Interlocutory injunctions and the risk of injustice

Introduction

Since the well-know decision in Campus Oil Ltd v Minister for Industry and Energy (No.2), the superior courts have analysed and refined the appropriate test to be applied when determining whether or not injunctive relief should be granted at the interlocutory stage. As Clarke J. observed recently:

"....It is fair to say that much of the detailed analysis of the Campus Oil test has occurred in the context of injunction proceedings which at least have a significant commercial, contractual or property character."

The grant or refusal of an injunction at the interlocutory stage necessarily involves an important decision being
made by a court before all relevant evidence can be put before a trial judge and tested. Yet, as practitioners will
be well aware, the granting of an injunction, particularly a mandatory one, may in practical terms determine the
dispute between the parties in many cases. This reality has long been recognised by the courts. Over 40 years
ago, Lord Diplock suggested, in NWL Ltd v Woods:

"Where....the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm that will have been already caused to the losing party by its grant or its refusal is complete and of a kind for which money cannot constitute any worthwhile recompense, the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial, is a factor to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way rather than the other."

Against the foregoing background, the purpose of this article is to examine the current test for the grant of an
interlocutory injunction, as explored in various superior court decisions, with particular reference to situations
where mandatory relief is sought. The article also suggests that, although not an explicit or additional component of the Campus Oil test, the underlying principle when deciding whether to grant or refuse an interlocutory injunction, be it prohibitory or mandatory, will be for the court to ask: what order will create the least risk of injustice if it ultimately tums out to have been wrongly granted?

Preserving the Status Quo

In Campus Oil, O'Higgins C.J. emphasised that the granting of relief at the interlocutory stage is "....for the
purpose of keeping matters in status quo until the hearinq". In relation to the threshold to be met by a party seeking injunctive relief at the interlocutory stage, he rejected the argument that the applicant should be required to demonstrate a probability of success at trial. His oft-quoted judgment identifies a lesser threshold:

"In my view, the test to be applied is whether a fair bona fide question has been raised by the person seeking the relief. If such a question has been raised, it is not for the Court to determine that question on an interlocutory application: that remains to be decided at the trial. Once a fair question has been raised, in the manner in which I have indicated, then the Court should consider the other matters which are appropriate to the exercise of its discretion to grant interlocutory relief."

"Other Matters" in the Test

Given that Campus Oil was decided over 30 years ago, one might well ask: what are these "other matters" which
an Irish court must now consider in the context of an application for interlocutory relief in light of decisions
in the last three decades? Okunadae v Minister for Justice, Equality and Law Reform concerned, inter alia,
an application to the Supreme Court for a "stay" on a deportation order. In his judgment delivered on behalf
of a five-person Supreme Court, Clarke J. held that the appropriate test for the granting of a stay in the context of
an order amenable to judicial review is similar to the test for the granting of an injunction. The judgment provides
an extremely clear expression of the Campus Oil test as currently formulated. Referring to the judgment of
McCracken J. in B&S Ltd v Irish Auto Trader Ltd, Clarke J. summarised the different elements in the test in the
following terms:

"The party seeking the injunction must show that there is a fair or bona fide or serious question to be tried. If that be established the court must then consider two aspects of the adequacy of damages. First the court must consider whether, if it does not grant an injunction at the interlocutory stage, a plaintiff who succeeds at the trial of the substantive action will be adequately compensated by an award of damages for any loss suffered between the hearing of the interlocutory injunction and the trial of the action. If the plaintiff would be adequately compensated by damages the interlocutory injunction should be refused subject to the proviso that it appears likely that the relevant defendant would be able to discharge any damages likely to arise. If damages would not be an adequate remedy for the plaintiff then the court must consider whether, if it does grant an injunction at the interlocutory stage, a plaintiff's undertaking as to damages will adequately compensate the defendant, should the latter be successful at the trial of action, in respect of any loss suffered by him due to the injunction being enforced pending the trial. If the defendant would be adequately compensated by damages then the injunction will normally be granted. This last matter is also subject to the proviso that the plaintiff would be in a position to meet the undertaking as to damages in the event that it is called on. If damages would not adequately compensate either party then the court must consider where the balance of convenience lies. If all other matters are equally balanced the court should attempt to preserve the status quo."

