Pre-Trial Injunctions
The Pre-Trial Injunction
An injunction may be granted at an early stage in proceedings to preserve the status quo until the full trial. Legislation and Court rules provide that an injunction may be granted where the court thinks that it is just. Generally, an injunction is prohibitory, i.e. it is worded in the negative.
Injunctions are equitable remedies. Their origin derives from the old Courts of Chancery in which discretion and justice were more a factor than in the Courts of law.
Certain types of rights are more likely to be protected by injunction than others. This includes covenants affecting land, trespass, defamation, and passing off.
The granting of an injunction pretrial does not, in general, involve an adjudication on the merits of the dispute. There is no full hearing.
The application is heard on the basis of affidavits. Affidavits are written sworn documents. The parties may seek to have persons examined orally on their affidavits.
The court considers whether there is a fair question to be tried. It considers the balance of convenience. See below as to the meaning of this phrase.
There are some circumstances in which there are statutory powers for courts to grant an injunction. In these situations, other statutory considerations may apply.
For example, there are special planning and environmental law injunction-like remedies. In other cases, in particular, in industrial relations, where legislation limits the extent to which an injunction can be granted.
Context in Proceedings
The pretrial Injunction should be distinguished from the permanent or perpetual injunction that may issue after the hearing of a case. An injunction may issue after the full hearing of the case, irrespective of whether or not a pretrial or so-called interlocutory Injunction has been granted or applied for. Similarly, a pretrial injunction may be granted, but an injunction may not be granted in the final proceedings.
An Injunction cannot be applied for by itself. It is always an ancillary protective measure in the context of full legal proceedings, which may ultimately proceed to trial. Therefore when an injunction application is made, proceedings must exist. The proceedings may issue simultaneously with the application/motion for the injunction.
The rationale of the pretrial injunction is that it preserves the status quo until the full trial of the legal action. The legal action may take several months or, more commonly, years to come about, and the pretrial injunction freezes the position or restrains the defendant from acting in some detrimental way pending the full hearing of the dispute. An Injunction will only be granted if damages would not ultimately be adequate to compensate the plaintiff/claimant.
These are one-sided or so-called ex-parte applications without notice to the other side, which may be granted only where exceptional circumstances necessitate a pre-emptive one-side application. More commonly, a pretrial application for injunction requires notice to the party affected. The notice is relatively short. Injunction applications are usually made on the basis of notice, of no more than a number of days, usually four.
Fair Question
The requirement that there be a fair question to be tried does not require a detailed examination of the merits. It requires that the case have some reasonable basis. It does not require a so-called presumptive or prima facie case.
It is fair to say that the threshold is not very high. The Court is conscious that it is not examining the merits of the question as this is more appropriate to the full hearing.
If the case is vexatious or highly questionable or speculative, it is unlikely to pass the relevant test. If there are serious matters in dispute which require a full trial, then the test is likely to be satisfied. If the claim is tactical and is not bona fide, the test may be failed.
A qua timet (for what is feared) injunction may, exceptionally, be own given in apprehension of an imminent wrong. If, for example, a person is about to publish a libel, such an injunction may issue. The above broad criteria apply.
Adequacy of Damages
A key test for the grant of an injunction is that an order for damages in the trial would be inadequate to protect the rights concerned. If damages would be sufficient, an injunction will not be granted.
The adequacy of damages is considered from both the perspective of the claimant and the defendant in the context of the claimant’s undertaking for damages. Where one side would suffer irretrievable damage in the absence of an injunction, but the other could be compensated in damages if the claim was ultimately not upheld, an injunction is more likely to be granted. Similarly, in the opposite circumstances, an injunction is likely to be refused.
In cases where the damage may be irretrievably done unless restrained, an injunction may be appropriate. The irretrievability of the loss may mean that damages are not adequate.
If it will be very difficult to assess damages because, for example, of loss of reputation or fatal loss to a business, damages may be inadequate.
The Court may take account of circumstances where one or other party may, in fact, be unable to pay damages. In such a case, an award of damages would be inadequate.
Undertaking to pay Damages
In the context of the plaintiff’s undertaking to pay damages, the court must be satisfied as to his/ her/ its ability to pay damages. The claimant may be required to show that he has the financial means to honour the undertaking. The Court may require security for the payment of damages.
