341 / 346
GAZETTE
NOVEMBER 1983
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.
J. F. Buckley
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
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