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Departure from Campus Oil Principles (Where an interlocutory injunction is…
Departure from Campus Oil Principles
Where the Parties Agree that the Interlocutory Hearing will constitute the Trial of the Action
Only avail where there is no dispute about the facts
No Arguable Defence to the P's Claim
It must be very clear there is no arguable defence to the P's claim
e.g. when seeking to restrain a trespass- if the P's title is indisputable, an interlocutory injunction will issue almost as a matter of course
THE BALANCE OF CONVENIENCE WILL PLAY NO PART
Keating and Co v Jervis Shopping Centre
: Owners of pub sought interlocutory injunction restraining the Ds, devleopers of an adjoing shopping centre in the course of construction, from trespassing on Ps property using crane
Crane moved into airspace above the pub
No arguable defence
Where an interlocutory injunction is sought to restrain industrial action
Common Law favoured employers in applications for an injunction to restrain industrial action
Courts usually accepted that he maintenance of the status quo was desirable
they were influenced by the inability of many workers to pay damages
Section 19 Inudstrial Relations Act 1990
Seeks to redress imbalance
S19(1) precludes an emloyer from making an ex parte application for an ad interim injunction, provided the requisite conditions set out in the legislative provision have been complied with
19.—(1) Where a secret ballot has been held in accordance with the rules of a trade union as provided for in section 14 , the outcome of which or, in the case of an aggregation of ballots, the outcome of the aggregated ballots, favours a strike or other industrial action and the trade union before engaging in the strike or other industrial action gives notice of not less than one week to the employer concerned of its intention to do so, that employer shall not be entitled to apply to any court for an injunction restraining the strike or other industrial action un
less notice of the application has been given to the trade union and its members who are party to the trade dispute.
NOTICE
(3) Notice as provided for in subsection (1) may be given to the members of a trade union by referring such members to a document containing the notice which the members have reasonable opportunity of reading during the course of their employment or which is reasonably accessible to them in some other way.
WONT APPLY IF SECRET BALLOT DEFECTIVE
(2) Where a secret ballot has been held in accordance with the rules of a trade union as provided for in section 14 , the outcome of which or, in the case of an aggregation of ballots, the outcome of the aggregated ballots, favours a strike or other industrial action and the trade union before engaging in the strike or other industrial action gives notice of not less than one week to the employer concerned of its intention to do so, a court shall not grant an injunction restraining the strike or other industrial action where the respondent establishes a fair case that he was acting in contemplation or furtherance of a trade dispute.
- if defective- campus oil applies
(4) Subsections (1) and (2) do not apply—
(a) in respect of proceedings arising out of or relating to unlawfully entering into or remaining upon any property belonging to another, or unlawfully causing damage or causing or permitting damage to be caused to the property of another, or
(b) in respect of proceedings arising out of or relating to any action resulting or likely to result in death or personal injury.
(5) Where two or more secret ballots have been held in relation to a dispute, the ballot referred to in subsections (1) and (2) shall be the last such ballot.
G and T Crampton v Building and Allied Trades Union
Facts: P sought interlocutory injunction to restrain picketing
HC considered that the secret bllot that had been held did not comply with the relevnt rules
HELD: s19 did not appl
applying Campus Oil: HC granted an interlocutory injunction
SC: affirmed there was a fair qu to be tried, damages were inadequate and on the balance of convenience the injunction should be granted
Malincross v Building and Allied Trades Union
Facts: D trade union and workers were pricketing a site at which their employer used to work
It no longer did so (sub contract terminated due to delays from industrial action)
Site taken over by P (main contractor)
HELD: HC: in deciding whether or not to apply test in s19(2) the court should ask :
was there a bona fide dispute as to whehter or not the preconditions for s19(2) application had been fulfilled
there was a dispute- the secret ballot authorised the industrial action in respect of original employer only
CAMPUS OIL principles applies
Injunction granted
Daru Buildings v Building and allied Trades Union
HC: if a trade union is to avial of the benefit of s19 the secret ballot must be conducted properly
This meant that the entitlement to vote in the secret ballot must be accorded equally to all members whom it was reasonable at the time of the ballot for the union concerned to believe would be called upon to engage in the industrial action
ONUS on D to show compliance
Mere assertion s19 complied with on affidavit insufficient
Where an interlocutory injunction is sought to restrain the publication of allegedly defamatory material
Bonnard v Perryman
:
The subject matter of an action for defamation is so special as to require EXCEPTIONAL CAUTION in exercising the jurisdiction to interfere by injunction before the trial of the action to stop the anticipated wrong
importance of free speech
Reynalds v Malocco
Facts: P sought to restrain a publication
He alleged i defamed him: Statements he permitted sale of drugs in his nightclub and that he was gay
HELD: HC in order to obtain on interlocutory injunction: P must show
not only that he has raised A SERIOUS ISSUE re the words complained of
but also that there was no doubt that the words are defamatory
Article 40.6.1 Constitution: guarantees, subject to public order and morality, the right of citizens to express freely their convictions and opinions
A10 ECHR
IT IS VERY DIFFICULT TO OBTAIN AN INTERLOCUTORY INJUNCTION TO RESTRAIN THE PUBLICATION OF ALLEGEDLY DEFAMATORY MATERIAL