Mandatory Relief Only in "Special Circumstances"

It is settled law that a plaintiff seeking an interlocutory order to restrain a defendant must first convince the court that a fair or bona fide or serious question has been raised. A court may also grant mandatory relief at the interlocutory stage but it has long been recognised that mandatory orders are granted sparingly and that a different, i.e. higher, threshold must be met. Halsbury's Laws of England puts it as follows:

"A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempts to steal a march on the claimant, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory application."

Halsbury's analysis highlights the reality that the grant of mandatory relief may decide a case "at once" and that
obtaining such relief requires "special circumstances". The proposition that an applicant faces a significantly
higher threshold when seeking mandatory relief at the interlocutory stage is by no means a recent development.

A "Higher Standard"

A decade before Campus Oil, Megarry J. made it clear in Shepherd Homes Ltd v Sandham that a higher threshold had to be met by an applicant for mandatory relief at the interlocutory stage. His Lordship commented on the higher standard in the following terms:

"...on motion, as contrasted with the trial, the court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable prohibitory injunction. In a normal case the court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted; and this is a higher standard than is required for a prohibitory injunction....No doubt a mandatory injunction may be granted where the case for one is unusually sharp and clear; but it is certainly not a matter of course."

A "Strong Case"

Shepherd Homes concerned a development company's unsuccessful attempt to obtain a mandatory interlocutory
injunction against a resident who erected fences contrary to a negative covenant and is regularly cited in this
jurisdiction. In his decision of 25 November 2014 in Aim Cash & Carry Ltd v AIlpoints Building and Maintenance
Ltd, Keane J. considered what the High Court regarded as, in effect, an application for a mandatory injunction
seeking specific performance of an alleged agreement to grant the applicant a lease. Having cited Megarry J.
in Shepherd Homes, Keane J. came to the conclusion that the applicant had not made out a "strong arguable
case" and refused the application. ln O'Mahony v Lowe and Douglas Newman Good Ltd, the applicant sought,
inter alia, a mandatory injunction to require a receiver to repair and refurbish certain property, pending the trial of the action. Citing Shepherd Homes, Laffoy J. dismissed the application on the grounds that the court could not
conclude that the plaintiff had "a strong case likely to succeed at the hearing of the action".

"Unusually Strong and Clear"

The decision in Shepherd Homes both highlights the underlying reason for a court's reluctance to grant
mandatory interlocutory relief, as well as encapsulating the higher standard. Elsewhere in his judgment, Megarry
J. explained matters as follows:

"At the trial of the action, the court will, of course, grant such injunctions as the justice of the case requires; but at the interlocutory stage, when the final result of the case cannot be known and the court has to do the best it can, I think the case has to be unusually strong and clear before a mandatory injunction will be granted, even if it is sought in order to enforce a contractual obligation."

"Grave Damage"

The necessity for a plaintiff to show a strong case when seeking mandatory relief from an Irish court has been
expressed in various forms. In Garrahy v Bord na gCon, O'Higgins J. stated that:

"A mandatory injunction can only be granted where the plaintiff shows a very strong probability on the facts that a grave damage will accrue to him in the future."

The approach which our courts should take in order to determine whether the higher standard has been met was
also explored by Clarke J. in Okunadae:

"However, even in those cases where a higher threshold may need to be met, that requirement does not involve the court in a detailed analysis of the facts or complex questions of law. Rather it obliges the plaintiff to put forward, in a straight forward way, a case which meets the higher threshold."

