Judgment of the Court delivered on the 31st July, 2013 by Clarke J.
1. Introduction
1.1 As part of the response adopted in seeking to deal with the financial crisis in this country many measures have been adopted. Frequently such measures are, not surprisingly, surrounded by political, economic and, in some cases, legal controversy. The measures taken by the defendant/respondent ("the Minister") to deal with financial institutions are amongst those which have attracted the greatest controversy. Some of the measures taken in respect of Permanent TSB Group Holdings plc ("Holdings") and its subsidiaries have been the subject of significant litigation brought by the plaintiffs/appellants ("the appellants"). It will be necessary in this judgment to set out the current position in respect of a number of such proceedings which are, at least indirectly, relevant both to these proceedings and to this appeal.
1.2 However, at its simplest, the current state of affairs is that, as a result of the exercise by the Minister of certain powers conferred on him by statute, the ownership of an important part of the former business of Holdings, being Irish Life Group Ltd. ("Irish Life"), was transferred to the Minister. The Minister now proposes to sell Irish Life for €1.3 billion. In these proceedings the appellants claim that the sale by the Minister will be demonstrated to be unlawful as a result of the successful conclusion of some or all of the other related proceedings which they, or some of them, have commenced. On that basis, in substance, the appellants assert that the sale by the Minister should be restrained by injunction until such time as the relevant related proceedings have concluded.
1.3 The High Court dismissed the claim for an interlocutory injunction and the appellants brought this appeal against that decision (Dowling & ors v The Minister for Finance [2013] IEHC 299). In a brief ruling given on the 16th July, 2013, this Court indicated that it would dismiss the appeal and affirm the order of the trial judge. The Court also indicated that it would, at a later date but as soon as practicable, indicate its reason for coming to that conclusion. This judgment is directed towards setting out those reasons. It is appropriate to start by setting out, in more detail, the precise claim with which the High Court was concerned.
2. The Injunction Claimed
2.1 In the High Court, the appellants sought the following substantive reliefs in their notice of motion dated the 5th June, 2013:
“1. An Order by way of interim and/or interlocutory prohibitory injunction restraining the Defendant, whether by himself or by his agents or servants, from completing the sale of the Irish Life Group Limited until:-
(a) The adjudication of the ongoing proceedings regarding the setting aside of the direction order made on the 26 July 2011 in relation to Permanent TSB Group Holdings plc (“ILPGH”) and Permanent TSB plc (“ILP”), by means of which the Minister for Finance (“the Minister”) acquired 99.2% of the voting share capital in ILPGH, which allowed/facilitated the subsequent acquisition by the Minister of Irish Life Group Limited (“ILGL”), pursuant to the direction order made on 28 March 2012; and
(b) The adjudication of an appeal from the orders and judgments of Peart J. in the proceedings regarding the setting aside of the direction order made on 28 March 2012, by means of which the Minister acquired ILGL; and
(c) The Court has adjudicated upon the following reliefs sought in the currently ongoing High Court proceedings record numbers 2013 2708P and 2013 2709P:
….; and
(d) The Court has adjudicated upon the following reliefs sought in the currently ongoing High Court proceedings record number 2013 36 COS under s. 205 of the Companies Act 1963:
…
2. Further, and without prejudice to the foregoing, in respect of matters relating to the provisions of European Union law raised by the Plaintiffs in the within proceedings – if the Honourable Court is uncertain regarding the interpretation of those provisions of European Union law and if the Honourable Court considers that a decision on the relevant matters raised by the Plaintiffs is necessary to enable the Honourable Court to give judgment in the within proceedings – an order pursuant to Article 267 of the Treaty on the Functioning of the European Union that the questions, or some of the questions, raised in the Schedule hereof be referred to the European Court of Justice for preliminary ruling pursuant to Article 267 of the Treaty on the Functioning of the European Union.
…”
For the purposes of this judgment Permanent TSB plc will be referred to as "the Bank". The proceedings referred to at para. 1(c) of the relief (which involve a constitutional challenge to the underlying legislation) will be referred to as "the Plenary Proceedings". The proceedings referred to at para. 1(d) of the relief (which involve an allegation of oppression of a minority under the Companies Act, 1963 as amended ("the 1963 Act"), will be referred as "the s. 205 Proceedings".
2.2 In their Plenary Summons, the appellants claimed the following reliefs:
(a) A declaration that the Minister is precluded from completing a re-sale of Irish Life if the relevant courts determine that the original purchase of that asset by the Minister was illegal due to, inter alia, breaches of European Union law; and
(b) A permanent injunction restraining the Minster from completing the sale of Irish Life, if the plaintiffs are successful to a material extent in the related actions;
(c) An interlocutory injunction restraining the sale of Irish Life pending the final resolution of the above related actions; and
(d) If necessary, an order pursuant to Article 267 of the Treaty on the Functioning of the European Union for a preliminary reference of certain questions involving the interpretation of European Union law relevant to the determination of this action.
2.3 The plenary summons does not, therefore, seek reliefs regarding the invalidity of the respective direction orders, the constitutionality of the underlying legislation, or arising out of the allegation of oppression under s. 205 of the 1963 Act. Reliefs in respect of those matters are sought in the respective related actions.
2.4 In essence, the appellants contended that, if their substantive related proceedings are successful, it would be established that any right which the Minister claims to have to sell Irish Life would be invalidated as his action in acquiring his shareholding in Holdings and ownership of Irish Life, pursuant to direction orders under s. 9 of the Credit Institutions (Stabilisation) Act 2010 (“the 2010 Act”), would, in those circumstances, be shown to amount to a breach of the appellants' rights under EU law. In order to protect those rights, the appellants claimed that it was necessary that the courts grant an injunction restraining the sale of Irish Life. If the courts refused to do so and allowed the sale to proceed, it was said that it would “permanently and irreparably prejudice” the courts' ability to grant the reliefs sought in the other proceedings, if successful, and would effectively render those proceedings moot. It is first appropriate to turn to certain background information.
3. Background
3.1 The appellants do not have legal representation. The fifth named appellant ("Mr. Skoczylas") made submissions on behalf of all the appellants. The other appellants adopted his submissions.
3.2 As pointed out, the appeal which was before this Court lies from the refusal of the application which was brought in the High Court seeking interlocutory injunctive relief. The principal affidavits relied upon by the appellants in the High Court and in this Court were sworn and filed by Mr. Skoczylas.
3.3 The complaints of the appellants, each of whom is a shareholder in Holdings, in respect of which they seek redress in these proceedings, and in the related proceedings, arise from actions taken by the Minister to recapitalise the Bank, which is, of course, a wholly owned subsidiary of Holdings.
3.4 The context in which these proceedings and this interlocutory application arise was fully set out by the trial judge, as follows:-
“5. The corporate structure of which Holdings and the Bank are part came into existence as a result of a scheme of arrangement which was sanctioned by order of the High Court (Clarke J.) on 11th January, 2010 pursuant to s. 201 of the Companies Act 1963 (the Act of 1963) in relation to a listed company then known as Irish Life & Permanent plc. The detail of the scheme of arrangement is not of relevance to the issues on the application before the Court. Suffice it to say that thereafter Holdings (by its then name Irish Life & Permanent Group Holdings plc) replaced the Bank (by its then name Irish Life & Permanent plc) at the top of the corporate structure and the existing shareholders of the Bank became shareholders of Holdings. The Bank became a wholly owned subsidiary of Holdings. Holdings subsequently became listed on the Enterprise Securities Market of the Irish Stock Exchange. The life assurance business of the Permanent TSB group (formerly the Irish Life & Permanent group) was at all material times, and is, carried out through the medium of Irish Life Group Limited (the Company) and its subsidiaries. The Bank was at all material times prior to 29th June, 2012 the sole shareholder in the Company.
6. In line with the obligations of the State referred to earlier, the Credit Institutions (Stabilisation) Act 2010 (the Act of 2010) was enacted. As the beginning of the long preamble to that Act indicates, it was enacted to make provision, in the context of the National Recovery Plan 2011 – 2014 and the European Union/International Monetary Fund Programme of financial support for Ireland, in relation to the stabilisation and the preservation or restoration of the financial position of certain credit institutions. Part 2 of the Act of 2010, which is headed “Direction orders”, was subsequently deployed by the Minister to propose and obtain, consequent on an ex parte application to the High Court, three direction orders pursuant to s. 9 of the Act of 2010. In the case of two of the direction orders, the plaintiffs, or some of them, have brought applications to the High Court under s. 11 of the Act of 2010 seeking to set aside the direction orders. The first direction order, which was made in June 2010, provided that the Minister could prepare for the sale of the Company by Initial Public Offering or private sale. That order has not been challenged. The second direction order was made by the High Court on 26th July, 2011 (the July 2011 Direction order). The context in which that order was made was that the Bank was required, pursuant to the capital requirements of the Central Bank, to raise €2.9 billion before 31st July, 2011, which it was unable to do, in consequence of which the State was required to invest the capital in the Bank. The July 2011 Direction order provided for the investment by the Minister of up to €3.8 billion in Holdings, which was partly effected by a subscription of €2.3 billion for what became effectively 99.2% of the issued share capital of Holdings. Insofar as is relevant for present purposes, the effect of the July 2011 Direction order was that the Minister became a 99.2% shareholder in Holdings, which gave him control of Holdings, and through Holdings, control of the Bank.
7. Mr. Dowling, Mr. McManus, Mr. Skoczylas and a company controlled by Mr. Skoczylas brought an application to the High Court (Record No. 2011/ 239 MCA) (the 2011 Application) pursuant to s. 11 of the Act of 2010 seeking to set aside the July 2011 Direction order. That application, which has been subject to a number of applications to the High Court and is the subject of case management, is still pending. On 2nd March, 2012, judgment was given in the 2011 Application by Feeney J. (Neutral Citation [2012] IEHC 89) dismissing an application by the Minister seeking to dismiss the application of, inter alia, Mr. Skoczylas on the grounds that he was not a member of Holdings or of the Bank at the date of the application and, therefore, did not have standing to bring the application. The Court was informed that that decision is under appeal to the Supreme Court. That is immaterial for present purposes, because no issue was taken that Mr. Dowling and Mr. McManus, who are plaintiffs in these proceedings, did not have standing. A further judgment was delivered in the 2011 Application by Charleton J. on 21st February, 2013 (Neutral Citation [2013] IEHC 75), which resulted in the joinder of Holdings and the Bank in the proceedings for a “limited and specific role”. Of more significance for present purposes is that Charleton J. held that the applicants on the 2011 Application could not pursue a challenge to the constitutionality of s. 11 of the Act of 2010 on the 2011 Application. That led to the initiation of the plenary proceedings referred to later. Since then, the 2011 Application has been subject to case management by the President of the High Court. My understanding is that an issue as to the entitlement of the applicants to discovery against the Minister is due to be heard.
8. The third direction order has been challenged by some of the plaintiffs. It is an order made on 28th March, 2012 (the March 2012 Direction order), whereby the Bank was directed to sell the Company and its subsidiaries to the Minister for the sum of €1.3 billion, such sale to be completed not later than 30th June, 2012, and the Bank was directed to take certain specified steps preparatory to and necessary for the completion of the sale. All of the plaintiffs in these proceedings other than Ms. Scorer and the company controlled by Mr. Skoczylas brought an application in the High Court (Record No. 2012 / 116 MCA) (the 2012 Application) seeking to set aside the March 2012 Direction order. The application was heard by Peart J. who delivered judgment on 28th June, 2012 (Neutral Citation [2012] IEHC 436). The decision of Peart J. was to refuse to set aside the March 2012 Direction order. The sale of the Company and its subsidiaries to the Minister was subsequently completed.
