High Court of Ireland Decisions

1. This was an action heard by me last July and a problem has now arisen in relation to costs.

The proceedings were commenced by a Plenary Summons dated the 7 September, 1994. The only substantive relief sought in the general endorsement of claim was the following:-

"An injunction prohibiting the Defendant by himself his servants, agents or workmen or otherwise howsoever from operating a bus service along a route from Dungloe in the County of Donegal to Coleraine in the County of Londonderry or along the interval parts thereof"

There was no claim for damages included.

A motion seeking an interlocutory injunction dated the 7 September, 1994 and filed on the following day came before me on the 12 September, 1994. Procedural points were raised relating to service. I dealt with these and adjourned the motion to the 26 September, 1994 when Mr Justice Budd granted an interlocutory injunction restraining the Defendant, his servants or agents from operating a bus service along a route from Dungloe in County Donegal to Coleraine in County Derry and vice versa on the points along the routes specified in authorisation No 72 issued by the Department of Transport, Energy and Communications to the Plaintiff, namely, Dungloe, Annagry, Gweedore, Gortahork, Falcarragh, Dunfanaghy and the return route.

It was not until the 15 December, 1994 that a Statement of Claim was delivered. For the first time a claim for damages was included but it was quite clearly in the nature of ancillary relief, the main reliefs being three separate injunctions sought.

The case then had a long procedural history involving further motions. It is sufficient to state that by the time the action came before me for full hearing, injunctions were no longer necessary with the result that damages and costs were the only issues left which required to be tried.

I awarded damages of £3,000. I also awarded the costs of the action to the Plaintiff. Those costs were intended to be the costs of the action as a whole and were therefore intended to be similar costs as the Plaintiff would have recovered had he still been looking for an injunction at the time of the trial.

The matter, however, has come back to me because it is suggested on behalf of the Defendant that the costs in connection with the earlier injunction should be Circuit Court costs and that District Court costs ought to be awarded in relation to the Plenary hearing having regard to the amount of the award of damages. In making this submission, Counsel for the Defendant relies on Section 17(1) of the Courts Act, 1981 as inserted by Section 14 of the Courts Act, 1991. That subsection as to its material part reads as follows:-

"Where an order is made by a court infavour of the plaintiff . . . in any proceedings . . . and the court is not the lowest court having jurisdiction to make an order granting the relief the subject of the order, the plaintiff shall not be entitled to recover more costs that he would have been entitled to recover if the proceedings had been commenced and determined in the said lowest court."

I am satisfied that where an injunction action proceeds to full hearing for the purposes of determining (inter alia), the question of costs in a situation where an injunction is no longer required but where a plaintiff would have been entitled to such injunction at the time of institution of proceedings, a Judge who awards costs on that basis is granting a form of "relief within the meaning of Section 17(1) of the 1981 Act as inserted by Section 14 of the 1991 Act, independently of any other residual reliefs such as damages. Therefore, I cannot agree that the Plaintiff is confined to District Court costs by reason of the subsection cited above. So as to avoid all ambiguity, it might be desirable in such cases for the Court to make a declaration that the Plaintiff was entitled to an injunction at the date of instituting proceedings as such declaration would beyond argument be considered a "relief". But it has never been the practice to make such a declaration and I do not believe that the 1991 Act was intended to have the consequences suggested by the Defendant.