Substance v Form

As practitioners will be well aware, the terms of an injunction sought will often appear in prohibitory language
even if the true nature of the relief sought is mandatory. In Lingham v Health Service Executive, Fennelly J. gave judgment on behalf of a three-person Supreme Court. In the High Court, Carroll J. had refused the plaintiff's
application for an interlocutory injunction restraining the defendant from dismissing him from the position of
temporary orthopaedic surgeon that he held in two Cork hospitals. Fennelly J.'s judgment highlights the fact that,
regardless of the form of the relief sought, the court will look to its substance, and also makes it clear that a higher threshold will have to be met by an applicant seeking mandatory relief. In the course of his judgment, Fennelly J. pointed out that:

"...in substance what the plaintiff/appellant is seeking is a mandatory interlocutory injunction and it is well established 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 an interlocutory injunction where the injunction sought is in fact mandatory. In such a case 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."

In the Supreme Court's view, the plaintiff was not entitled to relief, in circumstances where he had not shown that
he had a strong case that was likely to succeed at the hearing of the trial. Thus, the appeal against the High
Court's decision was dismissed. 

Requiring an Employer to Retain an Employee

The justification for the higher standard was also explained clearly by Clarke J., who was then in the High Court, in Bergin v Galway Clinic Doughiska Ltd. In that case, the plaintiff was the Chief Executive of the defendant and
sought an injunction restraining his dismissal as well as orders compelling the defendant to re-engage him pending the trial. In form, the relief sought was prohibitory but the decision again highlights that the court will look to the substance of the relief being sought, regardless of the form of words used to express it. Clarke J. put matters as follows:

"The basis for the higher standard is that the substance of the relief sought is a mandatory order requiring the employer to keep the employee in employment....The order remains a mandatory order, even though the plaintiff claims that a purported termination of his employment is unlawful by reason of a finding of wrongdoing having been arrived at in breach of the principles of natural justice. However couched, the substance of the relief is the same....Where a plaintiff seeks to prevent an employer from exercising a prima facie entitlement to terminate a contract of employment, then that employee is, in substance, seeking a mandatory order requiring that his employment continue and that his employment entitlements are met. It follows, in my view, that in order to determine whether the first step towards granting such an order has been met, it is necessary that the plaintiff concerned establish a strong case."

On the facts, the High Court found that the plaintiff had made out a strong case and the court granted interlocutory injunctions restraining the defendant from dismissing the plaintiff and appointing another Chief Executive, save on terms sufficient to allow the plaintiff to return to his duties, should the court ultimately make such an order.

Compelling the Production of Records

Shelbourne Hotel Holdings Ltd v Torriam Hotel Operating Co Ltd. concerned a 90-page commercial agreement
entered into between the plaintiff and the defendant, both limited liability companies, governing the terms upon
which the latter operated Dublin's Shelbourne Hotel. As part of the agreement, the defendant was obliged to
manage and operate the hotel to a certain standard and to keep necessary accounts, with the plaintiff having a
right of access to inspect the hotel accounts and records maintained by the defendant. Problems emerged in
relation to the financial management of the hotel. The plaintiff appointed KPMG to carry out a review of the
financial systems in place. KPMG required a list of books, records and information which the defendant refused
to furnish, giving rise to the proceedings in which the plaintiff sought injunctions to compel the defendant to
provide access to the hotel's books and records and to restrain the defendant from obstructing such access.
The defendant sought to stay the proceedings and refer matters to arbitration. Somewhat curiously, the terms of the agreement provided that, notwithstanding the arbitration clause and the entitlement of either party to stay legal proceedings, both sides were also given the explicit right to seek injunctive relief. Hence, the entitlement to stay proceedings did not, in the court's view, relate to any application for injunctive relief. Given the mandatory terms in s.5(1) of the then applicable Arbitration Act 1980, the court decided to place a stay on the plaintiff's proceedings but not on the motion seeking injunctions.