In some cases, it may be unjust to impose an undertaking for damages on a plaintiff without the means to pay, but the court may nonetheless grant an injunction. In certain circumstances, the court may allow a third party to give the undertaking on behalf of the claimant.
The requirement for an undertaking may be dispensed with if the justice of the case requires, for example, where there is an obvious wrongdoing on the part of the defendant.
Balance of Convenience
If damages would not fully compensate either party, the court then considers the so-called balance of convenience. The balance of convenience will depend on the circumstances and the nature of the rights concerned. All things being equal, the Courts will attempt to preserve the status quo.
The balance of convenience test weighs the interests of the parties against each other. The word convenience is misleading in this context. It refers to a balancing of factors of potential loss by the granting or not granting of the injunction relative to the potential or retrievable loss suffered by the other.
The question of whether the damage is irretrievable or irreparable is important.
In weighing the balance of convenience, the Courts will tend to protect the status quo if the balance is equal.
2019 Restatement of Principles
InMerck Sharp & Dohme Corp v Clonmel Healthcare Ltd [2019] IESC 65 the Supreme Court reformulated the test for an interlocutory injunction.
Finally, at the risk of perhaps creating a further rule that will require subsequent qualification and correction, it may be useful to outline the steps which might be followed in a case such this:-
(1) First, the court should consider whether, if the plaintiff succeeded at the trial, a permanent injunction might be granted. If not, then it is extremely unlikely that an interlocutory injunction seeking the same relief upon ending the trial could be granted;
(2) The court should then consider if it has been established that there is a fair question to be tried, which may also involve a consideration of whether the case will probably go to trial. In many cases, the straightforward application of the American Cyanimid and Campus Oil approach will yield the correct outcome. However, the qualification of that approach should be kept in mind. Even then, if the claim is of a nature that could be tried, the court, in considering the balance of convenience or balance of justice, should do so with an awareness that cases may not go to trial, and that the presence or absence of an injunction may be a significant tactical benefit;
(3) If there is a fair issue to be tried (and it probably will be tried), the court should consider how best the matter should be arranged pending the trial, which involves a consideration of the balance of convenience and the balance of justice;
(4) The most important element in that balance is, in most cases, the question of adequacy of damages;
(5) In commercial cases where breach of contract is claimed, courts should be robustly sceptical of a claim that damages are not an adequate remedy;
(6) Nevertheless, difficulty in assessing damages may be a factor which can be taken account of and lead to the grant of an interlocutory injunction, particularly where the difficulty in calculation and assessment makes it more likely that any damages awarded will not be a precise and perfect remedy. In such cases, it may be just and convenient to grant an interlocutory injunction, even though damages are an available remedy at trial.
(7) While the adequacy of damages is the most important component of any assessment of the balance of convenience or balance of justice, a number of other factors may come into play and may properly be considered and weighed in the balance in considering how matters are to be held most fairly pending a trial, and recognising the possibility that there may be no trial;
(8) While a structured approach facilitates analysis and, if necessary, review, any application should be approached with a recognition of the essential flexibility of the remedy and the fundamental objective in seeking to minimise injustice, in circumstances where the legal rights of the parties have yet to be determined.
Exceptional Cases
In some types of injunction, the Courts depart from the above principles. It is possible in exceptional circumstances for parties to agree that the application for injunction would be treated as the full trial. In this case, leave may be granted to have parties examined orally.
Where there is no argument or reasonable defence, the Courts may grant an Injunction as of right without reference to the above criteria. Where a person is undertaking an indisputable trespass, an injunction will be granted automatically. Similarly, in other cases where the position is clear-cut, an injunction may be granted immediately.
In many cases, it is unlikely that the matter will go to an ultimate hearing. In these cases, the result of the injunction application may determine the matter. The Courts may look further into the merits of the application so as not to do justice. The extent to which this principle is accepted is controversial.
Mandatory Injunction
Pre-trial injunctions are generally negative. They prohibit a course of action. Mandatory Injunctions, i.e. injunctions compelling a person to do something, are less readily granted by the courts. The courts do not wish to grant injunctions which are difficult or impossible to enforce and monitor.
