Kelly J’s judgment in Shelbourne is a third line of case law on the issue. Kelly J, while awaiting a definitive ruling from the Supreme Court, approved another test, which was set out by Lord Hoffman in National Commercial Bank Jamaica Ltd v Olint Corporation Ltd.

Passing on the inside

The Supreme Court in Campus Oil Ltd v Minister for Industry and Energy (No 2) held that, in order to obtain an injunction, you must show that there is a fair and bona fide question to be tried, that damages are not an adequate remedy, and that the balance of convenience favours the granting of an injunction.

A point not often picked up on from Campus Oil is that O’Higgins CJ held that this test should apply to all applications for interlocutory relief – however, such relief will only issue in mandatory form in ‘exceptional’ circumstances.

The test in Campus Oil found favour with many judges of the High Court. In Bula Ltd v Tara Mines Ltd (No 2) (1987), Murphy J accepted the view espoused by Megarry J in Shepherd Homes Ltd v Sandham (1971) that, if the injunction is likely to cause irremediable prejudice to the defendant, a court should be reluctant to grant it.

Murphy J held further that all that needed to be satisfied when granting a mandatory interlocutory injunction were the Campus Oil principles.

These two findings are difficult to reconcile, as the decision in Sandham aligns much more with the second line of case law that has developed on this issue.

A more recent decision from the High Court on the use of the Campus Oil principles when granting a mandatory interlocutory injunction is Cronin v Minister for Education and Science. Laffoy J grounded her decision on the Campus Oil test. The Supreme Court case of Westman Holdings Ltd v McCormick was cited by Laffoy J in Cronin.

In Westman Holdings, Finlay CJ reiterated the view that, once a fair and reasonable question to be tried has been established, the court should take no view as to the strength of the opposing submissions. Finlay CJ then went on to say that the strength of the parties’ case could be scrutinised if the damages aspect didn’t resolve the balance of convenience issue.

Laffoy J clearly felt she was bound by this decision of the Supreme Court and applied the Campus Oil test. Laffoy J noted that damages were not an adequate remedy and the balance of convenience lay in favour of granting the injunction.

This decision from Laffoy J is interesting, as it overlooked authorities that would have supported the view that there was a higher bar to reach than the ‘fair and reasonable question’ standard. This is where we begin to see the divergence in the case law.

Outside track

The 1992 decision of Denham J (as she then was) in Boyhan v Tribunal of Inquiry into the Beef Industry was the first decision that altered the interpretation of Campus Oil. This was necessary on a practical level, as the Campus Oil test is a relatively low bar to meet. Denham J held that a mandatory injunction is a “powerful instrument” and in seeking “this exceptional form of relief ... it is up to the plaintiffs to establish a strong and clear case”.

The ratio of Denham J above was further added to in Boyle v An Post, where Lardner J granted a mandatory interlocutory injunction, stating that it was an “exceptional case where one can say with assurance that, at the hearing of the substantive action, the plaintiffs are bound to succeed”. These two cases demonstrate that some judges of the High Court interpreted the decision in Campus Oil much differently to others.

I do not mean to suggest that the judges in Bula and Cronin were entirely errant in how they applied the law; however, the judgment in Campus Oil is not as straightforward as a three-stage test. While it is not elucidated in the test itself, it is submitted that judges were entitled to use the rationes of O’Higgins CJ in maintaining the view that a higher standard than the “fair and bona fide question to be tried” is required to be successful in obtaining a mandatory interlocutory injunction.

O’Higgins CJ, in Campus Oil, noted that “once a fair question has been raised, in the manner … indicated, the court should consider the other matters which are appropriate to the exercise of its discretion”.

In the Supreme Court decision of Maha Lingham v Health Service Executive, Fennelly J in the Supreme Court held that “the ordinary test of a fair case to be tried is not sufficient to meet the first leg of the test for the grant of interlocutory injunction where the injunction sought is in effect mandatory … it is necessary for the applicant to show at least that he has a strong case that he is likely to succeed at the hearing of the action”.

The effect of this was to clarify the law as to when a mandatory interlocutory injunction should be granted. The issue was that the decision in Campus Oil set down a three-prong test to be satisfied, yet it also allowed judges to use their discretion in the granting of mandatory interlocutory injunctions. It can be argued that the law was settled before Maha Lingham, the decision placing the law on much clearer footing, while not providing absolute clarity.