9. In these proceedings the plaintiffs who are parties to the 2012 Application complained that, because of the failure to perfect the order of Peart J., they were not in a position to file a notice of appeal against that decision until 10th June, 2013. The position of the Minister is that he does not accept that the applicants in the 2012 Application are entitled to appeal, having regard to s. 64 of the Act of 2010. Sub-section (2) of s. 64 provides as follows:
“A direction order . . ., and an order varying such an order or setting it aside, is final and no appeal lies from the order of the [High Court] to the Supreme Court except with the leave of the Court.”
Sub-section (3) provides that the Court shall grant leave under subs. (2) only if the Court certifies that its decision involves a point of law of exceptional public importance and it is desirable in the public interest that an appeal should be taken to the Supreme Court. This Court has not been informed that an application under s. 64(3) had been made to Peart J. and, in the circumstances, it must be assumed that no such application has been made. That leaves this Court is a rather awkward situation, as the possibility of an appeal against the decision of Peart J. cannot be ruled out. In the circumstances, it seems to me that the proper course for this Court to adopt is to treat the 2012 Application as not having been finally determined solely for the purpose of determining this application.
10. The implementation of the March 2012 Direction order by the sale of the Company and its subsidiaries was, in reality, the sale of the insurance business of the Permanent TSB group of companies. Such a sale, including the possibility of a sale effected as a private sale, had been in prospect from June 2011. In fact, following the decision of Peart J., the Minister acquired the Company and its subsidiaries on 29th June, 2012 for the consideration of €1.3 billion. On 2nd December, 2012, it was reported in the media, in the Sunday Business Post, that the Minister’s Department had re-opened talks on the sale of “the insurance company” to Canada Life a year after the parties had failed to agree on a price. Mr. Skoczylas obviously became aware of the media reports, because by letter dated 5th January, 2013 to the Minister, he threatened further legal action to stop the sale to Canada Life, if there was no confirmation from the Minister within a week that he would “not sign with Canada Life, or any other potential buyer, any re-sale” of the Company, meaning, obviously, a contract for the sale by the Minister, until the then pending proceedings were ultimately adjudicated on. In the correspondence which subsequently passed between Mr. Skoczylas and the solicitors on record for the Minister, Arthur Cox, culminating with a letter of 15th February, 2013 from Arthur Cox to Mr. Skoczylas, the position adopted by the Minister was that he did not intend to comment in relation to the proposals, if any, he may have had in relation to the Company. However, all of the allegations made by Mr. Skoczylas in the correspondence were denied.
11. During the course of that correspondence the plaintiffs in these proceedings other than the eighth plaintiff (Mr. Keohane) presented a petition to the Court on 25th January, 2013 invoking, inter alia, the provisions of s. 205 of the Act of 1963 (Record No. 2013 36 COS) (the s. 205 Proceedings). The respondents on the s. 205 Proceedings are eleven individuals and the Minister. Nine of the eleven individuals were directors of Holdings and the Bank when the petition was presented and the remaining two were directors of the Company and were former directors of both Holdings and the Bank. In the s. 205 Proceedings the petitioners therein have sought various forms of relief to redress their allegations that the respondents have conducted the affairs of Holdings in a manner oppressive to them and in disregard of their interests as members. Reference will be made later to the specific reliefs invoked by the plaintiffs on this application.
12. On the morning of 19th February, 2013, counsel for Horizon Growth Fund N.V. (Horizon), which was the other applicant the standing of which was challenged in the 2011 Application by the Minister, whose challenge was also rejected by Feeney J. in his judgment of 2nd March, 2012, indicated to this Court that Horizon wished to apply for an order to restrain the sale of the Company to Canada Life. The Court made it clear that it would not entertain such an application on an ex parte basis and that the Minister should be notified of any proposed application. The matter was put back to two o’clock that day, when counsel for Horizon appeared, as did Mr. Skoczylas. The Minister was also represented by counsel. The Court was informed that the Minister had signed the contract for sale of the Company to Canada Life at 1pm that day and that the sale was due to be completed in July 2013, subject largely to regulatory approval in the meantime. Mr. Skoczylas persisted in the position that he wished to bring an application for injunctive relief. The Court gave him leave to issue a notice of motion by lunchtime the following day returnable for 26th February, 2012 and it did so against the background of a submission on behalf of the Minister that the Minister would like to dispose of the interlocutory proceedings as quickly as possible. There was also some discussion as to whether it was appropriate, as Mr. Skoczylas proposed doing, to bring the application for interlocutory relief in the s. 205 Proceedings. However, the Court left that to the discretion of Mr. Skoczylas. Later that day, Mr. Skoczylas, by e-mail, informed, inter alia, the solicitors on record for the Minister and the registrar of the Court that the petitioners in the s. 205 Proceedings did not intend to pursue the application for injunctive relief at that stage. The notice of motion which Mr. Skoczylas was given leave to issue was not issued.
13. As regards the sale of the Company and its subsidiaries, the replying affidavit of John Cantwell, the Acting Head of the Shareholding Management Unit of the Minister’s Department, sworn on 12th June, 2013 discloses that the purchaser of the Company is Canada Life, a company incorporated in England and Wales, and a group company of Great-West Lifeco Inc., a Canadian listed company, each of which has various obligations in the legal documentation in relation to the sale. For convenience, the purchaser in the share purchase agreement (the Contract) will be referred to as Canada Life. Since 19th February, 2013, Canada Life has sought the approval of the Commission, the Central Bank, the Financial Services Authority in the United Kingdom and the Office of the Superintendent of Financial Institutions in Canada in relation to the acquisition of the Irish Life insurance business via the acquisition of the Company. On 31st May, 2013, Canada Life received notification from the Commission that the Commission would not oppose the notified transaction. Mr. Cantwell averred that, at the time he swore his affidavit, the other regulatory approvals had not been received but were expected shortly. Mr. Cantwell explained that, following receipt of the final regulatory approval, and assuming that the other terms of the Contract have been satisfied, Canada Life has ten business days in which to pay the Minister €1.3 billion in consideration and to proceed to completion of the purchase. The position is that, barring any unforeseen material breach of warranty or a regulator refusing approval, both the parties are contractually bound to complete the transaction. When he swore his affidavit, Mr. Cantwell’s best estimate of the closing date in accordance with the provisions of the Contract was that it would be 10th July, 2013. Mr. Cantwell further disclosed that, if the transaction does not close by 31st October, 2013, which he referred to as the “long stop date”, because any condition has not been satisfied, or a regulatory condition will not be satisfied by that date, or the parties, acting reasonably, agree that any condition has become incapable of being satisfied prior to that date, then either party will be entitled to terminate the Contract.
14. Subsequent to the judgment of Charleton J. of 21st February, 2013 in the 2011 Application, plenary proceedings were initiated by –
15. The current position in relation to the s. 205 Proceedings is that they are being case managed by the Court, there having been a number of interlocutory applications brought in those proceedings. One interlocutory application was an application by the petitioners in the s. 205 Proceedings seeking an interlocutory injunction restraining the respondents from undertaking any actions to terminate the directorship of Mr. Skoczylas in Holdings until the adjudication of the s. 205 Proceedings. That application was heard by Gilligan J. who delivered judgment on 27th March, 2013 (Neutral Citation [2013] IEHC 129), in which he refused that relief. The petitioners had also sought on that application a preliminary reference to the Court of Justice of the European Union (CJEU) under Article 267 of the Treaty on the Functioning of the European Union (the TFEU) in relation to certain questions of interpretations of EU law. In dealing with that aspect of the application Gilligan J. stated (at para. 49):
‘The Court exercises its discretion to refuse the preliminary reference sought by the petitioners under art. 267 TFEU on this application. Such a decision as to the making of a preliminary reference would be premature at this stage and is more appropriate for consideration at the substantive trial of the action.’
16. The petitioners brought an appeal against the judgment and order of Gilligan J. to the Supreme Court. The judgment was delivered by the Supreme Court on 16th May, 2013 (Neutral Citation [2013] IESC 25). The appeal was dismissed. The judgment of the Supreme Court was delivered by Hardiman J.. Mr. Skoczylas has relied on a number of passages from that judgment. First, Hardiman J. made the following observation as to the argument advanced on the basis of European law:
‘It appears to the Court, as it appears in relation to the domestic law issues, that the jurisdiction which the Court enjoys under s.205 is broad enough to allow the Court to put in place any appropriate remedy that may be necessary to provide a remedy for any breach of European Law which may be made out. Thus, there does not appear to be any remedy which might be given at this stage that could not also be given after the trial so that the only issue that arises is one of a delayed rather than a refused remedy.’
Later, Hardiman J., having alluded to the possibility that Mr. Skoczylas would not be re-elected to the Board of Holdings at the Annual General Meeting of Holdings which was due to take place less than a week later, stated:
‘. . . the Court believes that its powers under a s.205 application, if the petitioners are successful, are very wide and will enable it to take every possible step to compensate the petitioners for the wrong which will have been done to them if they are successful with their petition.’
Hardiman J. concluded with the following observations, on which Mr. Skoczylas also relied:
‘The Court will end with a reflection of what it said at the start. The petitioners have plainly shown a very serious issue to be tried being the issues raised in the s.205 Petition and it is manifestly necessary in the interest of the Company that its conduct during the probable period of exclusion of Mr. Skoczylas following the refusal of relief reflects the possibility that he will be successful in these proceedings.’”
3.5 For the purposes of this judgment, the direction order made on the 26th July, 2011 will be referred to as “the 2011 Direction Order”. The proceedings, referred to at para. 7 of the trial judge's judgment already cited, brought seeking to set aside the 2011 Direction Order will be referred to as “the 2011 Application”. The direction order made on the 28th March, 2012 will be referred to as “the 2012 Direction Order”. The application to set aside that order will be referred to as “the 2012 Application”.
3.6 It is next necessary to turn to the High Court judgment.
4. High Court judgment
4.1 As noted earlier, in the High Court the appellants sought an interlocutory prohibitory injunction restraining the Minister from completing the sale of the company until:-
(i) the adjudication of the 2011 application;
(ii) the adjudication of an appeal from the orders and judgment of Peart J. in the 2012 application;
(iii) the Court has adjudicated upon certain reliefs sought in the plenary proceedings, the terms of which reliefs, as set out in the notice of motion were replicated in Appendix A of the judgment of the High Court;
(iv) the Court has adjudicated upon certain reliefs sought in the s. 205 proceedings, which were set out in Appendix B of the High Court judgments.
Also, the appellants sought a preliminary reference to the European Court of Justice.
4.2 A number of features of the High Court judgment should be noted at this stage.
4.3 First, the High Court held that the appellants had standing.
4.4 The High Court went on to hold that the appropriate course to adopt was to apply the criteria laid down in Campus Oil Limited v. Minister for Industry and Energy (No. 2) [1983] I.R. 88, as to when it is appropriate to grant an interlocutory injunction, as recently reiterated and returned by this Court in Okunade v. Minister for Justice, Equality and Law Reform [2013] 1 ILRM 1.
4.5 It was noted that the Minister conceded that there was a fair issue to be tried.
4.6 The High Court found, on analysing the facts, that the risk of injustice was minimised by refusing to grant the injunction, and that, therefore, the balance of convenience favoured adopting that course.
4.7 As to whether damages would be an adequate remedy for the appellants if they were refused an injunction and subsequently were successful at the trial, the High Court considered that the appellants would be adequately compensated in damages for any consequential loss suffered by them. It was held that, if the appellants could establish that they have been deprived of a financial gain, the appellants’ remedy would be an award of damages.
