THE HIGH COURT

JUDICIAL REVIEW
2000 No. 801
BETWEEN

RYANAIR LIMITED
APPLICANT
AND
AER RIANTA CPT 
RESPONDENT
Note of ex tempore Judgment delivered by Mr. Justice Kelly on the 25th day of January 2001.

The Applicant seeks two injunctions against the Respondent pending the trial of these proceedings.
The first injunction seeks to restrain the Respondent from imposing and recovering certain monetary charges which were notified to the Applicant on the 7th of December, 2000, relating to its activities at Dublin Airport.
The second injunction seeks to restrain the operation of 'Rules of Conduct' promulgated by the Respondent on the 15th of December, 2000.
On the 22nd of December, 2000, leave was granted by Kinlen J to seek Judicial Review of each of these decisions of the Respondent. The principal relief sought is an Order of Certiorari seeking to have both the charges and the 'Rules of Conduct' quashed by this Court.
At the time that he granted leave Kinlen J also granted interim injunctions restraining the implementation of both the charges and the 'Rules of Conduct' and these injunctions have, subject to a modification agreed before the President at a hearing on the 29th of December, 2000, continued in force ever since.
This application seeks to continue these injunctions until the trial of these Judicial Review proceedings.
Mr. Hogan S.C. on behalf of the Applicant invited me to depart from the well established principles which apply to the grant of interlocutory injunctions in considering the Applicant's case. These principles are well known. They are that in the exercise of its discretionary jurisdiction the Court ought to grant an interlocutory injunction only when satisfied that the Applicant has demonstrated:-
	a.		the existence of a serious issue to be tried,
	b.		the inadequacy of damages as a remedy for the mischief complained of, and
	c.		that the balance of convenience favours the grant of such an injunction.
Mr. Hogan contends that his case in law both as to the invalidity of the charges and the 'Rules of Conduct' is so strong that I ought not to apply these well established principles but should proceed to grant an injunction pending trial based on the strength of his case alone and without regard to either adequacy of damages as a remedy or balance of convenience.
I reject this invitation. I do so on two grounds. First, such an approach is unprecedented. No case was cited in support of it. It is an invitation which is extended in the teeth of authoritative statements from the highest Courts both in this jurisdiction and in England.
In Campus Oil Limited v The Minister for Industry and Energy and Others [1983] IR 88 Griffin J at page 110 said this by reference to the decision of the House of Lords in American Cvanamid v Ethicon [1975] A C 396

"Lord Diplock continued at pages pp 407 - 408 of the report "Your Lordship should in my view take this opportunity of declaring that there is no such rule. The use of such expressions as "a probability", "a prima facia case", or "a strong prima facia case " in the context of the exercise of a discretionary power to grant an interlocutory injunction leads to confusion as to the objective sought to be achieved by this form of temporary relief. The Court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried. It is no part of the Courts function at this stage of the litigation to try to resolve conflicts of evidence on Affidavit as to facts on which the claim of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature consideration. These are matters to be dealt with at the trial. One of the reasons for the introduction of the practice of requiring an undertaking as to damages upon the grant of an interlocutory injunction was that "it aided the Court in doing that which was its great object, viz. abstaining from expressing any opinion upon the merits of the case until the hearing". (Wakefield v Duke of Buccleueh). So unless the material available to the Court at the hearing of the application for an interlocutory injunction fails to disclose that the Plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the Court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought".
Later in his speech an American Cyanamid V Ethicon Lord Diplock said "the governing principle is that Court should first consider whether if the Plaintiff