However, on occasions, a mandatory injunction may be appropriate at the pre-trial stage. Sometimes there can be a thin line between a negative and positive injunction and it may depend on the wording. An Order to refrain from doing something may of necessity, require that something else be done.
The Court’s criteria in relation to an application for mandatory Injunction are more rigorous. The Courts are much more reluctant to grant a mandatory injunction and will only do so in exceptional circumstances.
Generally, it is harder to undo a mandatory injunction than a negative injunction which restrains, freezes or preserves the status quo. A mandatory injunction may come close to a final court order in some cases.
A case will need to be very clear-cut before a mandatory injunction will be granted. There would usually be a greater risk of injustice if a mandatory injunction is incorrectly given.
Although there is controversy regarding the exact criteria for a mandatory injunction the courts tend to require a clearer, stronger, sharper case. The grounds may differ a little, but it is clear that a higher test is involved. Even if the same theoretical test as applies to a negative injunction were applied, the application of those criteria to the balance of convenience would oweigh heavily against a positive or mandatory injunction.
Disqualification
Because an injunction is an equitable remedy based on perceptions of justice and fairness, there are certain circumstances which may disqualify a plaintiff from an injunction where he would otherwise be entitled to it. Where, for example, the plaintiff or claimant lacks clean hands or delays, he may be denied an Injunction. See our separate chapter in relation to equitable remedies.
A court will only grant an Injunction if the applicant/plaintiff gives an adequate undertaking in damages to compensate the defendant should he ultimately lose the claim at trial.
Procedure
The application for an injunction requires the issue of court proceedings and the simultaneous issue of an interlocutory Motion. A Motion is an application to the court, usually on four days’ notice for a pre-trial Order. The Courts Lists reserve particular periods each week for the hearing of Motions.
Service of at least between two and four days prior to the hearing date is usually required. If a solicitor is already on record, service may be made on the defendant’s solicitor.
If the proceedings have not yet been served, the same considerations as apply for service of initial proceedings in the relevant Circuit Court or High Court will apply. The Court Rules allow the original claim form and Motion to be served simultaneously. It is possible to apply to a Judge for shorter service.
Affidavits
The application for an injunction is based on a written sworn Affidavit. It must be sworn by a person with the means of knowledge. Generally, the person swearing the Affidavit must state his means of knowledge.
The strict hearsay rules do not normally apply to Affidavits. A Court may give less weight to a hearsay statement in an Affidavit.
The Affidavit must set out the facts giving rise to the claim and the entitlement to an injunction. Commonly documents or letters are referred to or exhibited. These are not physically attached to the affidavit which is sworn and filed in Court in advance.
Once the Motion is served, the defendant or respondent may put in a replying Affidavit. Commonly he will seek an adjournment on the Motion day to file a Replying Affidavit.
Hearing
It is commonly the case that Motions are adjourned on several occasions while Affidavits and replying affidavits are filed. The adjournment may be on consent or may be granted on Application by the Court.
Ultimately the Motion on which the Injunction is sought will be heard, most commonly on Affidavit. The Judge will make an order and this order constitutes the Injunction.
The terms of the Order will generally be set out in the Motion seeking the Order. It may be amended as the Judge considers having regard to the defendant’s reply. Generally, the order will restrain the defendant from doing certain things until the court makes a further Order or until the full hearing of the matter.
Breach of an Injunction is contempt of Court. If a party breaches an injunction, an application may be brought for content and attachment. See our section on the enforcement of Court orders.
In some cases, the Court will accept an undertaking from the defendant in place of granting an Injunction. In this case, a breach of the undertaking can be enforced by way of contempt of Court.
Costs and Appeal
The costs of the injunction application are generally held over until the full trial of the action. This is referred to as reserving costs.
In the Commercial Court, there is a special rule to the effect that the Judge should make an award of costs save where it is not possible to adjudicate on liability for costs at the interlocutory application stage. The purpose is to ensure that, insofar as possible, the costs are determined.
It is possible to apply directly on appeal regarding the grant or refusal of an Injunction. It is possible to appeal from the Circuit Court to the High Court decision on the grant or refusal of an Injunction. The decision of the High Court may be appealed to the Court of Appeal or, exceptionally, the Supreme Court
Appeal courts are generally reluctant to interfere with the discretion of a Circuit or High Court judge in granting an injunction.