There was still some ambiguity in the area due to Maha Lingham not setting aside Campus Oil, nor did Maha Lingham say that there was a special test to be applied in applications for mandatory interlocutory injunctions. This may be a reason for Kelly J in Shelbourne Hotel holding that there were still conflicting approaches that needed to be decided upon by the Supreme Court.

Take the third exit

The divergence in the High Court led Kelly J in Shelbourne Hotel Holdings to devise, in effect, a third line of case law on this issue. Kelly J was more concerned about which decision would carry the lower risk of injustice, as opposed to which of the two tests discussed above should be applied.

Kelly J grounded this decision on the judgment of Hoffmann J in Films Rover Ltd v Cannon Suite Sales. The decision in Shelbourne Hotel Holdings does not set out which test found favour with Kelly J, as he determined that the applicants in the case satisfied both tests and so were able to obtain mandatory interlocutory relief. Yet the decision in Shelbourne Hotel Holdings is not a complete endorsement of either of the two lines of case law either.

While bound by Campus Oil and Maha Lingham, but with competing judgments of the High Court to deal with, Kelly J looked to the purpose of the decision in Campus Oil. The decision in Campus Oil is designed to ensure that a mandatory interlocutory injunction can only be obtained exceptionally, due to the effect of a mandatory interlocutory injunction being both severe and extensive.

Check your oil

The result must ensure that the risk of injustice is kept to a minimum. Effectively, the learned judge is stating that, where there is not a clear decision from the Supreme Court (although this can be disputed), the best course of action is to ensure that injustice is not created in granting a mandatory injunction.

The test in Irish law for the granting of mandatory interlocutory injunctions should not be in issue. Any confusion has been created by the misinterpretation of the law. Campus Oil sets out the test to be applied to interlocutory applications – however, it also very clearly sets out that mandatory interlocutory relief “does not usually issue prior to the trial of an action”.

Had Murphy J in Bula, or Laffoy J in Cronin, held that the grant of the mandatory interlocutory injunction was due to an exceptional factor, the decisions could be read in line with Campus Oil.

The key finding in Campus Oil is the ratio of O’Higgins CJ, holding that mandatory interlocutory injunctions are only to be granted in exceptional circumstances. This finding automatically pushes the test out of the ‘fair and reasonable question’ bracket into ‘strong case’ territory. The ‘fair and reasonable question to be tried’ standard is arguably the lowest bar possible.

Outside of Campus Oil and Maha Lingham, there is yet another decision of the Supreme Court where it is has been held that the test to be applied is the ‘strong case’ test. In Okunade v Minister for Justice, Equality and Law Reform, Clarke J (as he then was) in the Supreme Court held that the test to be applied when an order for mandatory interlocutory relief is sought is the higher standard, as set out in the Supreme Court in Maha Lingham.

It should be noted that the decision in Okunade came in 2012, two years after Shelbourne Hotel Holdings, wherein Kelly J was awaiting “a final determination by the Supreme Court” on the issue.

Although it was decided in a judicial review context, Okunade may be the decision Kelly J was holding out for, as it confirms the approach to be taken when dealing with an application for mandatory interlocutory relief is the ‘strong case’ test. In Okunade, Clarke J also alluded to the need to take whatever course would carry the lower risk of injustice.

Clarke J seems to have double-proofed the test. Both the ‘strong case’ test and the ‘lower risk of injustice’ test go together when it comes to considering the merits of an application. The test in Ireland for the grant of a mandatory interlocutory injunction today is the ‘strong case’ test, coupled with the course that would carry the lower risk of injustice. This test has been applied in the High Court in Tola Capital Management LLC v Joseph Linders by Cregan J.

Overtaking lane?

This article has sought to dispel the issues surrounding the granting of mandatory interlocutory injunctions in Ireland. There is no doubt that the better test for the granting of mandatory interlocutory injunctions is the ‘strong case’ test, coupled with the ‘lower risk of injustice’ principle.

The importance of the lower risk of injustice principle is highlighted by Clarke J in AIB v Diamond, where the judge noted that the lower risk of injustice approach “can be a useful measure when deciding whether a somewhat different approach to normal is needed in particular types of cases”.

The Campus Oil decision still applies as much today as it did 30 years ago. However, there is now much more emphasis on deciding cases with a view to reaching the decision that ensures the lower risk of injustice prevails.

Neil Murphy is a BL candidate at the King's Inns. 

Read and print a PDF of this article here.