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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Garrahy v. Bord na gCon [2002] IEHC 147 (14 February 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/147.html Cite as: [2002] IEHC 147 |
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THE HIGH COURT
DUBLIN
Record No. 2001/16253P
MR. JOHN GARRAHY
Plaintiff
-v-
BORD NA gCON
Defendants
MR. JUSTICE O'HIGGINS DELIVERED JUDGMENT, AS FOLLOWS, ON THURSDAY, 14TH FEBRUARY 2002
MR. JUSTICE O'HIGGINS: The Plaintiff seeks an interlocutory injunction in the following circumstances. In or about May 1995 the Plaintiff replied to an advertisement seeking the position of Regulation Manager with Bord na gCon, the Defendant in this case. In September 1995 the Plaintiff was offered the position. Following negotiations he accepted the position on a one year fixed term contract. He agreed to work five mornings per week and to show the flexibility necessary to perform the required duties for an agreed salary of £25,000. He took up the position in March 1996. His one year contract was subsequently extended for a further period of one year and after that he was made permanent in his position but still part-time.
After some time in the position, however, following the appointment of Mr. Michael Field, as Chief Executive, the Plaintiff maintains that he began to experience difficulties at work. The difficulties experienced by the Plaintiff are set out in great detail in affidavits sworn on 5th November, 1st December and 12th December 2001. It is not necessary here to set out the claims in detail, still less to adjudicate on them. They include, however:
(a) Allegations that Mr. Field, the Chief Executive, and Mr. Paschal Taggart, the Chairman of the Board, took as personal affronts matters which in effect were merely professional disagreements.
(b) Allegations that remarks were made that he took to mean that he should disassociate himself from the then Chief Executive, Mr. Sean Collins, and the then Financial Controller, Mr. Michael Russel.
(c) In the Spring 1998 that Mr. Taggart without preamble requested that he resign and stated inter alia that it would be best if he vacated his position at time of his own choosing but, in any event, in a matter of months.
(d) Some time later in 1999 that he was being excluded and sidelined from the senior management team which ran the Board on a day to day basis.
(e) That he received phone calls from a member of the Board ordering that a named candidate for a post who, in the view of the interview panel, did not merit inclusion in the final round of interviews was to be included in such round and was told by that Board member that the Chairman, Mr. Taggart, had ordered this be done. This the Plaintiff considered "just one more example of the continuous interference, undermining and intimidation" of him by Mr. Taggart, his agents and servants.
(f) Allegations that on two occasions he was pointedly and hurtfully excluded from public praise by the Chairman and such public exclusion left him embarrassed and humiliated.
(f) The Chief Executive "deliberately refused and neglected to address his remuneration in the hope that he would resign from his position with the Board".
(g) on 7th July 1999, Mr. Field suddenly and without warning raised the Plaintiff's position as Regulation Manager and stated that "they felt that they needed someone full-time as Regulation Manager" but refused to name any persons when the Plaintiff asked him who they were. Moreover, the plaintiff alleges that although he asked twice if the "they" to whom Mr. Field referred could provide any examples of where the Plaintiff's non-full-time position had exposed or inconvenienced the Defendant in any way, Mr. Field refused to answer these questions.
(h) When an Australian fellow veterinary surgeon and Plaintiff's counterpart in the Australian Greyhound Racing Organisation came to Ireland in his official capacity and had several meetings with officers of the Board, the Plaintiff was excluded by Mr. Field.
(i) At 10:10a.m. on 27th September 1999 he was handed a letter, dated 22nd September, giving him an ultimatum; either within four days to accept at full-time position at an annual salary of £35,000 and to confirm acceptance by 1st October 1999, or to resign his post no later than 31st December 1999. The Plaintiff considered this "an orchestrated effort by Mr. Taggart and Mr. Field to force him out of the Board".
(j) The proposal to impose on the Plaintiff an additional role for the Plaintiff to be "the first line of action in administering fines and penalties", an issue on which he had not been consulted.
(k) Abuse allegedly screamed at the Plaintiff by the Chairman of the Board and his ejectment from a Board meeting in consequence of which the Plaintiff alleges he became the subject of ridicule and an object of derision.
(l) An allegation that Mr. Field sought to "embarrass and belittle the Plaintiff" by requesting him to respond to a question concerning what had transpired at the meeting from which he had been expelled.
(m) An attempt to exclude him from a further Board meeting of 21st January 2001 which, when the Plaintiff requested that his exclusion be put in writing, the exclusion was not followed through. Mr. Field had stated that such exclusion had been at the behest of Mr. Taggart. This is said by the Plaintiff to be part of "an ongoing campaign to exclude, humiliate and embarrass" the Plaintiff in front of the staff of Bord na gCon.
(n) An alleged attempt to pressurise the Plaintiff in an investigation he was asked to carry out under Section 43(1) of the Greyhound Industry Act into the non-availability of the identity tag of a greyhound named 'Zagato' at Curaheen Park, Cork, on Saturday, 23rd September 2000. The Plaintiff regarded this as an improper attempt to interfere with the independent exercise of his functions.
(o) Notwithstanding the fact that the Plaintiff had been asked by the Chairman of the Board to carry out an investigation into the franchise at the Cork track, he was criticised and upbraided by Mr. Field for so doing and received a memo stating that unless he adhered to the duties assigned to him by the Chief Executive, his failure to do so would result in serious consequences for him.
Those are some of the allegations made by the Plaintiff. It has to be stressed that the Plaintiff's assertions have been either contradicted seriatim and in detail by the Defendants or otherwise explained by them in their affidavits furnished on their behalf explained in a fashion that reflects no impropriety on them.
The Defendants deny any wrongdoing in relation to the Plaintiff and, in effect, state that far from bullying, harassing, obstructing or sidelining the Plaintiff, they acted at all times properly towards him and the decisions which they made were proper decisions in a proper discharge of their duties.
It has to, again, be stressed at that it is no function of the Court at this stage to adjudicate or express any view on the strength or the merits of the case in any way.