4.8 On the issue as to whether the appellants could give an undertaking as to damages which would adequately compensate the Minister if the injunction were granted and the Minister was subsequently successful at the trial of the action, the Court noted that Mr. Skoczylas had recognised that the appellants could not give a realistic undertaking as to damages. The High Court concluded that the Minister would not be adequately compensated in damages by any undertakings given by the appellants. The trial judge pointed out what she considered to be the importance of the issue of damages in this case, stating:-
“45. It is important to emphasise that unlike cases solely involving public law issues, this is not a case in which the adequacy of damages and the ability to discharge an award of damages on either side is irrelevant. Although the various proceedings which the [appellants] have initiated against the Minister will undoubtedly involve a myriad of national and EU public law issues, in all of the proceedings the basis on which the plaintiffs claim to have locus standi to bring proceedings against the Minister is that they are members of Holdings and, as such, their private rights are being infringed, whether by reason of breach by the Minister by the Act of 2010, or their constitutional rights, or EU law. In seeking to injunct the completion of the sale to Canada Life, in essence the [appellants] are endeavouring to protect their private law interests derived from their shareholding in Holdings, whereas the Minister, in resisting the injunction, has advanced the protection of the asset in sale, the Company. Irrespective of the fact that the Minister acquired that asset through a statutory process which the [appellants] impugn, it is not open to the Court to ignore the fact that the [appellants] are not in a position to give an undertaking as to damages which would adequately compensate the Minister in the event of it transpiring that the Court should have refused the injunction.”4.9 The trial judge noted that the Minister had raised the issue of the delay of the appellants submitting that, as an injunction is an equitable remedy, the appellants had lost their right to that remedy because of their delay. On this issue the trial judge held:-
“47. In this case it is clear that Mr. Skoczylas was aware as early at 5th January, 2013 that a sale of the Company to Canada Life was being negotiated. When the fact that the Minister had entered into a contract with Canada Life was announced on 19th February, 2013, the Court gave the plaintiffs leave to issue a motion seeking an interlocutory injunction returnable for the following week. However, despite the fact that the Court was prepared to accommodate the plaintiffs with an early hearing, which counsel for the Minister emphasised was crucial, the motion was not issued. In the circumstances, I consider that there was unreasonable delay on the part of the plaintiffs in commencing this application. I am also satisfied that, given that the anticipated date for completion of the sale was imminent, in fact, just approximately a month hence, when the application was commenced, it would be unjust to grant the plaintiffs at that late stage an injunction restraining completion of the sale. However, the primary basis on which I am refusing to grant an interlocutory injunction is that the balance of justice militates against making such an order for the reasons set out earlier.”
4.10 Finally, in relation to the matter of a preliminary reference to the European Court of Justice ("ECJ"), the trial judge decided to leave the question of a reference for determination at one or more of the future substantive trials of the related actions.
4.11 Against the background of that judgment, it is next necessary to turn to the notice of appeal.
5. Notice of Appeal
5.1 The appellants filed an extensive notice of appeal raising issues across the entire judgment of the High Court. This Court will refer, in due course, to the basis of that appeal. The substance of what is sought is set out on p. 5 of the notice of appeal in the following terms:-
"An order by way of an appeal from the entire judgment of the High Court (Laffoy J.) delivered on the 2nd day of July 2013 and the respective order made on the 2nd day of July 2013 and perfected on the 2nd day of July 2013, reversing the said order and judgment of the learned trial judge".
5.2 In substance, therefore, the appellants asserted that, in reversing the judgment and order of the trial judge, this Court should grant the interlocutory injunction sought and refused before the High Court. The notice of appeal also sought a reference to the European Court of Justice. It is next necessary to turn to the submissions.
6. Submissions
6.1 The parties filed written submissions. The Court initially heard oral submissions on the 8th July, 2013, where, in addition the Court had the benefit of a written document of outline oral submissions of Mr. Skoczylas. It should be recorded that the hearing concluded, as originally envisaged, on the 8th July. However, the Court, having considered the submissions of the parties, felt that there were a number of questions on which further clarification was required.
6.2 To that end the Court listed the matter for further submissions on the afternoon of the 12th July. The Court will refer to those clarifications as they arise in the context of the issues dealt with in this judgment. It should also be recorded that, on the occasion of the further hearing on the 12th July, additional written submission were filed on behalf of the Minister and a second document outlining oral submissions was tendered by Mr. Skoczylas.
6.3 As a result of both the written and oral process there were three issues before the Court in addition to the substantive question as to whether the trial judge was correct to refuse, on its merits, the interlocutory injunction sought by the appellants. Those were the questions of standing, delay and bias. It is appropriate to turn first to those preliminary questions. In that context it is appropriate to start with the question of standing.
7. Standing
7.1 The standing question was raised on behalf of the Minister before the High Court (although unsuccessfully) and was repeated before this Court. The Minister had previously challenged the standing of those of the appellants who were involved in the respective challenges to the two direction orders which have already been referred to. In the case of the challenge to the 2011 Direction Order, Feeney J. held that the relevant appellants had standing although that finding is under appeal by the Minister to this Court.
7.2 In determining the challenge to the 2012 Direction Order, Peart J. held that the relevant appellants involved in that challenge did not have standing (because they were shareholders in Holdings while that direction order related to the transfer of an asset (being Irish Life) from a subsidiary of Holdings to the Minister). However, the relevant appellants have appealed to this Court against the whole of the finding of Peart J. in dismissing their challenge to the 2012 direction order including his finding on standing.
7.3 The question of standing is, therefore, very much alive in both of the cases in which a challenge is brought to the respective direction orders. It would not be appropriate for this Court, on an interlocutory application such as this, to reach a definitive conclusion on those important questions. For that reason, like the trial judge, the Court was prepared to accept, for the purposes of this application, that the appellants have standing. It is next appropriate to turn to delay.
8. Delay
8.1 The Minister argued before the High Court that the appellants were guilty of unreasonable delay such as would disentitle them to an interlocutory injunction. Before going on to consider the specific circumstances of this case, it is important to emphasise a number of features of the delay jurisprudence of the Irish courts which are relevant to the Minister's contention.
8.2 First, there is a distinction to be made between delay in the context of the progress of proceedings once commenced, on the one hand, and delay in commencing proceedings, on the other. While there may be some overlap between the two concepts there are significant differences. The delay jurisprudence, both of the Irish courts and of the European Court of Human Rights, on which the appellants seek to rely is concerned with delay in the conduct of proceedings once commenced (see Gilroy v. Flynn [2004] IESC 98 and Union Alimentaria Sanders SA v. Spain (1990) 12 EHRR 24).
8.3 Second, there is a difference between delay in the initiation of proceedings which may disqualify a party from being able to bring the proceedings at all, on the one hand, and delay which is relevant to the grant of interlocutory injunctive relief, on the other hand. So far as delay preventing proceedings from being brought at all is concerned, depending on the type of proceedings launched same may be governed by a specific limitation period or, in certain types of cases, by the doctrine of laches. The appellants cite Spry "The Principle of Equitable Remedies" (8th Ed., 2010) for the circumstances in which a defence of laches can be maintained. However, that passage is concerned with the circumstances in which a defendant may have a defence to the entire proceedings because of an unreasonable delay in the commencement of the proceedings such that it would be unjust to grant relevant relief.
8.4 However, additional considerations come into play where a party seeks an interim or an interlocutory order. It is inevitable that parties seeking such measures will require an urgent and early determination by the court of their entitlement. To take this case as an example, the Minister's stated position was that he wished to complete the sale of Irish Life to Canada Life in the week commencing the 8th July, 2013 (in particular on the 10th). In the absence of some appropriate court order which would preclude the Minister from so doing, the stated position of the Minister was that it was his intention to complete the sale within that timeframe. It follows that the question of whether there should or should not be an interlocutory injunction to prohibit the completion of that sale would have become moot if the Court was not able to consider the application for an interlocutory injunction in a timeframe sufficient to allow a decision to be made before the intended date of completion.
8.5 There are a number of factors at play. First, the Court itself must be given a reasonable opportunity to consider whether a temporary injunction should be granted within the timeframe necessary to allow the injunction, if the Court is persuaded to grant it, to have effect. A party who, without reasonable explanation, delays in seeking an interlocutory injunction until almost the last moment before the time when the event which is sought to be injuncted is likely to occur can rightly be said to have brought any difficulties thereby ensuing on its own head. In most cases it will be inappropriate to grant a temporary injunction without giving the defendant an opportunity to put in evidence and be heard in argument. If the application is brought so late that such a course of action becomes difficult or impossible (or if the defendant’s entitlement to a fair hearing is thereby impaired) then that is a factor which the court has to take into account.
8.6 It can, of course, be the case that a court in such a situation may, if the circumstances allow, impose a short term injunction to afford an opportunity for a proper hearing. But there are strong reasons for suggesting that the imposition of even a short term injunction on a defendant without giving that defendant an opportunity to be heard and giving the Court a reasonable opportunity to consider whether an injunction should be granted is undesirable, and is particularly unjust if the only reason for adopting that course of action is that the applicant for the injunction brought their motion so late as to leave insufficient time for a proper consideration of the matter, giving appropriate recognition to the entitlement of the defendant to present its case. If the applicant might not be entitled to an injunction at all, why should the applicant get an injunction simply because the Court is placed in an impossible position by virtue of the late commencement of the application?
8.7 In that context, it is also important to note that the issue, to which reference will need to be made shortly, as to the contractual framework within which the Minister may be obliged to complete the sale of Irish Life is not relevant. If the Minister is correct in his contention (or even if that is arguably so) that he is free to sell Irish Life then any injunction preventing him from so doing at a time of his choosing is an infringement or potential infringement of his rights. It may be that such an infringement becomes necessary by the application of appropriate principles to the consideration of whether an interlocutory injunction should be granted. However, amongst the rights of the Minister is an entitlement to be heard before that is done. If, by unreasonable delay, it could be said that the appellants might, as it were, obtain an injunction by default or otherwise impair the reasonable opportunity of the Court to consider the matter then that is indeed a significant factor to be taken into account.
8.8 Indeed, there is a very real sense in which such an event has already happened on the facts of this case. When the initial hearing concluded on the 8th July, the Court indicated that it would require some time to consider the important issues raised on this application. The Court indicated to the Minister that, without making a formal order, the Court would expect that the Minister would not proceed to complete the sale of Irish Life until the Court had had an opportunity to consider its ruling but on the understanding that the ruling would be delivered not later than the 19th July (which was the date on which, on the Minister's case, the contractual obligation to close with Canada Life arose). The Minister's stated position was that he wished to close on the 10th July. As a matter of fact the timing of the bringing of this interlocutory application by the appellants has led to the Minister having, as a matter of practice, to delay that closing. If it could be said that there was significant and culpable delay on the part of the appellants in the commencement of the interlocutory application then it might be said that that delay has already led to an interference with the Minister's rights.
8.9 It is for reasons such as those that the jurisprudence of the Irish courts (and those in many if not all common law countries) leads to the courts scrutinising the expedition within which a party moves for interim or interlocutory relief, for failure to do so runs a significant risk both to the Court having a reasonable opportunity to give adequate consideration to the issues and the defendant having a reasonable opportunity to be heard as to why the measures sought should not be imposed.
8.10 The factors, therefore, which come into play in assessing whether a party has moved with reasonable expedition in applying for an interim or an interlocutory injunction are different, and are governed by much stricter scrutiny, than those which apply when the Court is considering whether a party has lost all entitlement to bring proceedings at all as a result of laches or delay, or where it is said that a party has been guilty of inordinate or inexcusable delay in the conduct of proceedings once commenced.
8.11 Finally, before going on to the facts of this case, it is important to note the contention of the appellants that "there is no EU law that would determine that any delay could be fatal in respect of the injunction in question in circumstances of the egregious breaches of EU law". It will be necessary to return to the question of whether it can properly be said that the breaches of EU law alleged against the Minister are egregious. Leaving that point aside for the moment, it is important to emphasise, for reasons which will be analysed in more detail later in this judgment, that procedural questions in applications such as this are dealt with, as a matter of EU law and based on the jurisprudence of the ECJ, in accordance with national law, subject to relevant national procedural law complying with the principles of equivalence and effectiveness.
