Injunctions are an equitable remedy available from both the High Court and the Circuit Court, used to prevent injustice where no adequate legal remedy exists. An injunction is a court order that either restrains a party from taking certain actions or compels them to act. As equitable remedies, injunctions are granted at the court’s discretion and are subject to strict legal tests.
- Perpetual injunctions are granted at the conclusion of a trial, after both parties have been heard.
- Interlocutory injunctions are usually granted earlier, following a brief hearing based on affidavit evidence, typically on notice to the other party. Their purpose is to preserve the status quo pending trial.
- Interim injunctions are granted on an emergency basis and last only until the interlocutory hearing. They may be sought ex parte, particularly where advanced notice would undermine the effectiveness of the order.
Sometimes in disputes, it is advisable to apply to court for an injunction or injunctive relief. Put simply, an injunction is an order, made by the courts, that restricts the ability of an individual or a group to do something. Examples include prohibiting the sale of property, the publication of a statement, or access to a premises. Disobeying an injunction can cause an individual to be held in contempt of court. This comes with the possibility of a fine and/or imprisonment.
Injunctions are issued for several reasons. They are usually applied for where damages are not an adequate remedy and the balance of convenience favours granting the injunction. A rough test is that it is necessary to restrain something that cannot subsequently be cured if the injunction stopping it is not granted.
Requirements to secure an Injunction
The test for securing an interlocutory injunction in Ireland was established in Campus Oil v the Minister for Energy [1983] 1 IR 88.
A successful applicant must demonstrate:
- That there is a fair case to be tried;
- That damages are not an adequate remedy; and
- That the balance of convenience lies in favour of granting the injunction.
In Merck Sharpe & Dohme Corporation v Clonmel Healthcare Ltd [2019] IESC 65, the Supreme Court clarified that the question of whether damages are an adequate remedy should not be treated as a standalone test. It should be considered within the overall assessment of the balance of convenience.
Damages in Lieu of an Injunction
Courts may award damages either in addition to, or in lieu of, an injunction. This will depend on the specific facts of the case. The Supreme Court in Merck Sharpe reaffirmed that damages may not be an adequate remedy where the harm is:
- non-monetary in nature;
- unquantifiable; or
- where the defendant lacks the means to pay the damages.
Categories of Injunctions
- Prohibitory injunctions restrain a defendant from continuing or repeating a wrongful act.
- Mandatory injunctions compel a defendant to take positive steps to undo or rectify a wrongful act committed.
Types of injunctions
Interim Injunctions
In cases of extreme urgency, an application may be made for an interim injunction on an ex parte basis. This injunction is granted only where the court is satisfied that the applicant would suffer irreparable harm if the respondent proceeds with a particular action before the matter can be fully heard.
Interim injunctions are typically granted for a short duration, pending the full interlocutory hearing. The applicant must make full and frank disclosure of all material facts. Once notified, the respondent may apply to have the injunction discharged.
Quia timet
Quia timet (from the Latin- “because he fears”) is a type of injunction taken to prevent future wrongdoing. Quia timet injunctions are pre-emptive and restrain anticipated wrongful conduct that has not yet occurred. They are granted only where there is a real and imminent risk of such conduct and where damages would not be an adequate remedy once the harm has occurred.
A Quia Timet injunction restrains anticipated wrongful conduct that has not yet occurred.
To succeed, the applicant must demonstrate:
- A strong possibility that an actionable tort will be committed; and
- That damages would not be an adequate remedy.
These injunctions are preventative in nature and granted only in cases of clear and imminent risk.
Mareva Injunction
A Mareva injunction is a type of injunction that freezes the assets of the respondent. It is only granted where the courts have deemed it strictly necessary. It is a very large intrusion of the courts on the property rights of an individual, and as such is used very sparingly. This type of injunction is usually set in place to ensure the respondent capable of paying any potential debt does not move assets beyond the reach of the jurisdiction or dissipate them to avoid repayment.