The first matter I have to decide is whether there is a fair issue to be tried between the parties. In this regard the Defendant quite properly does not contend that there is not a fair issue to be tried. The Plaintiff asserts that the documentation before the Court discloses not one, but at least two fair issues to be tried, namely whether the employment of a person as a full-time regulation manager would constitute a breach of the Plaintiff's contract of employment or would merely constitute a change in work practice? The fact that there is a variation clause contained in the contract does not change the position that there is a fair issue to be tried, although, of course, it may very well impinge on the merits of the case.
In this regard I was referred to part of the judgment of Kelly J. in Rafferty v Bus Eireann [1997] 2 IR 424 where he held inter alia that the basic job description constitutes a condition of service. I was also referred to the judgment of O'Sullivan J. in Harkins v Shannon Foynes Port Company (Unreported, High Court, O'Sullivan J., 29th January 2001) where it was held that there was a fair issue to be tried as to whether the employment of another employee with duties overlapping those for which Mr. Harkins had been employed constituted a change which would result in less beneficial services to the Plaintiff in that case.
Secondly, I also accept that there is a fair issue to be tried as to whether the proposed appointment of a full-time manager is a manifestation of the victimisation, harassment, intimidation and sidelining that the Plaintiff alleged and whether it is a genuine appointment or purely an attempt to force him out of his employment. The inconsistencies alleged by the Plaintiff together with the gravamen of the complaints raise a fair issue to be tried on that ground as well.
Having decided that there is a fair issue to be tried, the next matter which arises is in relation to the granting of an injunction which is a discretionary remedy and a number of factors arise in this regard, including the adequacy of damages, an argument that since no permanent injunction would be available in the terms of the Notice of Motion, that the Order granted should not be sought. Also, that the Court should be slow to grant an injunction in this case since, though couched as a negative injunction or a prohibitory injunction, in fact it is a mandatory injunction. Also, the Court should be slower to grant an injunction to restrain a public body in the performance of its public function and there are a number of points in relation to labour law which the Defendants say render damages to the appropriate remedy, if the Plaintiff be vindicated, rather than an injunction. The Defendant also makes certain points in relation to the nature of the injunction being sought as being a quia timet injunction. The Defendant also makes the point that since this is a discretionary relief, the Plaintiff should be precluded by reason; (a) of his delay, and (b) in relation to questions about his bona fides, which I will deal with. Finally, the matter has to be considered under the heading of the balance of convenience.
In relation to the adequacy of damages, in order for the Plaintiff to succeed in obtaining the interlocutory relief sought, the Court must be satisfied, not that damages are not an adequate remedy, but that there is a doubt as to whether the damages would be an adequate remedy. In Ferris v Ward [1998] 2 IR 194 Blayney J. stated at p.202:
"It is where there is doubt as to theadequacy of the respective remedies in damages available to either party or to both that the question of the balance of convenience lies."
So, it has to be established prior to any discussion of the balance of convenience whether damages are an adequate remedy or not.
Mr. Hayden in submitting that damages are an adequate remedy, relies on the judgment of Carroll J. in the case of Foley v Aer Lingus Group plc (2001 Law Reports at 193, p.2000).
MR. HAYDEN: ILRM.
MR. JUSTICE O'HIGGINS: Thank you. In particular, where she stated:
"The traditional relief at common law for an unfair dismissal is a claim for damages. Damage to reputation is also compensatable by an award of damages."
The Plaintiff relies on the judgment of 0'Sullivan J. in the case already mentioned of Harkins v Shannon Foynes Port Company (Unreported, High Court, O'Sullivan J., 29th January 2001). There are striking similarities between that case and the present one.
In that case the Plaintiff sought to restrain the Defendant from advertising the position of a harbour engineer, which job he said had been his own with the Defendant for several years. In this case the Plaintiff seeks to say prevent the appointment of a full-time regulation manager, a job which the Plaintiff maintains he has had on a permanent but part-time basis for several years. In the Harkins case (Unreported, High Court, O'Sullivan J., 29th January 2001) there was no proposal to terminate the Plaintiff's employment, in this case there is no proposal to terminate the Plaintiff's employment.
In that case the Plaintiff contended that there was a change of work condition and not merely a change in work practices. In this case too, the Plaintiff claims, amongst other things, similar contentions. In other words, that the proposed appointment would constitute a change in his work conditions and not merely his work practices.
I accept the submission by Mr. Hayden that there are considerable differences between the Harkins case (Unreported, High Court, O'Sullivan J., 29th January 2001) and the present one, in that in the former case the extent to which the Defendant was precluded from filling a new post was to ensure that an advertisement clearly identified the position. There is a considerable difference in that regard but, in my view, it is still of some assistance.
In that case O'Sullivan J. stated as follows:
"Despite the eloquent submission of the Defendant's Counsel, I am left with the impression that there is a degree of overlap between the Plaintiff's present responsibilities and those of the new Operations Manager, or at least that the parameters of each have not been thought through with the boundary now insisted on by the Plaintiff clearly in mind."
In my view, in the present case the functions of the Plaintiff and the new proposed head of regulations appear to overlap to a very large extent. In that regard it is noteworthy that the advertisements for the respective positions are very similar indeed.
In the Harkins case (Unreported, High Court, O'Sullivan J., 29th January 2001) the Judge expressed a view that with regard to the balance of convenience, it is clear that if the Defendant is permitted to continue making the present appointment, the Plaintiff's position at the trial will be devalued, possibly irretrievably, in a way
that may not be compensated.
Furthermore, while in the Foley v Aer Lingus Group plc case it was stated that damages are the traditional relief at common law for unfair dismissal, it must be remembered that the present case is not concerned with dismissal, there being no purported dismissal of the Plaintiff or no intention to his dismiss him according to the Defendants.
With regard to the loss of reputation, it is undoubtedly the case that it is "compensatable by damages", as said by Carroll J., but that does not necessarily mean that in all cases damages are an adequate remedy.
It is also of relevance to note that in this case the claim is not only to prevent an anticipated loss of reputation, nor is it confined to declarations concerning the bullying or harassment, but it is submitted that the appointment would "strike at the core of the Plaintiff's job". Insofar as it is contended by the Plaintiff that the purported new appointment is bogus and merely a rouse which by the Plaintiff is to be sidelined and bullied and forced from the Board, the damage would have been done by the making of the appointment. In my view, solely on the question of adequacy of damage, to which I will refer again later, damages would not appear to be an adequate remedy.