were to succeed at the trial in establishing his right to a permanent injunction he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the Defendant's continuing to do what was sought to be enjoined between the time of the application and the time of the trial. If damages in the measure recoverable at common law would be adequate remedy and the Defendant would be in a financial position to pay them no interlocutory injunction should normally be granted, however strong the Plaintiff's claim appeared to be at that stage ".
This last quotation is relevant not merely to this aspect of the matter but to a further aspect of this case which I will consider under the heading of adequacy of damages.
These quotations make it clear that the Court ought not to attempt an evaluation of the strengths or weaknesses of either sides case at this stage of the proceedings save in the limited circumstances identified subsequently in the speech of Lord Diplock which are not relevant here.
My second reason for rejecting the invitation is that even if Mr. Hogan were correct and there was such a principle which would enable me to depart from the normal rules governing the grant of interlocutory injunctive relief on the basis of the Applicant having made out a virtually unanswerable case in law it would not be applicable here. I am not at all satisfied that the Applicant's case is so clear at law as to be unanswerable by the Respondent. It follows therefore that even if there was a legal basis for this approach urged upon me by Mr. Hogan it would have no application to the present case.
I will therefore deal with this case on the conventional and well established basis upon which the Court exercises this discretionary jurisdiction.

SERIOUS ISSUE TO BE TRIED
The Applicant has already satisfied Kinlen J of the existence of an arguable case in respect of its complaints against the Respondent. If it had not done so, leave to seek Judicial Review would not have been granted. A higher standard of proof is applicable on this application for an interlocutory injunction pending trial. In my view it has been achieved both in respect of the charges and the 'Rules of Conduct'. Indeed that much is not seriously disputed by the Respondent's for the purpose of this application. I am therefore satisfied that the Applicant has demonstrated a serious issue for trial in respect of each of the decisions which are sought to impugned in these proceedings.
ADEQUACY OF DAMAGES
I have already quoted a passage from the speech of Lord Diplock setting forth how the Court ought to approach the question of adequacy of damages. It is clear that if the Court concludes that damages would be an adequate remedy for the mischief complained of by the Applicant and the Respondent would be in a financial position to pay them then no interlocutory injunction should normally be granted however strong the Plaintiff's claim appears to be. That is the test which is applicable here.
Insofar as the question of the charges which are being imposed by the Respondent are concerned there can be no doubt but that damages would provide a complete remedy to the Applicant should it have to pay them in the meantime in circumstances where the charges are subsequently at trial found to be unlawful. There is no doubt but the Respondent could repay such monies together with interest thereon and that is not in question. Not merely are damages an adequate remedy but in the Affidavit evidence before the Court they have even at this stage actually been quantified. Such being the case it is fatal to the claim of the Applicants for an interlocutory injunction and indeed was always so.

