knowledge 7 September 2018 |

Striking the Balance: Interlocutory Relief in Judicial Review

Background

In Fitzpatrick v Minister for Agriculture, Food, and the Marine,¹ the applicants sought various interlocutory injunctions pending trial. Both applicants were engaged in the fishing of ‘nephrops’, a specie of prawn, off Ireland’s west coast. The respondent Minister responsible for marine use closed a certain area to fishing for nephrops in September 2017, when the Sea Fisheries Protection Authority (“SFPA”) had deemed the 2017 quota of nephrops to be overfished. The applicants disputed the methodology the SFPA used in finding that the relevant waters had been overfished.  The Minister and SFPA argued that there was a serious problem of underreporting of nephrops fishing in the area, which required the SFPA to adopt its own methodology.

The applicants sought interlocutory orders suspending the Minister’s decision to close fishing of nephrops in the relevant area and requiring the Minister to reopen the relevant area to fishing pending trial.  Both applicants argued that the Minister’s decision would have a catastrophic effect on their businesses, which were in danger of failing, and could lead to the loss of their vessels.

The Okunade test

Ní Raifeartaigh J began her consideration of the test to be applied for interlocutory relief in judicial review with the Supreme Court judgment in Okunade,² where Clarke J (as he then was) concluded that while the Campus Oil ³ injunction principles provide a useful starting point, different issues arose in judicial review. Campus Oil requires that an applicant for an interlocutory injunction should have an arguable case; that the balance of convenience must lie in his favour; and that an award of damages on the determination of the substantive proceedings will not be an adequate remedy. Clarke J pointed out in Okunade that in addition to these criteria the court should have regard in the context of judicial review proceedings “to the public interest in the orderly operation of the particular scheme in which the measure under challenge was made” and to “the risk to the public interest of the specific measure under challenge not being implemented pending the resolution of the proceedings.”  Ní Raifeartaigh J also cited with approval Clarke J’s statement that a “strong case” should be demonstrated by an applicant where a mandatory, as opposed to prohibitory, injunction was sought. However, she added that the failure by the applicants to reach the “strong case” threshold would not be fatal to their case, if the withholding of the injunction would carry greater risk of injustice than granting it. 

Application to the facts

Ní Raifeartaigh J considered that the reliefs sought in this case were best described as mandatory, because they sought to compel the State to carry out its obligations in a very particular and precise way.  She therefore proceeded to consider whether the applicants had demonstrated a “strong case”. The judge noted that the respondents had made strong counter-arguments that the SFPA must be entitled to employ methods to arrive at figures which are as accurate as possible. On this basis, she concluded that the applicants had an arguable, but not a strong, case.

Despite the applicants’ failure to demonstrate a strong case, the judge considered whether the greatest risk of injustice lay in granting or refusing to grant the reliefs sought. In this regard, she relied in particular on the statement by Clarke J in Okunade regarding the public interest that:

“the entitlement of those who are given statutory or other power and authority so as to conduct specified types of legally binding decision-making or action-taking is an important part of the structure of a legal order based on the rule of law. Recognising the entitlement of such persons or bodies to carry out their remit without undue interference is an important feature of any balancing exercise” (emphasis added).

She noted that these comments were particularly relevant to this case, where the respondents’ legal duties were performed in a complex web of domestic and EU obligations, where the State could be vulnerable to adverse measures if inaccurate figures were submitted to the European Commission.

The judge finally considered the adequacy of damages if the applicants succeeded at trial. While the potential damage to the applicants was of a financial nature and was therefore readily compensable by damages, damages would not be easily recoverable because of the restrictive principles governing the award of damages in judicial review. The judge concluded, however, that it should not be assumed that the applicants would not be entitled to damages if they were successful in their judicial review, in particular as their claim involved an alleged breach of rights under EU law.

In light of the applicants’ failure to demonstrate a “strong case”, the compelling public interest in maintaining the operation of the statutory scheme in question, and the fact that damages would adequately compensate the applicants in the substantive action, the judge refused all of the interlocutory reliefs sought.

Conclusion          

There has been a distinct pro-State shift in the approach to restraining contested exercises of public power since Okunade and the cases that followed it.  This seems justified as the starting position is that public power is to be exercised independently and (absent perhaps a stateable allegation of mala fides), there is no reason to suppose any adverse action is deliberately or recklessly directed at undermining the applicant’s rights or is taken in disregard of them – which is often the case in ordinary party and party injunction applications.  So the bar for restraining exercises of public power should be somewhat higher, especially, as Ní Raifeartaigh J noted, where the exercise may arise from performance of obligations under EU law for which the State is answerable.  The line of cases since Okunade emphasise that there is a significant public interest in ensuring that public schemes should operate in an orderly way and may be damaged if implementation of the scheme is suspended. There may be a “silent majority” not before the court who support the scheme and whose interests could be damaged if it is injuncted, a consideration which will rarely arise in private litigation.  These cases underline the need to include appropriate weight for the wider public interest in the balancing exercise in injunction applications in public law cases.