Mr. Hayden further submits that having regard to the fact that a doctrine of the separation of powers and the recent decision of the Supreme Court in TD v The Minister for Education (Unreported, Supreme Court, 17th December 2001) judgment of the Supreme Court of 17th December 2001, that the Plaintiff would not be entitled to a permanent injunction as a Defendant is a statutory body and the statutory obligations which would make it impermissible for the Court to interfere with it. He makes the point that it is highly unlikely that an injunction would be granted, at least in the terms sought by the Plaintiff on an interlocutory basis. The question of the separation of powers is one more properly for the trial, but I am asked to take into account the fact that in the Defendant's submission it is unlikely that a permanent injunction would be made in terms sought. In that regard, it must be noted that the reliefs being pursued at the interlocutory stage are expressed to be sought until the trial of the action herein or until such other date as this Honourable Court may direct. A similar point to the point made by Mr. Hayden was made in the case of Howard v University College Cork (Unreported, High Court, 01Donovan J., 25th July 2000). I adopt the same approach as that adopted by 0'Donovan J. in that case, where he said at page 6 of the judgment:
"... I take the point made by Counsel for the Defendant that, whatever (if any) relief is afforded to the Plaintiff at the trial of this action, it will not include the permanent injunction sought at subparagraph (h) and the declaration sought at subparagraph (j) in the prayer in the Plaintiffs Statement of Claim. However, I do not think that that fact in itself is a sufficient ground to refuse the injunctive relief currently being sought by the Plaintiff. While, as I have indicated, I do not think it possible that at the trial of the action the Plaintiff could be awarded the permanent injunction and the declaration to which I have referred, I have little doubt but that the Trial Judge would accede to an application to amend the Statement of Claim by qualifying the claim for the permanent injunction by the addition of the words 'except in accordance with law' and by qualifying the declaration sought by the addition of the words 'unless and until lawfully terminated'."
Mutatis mutandis the same principles apply in the present case.
Mr. Hayden relies on the judgment of Kelly J. in the case of Reynolds v Malocco [1999] 2 IR 203 at p.209 where the following passage occurs:
"In an ordinary case the court considers whether the Plaintiff has raised a fair or serious issue to bedetermined at the trial of the action. If it considers that such a question has been raised, it goes on to decide whether damages would adequately compensate the Plaintiff in respect of any loss or damage which may be suffered as a result of the activity which is sought to be enjoined. If it decides that damages would not be an adequate remedy. It then proceeds to consider whether on the balance of convenience an injunction should be granted or not. (See Campus Oil v Minister for Industry (No. 2) [1983] I.R. 88 and American Cyanamid v Ethicon Ltd. [1975] AC 396.
These principles have a wide but not universal application. In a small number of cases special rules, which are not encompassed by these principles, apply. One such type of case arises in the field of contracts of employment. Normally courts will not grant an injunction to restrain breaches of covenant in a contract of employment if that would amount to indirect specific performance of such a contract or would perpetuate a relationship based on mutual trust which no longer exists.
Another exception to the general principles which I have already described arises in cases of the type in suit. A plaintiff in an action such as this ..."
Which was a defamation action.
"... in order to obtain an interlocutory injunction, must show not merely that he has raised a serious issue concerning the words complained of but that there is no doubt that they are defamatory. Furthermore, if the Defendant intends to plead justification or any other recognized defence, normally an injunction of this type will be refused. The jurisdiction to grant interlocutory injunctions to restrain publication of defamatory statements has been described as one 'of a delicate nature1 which 'ought only to be exercised in the clearest cases'. (See the judgment of Esher M.R. in Coulson v Coulson (1887) 3 T.L.R. 846). That approach was expressly approved in the Supreme Court in Sinclair v Gogarty [1937] I.R. 377. In the course of his judgment Sullivan C.J., with whom all four other members of the Court agreed, said at p.384:
'The principle upon which the Court should act in considering such applications was stated by Lord Esher M.R. in Coulson v Coulson (1887) 3 T.L.R. 846), and his statement of the principle was approved of and adopted by the Court of Appeal in Bonnard v Perryman [1891] 2 Ch 269. The principle is this; that an interlocutory injunction should only be granted in the clearest cases where any jury would say that the matter complained of was libelous and where, if the jury did not so find, the court would set aside the verdict as unreasonable'."
The Defendant submits that in the present case he comes within both the exceptions mentioned by Kelly J. Firstly, that this was a contract of employment and, therefore, not proper to have injunction granted. Secondly, that the Plaintiff's claim for loss of reputation is akin to the defamation and, in the words of Counsel, is in essence a concealed plea of defamation by conduct.
The Defendant's references to the passages referred to Reynolds v Malocco [1999] 2 IR 203 deal with the question of interlocutory relief to restrain publication in defamation actions, particularly where there is going to be a plea of justification. The fact that the Courts will only do so "in the clearest of cases" is, in my view, of little, if any, assistance in the present case, because it is clear from the judgment of Kelly J. at the same page, page 209, the reason for the reluctance of the Courts to grant interlocutory injunctions in cases of this sort is grounded on the importance attached to the right of free speech. This has been the position from at least as far back as the decision in Bonnard v Perryman [1891] 2 Ch 269 where Lord Coleridge C.J. said at p.284:
"... the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions."
These sentiments have been heeded by the courts and nowadays are fortified by the provisions of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedom."
Lord Coleridge C.J. went on to say:
"The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and, unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed."
The concept of no injunction being granted in defamation cases, dependent as it is on the right of free speech, cannot, in my view, legitimately be transferred to the present case where no such considerations arise. Neither does the importation of the justification concept transfer to the present case. Although, the baldness of the assertions made could be a factor which the Court could take into its consideration. I cannot accept Mr. Hayden's contention that the Plaintiff's assertions in relation to damages and in relation to the matters generally are, as he puts it, assertions in the extreme.