It is a prohibitory interlocutory injunction that prevents a defendant from removing or disposing of assets prior to the enforcement of a judgment. These are sought ex parte, particularly where there is a real risk of asset concealment or dissipation that would frustrate enforcement.
These are often accompanied by ancillary disclosure orders, requiring a defendant to disclose the details of their assets by affidavit. The Court will typically only freeze an amount sufficient to compensate the applicant if their claim is ultimately successful.
To obtain a Mareva injunction, the applicant must show:
- A substantive cause of action;
- A good arguable case;
- That the defendant has assets capable of being frozen;
- Evidence of a risk of dissipation or removal of assets from the jurisdiction; and
- That the balance of convenience favours granting the injunction.
The conduct of the defendant is also considered. A risk of dissipation may be inferred from all relevant circumstances.
A Mareva injunction may be granted pre- or post-judgment and may be extended pursuant to Order 15, Rule 13 of the Rules of the Superior Courts, to cover third parties who have control of the relevant assets. It is also possible to obtain a worldwide Mareva injunction. In Trafalgar Developments Limited v Mazepin [2019] IEHC 7, the Commercial Court issued such an order, as they were satisfied that there was a significant risk of the defendants dissipating their assets. This covered not only traditional assets but also cryptocurrency wallets.
Anton Piller Orders
An Anton Piller order is a mandatory interlocutory injunction that permits the applicant’s representatives to enter the defendant’s premises to search and seize evidence. These orders are granted ex parte and are intended to prevent the destruction or concealment of crucial information. Due to its highly intrusive nature, this order is only granted in exceptional circumstances where there is a real risk that the evidence may be hidden, removed or destroyed.
These are granted when it is likely that the evidence could be destroyed or otherwise withheld. These injunctions are often used in relation to intellectual property disputes. They have become fashionable for disclosing the identity of persons beyond anonymous online accounts.
To obtain an Anton Piller order, the applicant must demonstrate:
- A very strong prima facie case;
- Actual or potential damage of a very serious nature;
- Clear evidence that the defendant possesses the evidence in question and a real possibility of their destruction;
- That the order would not cause unjustifiable harm to the defendant or their case;
- That the defendant is notified at the time of execution of their right to apply to vary or discharge the order.
Bayer Injunctions
A Bayer injunction prevents an individual from leaving the jurisdiction, often requiring the surrender of their passport. These orders are granted only in exceptional circumstances, typically to ensure compliance with a court order or to prevent a party from frustrating the administration of justice.
Whether used to prevent harm, maintain the status quo, or to preserve evidence, injunctions play a vital role in protecting legal rights and preventing injustice. Given the discretionary nature of these remedies and the potential consequences for both parties, legal guidance is often necessary before attempting to obtain one.
Injunctions in employment
During employment disputes, an injunction can be issued as a preliminary measure, or after a case has concluded. They may be used, for example, to prevent the unfair dismissal of an employee or to restrict the contact of an employee who is on sick leave.How to get an injunction
As set out above, an injunction is granted by the courts in extraordinary circumstances. This is because the court ordinarily uses damages (“the payment of a sum of money”) as the default remedy in employment disputes.
Injunctions are deployed where an action must be prevented in a narrow time frame, or where damages are not an adequate remedy.
A solicitor may apply to the courts called an application for injunctive relief at the beginning of a case. A preliminary hearing will then be scheduled where the judge will decide whether to grant a temporary injunction. They will usually only last until the full case has been heard or for a limited time frame. This is to maintain the status quo until a more permanent solution can be ordered by the Court on receipt and consideration of the full facts.
Emergency Injunctive relief applications can be made ex-parte, which means that the other party may not need to be given notice. They will normally then be invited to comment on the matter and the injunction can be affirmed or set aside.
Setanta Solicitors advise both employers and employees on injunctions. Please contact us to schedule a no obligation consultation at info@setantasolicitors.ie or 01 215 0168