Nor do I consider that there is any justification in subdividing the costs in the manner suggested. The costs referred to are the costs of the action as a whole. As the District Court has no jurisdiction to grant injunctions, the costs must at the very least be Circuit Court costs. But a question arises as to whether the Circuit Court has jurisdiction in an action not relating to property in which an injunction is sought as a primary rather than an ancillary relief. Strictly speaking, I should simply confirm the Order I have made for costs and it would then be a matter for the Taxing Master if the costs were in dispute, to determine whether High Court or Circuit Court costs were appropriate. If either party was aggrieved by the decision of the Taxing Master, the matter could be determined by the Courts on appeal from him. However, as it has now been argued out before me, I think that I should express an opinion on it. As any Circuit-going Barrister will testify, the practice rightly or wrongly in relation to injunction actions has been the following. Where the action is for an injunction as a primary relief it is commenced by Equity Civil Bill. The endorsement of claim discloses jurisdiction by reference to rateable valuation insofar as the action relates to land and by reference to amount or value insofar as it relates to personality. More accurately, I should add that the personality value qualification no longer applies as a result of recent legislation. But it did apply at the time of the 1961 Act and therefore the current unlimited jurisdiction in relation to personality can have no bearing on the interpretation of the Third Schedule to that Act. Of course if the in unction sought was merely ancillary then the practice was different. An action seeking damages for libel for instance might be brought in the Circuit Court on an ordinary Civil Bill provided the amount of the claim came within the Circuit Court jurisdiction and tagged on to the claim for damages there might be sought an injunction restraining the repetition of the libel. That kind of ancillary injunction could be sought in any "action founded on tort" the jurisdiction of the Circuit Court to hear which would be determined solely by the amount of the claim. The typical action brought upon an Equity Civil Bill seeking an injunction as a primary relief in the Circuit Court was an action for trespass to land or for nuisance or for disturbance of a right of way or for interference with some property right. Even if a damages claim was added in which was well within the Circuit Court jurisdiction for a claim for damages, it was never considered that the Court had jurisdiction to entertain the action by reason of that fact alone. If, for instance, the action was one of trespass, the rateable valuation of the lands being trespassed upon determined the Court's jurisdiction to grant the injunction as a primary relief. The Court's (Supplemental Provisions) Act, 1961 did not alter this practice nor, in my view, was it ever intended to. The Circuit Court did not have jurisdiction to grant an injunction by way of primary relief in a trespass action immediately after the 1961 Act merely because the damages also being claimed in the Civil Bill did not exceed in amount £600. For the Circuit Court to have jurisdiction to grant the primary injunction, the rateable valuation of the relevant lands would have had to be not more than £60. In my view, therefore, Column 2 at reference No 6 in the Third Schedule to the 1961 Act should not be interpreted literally and in isolation from the other reference numbers. The jurisdiction of the Circuit Court to grant an injunction by way of primary relief arises from reference No 27 in the Third Schedule and must fall within the type of action therein described. That means that the action must be one in relation to property. The 1961 Act confers no jurisdiction on the Circuit Court to grant an injunction as primary relief in an action not relating to property. It can grant an injunction by way of ancillary relief if the action falls within one of the other reference numbers. An analogous position arises in relation to specific performance suits. The jurisdiction of the Circuit Court under the 1961 Act to grant a decree of specific performance arises exclusively in my opinion from reference No 22 in the Third Schedule and not in any way from reference No 1 even though of course an action for specific performance is always an action "founded on contract". The entire schedule must be read for the purposes of interpreting any one reference number in it and, furthermore, the schedule must be interpreted in the light of the history of Civil Bill jurisdiction.

The injunction by way of primary relief to which the Plaintiff was entitled to in this action was an injunction to restrain the wrongful interference with his business. The cause of action is undoubtedly tort. The modern tort of wrongful interference with business relations is closely linked with the tort of inducing breach of contracts. The gist of the action is a certain kind of activity causing financial loss. I do not think it is an action in relation to property within the meaning of Column 2 reference 27 of the Third Schedule to the 1961 Act. I realise that one could argue that the goodwill of the business has a value and that in that sense it might be said to be an action relating to property. But I do not think that it is an action in relation to property in the sense that a trespass or nuisance action is. The injunction to which the Plaintiff would have been entitled to here was not an injunction to restrain interference with property or the enjoyment of property but rather with the wrongful causing of financial loss by a wrongful activity. I do not think that that action is included in the category of actions referred to in Column 2 reference 27 in the Third Schedule. For the reasons which I have indicated therefore, I am of the view that the Circuit Court would not have had Jurisdiction by virtue of Section 22(1) of the 1961 Act.

It is now necessary to consider whether the Circuit Court might have had jurisdiction by virtue of Section 22(3) of the 1961 Act. I am satisfied that prior to the Courts of Justice Act, 1924 the Circuit Court did not have jurisdiction to grant a primary injunction unrelated to property (see the Babington edition of Osborne's County Court Practice and the enactments and case law therein referred to). Likewise there is no jurisdiction under Section 22(5) of the 1961 Act by reference to the earlier Courts of Justice Acts.

The Plaintiff is therefore entitled to the full costs of an injunction action and in my opinion those costs should be taxed as High Court costs.