The Defendant also submitted that this is in effect a mandatory injunction, though not couched in mandatory terms and refers me to page 30 of Behan on Injunctions where the following quotation from Megarry J. in Shepherd Homes Ltd v Sandham [1971] Chancery Reports 340 at page 351 is as follows, and this is concerning mandatory injunctions at an interlocutory stage:
"... 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."
There is a passage cited from the case of Redland Bricks Ltd v Morris [1970] AC 652 and that passage sets out the principles for the granting of a quia timet injunction but a mandatory quia timet injunction. 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.
In my view, the injunction sought in this case are not mandatory in nature. In my view, they are clearly prohibitory injunctions. The Plaintiff does not seek to compel the Defendants to do anything, rather they seek to prevent the Defendant from taking certain action. Neither in form nor intent do the injunctions can the injunctions sought be realistically described as mandatory injunctions. So, the particular considerations for mandatory injunction, in my view, are not applicable in this particular application.
The Defendant submits that the authorities show that the extent to which the Court would grant injunctions in injunctive relief in the context of an employment situation was; (a) to maintain salary or wage payments, and (b) to oblige an employee to make himself or herself available when called upon by the company, and submits that there is no case where the jurisprudence supports a claim such as the Plaintiff's which is to ensure that the Defendants are obliged to use the Plaintiff and not to engage a permanent manager.
There is a well established principle in labour law that the Courts will not order a specific performance of a contract of employment. I have been referred to the case of Fennelly v Assicurazioni General! SPA (1985) 3 I.L.T. 73, Boland v Phoenix Shannon pic [1997] E.L.R. 113, Phelan v BIC (Ireland) Ltd [1997] E.L.R. 208, Harte v Kelly [1997] E.L.R. 125, Lonergan v Salter-Townshend [2000] E.L.R. 15 and the recent case of Moore v Xnet Information System Limited (Unreported, High Court, 0'Sullivan J., 8th February 2002), a judgment in the last few days of O'Sullivan J.
The case of Fennelly v Assicurazioni Generali (1985) 3 I.L.T. 73 was dealing with wrongful dismissal. The case of Boland v Phoenix Shannon [1997] E.L.R.
113 was dealing with wrongful dismissal. The case of Phelan v BIC (Ireland) Ltd. [1997] E.L.R. 208 dealing with wrongful dismissal. The case of Harte v Kelly [1997] E.L.R. 125 was dealing with wrongful dismissal. The case of Lonergan v Salter-Townshend [2000] E.L.R. 15 was dealing with wrongful dismissal. The case of Moore v Xnet Information Systems Limited (Unreported, High Court, 0'Sullivan J., 8th February 2002) amongst other things, was dealing with wrongful dismissal. This case is not concerned with wrongful dismissal.
It is worth mentioning at this point that I was referred to the case of Johnson v Unisys Ltd [1999] All E.R. 854. Part of the headnote which reads as follows:
"Where an employee was wrongfully dismissed from his employment, the damages could not include compensation for the manner of the dismissal .... that any loss suffered by the Plaintiff as a result of wrongful dismissal would already have been met by the compensation awarded by the Industrial Tribunal."
I am told, but I have not been able to locate the passage, that Mr. Forde in his recent book said that it is doubtful whether that will be followed here. However, I cannot see the relevance of the decision and, in any event, it deals with the scope of damages allowable for the manner of dismissal in an unfair dismissal case. In my view, it has nothing to say concerning the damages asserted by the Plaintiff as likely to occur in default of an injunction in the present case, nor can I see that it has any application by analogy.
The labour law cases, as I have already stated, do not appear to have much bearing on the present case which, though it is based against the background of differences at work, is not concerned with wrongful dismissal. While damages is a traditional remedy for wrongful dismissal and while the Courts will not generally order specific performance of contracts for employment, the cases, as I pointed out, were wrongful dismissal cases. While the Defendant's submissions in relation to wrongful dismissals are correct, they do not deal with the matter in full, because in at least one of the cases to which I have referred, that is the case of Lonergan v Salter-Townshend [2000] E.L.R. 15. In that case there was an interlocutory Order made by Macken J. restraining the second and third-named Defendants from appointing any other person to the position of Chief Executive other than the second-named Defendant pending the hearing of the action, so that in one of the cases actually relied on by the Defendants, there was in fact an interlocutory injunction restraining the appointment pending trial. The rationale for a non-granting of
interlocutory injunctions, at least in part of the rationale, is the practical difficulty of overseeing the injunction and the difficulty of enforcing a specific performance. No such difficulty arises in the facts of the present case.
If and insofar as it is contended that the case of Smith & Others v Inner London Education Authority [1978] 1 All E.R. 411 established a different threshold for the obtaining of interlocutory relief in relation to public bodies than the test set out in American Cyanamid [1975] AC 396 it is doubtful indeed whether that case did set a different standard. While the passage at page 418 of the judgment might give some support to that proposition, Browne L.J. at page 419 of the report said specifically:
"Counsel for the authority submitted that the test should be different and the burden on the plaintiff higher when the Defendant is a body performing public duties; he says that in such cases a plaintiff should be required to go further and establish a prima facie case or a strong prima facie case. I cannot agree that on this part of the case the nature of the defendant makes any difference, though it may be important when it comes to the balance of convenience."
Moreover, the headnote of the case states that the principles in American Cyanamid Co. v Ethicon Ltd. [1975] AC 396 were applied. Clearly, however, the public interest might require different considerations when the balance of convenience is to be taken into account. That case concerned the closure of a school and it was held that in default of any real prospect of success, that it would cause a very great hardship in preventing the authority charged with particular duties from carrying out their functions.
Even if a higher standard were required to obtain interlocutory relief against public bodies exercising their public functions, it is by no means certain that this would apply to all the functions ancillary to their main function as is the case here. Without fuller argument I am not prepared to hold that different criteria apply to public bodies and that different standards than in the American Cyanamid [1975] AC 396 case should apply.
