Tuesday, November 11, 2008 | By Edward McGarr
It frequently happens that a Plaintiff is driven by necessity to apply for injunctive relief to the court before the trial of the Plaintiff’s action.
Such applications are heard on Motion, grounded by Affidavit. These applications are fraught with stress and uncertainty.
I have adverted HERE and HERE to the the undesirability of deciding on the liability for costs for such applications at the time of the application. Traditionally, the court reserved that decision to the hearing of the action.
This was a fair and sensible attitude. At the full hearing the trial judge would have been presented with, presumably, all the available evidence. The verdict of the trial judge might, or might not, correspond to the outcome of the application for the injunction. In short, the successful party on the application for interlocutory injunction might not be the ultimate successful party at the trial.
In Chieftain Construction & Anor v John Ryan & Ors.  IEHC, Edwards J. refused an injunction to the Plaintiff applicants and invited submissions on the costs of the interlocutory application from the parties.
In his judgement the judge adverted to the difficulties inherent in the court, at an interlocutory application, engaging in a consideration of the relative strengths of the parties’ cases. He said:
The Court is cogniscent that one of the principal arguments against a judge engaging with any question of the strength of the case at the interlocutory stage is that in many cases the evidence is incomplete. There may be conflicts in the evidence that are incapable of resolution on affidavits alone, and which can only be resolved in the course of a plenary hearing where evidence is tested in the crucible of cross examination.”
In the course of this exercise he quoted Laffoy J. in the case of Symonds Cider v. Showerings (Ireland) Limited  1 I.L.R.M 481 where she stated:
I am satisfied that, having regard to the decision of the Supreme Court in Westman Holdings Ltd v. McCormack, it is not open to this Court, assuming the plaintiff has established that there is a fair and bona fide question to be tried, to express any view on the strength of the contending submissions in this case. In any event, even if it were open to the court at this interlocutory stage to evaluate the likely outcome of the trial, in my view it would be impossible to do so in this matter, which is bristling with difficult issues of fact arising from conflicting affidavit evidence and difficult issues of law.�?
Because of the clarity of the net point on which the Plaintiff’s case rested (in the opinion of the judge), he went on, in the case, to assess the relative strength of the Plaintiff’s case to that of the Defendants.
The unsuccessful Plaintiffs were hit with a double whammy. Their fundamental case was assessed on the basis of affidavit on an interlocutory application and then the question of the payment of costs of the unsuccessful application was tabled for consideration.
In the particular case this might not be unjust. But if such Plaintiffs are wrong, they will, in due course, be brought to book ultimately at trial or by seeking to discontinue (by agreement with the opposing party or the court) on terms.
To deprecate their case and force the issue of the payment of costs on the application seems unnecessarily abrupt.