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 judge when exercising his or her discretion.
As put in the English authority of Redland Bricks Ltd v
Morris,1 "it is a jurisdiction to [be] exercised
sparingly and with caution but, in the proper case,
unhesitatingly".
However, different considerations apply where the mandatory
injunction is sought on an interlocutory basis. The grant of an
interlocutory injunction is subject to its own test for
consideration by the court,2 – namely,
whether:
- there is a fair and bona fide question to be tried;
- damages would be an adequate remedy; and
- the balance on convenience favours the grant of an injunction.
The test for an interlocutory injunction which is mandatory in
nature is more onerous than is the case for an interlocutory
injunction which is prohibitory in nature. This is well established
in the case law and has been reaffirmed in the recent authority of
O'Brien v Dromoland Castle Owners Association Inc,3
which is considered in more detail below.
Facts
The case involved an interlocutory application for three
particular orders, two reflecting injunctions of a mandatory
nature. The plaintiff contended that a number of paintings in
Dromoland Castle, which were the subject of a 1993 agreement and
which were the lawful property of the plaintiff, should be
delivered up to him. The other injunction pursued, which the court
felt was mandatory in nature, sought to restrain the defendant from
preventing the plaintiff from taking possession of the paintings.
Judge O'Keeffe noted that all of the injunctions pursued were
sought pending the trial of the underlying action and that, in
respect of those proceedings, there were many factual differences
between the litigants. In particular, there was a dispute as to the
parties to the 1993 agreement, whether the 1993 agreement had in
fact been terminated or was terminable for alleged breach, and the
terms on which the plaintiff might be entitled to the return of the
paintings.
Legal principles
In considering the mandatory injunction elements of the orders
sought in these proceedings, the court referred to Kirwan's
Injunctions: Law and Practice,4 to the effect that it is
"significantly harder to secure a mandatory injunction at an
interlocutory stage" than a prohibitory one. The court also
cited the Supreme Court decision in Lingam v Health Service
Executive5 in which, in respect of an interlocutory
mandatory injunction application, Judge Fennelly had stated that
"in such a case it is necessary for the applicant to show at
least he has a strong case that he is likely to succeed at the
hearing of the action". The court also accepted the principles
from AIB v Diamond,6 in which Judge Clarke noted that
cases involving mandatory interlocutory injunctions require a
higher level of likelihood of the applicant succeeding at trial. In
light of those principles, the court refused to grant the mandatory
interlocutory injunctions sought, paying particular regard to the
dispute surrounding the parties to the agreement and the alleged
breach of the agreement. It also refused the prohibitory order
sought, holding that the balance of convenience meant that the
status quo should be preserved. However, in light of the claims
advanced, and the fact that the plaintiff had sought injunctive
relief, the court directed that the matter should proceed to an
early trial.
Comment
The Dromoland case has confirmed the general approach of the
courts to the granting of mandatory injunctions on an interlocutory
basis. By its nature, by requiring the party to which it is
directed to take positive steps and not merely not to do something,
a mandatory injunction can have inconvenient, onerous and
potentially costly implications. In addition, in circumstances
where such mandatory orders will form most, if not all, of the
principal reliefs sought in the underlying proceedings, the
granting of such injunctions effectively gives the applicant the
benefit of the victory at trial without actually having to succeed
at trial. Accordingly, the Irish courts are guarded about the basis
on which such orders should be made, as reaffirmed by the Dromoland
decision, and parties should bear this in mind if seeking an order
requiring a positive step to be taken by the
defendant/respondent.
Footnotes
1 [1970] AC 652.
2 See Campus Oil Ltd v Minister for Industry (No
2)[1983] IR 88.
3 [2012] IEHC 407.
4 Round Hall Press, Dublin; 2008, pages 210-214.
5 [2005] IESC 89.
6 High Court unreported, October 14 2011.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