It was also contended by the Defendant that the injunction was in nature a quia timet injunction and the onus on the Plaintiff was higher than it would otherwise be. I was referred to a passage at pages 325 and 326 of the Annual Review of Irish Law of 1998 by Byrne & Binchy:
"Detailed consideration was given to the circumstances in which a quia timet injunction should be granted in the recent judgment of Geoghegan J. in Szabo v Esat Digifone Ltd. [1998] 2 ILRM 102. The plaintiffs who were school children attending a national school sought quia timet injunctions to restrain the erection and operation of a mobile phone base station in the grounds of a Garda station located beside their school. Geoghegan J. referred to the test employed in Attorney General v Manchester Corporation, namely the Plaintiff must show 'a strong case of probability that the apprehended mischief will in fact arise' and stated that he was inclined to think that it went too far, although he did say that for a quia timet injunction to be granted there would have to be 'a proven substantial risk of danger', a view which he said was supported by the decision of the Irish Court of Appeal in Attorney General (Boswell) v Rathmines and Pembroke Joint Hospital Board [1904] 1 IR 161. In that case Walker L.J. had also expressed the opinion that where there was conflicting expert evidence, the judge himself could not form a view as an expert and if the conflict left him in doubt, he could not in a quia timet action decide that the case for the plaintiff had been made out. Geoghegan J. then went on to consider the correct principles to be applied in relation to applications for interlocutory quia timet injunctions and said that he would adopt the treatment of the subject in Spry on Equitable Remedies (4th ed., p.459) in which the author made it clear that there is no difference in the legal principles to be applied to interlocutory quia timet injunctions and any other kind of interlocutory injunction."
I am prepared to follow the judgment of Geoghegan J. and to hold that there is no difference in the principles to be applied just because it is a quia timet injunction. I do, however, accept the proposition again quoted on the next page that:
"However, as Spry pointed out in his consideration of quia timet injunctions in general, it should not be thought that it is never material that no breach of the applicant's rights has taken place at the time of the hearing of the application and if no breach has taken place, it may be more difficult to establish, as a matter of evidence, that there is a sufficient risk of a future injury to justify the immediate grant of an injunction."
In the present case there is a very high risk indeed because unless the injunction is granted, there is not only a chance that the Defendants will make the appointment, they intend to, that is what their express intention, unless restrained by the Court, is. In my view, therefore, the Plaintiff has shown a proven substantial risk of danger and a strong case of probability that the apprehended mischief will in fact arise, as was the test in Attorney General v Manchester Corporation [1893] 2 Ch 87
the Defendant submits that even if the Plaintiff were otherwise to be entitled to the relief, he should be precluded from an injunction by reason of the delay. The following matters seem of relevance. In Spring 1998, according to the Plaintiff, the Chairman requested his resignation. It should, however, be noted that in his affidavit Mr. Taggart puts an entirely different complexion on the meeting and indicates that the Board had decided at that time not to renew the Plaintiff's fixed term
contract. At the behest of Mr. Field, in response to the request of the Plaintiff himself, it was agreed to keep the Plaintiff on in order to evaluate whether a part-time regulation manager was needed or not. However, in the Spring of 1998 the Chairman requested his resignation.
Secondly, on 7th July 1999 the Plaintiff says he was told that they felt they needed a full-time regulation manager.
Thirdly, on 27th September 1999 the Plaintiff received a letter dated 22nd September 1999, to which I have already referred, inviting him to become a full-time manager and giving him four days to make up his mind and giving him three months notice in the event of him refusing such an offer.
Fourthly, in his letter of September 2001 Mr. Field indicated that the Board had decided not to proceed at that time, that is 1999, with the proposed changes and continued on. The matter has now been raised again by the Board and discussed by the Board at its meeting of 5th September 2001 and decided to create a full-time regulation manager.
Fifthly, by letter dated 22nd October 2001 Mr. Field indicated that he was merely implementing a decision of the Board which had been taken in 1999.
Sixthly, it also appears of relevance that a strategic plan promulgated on 13th February 2001, that that plan referred to an assistant for the Plaintiff as regulation manager. In December 2000 that plan was adopted by the Board.
The affidavit from Mr. Field takes issue with the Plaintiff. He says that the decision made on 15th October 2001 to appoint a full-time regulation manager was carrying on from the previous decision. He believed that initially after the first decision had been made in 1999, that a part-time manager would not be required as well as a full-time manager, but when the matter was revisited in October 2001, changes had occurred, the industry had developed and it now became apparent that there was room indeed for the retention of a part-time manager in addition to the proposed new full-time manager. He maintains that there is no inconsistency.
The reason why all of this is relevant is because it is addressed to the question of delay. In my view, even if one accepts entirely the explanation given by Mr. Field and his version of what happened, there seems to me at least room for a difference of perception. In the circumstances of all that transpired in that correspondence, I do not think that it would be reasonable to preclude the Plaintiff from relief on the basis of delay because at least from one point of view, there would have appeared, whether that is the reality or not, to have been a shift of ground as to whether the policy of having a full-time regulator had been cancelled or not. I do not think the Defendant succeeds on the point of delay.
The next matter is in relation to bona fides. Counsel for the Defendant submitted that the application for an interlocutory injunction must be bona fides and suggested a number of factors which would disqualify the Plaintiff from the relief which he now seeks on the grounds that it is not bona fide as follows: (a) The tardiness of pressing his claim for remuneration between the raising of that issue in 1999 and actually pressing it in 2001; (b) The averment that he fears being dismissed and replaced is mala fides; (c) The lack of support by the people in his practice or his partners for his contention of projected financial loss in his veterinary practice in some way impinges on the bona fides of the application; perhaps most importantly (d) The omission in paragraph 34(b) of the second affidavit of the Plaintiff to include a relevant part of a letter, namely the words "your position as part-time regulation manager will continue". The Defendant says this is misleading and contends that it amounts to a fundamental and serious misrepresentation, especially as the Plaintiff deposes in the said paragraph "contrary to what Mr. Field alleges in his affidavit herein, there was never any suggestion that I would be retained as a part-time manager". I will deal with those matters seriatim. Even if it were accepted that the Plaintiff was culpably tardy in pressing his claim for increased remuneration, in my view that does not impinge on his bona fides in relation to these proceedings. It is a matter of comment at the trial of the action.
The lack of support by way of affidavit or otherwise for his contention that financial loss is likely to accrue is at best again a matter of comment and something to be canvassed at the trial rather than an issue going to the bona fides of the Plaintiff's application.