8.12 The delay jurisprudence sought to be relied on by the Minister applies in exactly the same way in respect of any comparable domestic application for an interlocutory injunction and there is, therefore, no question of the breach of the principle of equivalence. As will again be explored in more detail, the principle of effectiveness requires that national procedural law cannot make the achievement of an EU law mandated remedy "practically impossible or excessively difficult". But it is clear that Irish law does not impose impossible obligations on parties who seek interlocutory injunctions. If, in all the circumstances, a party has not been guilty of unreasonable delay then, even if the application is brought late with all of the consequences which the Court has sought to analyse, nonetheless the Court will have to do the best it can in those difficult circumstances for, as a matter of Irish law, a party could not be deprived of an opportunity to seek an interlocutory injunction on the grounds of delay where, in all the circumstances, it could not be said that the party was materially culpable.
8.13 While the ECJ has not addressed effectiveness in exactly this situation assistance can be found in the judgment in Case C-327/00 Santex SpA v. USSL [2003] ECR I-1877. That case, it is true, concerned a limitation period imposed by national procedural law in the context of public procurement litigation. Santex was, therefore, concerned with a specific period within which proceedings had to be commenced rather than a more general requirement, such as applies in the context of Irish procedural law relevant to the grant or refusal of interlocutory injunctions, that parties move with reasonable expedition. However, the ECJ in Santex referred to its previous decision in Case C-470/99 Universale-Bau and Others [2002] ECR I-11617, in which the Court had held that a limitation period did not infringe the principle of effectiveness provided that the time limit in question was reasonable. However, the Court went on, in Santex at para. 56, to state a general principle in the following terms:-
"56. However, for the purpose of applying the principle of effectiveness, each case which raises the question whether a national procedural provision renders application of Community law impossible or excessively difficult it must be analysed by reference, in particular, to the role of that provision in the procedure, its progress and its special features, viewed as a whole (see Case C-32/93 Peterbroeck and Others [1995] ECR I-4599, paragraph 14).
57. Consequently, although a limitation period such as that at issue in the main proceedings is not in itself contrary to the principle of effectiveness, the possibility that, in the context of the particular circumstances of the case before the referring court, the application of that time-limit may entail a breach of that principle cannot be excluded."
8.14 However, an identical principle applies in Irish law. If requiring a person to move with a particular level of expedition would, as a matter of practicality, either generally or on the facts of a particular case, render the exercise by that party of any entitlement which they might other wise have to an interlocutory injunction to be impossible or excessively difficult, then, as a matter of Irish procedural law, no such obligation could be imposed. As pointed out, in such circumstances, a court would have to do the best it could in dealing with an application for an interlocutory injunction even though an application first made at a time which was very close to the event sought to be restrained might impose difficulties on both of the Court and any party likely to be affected by the making of the relevant order.
8.15 In those circumstances, applying national law, a party will, therefore, only be excluded from an interlocutory injunction on the grounds of delay if the Court concludes, on the facts, that the party could and should have applied with much greater expedition. In such a factual situation, it is impossible to say that the party did not have an effective remedy for it would, on that hypothesis, be clear that the party could and should have brought the application much earlier.
8.16 It is against those legal principles that the Minister's case for delay needed to be considered.
8.17 It is first appropriate to set out the time line:
(i) June, 2011
An initial direction order provided that Minister could prepare for the sale of Irish Life by initial public offering or private sale. That order has not been challenged.
(ii) July, 2011
The 2011 Direction Order provided for the investment by the Minister of up to €3.8 million in Holdings. This was partly affected by a subscription of €2.3 billion for shares and arose because the Bank was said to be unable to meet the capital requirements of the Central Bank. As a result the Minister became 99.2% shareholder in Holdings, giving him control of Holdings and thus control of the Bank and, indeed, Irish Life. Proceedings were initiated pursuant to s. 11 of the 2010 Act seeking to set aside the 2011 Direction Order.
(iii) March, 2012
The 2012 Direction Order directed that the Bank should sell Irish Life to the Minister for €1.3 billion, with the sale to be completed not later than 30th June, 2012. Proceedings were initiated to set aside the 2012 Direction Order. Those proceedings were determined by Peart, J. on the 28th June 2012, who refused to set aside that Direction Order. The sale of Irish Life and its subsidiaries to the Minister was subsequently completed.
8.18 Laffoy J. observed that the implementation of the 2012 Direction Order was “in reality the sale of the insurance business of Permanent TSB group of companies”. Such a sale, including the possibility of a sale affected as a private sale, had been in prospect since June 2011. The Minister acquired Irish Life and its subsidiaries on the 29th June, 2012, for the consideration of €1.3 billion.
8.19 Following reports in the media in December, 2012, Mr. Skoczylas wrote to the Minister in January, 2013 seeking to stop the sale of Irish Life. Then on the 19th February, 2013 a first application was made to restrain the Minister from going ahead with the sale of Irish Life. What happened when an ex parte application was made in the High Court on 19th February, 2013 is set out in Laffoy, J.’s judgment at paragraph 12 as already cited.
8.20 One of the upshots was that Mr. Skoczylas, by email, informed “the solicitors on record for the Minister and the Registrar of the Court that the petitioners in s. 205 proceedings did not intend to pursue the application for injunctive relief at that stage. The notice of motion which Mr. Skoczylas was given leave to issue was not issued.” (Laffoy, J. paragraph 12). This application for interlocutory relief was commenced on the 5th June, 2013, by the issuing of a motion on the dame day that a plenary summons was filed.
8.21 A number of aspects of the legal background to that sequence of events also need to be noted. First, it is important to have regard to s. 11(4) of the 2010 Act. The general scheme of the Act is that the Minister may make an application for a direction order by an ex parte application to the High Court. If granted, any person having standing can apply, within five days, for an order setting aside the direction order. However, s. 11(4) makes clear that, even if the direction order is ultimately set aside, same is without prejudice to any actions taken on foot of the direction order pending the decision of the High Court to set aside. It is clear, therefore, that at least so far as Irish law is concerned, a party who wishes to challenge a direction order must also give consideration as to whether they wish to seek any form of order from the Court preventing action to be taken pending a decision on their challenge. Section 11(4) makes clear that, in the absence of seeking a court order to restrain any action being taken, there is a risk that a successful conclusion of the proceedings may not lead to a reversal of any such actions.
8.22 Secondly, the appellants have pointed out, correctly so far as it goes, that the statutory regime for challenging a direction order contained within the 2010 Act, does not, of itself, make provision for the granting of interim or interlocutory injunctions. However, as these very proceedings demonstrate, there is no procedural difficulty in Irish law in a party commencing parallel injunctive proceedings designed to act in aid of a form of statutory proceedings (such as that allowed under the 2010 Act) where an injunction would not be available in those statutory proceedings. Where such procedural difficulties arise, Irish procedural law recognises that the Court has an obligation to consider whether an injunction should be granted and, if it be procedurally necessary, such an injunction can be granted in separate and parallel proceedings. Such a course of action is, in practice, by no means unusual and is a device frequently relied on by parties pursuing a form of process before the courts which, for one reason or another, does not allow an interlocutory injunction to be granted in the context of the principal process but where it is considered desirable to restrain the actions of a party pending a resolution of that principal process.
8.23 Likewise, it is not unusual for parties who have failed in an application in the High Court to seek a stay or injunction pending appeal so as to preserve the position while this Court has an opportunity to consider the appeal in question. The jurisprudence by reference to which a stay or injunction may be granted in those circumstances is well settled and the High Court, and indeed this Court, frequently has to adjudicate on such questions. It follows that there is no reason in principle why a party who has lost a case in the High Court and who wishes to appeal cannot apply, to the High Court, for an injunction to freeze the position pending a hearing of an appeal. Likewise, this Court can, if the relevant applicant is refused in the High Court, deal with the matter by way of appeal. It is in that context necessary to make reference to the argument put forward on behalf of the appellants to the effect that they were delayed in their ability to seek an injunction by the undoubted fact that there were complications concerning the bringing of an appeal to this Court from the decision of Peart J. Those complications stemmed in part from the fact that it took some time to perfect the order of the High Court and in part from certain legal issues concerning the right of appeal.
8.24 On the 29th June 2012, the day after the delivery of judgment by Peart J. in the High Court, Mr. Skoczylas sent an email to the registrar seeking a perfected order. A follow up email was sent on the 1st July, 2012. Mr. Skoczylas received a reply on the 2nd July, 2012, indicating that it was normal practice not to perfect orders until all matters had concluded and that the issue of costs was still outstanding. Mr. Skoczylas immediately replied re-iterating the urgency of the case and citing s. 64 of the 2010 Act. The following day, Mr. Skoczylas received a brief email confirming the court’s position on the matter.
8.25 In February 2013, the respective solicitors for the Minister and Irish Life communicated to the Courts Service that they were of the opinion that there should be five orders arising from the proceedings. Copies of these proposed orders were provided to Mr. Skoczylas. Mr. Skoczylas disagreed with the content of these orders and was of the opinion that there should only be one order. A new, single order was then drafted, but again Mr. Skoczylas objected to it for a number of reasons. He also provided his own draft order. The matter was then listed before Peart J. and he confirmed the order in court on the 25th April, 2013.
8.26 Then, in May 2013, Mr. Skoczylas, again made repeated attempts to get the perfected order. The perfected order was received on the 20th May, 2013. An appeal was lodged on the 10th June, 2013.
8.27 Section 64 of the 2010 Act provides:-
“(1) The determination of the Court of an application for leave to apply for judicial review, or an application for judicial review, is final and no appeal lies from the decision of the Court to the Supreme Court in either case, except with the leave of the Court.
(2) A direction order, special management order, subordinated liabilities order or transfer order, and an order varying such an order or setting it aside, is final and no appeal lies from the order of the Court to the Supreme Court except with the leave of the Court.
(3) The Court shall grant leave under subsection (1) or (2) only if the Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.
(4) On an appeal from a determination of the Court in respect of an application referred to in subsection (1), or an appeal from an order referred to in subsection (2), the Supreme Court—
(5) This section does not apply to a determination of the Court in so far as it involves a question as to the validity of any law having regard to the provisions of the Constitution.”
As mentioned above, the Act does not make express reference to interlocutory or injunctive relief.
8.28 However, there is no basis in Irish procedural law for suggesting that the appellants were in any way precluded from bringing an application for an injunction to restrain the Minister simply because of any of the difficulties identified. Many parties, having lost in the High Court, ask the High Court, in advance of any appeal being filed, to grant an injunction to preserve matters pending appeal. Such orders are not infrequently granted. The fact that the application in this case could not have been made in the statutory process under the 2010 Act does not, for the reasons already analysed, and as the appellants are clearly aware having brought these proceedings, prevent parallel proceedings being brought to achieve the same end.
8.29 The position which pertained, therefore, at the end of June, 2012, was that certain of the appellants had brought proceedings challenging the 2012 Direction Order before the High Court. Those proceedings had failed. The appellants were contemplating an appeal to the Supreme Court. However, it was clear, by virtue of s. 11(4) of the 2010 Act, that any actions taken pending a successful appeal might not, as a matter of law, be reversible. Given that the Direction Order itself required a completion of the sale of Irish Life by the 30th June, it was clear that a potentially irreversible act was due to take place on that date, as a result of which the Minister would pay over €1.3 billion to appropriate entities within the Holdings group in return for the shareholding in Irish Life. No effort of any sort was made to restrain that action pending a potential appeal to the Supreme Court. It follows that there was significant action to the detriment of the Minister which occurred by reason of the failure of the appellants to seek an injunction, at that time, to restrain the sale of Irish Life to the Minister on foot of the 2012 Direction Order. That detriment was the payment by the Minister of a sum of €1.3 billion which, if the appellants' case is correct, should never have been paid in the first place. The appellants now seek to restrain a sale by the Minister of that same asset. The current attempt by the appellants to restrain the Minister from so selling needs to be seen in the context of the fact that the appellants had an opportunity, which they declined to accept, to seek to restrain the sale to the Minister as a result of which the Minister has suffered significant potential detriment. That is a factor which must, necessarily, weigh heavily in any consideration of delay.
