The Gazette 1983

NOVEMBER 1983

GAZETTE

and dismissed the claim to be entitled to the property or some share in the beneficial interest in the property. The Court noted that the Plaintiff wa& rightly suspicious concerning the transaction in which the dwellinghouse was purchased in the name of a company in which the Defendant was neither a director or shareholder and believed that this was a device to ensure that the provisions of the Family Home Protection Act would have no applica- tion in the event of the property being sold and commented that her suspicions might be well founded. The hearing of the case had been adjourned to enable Owen and Kathleen Carrigan to attend Court and give evidence but they elected not to come to Court and being resident in Northern Ireland could not be compelled to do so. The Court held that mere suspicion was not enough to support a finding that the property was purchased in trust for the Defendant. Even if it could be shown that the transaction was a mere subterfuge and that the Defendant should be regarded as having acquired the entire beneficial interest or some share and interest therein the Court could not see how that could benefit the Plaintiff since the property was no longer habitable and the proceeds of sale would not suffice to meet the claims of the mortgagee. The Court held that the Defendant had not been shown to have an interest in the property within the meaning of Section 1 of the Family Home Protection Act and that the Plaintiff was not entitled to register the notice referred to in Section 12 of the Act nor have the registration of the lis pendens continued on the folio. B. M. Carrigan -v- P. J. Carrigan - The High Court (per O. Hanlon, J.) 12 May 1983 - Unreported. INJUNCTION Correct criteria to be applied in considering an application for an inter- locutory injunction — test is whether a fair bona fide question has been raised by the person seeking relief — Act of the Oireachtas to be regarded as valid until invalidity established. Under the provisions of the Fuels (Control of Supplies) Act 1971-1982 the Plaintiffs together with all other traders in imported fuel oils were required by Statutory Instrument to purchase 33% of their requirements from Whitegate at prices and subject to terms fixed by one of the Defendants. Proceedings brought by the Plaintiffs challenging the validity of the statutory instrument were stayed to allow an application for a preliminary ruling under Article 177 of the EEC J. F. Buckley

Treaty to be made in relation to the interpretation of Articles 30,31, and 36 of the Treaty in respect of the system established by the Statutory Instrument. Pending such application the Defendants sought to enforce observance of the provisions of the Instrument but the Plaintiffs refused to comply. The Defendants feared that the Plaintiffs' action might persuade other oil companies to follow suit and therefore amended their Defence by adding a Counterclaim seeking an interlocutory injunction compelling the Plaintiffs to comply with the Order. The injunction was granted in the High Court and appealed by the Plaintiffs. The Plaintiffs alleged that the High Court Judge had not had proper regard to the correct criteria to be applied in considering such an application for an interlocutory injunction particularly one seeking mandatory relief and suggested that the Court should have required of the Defendants that they establish a substantial question to be tried and a probability that the Plaintiffs would fail at the trial in relation to such a question. The Supreme Court considered the manner in which a Court should act in considering the granting of interlocutory relief. HELD. Interlocutory relief is granted where what is complained of is continuing and is causing harm or injury which may be irreparable in the sense that it may not fairly or properly be compen- sated for in damages. It is designed to keep matters in statu quo during the period before the action comes to trial and is a discretionary relief. In disputed cases the Court must not only consider the action complained of but also what inconvenience, loss and damage might be caused to the other party and see where the balance of convenience lies between the two. The Plaintiffs have to establish that there is a fair question raised to be decided at the trial. It is not necessary to establish a probability that the party seeking relief would succeed in its claim at the trial as that would amount to a determination at the interlocutory stage of an issue which properly arises for determination at the trial of the action. HELD also that the giving of mandatory relief by the High Court was correct in that the Plaintiffs' actions constituted a challenge to an Order made under the provision of an Act of the Oireachtas which is on its face valid and to be regarded as part of the law of the land unless and until invalidity is established. Cases considered were: Educational Company of Ireland Limited - v- Fitzpatrick and others [1961] IR 323, Smyth and Another -v- Beirne and Another (unreported), Esso Petroleum Company Ireland Ltd. -v- Fogarty [1965] IR 531, American Cyanamid -v- Ethicon Ltd. [1975] AC 396, Rex Pet Foods Ltd. and Another -v- Lamb Brothers Dublin Ltd. and XXXVIII

Others, unreported, 26th August, 1982, and TMG Group Ltd. -v- AI-Babtain Trading and Contracting Co. and Another. Unreported. 28th March, 1980. Campus Oil Limited and Others -v- The Minister for Energy and Others - Supreme Court (per O'Higgins C.J. and Griffin J.; Herderman J, concurring) 17 June 1983 - Unreported. Helen Collins JURISDICTION Circuit Court decision held on appeal to exceed Jurisdiction — remit to Circuit Court — Judge within Jurisdiction in reaching same result on different grounds without further evidence. Hoping to acquire 315 acres at Nohoval as a possible location for a toxic waste dump, Cork County Council in its capacity as a Sanitary Authority applied under Section 271 of the Public Health (Ireland) Act, 1878, to the District Court for an Order authorising them to enter, examine and lay open the said lands for the purposes specified in the Act. The land in question was owned by ten farmers. The District Court, exercising its Jurisdiction under the Act, made the Order against each landowner concerned. The landowners appealed to the Circuit Court on the basis that the area in question was so plainly unsuitable as a waste disposal site, that it was not necessary for the County Council to enter on the lands for the specified purposes and therefore the Orders made in the District Court could not be upheld. Conflicting expert evidence was given at the Circuit Court hearing as to whether that necessity existed. The Circuit Court Judge allowed the appeals on the grounds that the evidenc was such that he was not sure that the lands would be suitable for a dump for toxic waste. On Appeal by the County Council the High Court found that the Judge in the lower Court had no jurisdiction to reach his decision on those grounds, as the County Council had never made the case that the lands were suitable. The Council had alleged in responding to the Appeal that it was necessary for them to enter on the lands and carry out tests which would indicate the suitability or otherwise of these lands. The case was then remitted to the same Circuit Judge with a direction that he proceed with the hearing on the basis of the evidence already heard and of such further evidence as he might decide to admit. The parties, however, decided to adduce no further evidence and solely on the evidence which was before him at the initial hearing the Circuit Judge decided without giving reasons, that he was allowing the Appeal. On enquiry by the Council whether he was finding as a fact that the lands were manifestly unsuitable for acuisition as a dump he replied in the