A recent decision by the Court of Appeal has provided clarity on the basis upon which a party can seek to have an injunction lifted prior to the determination of underlying proceedings.
What is the test for keeping an injunction in place?
In Sheehan v Breccia & Ors.  IECA 234, the Court of Appeal heard an appeal to the refusal of the High Court to set aside an injunction. It was argued by the party seeking to have the injunction lifted that the only basis upon which the injunction had been initially granted had fallen away. The High Court rejected the application on the basis that an examination of the Statement of Claim indicated that there were other claims that remained to be determined at the full hearing and in circumstances where the Court found that these arguments were "not bound to fail", it was sufficient for the injunction to remain in place.
The Court of Appeal held that the High Court did not apply the correct test. The question is not whether the remaining claims were bound to fail or whether there was some possibility that they might succeed but rather whether the remaining claims meet the test for an injunction, that is, is there a fair issue to be tried and in respect of which damages would not be an adequate remedy. The Court of Appeal held that where this test was not met in respect of the remaining matters to be determined at trial, there was no basis for the continuation of the injunction, and it should be lifted.
What about court discretion?
The Court of Appeal further rejected the High Court's view that the overriding consideration in assessing whether to grant injunctive relief is what the Court considers to be "just in all the circumstances". The High Court had relied upon this discretion to allow the injunction to remain, despite the fact the claims which remained to be determined could not give rise to a permanent injunction in the same or similar terms at the trial. The Court of Appeal rejected the contention that the courts have some broad and unconfined discretion to do what they consider just and convenient in the case of injunctions. Instead, it held that, subject to some exceptions, the courts have to consider whether a fair issue to be tried has been raised which could lead, following the substantive hearing, to the granting of a permanent injunction.
In this case, the Court of Appeal was satisfied that even if the Plaintiff was successful at the trial, his remedy would be in damages and there was no possibility of a permanent injunction being granted. Therefore, no right to an interlocutory injunction remained.
What can be learnt from this decision?
If a party has an injunction granted against it pending the determination of a trial, it is in their interest to keep abreast of the factual matrix and legal context in which it was granted as the Court has jurisdiction to lift an injunction at any time where there has been some material change of circumstance.