“[T]he power of the court to intervene immediately and without notice in proper cases is essential to the administration of justice.” – Ormrod L.J. in Ansah v Ansah [1977] Fam. 138 at 142
injunctions
An injunction is a Court Order that directs the conduct of a party – commanding them to either do (‘mandatory‘), or refrain from doing (‘prohibitory‘), certain acts.
Permanent injunctions will usually only be granted after a full court hearing in which all interested parties can be heard and considered. Interim and interlocutory injunctions, however, can be granted before a full court hearing takes place.
interim, interlocutory & Short Service
An ‘interim’ injunction is an ’emergency’ injunction, granted to a party on an ex parte basis (ie. without notice of the application being given to the other side(s)) and usually of short duration. That short period exists to put the other side(s) on notice and, if they oppose the continuation of the injunction, will lead to an interlocutory injunction hearing.
An ‘interlocutory’ injunction is one that remains in place until the substantive proceedings have been tried and determined. Both sides are heard by the Court.
‘Short service’ is a middle ground between interim and interlocutory, and involves applying to the Court to reduce the time allowed to the other side(s) to appear in Court for an interlocutory hearing. Short service can be sought as a standalone Order or as a ‘fallback’ Order on an interim application.
Preparing THE court application
If there are no proceedings in being then it will ordinarily be necessary to draft proceedings (seeking a permanent injunction and other reliefs).
For the purposes of the court application it will be necessary for the applicant to swear a grounding affidavit, the content of which will (to some extent) depend on the relief(s) being sought. There are strict legal and procedural rules about what should and should not be included in a grounding affidavit, breach of which can have grave consequences.
Prudent parties will retain and instruct a barrister to draft all necessary court documentation on their behalf.
Application for Interim Relief
A draft ex parte motion docket (setting out the precise injunctive relief sought) and a grounding affidavit (setting out sufficient evidence on which to base the application for the relief sought), must be prepared.
In relation to the ex parte motion docket, see Practice Direction HC59.
It is also prudent to draft a Notice of Motion for interlocutory relief in case, for example, short service is granted instead of interim relief.
Once the documentation is ready one can proceed directly to the appropriate Court and request permission to make the application as soon as can be accommodated.
Application for Interlocutory Relief
A draft Notice of Motion (setting out the precise injunctive relief sought) and a grounding affidavit (setting out sufficient evidence on which to base the application for the relief sought), must be prepared.
Once the documentation is ready one can proceed to the relevant Court Office to issue the application, obtain a court date, and then serve the motion and grounding affidavit on the other side(s).
Application for Short Service
A draft ex parte motion docket and a grounding affidavit must be prepared, at which point one can proceed directly to the appropriate Court and request permission to make the application as soon as can be accommodated.
The Legal Principles
To summarise the principles set out by McCracken J. in B. & S. Ltd. v Irish Auto Trader Ltd. [1995] 2 IR 142 (endorsed by the Supreme Court in Okunade [2012] 3 IR 152 @180 or [2012] IESC 49 @9.7), in order for a Court to grant an injunction:
- There must be a ‘fair’ or ‘bona fide’ or ‘serious’ question to be tried.
- Damages must not be an adequate remedy.
- The requesting party must undertake to pay any damages that might be suffered by the other side(s) if the injunction is granted on an interim/interlocutory basis but later shown to be unwarranted.
- Damages must be an adequate remedy for the other side(s) pursuant to (3) above.
- If damages are not an adequate remedy for either side, the Court ‘may consider all relevant matters […] but these will vary depending on the facts of each case’.
- If all matters are equally balanced, the Court should preserve the status quo, although it may consider the (apparent) relative strengths of each party’s case.
Additional Principles for Interim Injunctions
Due to the urgent and ex parte nature of the interim injunction, the applicant is required (in addition to what is set out above) to show that:
- a delay in granting the injunction “would or might entail irreparable or serious mischief” (see RSC Order 52 r.3); and/or
- there is “no feasible alternative to protect the rights asserted” (see Dowling v Minister for Finance [2013] 4 I.R. 576 @ para 73 or [2013] IESC 37 @ para 9.4).