A "High Degree of Assurance"

In his judgment in Shelbourne Hotel Holdings Ltd, Kelly J. analysed in some detail the post-Campus Oil
jurisprudence, focusing in particular on the appropriate test where mandatory relief is sought. Kelly J. noted that
relief sought by the plaintiff was mandatory in nature. The parties disagreed about the appropriate threshold
for the plaintiff to meet in such circumstances, and Kelly J. analysed the position in the following terms:

"On the one hand the plaintiff contends that the test is that prescribed by the Supreme Court in Campus Oil Limited v Minister for Health No. (2) [1983] I.R 88. It is the same test as that prescribed by the House of Lords in American Cyanamid Co v Ethicon Limited [1975] A.C 396. The test requires that in order to obtain such an interlocutory Injunction the plaintiff has to demonstrate a serious issue for trial, inadequacy of damages, and the balance of convenience lying in favour of the grant of the order. The defendant contends that a different test must be met on the first of those issues. It argues that it is not enough to show a serious issue for trial but rather, the issue must be such as to allow the court to feel a high degree of assurance that the injunction is being rightly granted or to put it another way a likelihood or strong likelihood of success at the trial."

Kelly J. contrasted the comments of Laffoy J. in Cronin v Minister for Education, where the court rejected the
argument that a plaintiff seeking mandatory interlocutory relief must demonstrate a likelihood of success at trial, with comments in Boyhan v Tribunal of Inquiry into the Beef Processing Industry, where Denham J. stated:

"In seeking this exceptional form of relief, a mandatory injunction, it is up to the plaintiffs to establish a strong and clear case-so that the court can feel a degree of assurance that at a trial of the action a similar injunction would be granted."

On the basis of the affidavit evidence before him, Kelly J. was satisfied that the plaintiff had achieved the higher of
the two tests, namely the demonstration of a strong and clear case. The court then went to consider the adequacy of damages and balance of convenience, ultimately granting orders in favour of the plaintiff requiring the defendant to provide access to a list of specific items.

Damages

Once the court has determined whether the party seeking an interlocutory injunction has met the relevant initial
threshold, the focus shifts to the question of damages. If, having considered the affidavits before it, the court
takes the view that a plaintiff would be adequately compensated by an award of damages, in the event of
being successful at trial, an injunction should be refused. It is well established that when a plaintiff seeks an injunction at the interlocutory stage, the onus rests on him or her to convince the court that damages would not be an adequate remedy. As Clarke J. stated in Sheridan v The Louis Fitzgerald Group Ltd.:

"It is well established that in order to obtain interim or interlocutory relief a plaintiff must satisfy the court that damages would not be adequate to compensate the plaintiff in the event that he should establish his case at trial but not have obtained an interlocutory injunction....In Smith Cline Beacham [sic] PLC v. Genthon BV (unreported, High Court, 28th February, 2003, Kelly J.) this court noted that the onus was on the plaintiff, as a matter of probability, to demonstrate the risk that damages would prove to be an inadequate remedy."

Clarke J. was satisfied that damages would be an adequate remedy and refused to grant an interlocutory
injunction which would have permitted the plaintiff to remain in possession of a pub restaurant in Dublin's
Temple Bar, pending the trial.