8.30 As to what occurred subsequent to June 2012, the case made by the appellants suggests that, up to the latter part of 2012, there was no immediate suggestion of a sale by the Minister, that thereafter they acted as quickly as they could and, in particular, that they were unable to bring the application for an interlocutory injunction until each of the four sets of related proceedings were either in being (or in the case of the appeal from the judgment of Peart J. in respect of the 2012 Direction Order, that an appeal was in being). The Court has already indicated that the appellants are simply wrong in their view that they had to wait until an appeal against the order of Peart J. was in being. Any entitlement which they might otherwise have to an injunction was equally available in circumstances where they were in a position to state that they intended to appeal and that they were delayed in so doing by reason of there not being a perfected order in place. So far as the constitutional action is concerned there does not seem to be any particular reason why that action could not have been commenced at any relevant previous point in time and any question concerning the timing of its commencement does not, therefore, seem to be material. The Court is not, therefore, satisfied that any of those reasons provide an adequate explanation for any delay in bringing an interlocutory application.
8.31 There was no reason in principle why the very application which ultimately came to be determined by the trial judge could not have been brought at any time since the decision of Peart J. in June, 2012. Whatever may be the justification for delaying in bringing the application when there might have been some doubt about whether the Minister intended to sell in early course that situation disappeared at the very end of 2012.
8.32 So far as the period thereafter is concerned the appellants rely, in particular, on two points. First, attention was drawn on the part of the Minister to the fact that the appellants were, in February, 2013, given short service so that an early date for the hearing of an interlocutory injunction could be granted. In response to that contention the appellants first say that not all of the individuals who were involved in the proceedings at that time were the same as the individuals who are involved in these proceedings. It does not seem to me that that point is of any merit. There is no reason in principle, why, if they were so minded, any party who wished to become involved in these proceedings could not have been joined at that time. If a party did not wish to become involved at that time then that is, of course, their own decision but they cannot now escape from any delay consequences. Second, it is said that the injunction contemplated at that time was based on narrower grounds than that which is now being pursued. That may well be the case. However, there is no basis, for the reasons already analysed, to suggest that all, or almost all, of the grounds now sought to be relied on could not equally have been relied on back in February of this year. The fact that what was in contemplation may have been something different is neither here not there. What is relevant is what could have been done at that time. The Court is not satisfied that there has been any significant change in events, material to the question of whether an interlocutory injunction could be sought and granted, between February 2013 and June 2013, when the application was ultimately made, such as would justify delay in that regard.
8.33 Next, the appellants say that they were unable, by virtue of having to attend to other aspects of the litigation between the Minister and themselves, to move with any greater expedition. The courts in this jurisdiction, as with the courts in many jurisdictions, will always afford self-represented parties a reasonable opportunity to be heard. Some latitude is frequently given. However, it does have to be said that, in the experience of this Court, an application of the type moved before the High Court could, with the benefit of competent legal assistance, have easily been prepared and brought before the Court within a period of no more than seven to ten days. While some additional latitude might be given to the appellants in this case, the fact that parties may choose to self-represent does not give them a licence to take a period of time which is a large multiple of the time that would be expected of a represented party. The Court is not satisfied that, by the use of reasonable expedition, an application of the type ultimately brought could not have been brought many months before June of this year. The Court is not, therefore, satisfied that there could be any question, on the facts, of it being impossible or exceptionally difficult to bring this application within a much shorter time frame.
8.34 Finally, the appellants draw attention to correspondence which passed between them and the parties to the contract to sell Irish Life between February and the commencement of the interlocutory injunction proceedings which, it is said, keeps alive the prospect of an application being made. While the correspondence is to that effect, it seems to this Court that the point made begs the question. A party cannot delay an application for an interlocutory order (and thus place both the courts and their opponent under difficulty) simply by reserving their position. The obligation is to move for an interlocutory injunction with all reasonable expedition. Time is not automatically extended simply by the unilateral act of reserving your position. Indeed, the fact that the courts were placed in an extremely difficult position by virtue of the delay on the part of the appellants in moving for this interlocutory injunction can be demonstrated by the fact that, immediately after each of the hearings before this Court, the Court received correspondence from the appellants drawing attention to certain additional parts of the documentation filed and indicating that it was necessary, in order that there be a fair process, that the Court read those documents and also consider some additional points made, in the context of those documents, by the appellants. Such a procedure has no legal basis in Irish procedural law but nonetheless no objection was taken either by the Minister or the Court in the circumstances of this case. However, it goes to demonstrate the difficulty with which this Court was faced. On the Minister's case, the Minister had a legal entitlement to close the sale of Irish Life and was minded so to do on the 10th July. The papers for this appeal were made available to the Court on the previous Friday, being the 5th, for the purposes of a hearing on the 8th. That time frame was a direct consequence of the delay on the part of the appellants in moving for an interlocutory injunction. The fact that the appellants felt it appropriate to request, after the hearing on the 8th and again after the resumed hearing on the 12th, that the Court consider specific additional matters not focussed on at the oral hearing, demonstrates the difficulty. Those difficulties would simply not have arisen if the appellants had brought their interlocutory application much earlier.
8.35 The Court was not, therefore, satisfied that the appellants moved with anything like reasonable expedition in all the circumstances of the case. In particular, the complete failure of the appellants to seek an appropriate injunction to restrain the transfer to the Minister in June 2012 coupled with the failure to take any reasonable steps to bring an interlocutory application to restrain the sale by the Minister within a reasonable period after it became clear that the Minister intended to do so seems to this Court to amount to such unreasonable delay. The Court was not satisfied that a requirement that the appellants move with significantly greater expedition would have imposed any real barrier on the appellants' entitlement to bring an interlocutory injunction before this Court. The appellants chose to direct their resources at the relevant times in other directions. However, there was nothing which could have prevented the appellants in moving with much greater expedition. The Court will leave over to the end of this judgment any question of the consequences of the appellants' unreasonable delay. In that context it is next necessary to turn to the question of bias.
9. Bias
9.1 The principal ground for alleging bias is a statement made by the trial judge, quoted at para. 16 of the notice of appeal, to the following effect:-
"There is absolutely no way in which I would - no matter what the circumstances were - there is no way I would have made an interim order in this matter because of the importance of the underlying issue".
It is asserted that this statement indicated, or would indicate to a reasonable person, that the trial judge had prejudged the matter and was not prepared to properly consider the appellants' application for an interlocutory injunction on its merits.
9.2 The test for the establishment of objective bias is well settled. In Bula Ltd v Tara Mines Ltd (No.6) [2000] 4 I.R. 412, Denham J. stated:
“It is well established that the test to be applied is objective, it is whether a reasonable person in the circumstances would have a reasonable apprehension that the applicants would not have a fair hearing from an impartial judge on the issues. The test does not invoke the apprehension of the judge or judges. Nor does it invoke the apprehension of any party. It is an objective test - it invokes the apprehension of the reasonable person."
It is important to emphasise that the relevant test operates by reference to a reasonable bystander but also to a bystander who is reasonably well informed as to any matters relevant to the issue on which the decision maker is required to decide.
9.3 It became clear at the hearing that the appellants were under a fundamental misapprehension as to the meaning of the term "interim order" as used in Irish procedural law and, thus, as used by the trial judge. The term "interim measures" has, of course, a clear meaning as a matter of European Union law. Interim measures involve orders made in advance of a final determination of proceedings for the purposes of dealing with the temporary situation which is to pertain until the proceedings have been resolved. However, in Irish procedural law, temporary injunctions are divided into interim injunctions which are granted ex parte (without the person sought to be bound by the injunction being notified and heard) and interlocutory injunctions which are granted after the person sought to be bound has been put on notice and given an opportunity to file evidence and make argument as to why the injunction should not be granted. Both interim injunctions and interlocutory injunctions (in the sense in which those terms are used in Irish procedural law) come within the general ambit of interim measures as that term is used in European Union law.
9.4 However, it is manifestly clear that all the trial judge was saying in the comment referred to in the notice of appeal was that this would not have been an appropriate case for the grant of an interim order or injunction in the sense in which that term is used in Irish procedural law. In that context the trial judge was clearly correct. The jurisprudence of the Irish courts (and indeed all other common law courts) makes clear that the jurisdiction to grant an interim order should be sparingly exercised precisely because it involves making an order against a party who has not had an opportunity to be heard. Such orders should only be made where there is no feasible alternative in order to protect the rights asserted. The normal alternative, which must always be considered, is that the relevant defendant to be given at least some short notice and given, thereby, an opportunity to be heard. It is only when even a very short period of notice would run the risk of irreparable harm occurring that it is appropriate for a court to make an interim order. The trial judge was, therefore, correct to observe that this was not a case where an interim order could have been appropriate. Anyone with even a minimal understanding of Irish procedural law in this area would have understood the trial judge to be saying no more than that and would not have understood the trial judge to be giving any indication as to what the result of any interlocutory application with which she might be engaged ought to be. While it is true that the appellants have displayed considerable endeavour in mounting these claims (a matter commented on by a number of judges) nonetheless there is, understandably, sometimes demonstrated a failure to properly understand aspects of Irish procedural law. The Court should, however, state that it is a lot less understandable that, when the misapprehension to which I have referred was explained, the appellants did not withdraw the allegation of bias against the trial judge but rather persisted in it. Mr. Skoczylas referred to the fact that the parties were present when the comment concerned was made and that the application was not, thus, ex parte. However, that is to ignore the fact that there had been an earlier ex parte application.
9.5 In addition, it does need to be said that it was not absolutely clear as to what the appellants wished to achieve by raising the allegation of bias. The appellants were already before this Court on appeal. Any error by the trial judge which could be established was capable of being fully dealt with on appeal. The only additional consequence of a finding of bias would, in reality, have been that the matter would have had to have been referred back to the High Court for trial before another judge. If a trial judge is simply wrong then any error can be corrected on appeal. If a trial judge is biased (in the sense in which that term is used in the jurisprudence) then the normal remedy is that there be a new trial of the issue at first instance by a different judge. Given the timeframe with which the courts generally have had to deal with these proceedings, it was not immediately apparent to the Court as to what would have been achieved, from the perspective of the appellants, in any event, by successfully raising a bias point.
10. The substantive question
10.1 Having dealt with the preliminary points, it is, therefore, necessary to address the substantive question of whether the trial judge was correct to refuse the interlocutory injunction.
10.2 The first matter to be determined is the law to apply to an application for an interlocutory injunction of this type. The starting point has to be to consider the test as set out in Campus Oil Ltd v. Minister for Industry and Energy (No. 2) [1983] I.R. 88, and Okunade v. Minister for Justice [2013] 1 ILRM 1. In the later case, which involved a public law challenge, it was argued that the application of a test similar to Campus Oil would amount to a denial of an effective remedy, either as a matter of Irish constitutional law, or insofar as the subsidiary protection claim at the heart of the proceedings was concerned, a denial of an effective remedy under s. 47(1) of the Charter of Fundamental Rights. Clarke J. stated that, in considering whether to grant an interlocutory injunction in the context of judicial review, the Court should have the following considerations:-
“(a) The court should first determine whether the applicant has established an arguable case; if not the application must be refused, but if so then;
(b) The court should consider where the greatest risk of injustice would lie. But in doing so the court should:-
(i) Give all appropriate weight to the orderly implementation of measures which are prima facie valid;
(ii) Give such weight as may be appropriate (if any) to any public interest in the orderly operation of the particular scheme in which the measure under challenge was made; and
(iii) Give appropriate weight (if any) to any additional factors arising on the facts of the individual case which would heighten the risk to the public interest of the specific measure under challenge not being implemented pending resolution of the proceedings;
but also
(iv) Give all due weight to the consequences for the applicant of being required to comply with the measure under challenge in circumstances where that measure may be found to be unlawful.