Courts are reluctant to interfere with FOE
Defamation is very, technical area of the law
INJUNCTION WONT BE GRANTED AS A MATTER OF COURSE- HAVE TO BE EVIDENCE OF PROSPECT OF SUCCESS
Qiom;ovam v O'Dea
There must be no doubt that the words complained of were defamatory
Whilst recognizing the importance of free speech, HC warned that a bald statement by D he intends to plead justification, as in this case, would not be sufficient
there must be some evidence to suggest that the plea has some prospect of success
HELD: HC satisfied the publication was defamatory
as there was no evidence to support plea of justification, P was prima facie entitled to an interlocutory injunction
P unlikely to recover damages from D were he to succeed at his trial for defamation
Cogley v RTE:
Facts: application for an interlocutory injunction to restrain the broadcast of RTE Prime Time programme on Leas Cross nursing home
P was assistant director of the nursing home and argued progrmmed defamed her
HELD HC: TEST:
WHETHER OR NOT THERE IS ANY REASONABLE BASIS ON WHICH D MIGHT SUCCEED AT TRIAL
Endorsed Reynolds v Malocco: a bald statement by a D that he intends to plead justification is not sufficient
There must be evidence to suggest the plea has some prospect of success
Even if P satisfies 'reasonable basis test' the court still retains DISCRETION TO REFUSE
Held: P failed to demonstrate there was no reasonable basis on which D migh succeed
Injunction refused
'Convincing Case test'
P Much show convincing case to rbing about the curtailment of FOE of press
Advocated in: Murray v Newsgroup Newspapers
O'Brien v RTE
Where an interlocutory injunction is sought to restrain the presentation of a petition for the winding up on a company
Campus oil will not be applied where a co seeks an interlocutory injunction to restrain its creditors from presenting a petition to wind up the co
The Grant of same would restrict the creditors constitutional right of access to courts
Truck and Machinerery Sales v Marubeni Komatsu
:
TEST: P must prove that the petition is bound to fail or there is suitable alternative remedy
Cotton Box Design Group Earls Construction Ltd: Laffoy J granted injunctions restraining petitions to wind up as she was satisfied P cos were acting bona fide in disputing the debts and there was a prospect of serious injustice if petition proceeded :
Where the trail of the action is unlikely
If it is unlikley that the issues between the parties will ultimately be resolved at trial, this would men that the court's decision on an application for an interlocutory injunction would resolve the dispute in favor of the successful party
The court may consider the likelihood of P succeeding at trial, which would involve a consideration of of the merits of the parties cases
Cayne v Global Resources
:
Facts: Ps were shareholds in teh D co
Issue: Sought injunction to restrain it from allotting new shares prior to its AGM
Grant or refusal of interlocutory injunction would determine the outcome of a crucial vote at the AGM
HELD: in these circumstances, it would not be appropriate to apply American Cyanmide principles
those were enunciated on the assumption that the issues between the parties would ultimately be resolved at trial
TEST: Court would consider the risk of doing an injustive
Held: Here justice dictated that the D be allowed to dispute Ps claim at trial
Interlocutory injunction not granted
Lansing Linde Ltd v Kerr
: Parties had agreed the D would not work for any of P's competitors for 12 months after cessation of his employment with P
D gave 6 months notice of cessation of employment with P
One month later, accepted position with one of P's competitors
Issue: P sought an injunction to enforce the restraint-of-trade clause
Held: C of A refused to grant interlocutory relief
; It will not be possible to hold a trial before the period for which the P claims to be entitled to an injunction as expired, or substantially expired
Justice requires some consideration whether the P would be likely to succeed at a trial
It is not enough to decide merely there is a serious issue to be tried (CAMPUS OIL)
The assertion of scuh an issue should not operate as a lettre de cachet, by which the D is prevented from doing that whihc, as it later turns out, he has a perfect right to do
On a wider view of the balance of probabilities, it may stull be right to impose such a restraint, but not unless there has been some assessment of the P's prspects of success
some assessment- courts constantly seek to discourage prolonged interlocutory battles of affidavit evidence
For court to determine extent of assessment of prospect of success required
Dp not see that delay caused by congestion in court's list should be left out of account
this is a practical reality s much as anything else
theovery reason for granting interlocutory relief is that a trial cannot take place immediately
Delay for parties' preparations necessary
but also delay before court can arrange a trial
Jacob v Irish Amateur Rowing Union
Laffoy J felt the appropriate test was to balance the risk of doing injustive when deciding whether injunction should be granted
In above and:
Rogers v An Post; the injunctions were refused because in each case it would determine the issue finally between the parties in a summary manner and deprive the D of having his rights determined fully in a full trial hearing
Symonds Cider and English Wine co v Showerings:
An injunction was sought in context of TM dispute
D argud that in such disputes the interlocutory injunction application was often determinative and courts should consider merits of parties cases
HC: REJECTED
applied campus oil principles
Where an interlocutory injunction is sought in a public law context
Okunade v MJELR
Facts: application for an interlocutory injunction seeking to restrain deportation pending hearing of JR proceedings
TEST: Clarke J set out applicable principles
an arguable case must be established by the applicant
If so, where does the greatest risk of injustice lie- looking at the public interest issues in implementing schemes
Are damages adequate
Regard can be had to the relative strength of the applicants case
These principles have been consistenly applied in JR Proceeings