Difficulty in Quantifying Damages

The fact that it may be extremely difficult to assess the question of damages does not mean that an award of
damages can be regarded as an inadequate remedy. In Curust Financial Services Ltd and Curust Industries
Ltd v Loewe-Lack-Werk Otto Loewe GmbH & Co, K.G. and R.S. Sales Ltd, the first defendant (Loewe) was
the manufacturer of the largest-selling rust primer paint in the Irish retail market. It granted the plaintiffs (Curust)
an exclusive licence to manufacture and sell its products within Ireland and the United Kingdom. A subsequent
agreement was entered into for the supply of the finished product by Loewe to Curust. It was envisaged that, upon the expiry of that agreement, Curust would re-commence manufacture of the paint under licence from Loewe. A dispute arose and Loewe declared that all agreements between the parties were at an end and ceased to supply Curust with paint. Curust entered into an agreement with a third party for the manufacture of the paint in Ireland which was sold in tins marked "Loewe rust primer". Meanwhile, an agreement was entered into between the defendants whereby the second-named defendant agreed to sell paint manufactured by Loewe in Ireland, also marketed in tins labelled "Loewe rust primer". Curust sought injunctions restraining the second-named defendant from manufacturing or selling any of the products of Loewe in Ireland or the United Kingdom and, in the underlying proceedings, sought declarations that Loewe was bound by the terms of the agreement it had previously entered into with Curust. In the High Court, Barron J. held, inter alia, that having regard to the difficulties involved in quantifying the effects upon trade of granting, or denying, interlocutory relief, damages would not be an adequate remedy in the case. However, in allowing the defendants' appeal, and refusing injunctive relief, Finlay C.J. held as follows:

"The loss to be incurred by Curust if it succeeds in the action and no interlocutory injunction is granted to them, is clearly and exclusively a commercial loss, in what had been, apparently, a stable and well-established market. In those circumstances, prima facie, it is a loss which should be capable of being assessed in damages both under the heading of loss actually suffered up to the date when such damage would fall to be assessed and also under the heading of probable future loss. Difficulty, as distinct from complete impossibility, in the assessment of such damages, should not, in my view, be a ground for characterising the awarding of damages as an inadequate remedy."

The Supreme Court held that no insuperable difficulties of quantification arose with regard to the assessment of
future damages in respect of any period after the trial of the action whilst Curust was recovering its share of the
market, and found that it was reasonable to suppose that evidence could be adduced which would enable the trial
judge to assess such future losses.

Is the Defendant a "Mark" for Damages?

It is worth reminding ourselves that even if a court is convinced, or a plaintiff concedes, that damages would
be an appropriate remedy for the plaintiff, the court may still grant an interlocutory injunction if it is satisfied, on the affidavit evidence before it, that the defendant would not be capable of discharging such an award. As Finlay C.J. emphasised in Westman Holdings Ltd v McCormack, the "adequacy of damages" element of the Campus Oil
test has two aspects:

"The first is the question as to whether damages would be an adequate remedy, and the second is as to whether there is a defendant liable to pay such damages who is able to do so, and thus the appropriate compensation could actually be realised."

This issue was also analysed in the recent decision of Tola Capital Management LLC v Linders (No.1). In that
case, Cregan J. considered an application for injunctions, including mandatory relief, by a plaintiff who acknowledged from the outset that damages would be an appropriate remedy. Nevertheless, the plaintiff insisted that the second limb of the relevant test had not been satisfied, arguing that the defendants were not a "mark" for darnaqes. The case concerned a claim for specific performance of a commercial agreement involving, inter alia, the acquisition of certain properties from the defendants by a "newco" to be established by the plaintiff. The effect of the injunctions sought would have been to require the defendants to contract with the plaintiff and no other party. The court refused to grant the injunctions, in circumstances where it held that the plaintiff had failed to meet the higher threshold required for the granting of mandatory relief, also holding that the defendants had put sufficient affidavit evidence before the court to the effect that they would be capable of satisfying an award of damages following a trial.

The Future Financial Position

Cregan J.'s decision in Tola (No.1) also highlights that, when considering the adequacy of damages issue, the
court is entitled to look at a defendant's financial position in the future, namely at the trial of the underlying action,
rather than at the time an injunction is sought against it. Having referred to extracts from the defendants' affidavits concerning their then and future financial circumstances, Cregan J. put it as follows:

"In these circumstances - and given the case law - I am of the view that the court is entitled to consider whether the defendants would be in a position to meet any possible award of damages (which the plaintiff might obtain at the trial of the action) at the determination of the plenary action rather than at the time of the application for an interlocutory injunction."

