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Court confirms restrictive approach to mandatory interlocutory injunctions

PRACTICE AREA GROUP: Commercial Litigation and Dispute Resolution
DATE: 20.11.2012

An injunction is effectively an order restraining a party to which it is directed from taking a particular act or requiring it to take a particular course of action. The remedy developed as a means of doing justice as between the parties where the traditional common law remedy of damages proved to be inadequate or unsuitable. Today, injunctions are generally recognised as a flexible and versatile form of remedy and are used with increasing frequency in modern litigation.

Types of injunction

Various types of injunction can be obtained under Irish law, depending on the relevant circumstances. Injunctions may, in the first instance, be differentiated between those which impose negative and positive obligations. The most common form falls into the first category, which is known as a 'prohibitory injunction', restraining the performance or continuance of a wrongful act. Conversely, an injunction which directs the positive performance of a particular step is known as a 'mandatory injunction', which is rarer. A further classification – even beyond the nature of the injunction sought – relates to when, in the context of a dispute, the injunction is sought. In this regard, a distinction applies as between interim or interlocutory injunctions on the one hand and perpetual injunctions on the other. The former are granted before the trial of the action. An interim injunction is typically granted on an ex parte basis and for a limited period – usually only until a further order is made. An interlocutory injunction, which is often made as that further order, will apply until the trial of the action to maintain the status quo pending final determination by the court. By contrast, a perpetual injunction will be granted only at the trial of the action once the right requiring protection through an injunction has been established. This update looks at a recent decision regarding the test applicable for the grant of a mandatory interlocutory injunction.

The nature of mandatory injunctions

As summarised above, a mandatory injunction compels a party to which it is directed to carry out a specific obligation or perform a specified act. Where one is dealing with a perpetual injunction, the case law would suggest that, in theory at least, there is little difference as to whether the nature of the injunction is prohibitory or mandatory. In practice, however, a mandatory order imposes an additional degree of hardship or expense on a defendant, which can influence a judge when exercising his or her discretion. As put in the English authority of Redland Bricks Ltd v Morris,(1) "it is a jurisdiction to [be] exercised sparingly and with caution but, in the proper case, unhesitatingly".
However, different considerations apply where the mandatory injunction is sought on an interlocutory basis. The grant of an interlocutory injunction is subject to its own test for consideration by the court,(2) – namely, whether:
• there is a fair and bona fide question to be tried;
• damages would be an adequate remedy; and
• the balance on convenience favours the grant of an injunction.

The test for an interlocutory injunction which is mandatory in nature is more onerous than is the case for an interlocutory injunction which is prohibitory in nature. This is well established in the case law and has been reaffirmed in the recent authority of O'Brien v Dromoland Castle Owners Association Inc,(3) which is considered in more detail below.


The case involved an interlocutory application for three particular orders, two reflecting injunctions of a mandatory nature. The plaintiff contended that a number of paintings in Dromoland Castle, which were the subject of a 1993 agreement and which were the lawful property of the plaintiff, should be delivered up to him. The other injunction pursued, which the court felt was mandatory in nature, sought to restrain the defendant from preventing the plaintiff from taking possession of the paintings. Judge O'Keeffe noted that all of the injunctions pursued were sought pending the trial of the underlying action and that, in respect of those proceedings, there were many factual differences between the litigants. In particular, there was a dispute as to the parties to the 1993 agreement, whether the 1993 agreement had in fact been terminated or was terminable for alleged breach, and the terms on which the plaintiff might be entitled to the return of the paintings.

Legal principles

In considering the mandatory injunction elements of the orders sought in these proceedings, the court referred to Kirwan's Injunctions: Law and Practice,(4) to the effect that it is "significantly harder to secure a mandatory injunction at an interlocutory stage" than a prohibitory one. The court also cited the Supreme Court decision in Lingam v Health Service Executive(5) in which, in respect of an interlocutory mandatory injunction application, Judge Fennelly had stated that "in such a case it is necessary for the applicant to show at least he has a strong case that he is likely to succeed at the hearing of the action". The court also accepted the principles from AIB v Diamond,(6) in which Judge Clarke noted that cases involving mandatory interlocutory injunctions require a higher level of likelihood of the applicant succeeding at trial. In light of those principles, the court refused to grant the mandatory interlocutory injunctions sought, paying particular regard to the dispute surrounding the parties to the agreement and the alleged breach of the agreement. It also refused the prohibitory order sought, holding that the balance of convenience meant that the status quo should be preserved. However, in light of the claims advanced, and the fact that the plaintiff had sought injunctive relief, the court directed that the matter should proceed to an early trial.


The Dromoland case has confirmed the general approach of the courts to the granting of mandatory injunctions on an interlocutory basis. By its nature, by requiring the party to which it is directed to take positive steps and not merely not to do something, a mandatory injunction can have inconvenient, onerous and potentially costly implications. In addition, in circumstances where such mandatory orders will form most, if not all, of the principal reliefs sought in the underlying proceedings, the granting of such injunctions effectively gives the applicant the benefit of the victory at trial without actually having to succeed at trial. Accordingly, the Irish courts are guarded about the basis on which such orders should be made, as reaffirmed by the Dromoland decision, and parties should bear this in mind if seeking an order requiring a positive step to be taken by the defendant/respondent.

For further information please contact Gearoid Carey at Matheson by telephone (+353 1 232 2000), fax (+353 1 232 3333) or email (


(1) [1970] AC 652.

(2) See Campus Oil Ltd v Minister for Industry (No 2)[1983] IR 88.

(3) [2012] IEHC 407.

(4) Round Hall Press, Dublin; 2008, pages 210-214.

(5) [2005] IESC 89.

(6) High Court unreported, October 14 2011.



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