position.
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
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),
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
The view expounded by Lord Diplock in American Cyanamid
expressly approved by the Irish Supreme Court in the Campus Oil decision.
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.”
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
the nature of the injunction sought in American Cyanamid
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
American Cyanamid v Ethicon Ltd [1975] AC 396 [Hereinafter “American Cyanamid”]
9 Ibid.
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
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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