(c) In addition the court should, in those limited cases where it may be relevant, have regard to whether damages are available and would be an adequate remedy and also whether damages could be an adequate remedy arising from an undertaking as to damages.
(d) In addition, and subject to the issues arising on the judicial review not involving detailed investigation of fact or complex questions of law, the court can place all due weight on the strength or weakness of the applicant's case.”
10.3 The trial judge applied those principles to the interlocutory application in this case. It is necessary, of course, on this appeal to consider whether the trial judge correctly applied the principles. However, a further issue was raised by the appellants as to whether those principles determine the appropriate test by reference to which an interlocutory injunction should be considered where amongst the issues raised on behalf of the relevant plaintiff are issues of EU law. The appellants devoted a considerable portion of their allotted time at the oral hearing in addressing the Court on what are, in reality, very standard and well established propositions of Union law.
10.4 However, the general principles of applicable EU law are not in doubt. That national courts are required to interpret national law in the light of the wording and purpose of relevant directives in order to achieve the result envisaged by the directive in question is undoubtedly a general principle which must be applied by this Court. (Case C-222/84 Johnson v. Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651).
10.5 That a rule of national law which prevents a party from being able to enforce rights conferred by Union law may have to be disapplied is also a well established and understood principle of Union law (Case C-106/77 Amministrazione delle finanze dello Stato v Simmenthal SpA [1978] ECR 629; and Case C-213/89 The Queen v Secretary of State for Transport, ex parte Factortame [1990] ECR I-2433).
10.6 Likewise, at the level of general principle, it is clear from cases such as Unibet (Case C-432/05 Unibet (London) Ltd and Unibet (International) Ltd v Justitiekanslern [2007] ECR I-2271) that it is, in principle, for national law to determine the procedural rules governing actions for safeguarding an individual's rights under Union law but that those rules must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by community law (principle of effectiveness). There is no doubt as to the applicability of those principles to a case such as this in which a significant part of the claim asserted by the appellants places reliance on Union law.
10.7 It must, however, be said that it is unfortunate that so much time was spent by the appellants in addressing those general principles (which were not in controversy in the case and which are more than familiar to the Court) so that insufficient emphasis was placed on the argument put forward as to why it was said that the Okunade test fails to comply with those principles. As the Okunade test is the appropriate basis for considering domestic public law challenges in which an interlocutory injunction is sought, it is hard to see how there could be any question as to breach of the principle of equivalence. Applying that test is applying exactly the same test as applies in any equivalent domestic proceedings. While there was an assertion that it might be necessary to disapply national law in order to ensure that full effect was given to Union law, it was not, it has to be said, particularly clear as to what precise rule of national law it was said needed to be disapplied. Furthermore, it was asserted that the application of the Okunade test would breach the principle of effectiveness. While some argument was put forward as to why it was said that might be so, there was little detailed argument or analysis as to why it was asserted that the application of the Okunade test would fail to meet the principle of effectiveness. Undoubtedly, the appellants sought to argue that the way in which the trial judge applied the test failed to give them an effective remedy. Indeed, one of the central points of the appellants' case on appeal was based on just that assertion. However, it is difficult to see what aspect of the test itself (as opposed to the manner in which the test was applied in this case) was said to breach the principle of effectiveness.
10.8 Perhaps the clearest expression of the point made by the appellants on this appeal is to be found at para. 32 of the document handed into court on behalf of the appellants as a guide to the oral submissions made by them on this appeal. That paragraph reads as follows:-
"The balance of convenience as the determinant of this injunction must fall in favour of the preservation of EU law and the vindication of minimum rights enshrined in EU law. The Court plainly cannot determine that it is more convenient to breach EU law".
In like manner, the appellants assert that a failure to grant an injunction to prevent a sale of an asset where there is a challenge to the ownership to that asset based on EU law must necessarily result in the injunction being granted at least in circumstances where it is asserted that the transaction would, either as a matter of law or as a matter of practicality, be substantially irreversible.
10.9 Before considering how such an assertion fits in with the Okunade test, it is necessary to consider some of the jurisprudence of the ECJ concerning what, as a matter of Union law, are described as interim measures. In Joined Cases C-143/88 and C-92/89, Zuckerfabrik Süderdithmarschen AG v. Hauptzollampt Itzehoe and Zuckerfabrik Soest GmbH v. Hauptzollampt Paderborn [1991] ECR I-415 ("Zuckerfabrik") the ECJ had to consider the jurisdiction of a national court to take interim measures in the light of an allegation that a European Union measure was invalid having regard to the treaties. At paras. 17-33, the ECJ observed that the right to challenge Union measures:-
“17 … would be compromised if, pending delivery of a judgment of the Court, which alone has jurisdiction to declare that a Community regulation is invalid (see judgment in Case 314/85 Foto-Frost v Hauptzollamt Luebeck-Ost [1987] ECR 4199, at paragraph 20), individuals were not in a position, where certain conditions are satisfied, to obtain a decision granting suspension of enforcement which would make it possible for the effects of the disputed regulation to be rendered for the time being inoperative as regards them.
18 … The coherence of the system of interim legal protection therefore requires that national courts should also be able to order suspension of enforcement of a national administrative measure based on a Community regulation, the legality of which is contested.
19 Furthermore, in its judgment in Case C-213/89 (The Queen v Secretary of State for Transport, ex parte Factortame Ltd and Others [1990] ECR I-2433), delivered in a case concerning the compatibility of national legislation with Community law, the Court, referring to the effectiveness of Article 177, took the view that the national court which had referred to it questions of interpretation for a preliminary ruling in order to enable it to decide that issue of compatibility, had to be able to grant interim relief and to suspend the application of the disputed national legislation until such time as it could deliver its judgment on the basis of the interpretation given in accordance with Article 177.
20 The interim legal protection which Community law ensures for individuals before national courts must remain the same, irrespective of whether they contest the compatibility of national legal provisions with Community law or the validity of secondary Community law, in view of the fact that the dispute in both cases is based on Community law itself.
21 It follows from the foregoing considerations that the reply to the first part of the first question must be that Article 189 of the Treaty has to be interpreted as meaning that it does not preclude the power of national courts to suspend enforcement of a national administrative measure adopted on the basis of a Community regulation.
…
23 It must first of all be noted that interim measures suspending enforcement of a contested measure may be adopted only if the factual and legal circumstances relied on by the applicants are such as to persuade the national court that serious doubts exist as to the validity of the Community regulation on which the contested administrative measure is based. Only the possibility of a finding of invalidity, a matter which is reserved to the Court, can justify the granting of suspensory measures.
…
25 As regards the other conditions concerning the suspension of enforcement of administrative measures, it must be observed that the rules of procedure of the courts are determined by national law and that those conditions differ according to the national law governing them, which may jeopardize the uniform application of Community law.
26 Such uniform application is a fundamental requirement of the Community legal order. It therefore follows that the suspension of enforcement of administrative measures based on a Community regulation, whilst it is governed by national procedural law, in particular as regards the making and examination of the application, must in all the Member States be subject, at the very least, to conditions which are uniform so far as the granting of such relief is concerned.
27 Since the power of national courts to grant such a suspension corresponds to the jurisdiction reserved to the Court of Justice by Article 185 in the context of actions brought under Article 173, those courts may grant such relief only on the conditions which must be satisfied for the Court of Justice to allow an application to it for interim measures.
28 In this regard, the Court has consistently held that measures suspending the operation of a contested act may be granted only in the event of urgency, in other words, if it is necessary for them to be adopted and to take effect before the decision on the substance of a case, in order to avoid serious and irreparable damage to the party seeking them.
29 With regard to the question of urgency, it should be pointed out that damage invoked by the applicant must be liable to materialize before the Court of Justice has been able to rule on the validity of the contested Community measure. With regard to the nature of the damage, purely financial damage cannot, as the Court has held on numerous occasions, be regarded in principle as irreparable. However, it is for the national court hearing the application for interim relief to examine the circumstances particular to the case before it. It must in this connection consider whether immediate enforcement of the measure which is the subject of the application for interim relief would be likely to result in irreversible damage to the applicant which could not be made good if the Community act were to be declared invalid.
30 It should also be added that a national court called upon to apply, within the limits of its jurisdiction, the provisions of Community law is under an obligation to ensure that full effect is given to Community law and, consequently, where there is doubt as to the validity of Community regulations, to take account of the interest of the Community, namely that such regulations should not be set aside without proper guarantees.
31 In order to comply with that obligation, a national court seised of an application for suspension must first examine whether the Community measure in question would be deprived of all effectiveness if not immediately implemented.
32 If suspension of enforcement is liable to involve a financial risk for the Community, the national court must also be in a position to require the applicant to provide adequate guarantees, such as the deposit of money or other security.
33 It follows from the foregoing that the reply to the second part of the first question put to the Court by the Finanzgericht Hamburg must be that suspension of enforcement of a national measure adopted in implementation of a Community regulation may be granted by a national court only:
10.10 It is important to emphasise that the situation with which the ECJ was concerned in Zuckerfabrik is not, of course, the same as the situation with which this Court is now concerned, being one where it is alleged that a national measure taken on foot of national legislation is in breach of EU law. It is clear that different considerations apply in such cases.
10.11 As pointed out by the ECJ in Zuckerfabrik, when what is at issue is the validity of a Union measure then it is appropriate, having regard to the fact that the Union measure applies in all Member States, that there be a singe uniform test by reference to which intervention by means of interim measures is to be adopted. That test is the one identified by the ECJ in Zuckerfabrik.
10.12 Equally, it is clear from Unibet that, where there is a challenge to a national measure, national procedural rules are to apply subject to the principles of equivalence and effectiveness. It follows that it is possible that different results might arise in different member states in the event of a challenge to similar national measures because of the applicability of different procedural regimes provided always that each such regime must provide an effective remedy.
10.13 Notwithstanding those differences it does not seem to this Court that the test identified by the ECJ in Zuckerfabrik is irrelevant to the Court's consideration. It could hardly be suggested that, in formulating the test by reference to which national courts should act in circumstances such as those which arose in Zuckerfabrik, the ECJ was formulating a test which did not provide persons with an effective remedy for those European Union law rights which were said to have been breached by the adoption of an allegedly invalid Union measure. It necessarily follows that the test identified in Zuckerfabrik must be taken to amount to the provision of an effective remedy. While a national court, in a case such as this, is required to apply national procedural law subject to those rules providing an effective remedy, it follows that a national court can have regard to the Zuckerfabrik test in assessing whether an effective remedy at an interim or interlocutory stage is available.
10.14 In those circumstances, it seems to the Court that in considering whether, at an interim or an interlocutory stage, to restrain action said to be justified by a national measure whose validity is challenged on the basis of EU law, this Court should apply the Okunade test but should also have regard to the question of whether it can properly be said that a party might be deprived of an effective remedy by the Court's decision. In assessing the later question, the Court should have regard to Zuckerfabrik and allied case law.
10.15 Applying such a test could not, on any view, breach European Union law. It is applying, as Unibet requires, national procedural rules to the question. It is applying exactly the same test as would apply in equivalent domestic proceedings and thus, by definition, meets the principle of equivalence. By requiring that the Court act in a way which ensures that there be an effective remedy, the principle of effectiveness is also met. It seems to me that the Court must, in addition, be entitled to have regard to the principles for the grant of interim measures as identified in Zuckerfabrik in assessing whether there is an effective remedy for to do otherwise would be to suggest that the ECJ imposed a regime, in Zuckerfabrik, which failed to provide for appropriate effective remedies. That is the test which this Court adopted in this case.