The averment that he fears being dismissed and replaced, while there are assurances from the Defendants in this regard, it seems to me to be an issue that can be canvassed at the trial, rather than something that I can decide now that the Plaintiff never believed that and that he was mala fides in making that assertion.
The matter at 34(b) is an important one and the relevant portion of the letter reads:
"As you know, we have plenty of work at present and it may very well be when a full-time regulation manager is appointed, we may need to continue as a part-time regulation manager. The position will be kept under review." The first sentence in the paragraph which was omitted was: "Your position as part-time regulator will continue".
In my view, the sentence "your position as a part-time regulator will continue" should undoubtedly have been included in the paragraph.
However, in the circumstances where the point is being made that the Plaintiff had no guarantees in relation to his retention as regulation manager, that sentence would not really have altered it because, although he says you are to continue as regulation manager, "the position is going to be reviewed" and "it may well be" are also words of qualification. So the Plaintiff is correct when he says he had no guarantee that he was going to be retained and the inclusion of that sentence, which should have been included, does not provide necessarily such guarantee when taken in context. However, it is a serious omission and if I felt that it was designed to mislead the Court, it would be a grounds for refusing the injunction.
In view of the fact, however, that the letter is exhibited in the same paragraph and the Court therefore is referred to the full letter, I have to regard the omission as being something that happened through lack of care in view of the protracted nature of some of the affidavits, rather than something designed to mislead the Court. I am not prepared to hold that the Plaintiff was mala fides on that point.
It seems to me having decided that there is a fair issue to be tried, having decided that damages are not an adequate remedy and having dealt with the other matters raised by the Defendant, such as the quia timet nature of the injunction, the alleged mandatory nature of the injunction, the alleged mala fides of the Plaintiff, the alleged delay of the Plaintiff and the other arguments which he raised in relation to the nature of these proceedings, it seems to me that I have to now decide on the balance of convenience. It seems to me that there is little doubt in relation to the balance of convenience or, as it was put in the case of May L.J. in Cayne v Global Natural Resources [1984] 1 All E.R. 225 at p.237, "the balance of the risk of doing an injustice" by granting the injunction. If one puts the balance of convenience in those helpful terms, it seems to me that the balance of convenience clearly is in favour of granting the injunction. The loss to the Defendant is inconvenience caused by further delay in appointing a full-time regulator. The Defendants are hindered if they win the case, they will have been hindered in getting on about their business and doing the business which they are charged by Statute with doing.
In this regard I take into account the fact that according to the Defendants themselves, they made this decision in 1999, left it in abeyance and resurrected it in 2001. In view of all that, the assertion of the inconvenience of delay has to be assessed against that background. I have no doubt it will be inconvenient. I am also told, and I accept the explanation of why it is not on affidavit because of the guillotine imposed, that the Defendants have gone with the permission of the Court and advertised a job and they have got who they consider to be the right person. I am conscious that that imposes a considerable constraint. However, it seems to me possible that that inconvenience can be dealt with by several ways which one could imagine and it is not for me to suggest what they are. One could readily imagine if the person were to be paid pending the outcome, that would probably keep the person sweet, I don't know. I do appreciate that there is anxiety, there is inconvenience and possibly financial loss, not to mention the matters that Mr. Hayden argued in relation to possible unquantifiable questions about, for example, the lack of testing. We had the unhappy illustration at the Mullingar track where only five dogs were tested. I appreciate that is a point. I want to stress that I am not in any way commenting on the merits of the case because it is quite clear from the affidavits that this is a most bitter dispute and that practically everything which
is said on one side is contradicted or explained by the other. It would be impossible to express a view on the affidavits alone and it would be quite improper of me to do so. If the Plaintiff is correct in his contention that the decision to appoint a full-time regulator was and is a ruse to oust him, if the injunction were not granted in such terms and the Plaintiff eventually won his case, if he won his case, the damage would already have been done irreparably and the Plaintiff, even though he would have won his case, would be left with the situation where the Defendant's wrongdoing, if and when it was proved to be such, would actually have accrued to their benefit because they would have got the new person in place. In those circumstances, it seems to me that the balance of convenience must be in favour of the Plaintiff.
I think, as I as urged by Mr. Punch to take into account that to some extent, although they were quite entitled to act as they did, the Plaintiffs by proceeding to advertise and select someone for the job, though not appoint them, that they by their own actions put themselves in that position against the background and in the context of this particular litigation and, therefore, they cannot take advantage of that fact because it came about by their own actions.
In all the circumstances, I am prepared to grant the injunction. It only remains for me to hear Counsel as to precisely the terms of the injunction in the Notice of Motion.
MR. PUNCH: If I might refer your Lordship to the Notice of Motion on page 10 of the first book.
MR. JUSTICE O'HIGGINS: Yes, I have it.
MR. PUNCH: Paragraph 2 would be relevant with an alteration.
MR. JUSTICE O'HIGGINS: "Any further".
MR. PUNCH: Yes, my Lord.
MR. JUSTICE O'HIGGINS: The word "further" would seem to fit in, "any further recruitment process".
MR. PUNCH: Which would obviously include the actual appointment. Also three.
MR. JUSTICE O'HIGGINS: Two and three.
MR. PUNCH: Yes. Four would be an Order restraining the Defendant from excluding the Plaintiff from performing and/or engaging in his functions as regulations manager.
MR. JUSTICE O'HIGGINS: I will hear what you have to say about that, but I do not think there is a proposal to do so. I think what you were really saying was that if someone else was appointed, you would be excluded from your functions.
MR. PUNCH: Perhaps that might be covered by liberty to apply.
MR. JUSTICE O'HIGGINS: Yes, but I understood the point you were making in relation to number four to be as follows, that if someone else is appointed, my job is thereby irreparably undermined, that is what you are dealing with in number four. I would not be disposed to give you an injunction in the terms of number four at the moment.
MR. PUNCH: In relation to number five, that is a matter which would be of concern to the Plaintiff in that if the termination were to be ordered ... (INTERJECTION).
MR. JUSTICE O'HIGGINS: I imagine there could be an undertaking in that regard.