Supervision

As we see from the Campus Oil test in its most recent expression, where damages would not adequately
compensate either party, the court must consider where the balance of convenience lies. However, it seems clear
that where relations between the parties have become so fraught that the court cannot expect the parties to
"live together" in an ongoing contractual relationship, without supervision, the balance of convenience will
favour the refusal of an injunction. As the Supreme Court (Geoghegan J) explained in Ó Murchú t/a Talknology v
Eircell Ltd.:

"First of all there is the well-known principle that in general the courts will not grant an injunction which would involve ongoing supervisions. A court, therefore, is very slow to grant injunctions in either service contracts or trading contracts because it is very difficult to assess, at any given time thereafter, as to whether such injunctions are being obeyed or not. It is also usually impracticable and undesirable that two parties be compelled to trade with one another when one, for reasons which are perfectly rational, does not want to carry on such trading."

The "Risk of Injustice"

Whether prohibitory or mandatory in character, the granting of an injunction represents a dramatic intervention
at an early stage in proceedings. The fact that whatever decision a court makes carries with it the risk of injustice
has been explicitly acknowledged. Indeed, it has been suggested that minimising the risk of injustice should be
the underlying principle to guide the court in determining an interlocutory application for injunctive relief, regardless of whether the order sought is prohibitory or mandatory. In Shelbourne Hotel, Kelly J., referring to English authorities, approved of an approach to the granting or refusal of interlocutory injunctions which focused on mininising the risk of injustice. He put it as follows:

"I am much attracted by the approach of Hoffman [sic] J (as he then was) in the Films Rover case [1987] 1 WLR 670, where he took the view that the fundamental principle on interlocutory applications for both prohibitory and mandatory injunctions is that the court should adopt whatever course would carry the lower risk of injustice if it turns out to be the 'wrong' decision."

Risk "Informs" the Test 

In AIB v Diamond, the plaintiffs sought a number of interlocutory orders restraining the defendants from
soliciting customers, concluding contracts with them soliciting employees and using allegedly confidential
information. The background to the proceedings, which took place in the aftermath of the banking crisis, was the
sale of a certain AIB company and the plaintiffs' claim that the defendants moved much of the business of that
company to another entity, resulting in a reduction in the price which the successful purchaser, Capita Group, was
willing to pay. During the course of his judgment, Clarke J. made reference to approaching the grant or refusal
of interlocutory injunctions based on an assessment of where the greatest risk of injustice might lie, Clarke J
emphasised, however, that any such analysis did not represent a departure from the test established under
the Campus Oil jurisprudence, Rather, the "greatest risk of injustice" criteria represented the underlying principle
which "informs" the elements of the test developed in the wake of Campus Oil. Clarke J. explained the challenge for the court and the underlying principle in the following terms:

"It is inevitable that a court having to decide whether to grant or refuse an interlocutory injunction will be faced with some risk of injustice. The whole point of interim or interlocutory injunctions is that they are designed to be granted or refused after a very early and often quite brief hearing with a view to deciding what state of play should subsist until the court has an opportunity to conduct a full hearing. Against that background it is inevitable that there will be cases where an injunction will be granted but where it will turn out, after trial, and with the benefit of full evidence and argument, that the plaintiff who obtained the interlocutory injunction was in the wrong and should, with the benefit of hindsight, never have had the advantage of a restraining order. Likewise, it may transpire that a plaintiff who is refused an interlocutory injunction may succeed at trial and will have suffered whatever injustice flows from not having had the benefit of a court order in the intervening period. Obviously the extent to which there may be a risk of injustice can vary hugely from case to case and, within one case, from party to party. However, it seems to me that it is an acknowledgment by the court of that risk of injustice that informs the detailed rules that have evolved by reference to which the court decides whether to grant or refuse an interlocutory injunction."

