Mandatory Mareva, Anton Pillar, Orders Bayer Injunctions. The last area to be discussed where refinements and variations to the Campus Oil tests have evolved to minimize the risk of injustice in special cases are those of i mandatory injunctions, ii Mareva injunctions and iii Anton Pillar orders. As detailed previously in Bula Ltd O Murchú Shelbourne Holdings and Okunade the courts will adopt a stricter test for mandatory injunctions at an interlocutory stage. Similarly, with Quia Timet injunctions, the test is also strict In Szabo Geoghan J specifically doubted the appropriateness of the Campus Oil guidelines given that he found it distasteful to engage in a balancing exercise, between carrying on business and health. He doubted whether a proven substantial risk of damage could occur before the hearing and so the application was refused.
The issues surrounding applications for Mareva injunctions which are in themselves interlocutory applications to freeze assets have also generated variations to the Campus Oil tests. The main case in an Irish context is O Mahony V Horgan. In this case, Hamilton CJ approved the six criteria that had been set out in the Third Chandris. The plaintiff must have a good arguable case in primary action Countyglen. There must be full and frank disclosure of all material facts Bambrick V Cobley McDonagh V Ulster Bank. The particulars of the claim must be stated together with possible counterarguments of the defendant. The grounds must be stated for the belief that the defendant has assets within the jurisdiction Bennett. The grounds must be given for fear that assets will be wrongfully removed or dissipated Tracey. There must be an undertaking as to damages incl third parties Maloney. Overall the Maloney V Horgan judgment has certainly extended the Campus Oil tests to address what could be classed as a special case. With reference to Anton Pillar orders which is a mandatory injunction where a plaintiff can inspect, remove and preserve documentary evidence which he believes could be destroyed before the hearing. With Anton Pillar’s orders, the threshold is again set very high and the interest of justice on both sides is a key consideration of the court.
There must be an extremely strong prima facia case clear evidence of incriminating documents. Microsoft no real harm can be done to either side by the granting of the injunction full and frank disclosure and an undertaking as to damages. It is worth noting that while the above variation to the Campus Oil tests would appear to be very harsh protections are in place for the defendant, for Anton Pillar orders which include developments in UK case law and the requirement to demonstrate urgency in seeking the application. Other types of injunctions that have also created variations on the Campus Oil tests include Quia Timet injunctions the plaintiff must show a sufficiently strong case of threatened loss Bayer Injunctions. The purpose of a Bayer injunction is to restrain a defendant from leaving the jurisdiction and hand up to his passport. Again the Campus Oil principles have been extended and this injunction is only granted in exceptional cases in particular to facilitate a court order.
In conclusion, this essay requested a critical discussion to the manner in which applications for interlocutory injunctions have been dealt with by the judiciary, since the Campus Oil case but with specific reference to the types of situations where refinements and variations have evolved to the Campus Oil tests to minimize the risk of injustice in special cases. On that note, this essay does outline the Campus Oil tests in summary but more specifically identifies where the courts have departed from Campus Oil to refine and expand those tests. It is at this point that this essay must question as to why the courts would depart from Campus Oil and whether the Campus Oil tests are still valid in an Irish context. In the introduction to this essay, it references Delaney’s statement which quotes that there was a lack of clarity in the law regarding interlocutory injunctions. The Supreme Court has set out no definitive line of authority to clarify this grey area of law and seems content for each separate case to be decided on its merits. It can be said that the current position regarding interlocutory injunctions and particularly mandatory injunctions would seem to be the lesser of two evils. If a specific test was to be set down there would be no room for interpretation and once there is a serious issue to be tried and damages were not an adequate remedy the injunction could be granted even if there was a high risk of injustice to one party.
It would seem therefore that the courts need to preserve their unfettered discretion in their decision making to avoid binding a lower court to a decision that could give rise to injustice. The courts also seem to have recognized that the granting or refusal of an injunction particularly mandatory injunctions may essentially determine the dispute and in consideration of the need to preserve the status quo have developed the Campus Oil tests to allow decisions that will essentially create the lowest risk of injustice. We have seen by the case law that interlocutory injunctions are most useful in commercial or property related disputes and Campus Oil remains instructive as seen in Clarke J’s decision in Okunade when he stated that Campus Oil remains a good starting point. There is no doubt however that as Tobin suggests there is a divergence of judicial opinion as to the proper test when seeking a mandatory interlocutory injunction and the traditional Campus Oil test is rarely used by the Irish courts in these cases. On the face of it it is now evident that the courts have veered away from a strict application of Campus Oil but they have not completely discounted the principles preferring instead to expand upon them with the greatest risk of injustice test or apply higher requirements for proofs.
This is seen in the various cases Contracts for Services Crosbie Holdings Ltd Employment Law, Maha Lingham Nolan V EMO Oil Intellectual Property Rights Karen Millen V Dunnes Stores Mareva and Bayer Injunctions. These more stringent tests must, therefore, be seen as extensions to Campus Oil. As Delaney states the Campus Oil principles are still precise but in special cases such as those of a commercial property employment law nature and where the relief sought is mandatory in nature it is unlikely that the balance of convenience will lie in favor of granting mandatory relief save in fairly exceptional circumstances. The Campus Oil test even in its most recent formulation will be followed in a flexible manner if doing justice in the situation requires. Biehler née Delaney in the 6th edition of her book praises the additional greatest risk of injustice test as logical and removing the uncertainty which the application of different tests has given rise to.