10.16 In that context, it is important to note that the Zuckerfabrik test, as pointed out by Clarke J. in Pringle v The Government of Ireland, Ireland and the Attorney General [2012] IESC 47, arguably requires that there be a greater degree of doubt as to the validity of the measure under challenge than applies under the Okunade test. He stated at paras 9.10-9.11:
“The Campus Oil test is well settled. First the court must decide whether it has been shown by the relevant plaintiff that there is a fair issue to be tried. Thereafter the court may consider whether damages would be an adequate remedy although the relevance of such a consideration in the public law field may be doubted. Third, where damages would not be an adequate remedy, the balance of convenience must be considered. The relevant test in relation to the grant of interim measures where European Union law arises is to be found at para. 51 of the decision in Atlanta where the Court of Justice indicated that injunctive relief might be granted by a national court in relation to a national administrative measure adopted in implementation of a Union act only if:-
i. The court entertains serious doubts as to the validity of the Union Act and, if the validity of the contested act is not already in issue before the Court of Justice, itself refers the question to the Court of Justice;
ii. There is urgency, in that the interim relief is necessary to avoid serious and irreparable damage being caused to the party seeking the relief;
iii. The court takes due account of the Union interest;
iv. In its assessment of all those conditions, it respects any decisions of the Court of Justice or of the now General Court of the European Union (formerly the Court of First Instance) ruling on the lawfulness of the regulation or on an application for interim measures seeking similar interim relief at Union level.
There are, thus, some differences between the two tests. Under Campus Oil only a fair issue to be tried needs to be established. Under Atlanta the court must "entertain serious doubts" about the validity of the measure. It is at least arguable that the strength of the case needs to be established to a higher degree to meet the Atlanta test.
Thus, if anything, applying Irish national rules may afford greater protection under this heading by only requiring a person to establish a breach of their European Union rights to a lower standard for the purposes of obtaining an interim or interlocutory order.
10.17 The Zuckerfabrik test also requires that a risk of “serious and irreparable damage” be established. In that context, it is appropriate to refer to para. 9.25 from Okunade which deals with a similar question as a matter of Irish law:
“There is reference in the judgment in the High Court in this case to "irreparable harm". It is not clear whether the trial judge intended the term "irreparable harm" to mean something other than harm that is not adequately compensatable in damages. However, it seems to me that the true question is as to whether any relevant harm can be compensated in damages. The reason for this stems from the underlying principle. If a plaintiff can adequately be compensated in damages then no real injustice is risked by the plaintiff being required to wait until the trial of the action before obtaining any court intervention. Even if whatever wrong is alleged continues until the trial of the action (and thus the wrong is greater by lasting longer) nonetheless if an award of damages amounts to adequate compensation (and provided that the defendant is likely to be a mark) no real injustice will have been suffered for the plaintiff will recover additional damages to reflect the fact that the wrong was greater by lasting longer. If, and to the extent that, it can be said that exposing the plaintiff to the wrong for a longer period of time than might otherwise be the case is unjust then that will only represent a significant argument if the additional damages which would follow would be inadequate to compensate for the additional period of time for which the wrong was suffered. Any arguments that can arise under that heading are, in truth, therefore arguments as to whether damages are really an adequate remedy in the first place.”
10.18 If, therefore, in accordance with the Okunade test, damages are truly an adequate remedy then it is hard to see how any irreparable damage, in the sense in which that term is used in Zuckerfabrik, can arise. As the ECJ itself pointed out, at para. 29 of the judgment in Zuckerfabrik, it is a well established principle of European Union law that purely financial damage cannot be regarded in principle as irreparable. Whatever Union law rights are asserted can, in such cases, if they be established when the Court has had a full opportunity to examine the merits of the case, be fully compensated in damages in a way which will vindicate the person whose rights have been infringed. It is, perhaps, hardly surprising that there is such a similarity between the test identified by the ECJ and the test which applies in many national systems such as the Irish one. The problem is the same in all cases. It is that which this Court analysed in Okunade. There is an inevitable risk of injustice in either granting or refusing interim measures. If the matters are purely financial then, at least in most cases, there will be no risk of serious injustice for a party who wins can be properly compensated in damages.
10.19 So far as the balance of convenience itself is concerned it is clear from Zuckerfabrik that in an appropriate case a person challenging a Union measure may be required to give something in the nature of a guarantee. At para. 32 of that judgment, the ECJ noted that it may be appropriate, in cases where financial risk is involved, to require an applicant to provide adequate guarantees including the deposit of money or security. It is clear, therefore, that the ECJ itself recognises that one of the factors properly taken into account is the risk that an interim measure granted in circumstances where the claim made ultimately fails can run the risk of unjust losses which may require security.
10.20 It is also clear from Union law generally that the Court must engage in some balancing exercise in order to decide whether to grant interim measures. In Brearly and Hoskins, Remedies in EC Law, (2nd ed., 1998), the authors state at p.158:-
“In weighing the balance of convenience the court will have regard to the nature of the law sought to be disapplied: whether it is firmly embedded in the domestic legal order; whether it is secondary or primary legislation; and the category or numbers of persons it effects. In determining where the risk of injustice lies, the courts must have regard to the wider considerations of the public interest…. In this context, Lord Goff stated in Factortame (No.2):
“…particular stress should be placed upon the importance of upholding the law of the land, in the public interest, bearing in mind the need for stability in our society, and the duty placed upon certain authorities to enforce the law in the public interest. This is of itself an important factor to be weighed in the balance when assessing the balance of convenience. So if a public authority seeks to enforce what is on its face the law of the land, and the person against whom such action is taken challenges the validity of that law, matters of considerable weight have to be put into the balance to outweigh the desirability of enforcing, in the public interest, what is on its face the law, and so to justify the refusal of an interim injunction in favour of the authority, or to render it just or convenient to restrain the authority for the time being from enforcing the law.”
10.21 The comments of the ECJ on this matter in Case C—208/03 P(R) Le Pen v Parliament [2003] ECR I-7939 are also worth noting. At para. 106, the Court states:
“It is settled law that serious and irreparable harm, one of the criteria for establishing urgency, also constitutes the first element in the comparison carried out in assessing the balance of interests (order in Case C-87/94 R Commission v Belgium [1994] ECR I-1395, paragraph 27). More particularly, that comparison must lead the judge hearing the application to examine whether the possible annulment of the act in question by the Court giving judgment in the main action would make it possible to reverse the situation that would have been brought about by its immediate implementation and conversely whether suspension of the operation of that act would be such as to prevent its being fully effective in the event of the appeal being dismissed on the merits (see, in particular, the orders in Case C-149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I-2165, paragraph 50; and Case C-180/96 R United Kingdom v Commission [1996] ECR I-3903, paragraph 89).
10.22 The problem with which any court is faced in deciding, in advance of a time when the court has had an opportunity to fully examine the merits of the case, to make some form of interim intervention is the same in all cases including cases before the ECJ itself. The problem is analysed thus in para 9.5 of Okunade:
“… the problem stems from the fact that the court is being asked, on the basis of limited information and limited argument, to put in place a temporary regime pending trial in the full knowledge that the court does not know what the result of the trial will be. It seems to me that, recognising that a risk of injustice is an inevitability in those circumstances, the underlying principle must be that the court should put in place a regime which minimises the overall risk of injustice. It seems to me that the underlying principle remains the same whether the court is considering placing a stay on a measure or granting an injunction. Indeed, although it is unnecessary to go into detail for the purposes of this case, it seems to me that a like general principle underlies the approach of the court in many other types of cases where the same broad problem arises. In many situations it is necessary to decide what is to happen in the intervening period pending a trial or other determination (or indeed an appeal) when, by definition, it is not possible to decide what the ultimate outcome will be. All such cases involve the risk that, when the dust has settled, it will be seen that some person or body has suffered either by the intervention of the court or, equally, by its non intervention. However the only way to remove that risk of injustice would be by deciding the case, issue or appeal immediately. The whole problem is that that process takes time. In those circumstances I do not believe that the test as to whether the court should intervene pending trial depends on whether the temporary measure sought is described as a stay or as an injunction or, indeed, as any other form of order which might arise on the special circumstances of an individual case. The court must, in all cases, act so as to minimise the risk of injustice.”
10.23 The important point to emphasise is that the risk of injustice works both ways. While, understandably, the appellants emphasised the risks which would apply to them in the event that an interlocutory order was not granted but they ultimately succeeded, it must also be acknowledged that, provided that there is an arguable case for the defence, there is a real risk of injustice in the other direction as well. If the Minister succeeds in these proceedings then the Minister will establish that the asset which he wishes to sell is his asset. The Minister's property rights would be interfered with. In that eventuality, the Minister would have suffered a breach of his property rights to deal with an asset in whatever way the Minister considered to be to his best advantage (within the law) without interference. It is acknowledged that the appellants would not be able to compensate the Minister if losses were to be established in that eventuality. This is, therefore, a case where the Court was required to assess the risk of irreparable damage being caused to the Minister in the event that an interlocutory order was granted but the Minister ultimately succeeds. That irreparable damage would interfere with the Minister's property rights.
10.24 In that context, it is important to emphasise that the Minister, in seeking to sell Irish Life, is acting in a quasi private capacity in the sense that the Minister is simply seeking to sell an asset which, on his case, he owns and is entitled to sell. In that context it does not seem that there would be any legitimate basis for treating the Minister in any more favourable way (because he is a Minister) than if a private commercial entity which found itself in exactly the same position. This is not, therefore, one of those cases where some additional weight needs to be attached to the position of the Minister, as Minister, acting on foot of a duly enacted measure even where the measure concerned is under challenge.
10.25 But it cannot be the case, as is essentially asserted by the appellants, that the mere fact that there is a challenge to the ownership by the Minister (or any other person) of the asset in question, necessarily leads to the grant of an interlocutory injunction. There is at least the potential risk of irreparable damage either way. To adopt the assertion put forward by the appellants would be to assume, without further proper analysis, that their risk of irreparable damage by the absence of an interlocutory injunction should be preferred over the risk of irreparable damage by the grant of an interlocutory injunction which turned out, when the case had been fully examined, not to have been justified. Such a position is, in the view of the Court, untenable.
10.26 It follows that it was necessary to examine the potential consequences of whether there would be irreparable damage by the grant or refusal of the interlocutory injunction and if there be the risk of irreparable damage in both cases, how the Court is to balance the competing rights involved or to assess the "balance of interests" as the ECJ described it in Le Pen. However, in order for that question to arise it was necessary first to examine whether there is an arguable case for the Minister's defence of these proceedings. If there were not such an arguable defence and if, at least on the basis of the evidence, materials and argument currently available, it seemed clear that the appellants would succeed, then the Court's obligations in order to provide an effective remedy in those circumstances might well be different. The Court, therefore, turns first to the Minister's defence.
11. The Minister's Defence
11.1 It is important to start by noting what these proceedings, and indeed this interlocutory injunction, concerns. It is said that, if the appellants succeed in material part in the substantive related proceedings, then the Minister will not lawfully be entitled to own Irish Life and, as a consequence, the Minister's entitlement to sell Irish Life would disappear. It is, therefore, important to emphasise that it is the Minister's ownership of and entitlement to sell Irish Life that arises in these proceedings.
11.2 The claims made on behalf of the appellants which concern the alleged invalidity of the 2011 Direction Order need to be seen in that context. The 2011 Direction Order did not, of course, bring about any direct change in the ownership of Irish Life. Rather the result of the 2011 Direction Order was that the Minister became the 99.2% owner of Holdings and thus, indirectly, acquired an indirect interest, in that capacity, in Irish Life. However, it is clear from the relevant legislation that the Minister did not need to be a shareholder in Holdings in order to seek to put in place the 2012 Direction Order as a result of which the direct ownership of Irish Life passed to the Minister.