Later in his judgment, Clarke J put it succinctly as follows:

"...the detailed rules which have evolved for considering interlocutory injunction applications can be said to stem from an attempt by the court to work out the course of action which gives rise to the least risk of injustice..."

Clarke J.'s judgment also emphasises that where a mandatory injunction is being sought, or where the
granting of an injunction might well amount to a resolution of all the issues, the court will require a higher level of
assurance that the plaintiff will be successful at trial. On the facts deposed to, Clarke J. was satisfied that the
plaintiff had advanced credible evidence which, if accepted at trial, would provide a strong arguable case and, in
those circumstances, granted a number of interlocutory injunctions against certain of the defendants.

The "Refinement" of Campus Oil

Cregan J.'s judgment in Tola (No.1), delivered on 5 June 2014, also contains a very helpful and extensive analysis of the jurisprudence from Campus Oil onwards, and explicitly refers to the "least risk of injustice" principle. It is clear from Cregan J.'s decision that the court began by looking at the substance rather than the form of the relief sought. The court found that, in substance, the orders applied for were mandatory. Cregan J. was clear both as to the existence of the higher standard for the grant of a mandatory injunction and the nature of the threshold to be met by the plaintiff. His decision, refusing the injunctions sought, also stresses the importance of mininising the risk of injustice, particularly when a mandatory order is applied for:

"In my view, therefore, it is clear from this review of the authorities that, in the case of mandatory injunctions, there is what Clarke J. has described as 'a refinement' or 'a variation' of the pure Campus Oil test. This variation has been applied to mandatory injunctions in two recent Supreme Court decisions - Maha Lingham and Okunadae. In my view, it appears from the decision of Fennelly J. in Maha Lingham and the decision of Clarke J. in Okunadae that where the order sought is a mandatory order, then the appropriate test is that the plaintiff must establish, in the words of Fennelly J. in Maha Lingham, that he has 'a strong case that he is likely to succeed at the hearing of the action'. It also appears to be the case that, where a mandatory injunction is being sought, the court should also particularly adopt 'whatever course would carry the lower risk of injustice' as stated by Kelly J. in Shelbourne Holel and Clarke J. in Okunadae. Therefore, I am of the view in this case that the plaintiff must establish a strong case that is likely to succeed at the hearing of the action before it is entitled to an injunction."

Conclusion

Irish courts have long been alive to the fact that the grant or refusal of an injunction, particularly a mandatory one,
may effectively determine the dispute between the parties, long before a trial judge has tested the evidence and
considered the legal submissions. This, and the objective of attempting to preserve the status quo pending a trial,
has informed the development of the Campus Oil test, as most recently expressed in cases such as Okunadae. It
is also clear from recent authorities that, although not a departure from the Campus Oil test or a separate limb of
it, the court will also be guided by a single and underlying principle, namely: what order at the interlocutory stage will carry the lower risk of injustice? The expression of this principle is very helpful, given how common injunction
applications are, especially in the commercial sphere, and how crucial their outcome can be. It also highlights
that, as a creature of common law, the Campus Oil test, even in its most recent formulation, will not be followed
in a formulaic or overly rigid manner if doing justice to a particular situation so requires. As Clarke J. put it in AIB
v Diamond:

"...it might be said that giving consideration to the least risk of injustice does not really add much to the overall picture for it might be seen simply to justify the existing set of rules. However, it seems to me that a 'least risk of injustice' analysis has perhaps some additional benefits. First, it can be a useful measure for deciding whether a somewhat different approach to normal is needed in particular types of cases....it may well be that the underlying principle can be a useful tool or measure to be applied where the court is confronted with a difficult situation."

Practitioners and parties to litigation can only welcome this explicit emphasis by the superior courts that, over 30 years after Campus Oil, the jurisprudence must be considered in light of the underlying principle that the court will seek out whatever course of action, and make whatever order at the interlocutory stage, which gives rise to the least risk of injustice.