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Supreme Court Cleans House


The Supreme Court made several decisions this year fine tuning some questions of practice and procedure. While each case turned on its own facts a common thread in the decisions is a call to refocus on the need for a nuanced analysis on issues relating to injunctions, discovery, summary procedure and costs.  Litigants and practitioners alike need to consider the finer details of their cases before making broad requests for discovery or claiming that damages are not an adequate remedy in seeking an injunction.


In July the Supreme Court overturned the decision of the Court of Appeal in relation to the refusal of an injunction in Merck Sharpe & Dohme Corp v Clonmel Healthcare Ltd IESC 65  (which we discussed in more detail here). 

Mr Justice O’Donnell for the Supreme Court held that the adequacy of damages should be considered as part of the “balance of convenience” assessment rather than a hurdle prior to that assessment.  The Court considered that generally, in commercial breach of contract cases, a “robust scepticism” that damages would not be adequate should be the approach to be taken. However, a court must look at all the factors at play, and adequacy of damages is one of them. Damages can often be the largest question in the mix, and it’s often decisive, but the Court held that in a closely balanced case something else is going to “tip the balance”.  Essentially, there must be a flexible, nuanced approach taken, it is not a box ticking exercise.  O’Donnell J. outlined eight considerations for any court in relation to granting an injunction but also went to great lengths to state that these should not form a new box ticking exercise as the key is flexibility.


In July the Supreme Court also overturned the Court of Appeal finding on the use of interrogatories before discovery in Tobin v Minister for Defence IESC 57 (which we discussed in more detail here). The Supreme Court held that there were still certain fundamental principles in relation to discovery (relevance and necessity) but warned against an overbroad approach to pleadings that can result in large discovery.

Non-Party Costs

In October the Supreme Court overturned a decision of the Court of Appeal in WL Construction Limited v. Chawke  IESC 74 ((which we discussed previously here). The Court of Appeal had held that a non-party witness could not be joined to proceedings after a judgment had been issued purely to award costs against him where he was not put on notice during the proceedings of the possibility that he could be made liable for costs. The Supreme Court held that the issue of notice is only one of many matters left to the discretion of the trial judge where such an exceptional order is contemplated. 

Summary Judgment Procedure

In November the Supreme Court dealt with an appeal from a decision of the High Court in relation to a sum owed on a loan in Bank of Ireland Mortgage Bank v O’Malley IESC 84. The Bank had used the summary procedure which is allowed when a known or “liquidated sum” is owed and provides a quicker and more streamlined process for resolving such a dispute. 

However, the Bank in this instance had not provided a detailed breakdown of the amount of principal, interest and possible bank charges or penalties due and had claimed a total sum of €221,795.53 due in the special indorsement. Clarke CJ. went back to the underlying rationale for the requirement for detail and found that the Bank in this case had not provided the necessary detail to allow a defendant to know whether he should concede or resist the claim. A special indorsement could refer to the calculation via an identified document if that document itself provided the level of detail necessary but in this instance, the Court also held that the Statement of Account provided contained insufficient detail. The matter was sent back to the High Court for further consideration adding more time and costs to what should have been a speedier process.

What Next?

These decisions by the Supreme Court provide a reminder to litigants and their lawyers that being as detailed as possible from the outset in every aspect of your claim will provide a greater chance of success. 

Up next year for procedural “decluttering” by the Supreme Court is the complex Civil Liability Act 1961 in Defender Limited v HSBC Institutional Trust Services (Ireland) Limited and Ors IEHC 706 and it is also hoped that clarity in relation to the running of time in financial loss cases might also be considered (as we discussed previously here).

Contributed by: Catherine Thuillier  




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