MR. HAYDEN: The Plaintiff has never been terminated and I did not resist this claim on the basis of the Plaintiff being terminated. There has now been affidavits and counter-affidavits which puts an entirely different colour on the relationship between the parties and how that works on the ground may, subject to your Lordship, give rise to an issue and I would have thought that liberty to apply….. (INTERJECTION).
MR. JUSTICE O'HIGGINS: There has not been any termination and I would be slow to give an injunction on that basis. I would, however, have thought it would not be unreasonable that an undertaking in that regard might be sought.
MR. HAYDEN: The Plaintiff's position now is that he continues as before until the hearing of the action and if that continues, then the matter will not arise again. In that context, it had never been suggested nor did I run any submissions made on a termination, therefore the Defendant has not run an issue on a termination. Had I terminated and if this had unfolded in a different fashion, if the Defendant had terminated the Plaintiff's position, on the case law as presently stands the most the Plaintiff could have got, even on Xnet (Unreported, High Court, 0'Sullivan J., 8th February 2002), on Boland [1997] E.L.R. 113 and on Harte [1997] E.L.R. 125 is that he make himself available if the mutual trust and confidence issue arose. In other words, the specific performance of the contract. I am not trying to box clever and it is not in that context, but the status quo in relation to the Plaintiff's position is such now that he remains in the function that he was in up until the hearing of the action and then the Court decides ultimately. If that position changes, then I would have thought it would be preferable that either party be granted liberty to apply. Say if it is the case that, as your Lordship sees in the affidavits, a lot of matters were raised by of Plaintiff that the Defendant says it never heard of as complaints. Hopefully the parties will conduct themselves in a professional manner and it will continue as such until the hearing. But say, for example, because of what has now unfolded with allegation and counter-allegation, if it turns out that the working relationship on the ground between the various parties becomes untenable, does it not then fall into a situation whereby I can come back to Court or the Plaintiff comes back to court?
MR. JUSTICE O'HIGGINS: I suppose one could take an extreme situation where if something were to happen today or tomorrow where the Plaintiff, if he was to behave in some outrageous fashion which would warrant termination, and I am not sure that you should be precluded from doing that, but ...(INTERJECTION).
MR. HAYDEN: And I am not trying to do it.
MR. JUSTICE O'HIGGINS: But I want to preserve the status quo until the hearing of the action and that is really the purpose of the injunction.
MR. HAYDEN: I accept that. The status quo never was that we were terminating.
MR. JUSTICE O'HIGGINS: Liberty to apply.
MR. PUNCH: Could I ask you to put it the other way around, in number four would your Lordship grant the Order in paragraph five on an interlocutory basis but with express liberty to the Defendant to apply to vary that in the case of any relevant altered position, because otherwise the rug could be pulled out from under the case between now and the trial? So without having to come back to Court, if the status quo could be altered given the allegations in the case of exclusion etc., it could possibly turn out to be the case that a situation could be engineered whereby exclusion or non-cooperation and lack of trust could be stated to exist and a termination then to be put in place and commenced. I would have thought in order to secure the preservation of the status quo, that it would be appropriate for the Order to apply with express mention even within that paragraph of the Order that there be liberty to the Defendant to apply in the event of any significant change in circumstances between now and the trial.
MR. JUSTICE O'HIGGINS: I see what you are saying but I want to preserve the status quo and the status quo is where the Plaintiff is in his employment, and I do not want his employment to be terminated pending the hearing of this action unless something new that we do not know today arises. If I could have an undertaking on those grounds.
MR. HAYDEN: Before your Lordship makes a decision on that, and I am quite specific that I do not wish to appear obstructive in the matter, but this Defendant came to Court indicating its position, always setting out that it had not terminated the Plaintiff's position. It has not run the case on a termination and the case law your Lordship quoted was that I did make the point on the wrongful dismissal cases. Whilst I did make the reference there that the greater included the lesser, if the case law showed that this is what is not available, even if the ultimate sanction is imposed on the termination, then by definition those standards apply on the lesser, which is the Plaintiff's contention that we are devaluing his position. That is why the reference was made to those cases. Given that those cases dealt with an issue of termination, I did not make any submissions to your Lordship on a termination ...(INTERJECTION).
MR. JUSTICE O'HIGGINS: What will we do to preserve the status quo? I want him to have the status quo that he continues to be an employee until the hearing of the action.
MR. HAYDEN: On the basis of what has been brought before the Court.
MR. JUSTICE O'HIGGINS: That is what I want, I want to preserve the status quo.
MR. HAYDEN: I understand that and it is not that I am trying not to do that, but what your Lordship also has in the affidavits from the defendant is the fact that all of the very serious allegations as to the relationship difficulties, the allegations about the conduct of the various members of the Board and their attitude towards the Plaintiff is expressly indicated as not having been issues raised by the Plaintiff prior to this. In fact when Mr. Punch was asked by your Lordship where did it say in the particular memo about the bullying and harassment, he expressly accepted the memo did not raise that issue and withdrew it. When the Defendant came to meet this case, it was on the basis, as it understood, its entitlement to have a full-time and a part-time. In the course of the affidavits, which became voluminous, many other issues were raised, issues that go to the heart of a relationship and in due course will at the hearing of the action no doubt form part of the consideration for the Trial Judge, but the Defendant did not terminate the Plaintiff's position on the basis of an understanding that there was such a relationship difficulty, it never did, it never terminated the Plaintiff's position. Neither, in my submission to your Lordship, should the Defendant now if after today the Plaintiff goes back to work or continues in work and if everything continues as heretofore in the sense that the Plaintiff performs his functions and all parties continue, if events arise after today in relation to the performance and conduct of the Plaintiff, the Defendant should not have an Order already in existence against them that predetermines its entitlement to take... (INTERJECTION).
MR. JUSTICE O'HIGGINS: You should not have an Order against you that ...(INTERJECTION).
MR. HAYDEN: That means I can never get rid of the Plaintiff if anything he does subsequent to today...(INTERJECTION).
MR. JUSTICE O'HIGGINS: No, that is slightly different.
MR. HAYDEN: Obviously I cannot terminate him for anything up until today.
MR. JUSTICE O'HIGGINS: I understand.