Accordingly insofar as the injunction concerning the imposition of these charges is concerned it is refused and indeed it is difficult to see how it could ever have been sought.
The position in respect of the 'Rules of Conduct' is not so clear. It might well be said that any damage which might occur from the imposition of this code would not be capable of compensation in damages. But the gravamen of the Applicant's case is not that it is at present being damnified by any provision of the code. Rather it is that one part of the code would permit the Respondents to unilaterally alter existing alleged contractual rights which the Applicant contends that it has with the Respondent in respect of pier A at Dublin Airport. It is not however in dispute that to date no attempt had been made by the Respondent to operate the provisions of the code which would allegedly enable it to bring about such a unilateral alteration to the Applicant's contractual rights. Not merely that but the position of the Respondent is dealt with at paragraph 59 of the Affidavit of the Deputy Chief Executive of the Respondent as follows:-
"Insofar as the Applicant contends that the enforcement of the new ground handling rules should be restrained, I believe it important to bear in mind the following considerations. First, there is no question at this point in time of any contractual rights of the Applicant of the nature suggested in Mr. Cliffden's first Affidavit, being overridden consequent upon the due and proper enforcement of these rules. That being the case the Applicant's claim for injunctive relief in this regard, at this point in time, does not properly arise and is premature. Second, and in any event as I have stated above, the power to achieve this only arises where action is necessary in order to ensure the fair allocation of space or facilities between all handlers, including new entrants, as required by regulation 14 of the regulations, and in compliance therewith. Third, these rules are to such extent a codification of the existing rules, protocols and agreements offered at Dublin Airport, that no real practical consequence from the Applicant's perspective will follow from their being allowed to come into force as anticipated".
Such being the position it is clear that the injunction which is sought in respect of the rules of conduct is sought quia timet.
The principles which are applied by the Court in the grant of interlocutory quia timet injunctions have most recently been considered by Geoghegan J (when a Judge of this Court) in Szabo and others v Esat Dieifone Limited and others f 199912 LIRM 102. In that case Geoghegan J held as follows:-
1.	"There is no difference as between the legal principles to be applied to quia timet injunction and those to be applied in the case of any other injunction. Ipso facto there is no difference between the principles to be applied to an interlocutory quia timet injunction and those applicable to any other kind of interlocutory injunction.
2.	However, the fact that no breach of the rights of the Plaintiff's has taken place as of the date of the hearing is of relevance in that it may be more difficult to establish, as a matter of evidence, that there is sufficient risk of future injury to justify the immediate grant of an injunction. In these circumstances the Court must balance the magnitude of the evil against the chances of its occurrence.
3.	In order to grant a quia timet injunction there would have to be a proven substantial risk of danger Attorney General (Boswell) v Rathmines and Pembroke Joint Hospital Board [1904] IR 161 considered".
I am not satisfied that this test has been met by the Applicant here. There is not in my view a sufficient risk of future injury to justify the immediate grant of an injunction. The application for this injunctive relief is premature.
BALANCE OF CONVENIENCE
Even if I am wrong in the view which I have expressed concerning the injunction relating to the 'Rules of Conduct' I would nevertheless in any event refuse such injunction on the balance of convenience.
It appears to me to be highly undesirable that at an Airport catering for 117 airlines and 14 million passengers per annum a clear and comprehensive set of rules should apply to 116 of those airlines and another set of rules (which depend on a mixture of custom, practice, informal rules and agreements of varying types) should apply to 117th airline. That in my view could not be regarded as good, sensible or orderly management of an airport facility and ought not to be forced on the Respondent by the Court. The Respondent is responsible for the management of Dublin Airport, not this Court. It follows therefore that on this ground also I refuse the injunction sought concerning the 'Rules of Conduct'.
Both injunctions are therefore refused.
There is one other matter to which I ought to allude. An allegation was made by the Respondent to the effect that in seeking the interim orders from Kinlen J there was non disclosure of material matters by the Applicant. Three such species of non disclosure were identified and I have considered them.
I do not depart one iota from the observations which I made in the case of Adams v The Director of Public Prosecutions and others (unreported 12th April 2000) concerning the duty of disclosure in ex parte applications. There I said

" Whilst the St. George's Health Care case which I have just mentioned is not authority for the proposition which was made, it is of relevance to an aspect of this case which I find very troubling. That is the obligation on the part of Counsel in seeking orders ex parte. In the course of the judgment of the Court delivered by Judge L J he said (atpage 966):- "An interim injunction is granted exparte only in exceptional circumstances and then only subject to the triple safeguards of:-
1.	The duty of full and frank disclosure,
2.	The cross undertaking in damages which is required as a matter of course,
3.	The right of the Party enjoined to apply to vary or discharge the exparte order. If an interim declaration were a remedy known to English law it could hardly be obtainable without these safeguards being put in place ".
Reference is there made to the duty of full and frank disclosure. That is reminiscent of the statement made by Kennedy CJ in Brennan V Lockyer [1932] IR 100 at 107 where he said in relation to the order in question there:- "That, in my opinion, is one the very matters to which on an ex parte application of this kind, the long established rule requiring uberrima fides on the part of the Applicant ought to be strictly applied".
On any application made exparte the utmost good faith must be observed, and the Applicant is under a duty to make a full and fair disclosure of all of the relevant facts of which he knows, and where supporting evidence contains material misstatements of fact or the Applicant has failed to make sufficient or candid disclosure, the exparte order may be set aside on that very ground".
I am not satisfied that there has in the present case been a departure from these obligations. The Applicant might perhaps have been more prudent to have put the relevant material before the Court if only to avoid an allegation of the sort which was made, being made. But the failure to do so does not appear to me to have amounted to a nondisclosure of material facts. Consequently this complaint does not give rise to further consideration.
The order of the Court will be to refuse both injunctions pending the trial of these proceedings.