Injunctions And The Nature Of The Order Sought


A recent High Court decision 1 has confirmed that when faced with an injunction application, the court will examine the precise nature of the order sought in considering whether to grant an injunction, rather than simply relying on how the applicant might characterise it. This arises from the fact that, as a matter of Irish law, different standards apply depending on whether the order sought is prohibitory or mandatory in nature. The decision also usefully recites the general principles applicable to the granting of injunctions.


The case involved an injunction sought by a shopping centre's owner, landlords and management company, as part of proceedings against the owner and operators of a grocery store occupying the anchor unit. The defendants had announced that they intended to close the store before the end of the lease. Arising from the claimed "irrevocable and irreparable damage to the plaintiffs and to third party businesses currently located in the centre", the plaintiffs sought an interlocutory injunction restraining the defendants from closing the store in breach of a 'keep open' covenant in order to maintain the status quo ante pending the full trial of the dispute.


Judge Hedigan observed that the principles applicable to the granting of an injunction were helpfully set out by Judge Clarke in Okunade v Minister for Justice,2 which were summarised as follows:

Is there a fair or bona fide question to be tried or a strong likelihood of success at trial depending on the nature of the order sought? If so, would damages be an adequate remedy and is it likely that the defendants could pay damages? If not, will the plaintiff's undertaking as to damages adequately compensate the defendant if he or she is successful at trial? If so, will the plaintiff be in a position to meet his or her undertaking if it is called in? If damages would not adequately compensate either party then the court must consider where the balance of convenience lies. It should ask itself where will the least harm be done? It should compare the consequences of deciding either way. If all matters are equally balanced, the court should attempt to preserve the status quo. The court should attempt to minimise the risk of injustice. The risk of injustice from not acting must be greater than that of acting in order to justify the courts departing from the status quo. Based on this summary, Hedigan noted that the court must first ascertain the nature of...

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