MR. HAYDEN: I am not trying to box clever. Maybe the whole world is paranoid, but my Friend suggests I could be out after today engineering a sequence of events to give me the upper hand.
MR. JUSTICE O'HIGGINS: It might sound a bit far fetched but depending on what transpires at the outcome of the case, this man is alleging a type of conspiracy against him in essence. What I am prepared to do is as follows; I do not propose to make an Order in the terms of paragraph 5, but my refusal is specifically based on the understanding that nothing up to 17 minutes past 12 o'clock today can be taken into account. In relation to future conduct, that is something quite different and I think the Court cannot specifically do that. I will give liberty to apply.
MR. PUNCH: Could I ask additionally to that, that it might be put into the order that the Defendant give advance notice to the Plaintiff of intention, if it forms the intention to terminate the employment, give advance notice to the Plaintiff of intention to serve a notice of termination? In other words, that there will be an interim period during which the Plaintiff will have a chance to come to Court before the actual notice of termination is served to say 'the position is we have been told they are about to serve a notice of termination and this is not warranted' before the actual notice is served. I think it would not be unreasonable to say that.
MR. JUSTICE O'HIGGINS: Yes, that is reasonable enough.
MR. HAYDEN: That is reasonable, yes.
MR. JUSTICE O'HIGGINS: I am not making any Order in the terms of paragraph 5, I do so on the understanding that nothing up to now would... (INTERJECTION).
MR. HAYDEN: The status quo remains.
MR. JUSTICE O'HIGGINS: The status quo to remain up to the trial but not interfering with your lawful carrying on of your duties for events in between. In the event however of that happening and events being such that you would be seeking to terminate, you have to give advance notice.
MR. PUNCH: Perhaps two months.
MR. HAYDEN: No, my Lord, 4 8 hours.
MR. JUSTICE O'HIGGINS: One week. I reserve the costs.
MR. HAYDEN: I do not know whether it will or will not be, but obviously it is in the interests of everybody not to be back to the Court all the time if there are perceived breaches of Orders, but as an officer the Plaintiff would not have an automatic entitlement to
attend Board meetings, he would be invited to at various issue. I have not received instructions, but it is something in the context of how it has unfolded that where somebody was sitting at a table, in a normal fashion an officer would not have an
entitlement to attend Board meetings but obviously the Board, if it is debating particular issues, may wish to have him present and, therefore, I would not like that to be seen as an exercise of exclusion or at least to have clarity between the parties if it does not amount to exclusion. Also a sub-category of that is if the litigation is being discussed, it would not be appropriate for the Plaintiff.
MR. JUSTICE O'HIGGINS: As I understand it, the question of exclusion arises in this way; the man said he was trying to do his job, he used to go to the Board meetings as a matter of custom, if not as a matter of right, and then he began to be excluded. That is an issue that someone is going to have to decide at the trial, not as to whether he was legally entitled to go to Board meetings but as to whether he was being sidelined by being kept away from Board meetings when things relevant to his area were being discussed.
MR. HAYDEN: Obviously if it is relevant to the Plaintiff it would be normal.
MR. JUSTICE O'HIGGINS: I would find it very difficult to give any direction as to what Board meetings he could go to or not go to. I appreciate your difficulty but I do not know how I can direct it.
MR. PUNCH: I am instructed he has no legal entitlement to enforce his presence but if it is the case, he would generally expect to be present when the other managers are present. These are matters that would be covered by liberty to apply.
MR. JUSTICE O'HIGGINS: I think it would be liberty to apply.
MR. PUNCH: If it transpired, for example, that the Plaintiff was being excluded from all Board meetings ...(INTERJECTION).
MR. JUSTICE O'HIGGINS: That would strengthen his case at the trial of the action.
MR. PUNCH: Yes, and he might be well advised not to come back to Court and say that he was being excluded. I would submit it is covered in the liberty to apply. In relation to a submission made by my Friend about expressly withdrawing some matter in relation to a memorandum, I have no recollection of expressly withdrawing anything other than to say the memorandum, as I understand it, did not expressly refer to the words "bullying" and "harassment" but what I submitted was it should be taken to mean that. I do not want it to be left on the record that I am not agreeing, that I withdrew the matter referred to by my Friend.
MR. JUSTICE O'HIGGINS: Very good. In relation to the Board meetings, I do not think it would be proper for the Court to give any direction. Mr. Punch concedes that a person would not ordinarily have a right to attend a Board meeting. It is part of his case that by being excluded from Board meetings that it dealt with his area of expertise or his area of work, that he was being sidelined. If it happened in the future that he was being excluded from Board meetings that dealt with matters relevant to his area, clearly that would strengthen his case very much, particularly, I suppose, in view of the fact that everyone knows that this is now an issue. I do not believe I should make any direction one way or the other in that regard. If something crops up, I presume it could be covered by liberty to apply to either party. I do not want people running into Court from one side or the other asking for permission, 'may I go to a Board meeting' or 'may I exclude him from a Board meeting', those are essentially matters between the parties. There is liberty to apply.
MR. HAYDEN: Thank you.
MR. JUSTICE O'HIGGINS: I reserve the costs. I think insofar as I can give any indication, I would ...(INTERJECTION).
MR. HAYDEN: Can I ask for an undertaking as to damages?
MR. JUSTICE O'HIGGINS: The undertaking as to damages and this undoubtedly, if it goes on, is likely to take some length of time. The judgment in this took nearly an hour and a half, so an undertaking as to damage is a solemn undertaking, the Plaintiff gives that undertaking and that is a condition.
MR. HAYDEN: I would ask, now I am in a position where I have the part-time situation, would your Lordship direct accelerated Pleadings?
MR. JUSTICE O'HIGGINS: I would, yes. I really think it is in everyone's interest that this case get heard as quickly as possible.
MR. PUNCH: The Statement of Claim has been delivered, it is the question of the Defence.
MR. HAYDEN: Would your Lordship put the matter into the next list of fixed dates?
MR. JUSTICE O'HIGGINS: Yes, I think it should be expedited if at all possible.
MR. HAYDEN: So the matter can go into the next list.
MR. JUSTICE O'HIGGINS: Very good
END OF JUDGMENT
