A Rare Victory: The Granting of a Mandatory (Final Relief) Interlocutory Injunction by the High Court

The Plaintiff, a property developer, was constructing social housing, who had been granted retention planning permission from the Local Authority, subject to the usual time period for appeals. The Defendant was a neighbour who lodged an objection with An Bord Pleanala raising concerns regarding the apartments overlooking his home.

The parties reached a binding settlement, in which the Plaintiff agreed to undertake future works to protect the Defendant's privacy, in consideration of the Defendant’s immediate withdrawal of the objection.  

Despite the Settlement, the Defendant refused to withdraw the objection, insisting on the registration of the installation obligation in the Land Registry.

Having read the affidavits and heard extensive submissions, the Court granted a mandatory injunction directing the withdrawal of the objection.

This legal victory allowed for the recommencement of the construction of the apartments, and in making such an Order, Mr. Justice O’Higgins emphasised the Court's reluctance to grant mandatory injunctions at the interlocutory stage, given the challenge of reversing their effects if the Trial court were to rule against the party benefiting from the order.

The Court assessed the case using the well-established Campus Oil test and found in favour of the Plaintiff in respect of each limb, underscoring the strength of the Plaintiff's case and the necessity of the mandatory injunction.

The Balancing Act

A pivotal aspect of this case involved the assessment of the "balance of least injustice." In this context, Mr. Justice O’Higgins scrutinised the implications of granting or denying the mandatory injunction at interlocutory stage when its effect would be to grant final relief and go much further than preserving the status quo, which is usually the extent of the permissible objection of an interlocutory injection.

Following a review of legal texts and case law, Mr. Justice O’Higgins concluded that the Court must instead look to how best to protect the interests of both parties so that the concerns will either not arise at all or the risk of it occurring will be much reduced.  Notably, the court found that the "balance of least injustice" favoured the Plaintiff.

The Court noted the Defendant's argument was based on a hypothetical risk that future buyers of the built apartments might remove the screens, which risk, the Court deemed as remote, theoretical, and unsupported by substantial evidence. Mr. Justice Higgins’ decision underscores the importance of a strong, well-founded defence when resisting a mandatory injunction.

The High Threshold for Mandatory Injunctions

This case serves as a notable example of the high threshold that must be met for a court to consider granting a mandatory injunction. The Court is cautious and reluctant, particularly at the interlocutory stage when the effect of the injunction is to provide final relief. The Judgment illustrates that for such an extraordinary remedy to be granted, the Plaintiff must satisfy each element of the Campus Oil test comprehensively and the balance of least injustice must favour the Plaintiff. Additionally, the court's emphasis on the weakness of the defence in this case highlights the significance of a robust and credible argument when opposing a mandatory injunction.

For further information in relation to this topic, please contact Hugh Kane, Partner, or any member of the Commercial Litigation Team. 

This document has been prepared by Kane Tuohy LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed. 

Key Contact

Hugh Kane, Partner  
E:  hkane@kanetuohy.ie