11.3 The relevant provisions are contained in ss. 7 to 9 of the 2010 Act. These sections provide as follows:
“7.— (1) Subject to subsections (2) and (4), the Minister may make a proposed direction order proposing that a relevant institution be directed to take (within a specified period) or refrain from taking (during a specified period) any action, including, in particular, and without limiting the generality of the foregoing, any one or more of the following:
(a) notwithstanding any statutory or contractual pre-emption rights, the listing rules of a regulated market or the rules of any other market on which the shares of the relevant institution may be traded from time to time, issuing shares to the Minister or to another person nominated by the Minister on terms and conditions that the Minister specifies in the proposed direction order at a consideration that the Minister sets;…
c) increasing the authorised share capital (including by the creation of new classes of shares) of the relevant institution to permit it to issue shares to the Minister or to any other person nominated by the Minister;…
(e) disposing, on specified terms and conditions, of a specified asset or liability or a specified part of the relevant institution’s undertaking.
(2) The Minister may make a proposed direction order only if the Minister, having consulted with the Governor, is of the opinion that making a direction order in the terms of the proposed direction order is necessary to secure the achievement of a purpose of this Act specified in the proposed direction order.
…
(4) Unless the relevant institution concerned consents to the making of a direction order in the terms of the proposed direction order, or exceptional circumstances (within the meaning of subsection (5)) exist, the Minister shall also, before making a proposed direction order—
(a) deliver a written notice to the relevant institution setting out the terms of the proposed direction order, accompanied by a summary of the reasons why the Minister is of the opinion that a direction order in the terms of the proposed direction order is necessary,
(b) afford the relevant institution 48 hours, or a shorter period on which the Minister and the relevant institution agree, in which to make written submissions to the Minister, and
(c) consider any submissions made under paragraph (b)….
8.— Where a relevant institution consents to the making of a direction order in the terms of a proposed direction order, it may act in accordance with the terms of the proposed order before the Court makes any direction order.
9.— (1) As soon as may be after completion in relation to a proposed direction order of the procedures required by section 7, the Minister shall apply ex parte to the Court for an order (in this Act called a “direction order”) in the terms of the relevant proposed direction order.
(2) The Court, when hearing an ex parte application under subsection (1), shall, if satisfied that the requirements of section 7 have been complied with and that the opinion of the Minister under that section was reasonable and was not vitiated by any error of law, make a direction order in the terms of the proposed direction order (or those terms as varied after consideration of any submission referred to in section 7 (4)(c)).
…
(5) The Court may make a direction order in terms varied or amended from those in the proposed direction order only if the Court is satisfied that—
(a) there has been non-compliance with any of the requirements of section 7 or that the opinion of the Minister under section 7 (2) was unreasonable or vitiated by an error of law,
(b) it would be appropriate to do so, having regard to any report referred to in subsection (4), and
(c) to do so is necessary for the purpose specified in the proposed direction order or any other purpose of this Act.
(6) The Court may give a direction, as it thinks appropriate, in relation to the publication of a direction order.
(7) Subject to subsection (8), a direction order has effect—
(a) if an application is made under section 11, in accordance with that section, and
(b) if no such application is made, 5 working days after the making of the order.
…
(9) The Court may order in a direction order that action taken by a relevant institution in accordance with section 8 shall be taken to have been taken in compliance with the direction order.
11.4 In summary, ss. 7 to 9 of the 2010 Act empower the Minister to make a direction order “proposing that a relevant institution be directed to take (within a specified period) or refrain from taking (during a specified period) any action” following compliance with the conditions set out in ss. 7(2) – 7(4). A non-exhaustive list of possible actions is set out in s. 7(1)(a)-(e). Those conditions do not refer to the Minister being a shareholder in the company. The Minister’s power derives from his position qua Minister, and not from his shareholding, if any, in the institution concerned.
11.5 Section 8 deals with a position where the institution consents to the proposed direction order and allows it to act in accordance with the order prior to the court proceedings. As soon as possible after the completion of the preliminary procedures set out in s. 7, the Minister must apply ex parte to the High Court, where that Court can grant the proposed order if “it is satisfied that the requirements of section 7 have been complied with and that the opinion of the Minister under that section was reasonable and was not vitiated by any error of law”. Alternatively, in limited circumstances as set out in s. 9 (5), the Court can vary the terms of the proposed direction order. No provision is made for circumstances where the institution or others object to the direction order prior to its granting by the High Court. It is, however, open to the institution to apply to set aside the direction order within five working days of its making pursuant to s. 11 of the Act.
11.6 The starting point of any analysis has, therefore, to be that, at the level of principle, the Minister would have been entitled to seek the 2012 Direction Order (subject to court approval and subject to the entitlement of parties affected to seek to have it set aside) entirely independent of whether or not the Minister was a shareholder in Holdings.
11.7 Against that background, the appellants have argued that the Minister engaged in what they described at the hearing before this Court as a "three card trick" whereby, it is said, the Minister, by a combination of measures, achieved an impermissible end. Having regard to the concession on the part of the Minister that there is a fair issue to be tried, it is unnecessary to analyse whether there is an arguable case to that effect. However, for present purposes it is, however, necessary to analyse whether the Minister has an arguable defence to that proposition.
11.8 Firstly, there is, in this Court's view, a significant legal argument which will require detailed analysis and which provides the Minister with an arguable defence. For the reasons already analysed it is clear that, as a matter of law, the Minister could have exercised the powers given to him to make the 2012 Direction Order even if the 2011 Order had not been made and thus if the shareholding changes brought about by that order had not occurred. The Minister has, of course, succeeded in defending the challenge brought to the 2012 Direction Order in the High Court. While there is the possibility of an appeal remaining outstanding to this Court against that decision, it nonetheless would be impossible, in the light of the careful ruling of the trial judge in that matter, to conclude other than that the Minister has an arguable case, in Irish law, to defend the challenge to the 2012 Direction Order. It follows that, as a matter of Irish law, the Minister has an arguable case to the effect that he has made a valid order requiring the transfer of Irish Life to him in return for €1.3 billion.
11.9 It will be necessary to turn briefly, in due course, to the arguments relating to the 2011 Direction Order. But assuming, for the purposes of such argument, that the appellants succeed in having that order set aside (or even that, for the purposes of this application, the Minister has failed to establish arguable grounds for defending such a claim) what would the consequences be for the 2012 Direction Order? If that latter order was not in any way, as a matter of law, dependent on the existence or validity of the 2011 Order, then in what way could any invalidity of the 2011 Direction Order causally affect the 2012 Order?
11.10 It is, of course, possible that, by virtue of a finding of invalidity in respect of the 2011 Direction Order as a matter of EU law, the courts may, as a result of their obligation to provide an appropriate remedy, have to analyse what knock-on effects might be said to flow from the making of an order which was invalid as a matter of EU law. However, in so doing, it is difficult to see how the courts would not have to engage in a very detailed factual analysis of the precise circumstances which might be said to give rise to a connection between the two orders. In addition, therefore, to the legal difficulty already identified, there is also a significant possibility that a court, in order to determine with finality any consequences which might flow from an invalidity of the 2011 Direction Order, may have to engage in a detailed factual analysis of any connection between that order and the 2012 Direction Order as a result of which Irish Life was transferred to the Minister. In argument, the appellants suggested that, if Holdings remained in the control of its original shareholders (i.e. if the Minister had not taken virtually all of the shareholding by virtue of the 2011 Direction Order), Holdings could have opposed the 2012 Direction Order and that, as it was put, "one does not know what the outcome might have been". However, that scenario needs to be assessed alongside the fact that the 2012 Direction Order did not require any agreement on the part of Holdings (however owned) and that there was, in fact, a challenge brought by these very appellants which has, at least to date, been unsuccessful. While the standing issue would not have arisen in the case of a challenge by Holdings, it should be noted that Peart J. dismissed the challenge on the merits as well.
11.11 To put it at its most neutral, it is far from clear as to whether it could be established, as a matter of law and fact, that the existence of the 2011 Direction Order with its consequent effect on the shareholding in Holdings, had any real effect on the validity of the 2012 Direction Order or the outcome of any possible challenge to that order. That is not to say that the appellants may not succeed on this point. But it does have to be recorded that it must equally be recognised that the Minister may succeed on the point.
On that basis it is clear that success by the appellants in the challenge to the 2011 Direction Order does not, of itself, necessarily mean that the appellants will, thereby, have established any invalidity in the ownership by the Minister of Irish Life or the Minister's entitlement to sell that company. It was, therefore, unnecessary, for the purposes of this application, to decide whether the Minister has an arguable defence to the challenge to the 2011 Direction Order for even if the Minister does not have such an arguable defence, it does not follow that it is clear that the Minister's entitlement to sell Irish Life is thereby invalidated.
In that context, it is again unfortunate that so much of the appellants' allotted time was spent dealing with the merits or otherwise of the Minister's defence to the challenge to the 2011 Direction Order and so little with how it could be said that it was clear that the Minister must fail, even if losing that challenge, in his attempt to establish an entitlement to sell Irish Life.
11.14 In addition, the Court was satisfied that, as a matter of Irish law, the purely national proceedings, being the Plenary Proceedings and the s. 205 Proceedings, are ones in which it could be said that the Minister has established an arguable defence. Given the constitutional presumption of conformity which the challenged legislation enjoys and the complex legal and factual backdrop to both the Plenary Proceedings and the s. 205 Proceedings, it would be difficult to reach any different conclusion. Given that the Court came to that view that both proceedings were arguable either way, but given also that both proceedings remain for hearing, it would be inappropriate for this Court, at this stage, to express any f, to express any further views touching on the merits of those proceedings.
11.15 It follows that this interlocutory application must be assessed on the basis that the Minister has an arguable defence to the only question which truly arises in this case, being the question of whether the Minister legitimately owns Irish Life and is entitled to sell it.
11.16 For those reasons, the very detailed analysis which the appellants sought to address to the Court for the purposes of attempting to persuade the Court that the Minister could have no defence to the 2011 Direction Order challenge seemed to this Court to miss the point. Even if the appellants were correct in that regard, it would not, of itself, establish that the Minister did not have a defence to the entirety of these proceedings for the only issue which arises in these proceedings is the validity of the Minister's ownership of Irish Life and the Minister's ability to sell it.
11.17 As this Court has concluded that the Minister has an arguable defence to the contention that whether any invalidity of the 2011 Direction Order as a matter of EU law would have an effect, on the law and on the facts, on the validity of the 2012 Direction Order, then it is unnecessary, strictly speaking, to consider the arguments concerning the validity of the 2011 Direction Order. In addition, having regard to the extremely short time frame within which this Court was required to consider this matter, it would be inappropriate for this Court to express any real views on those matters unless they were decisive. For the reasons already indicated this Court was not satisfied that they are decisive.
11.18 However, for the purposes of completeness, it is appropriate to briefly set out the basis of the Minister's defence to the suggestion of invalidity of the 2011 Order and the basis on which the appellants suggest that that defence is manifestly ill-founded.
11.19 The appellants rely primarily on the Second Company Law Directive (Directive 77/91/EEC), which sought amongst other matters to protect the interests of members of public limited companies. To be entirely accurate, this Directive has been replaced by Directive 2012/30/EU of the European Parliament and of the Council of 25 October 2012, which came into force on the 4th December, 2012. Although Directive 2012/30/EU does incorporate and consolidate certain amendments to the Second Directive, both parties agree that there is no material impact on the relevant law in this case.
11.20 The appellants allege that Article 25 of Directive 77/91/EEC (Article 29 of Directive 2012/30/EU) has been breached by the 2011 Direction Order in that the increase in capital of Holdings was not decided upon at a general meeting. They also complain that the Minister’s actions in failing to afford the existing shareholders any pre-emption rights in the capital raising process amounted to a breach of Article 29(1) (now Article 33(1), which requires the shares to be offered on a pre-emptive basis to shareholders in proportion to the capital represented by their shares. Article 15 (now Article 17), which prohibits the appropriation of unrealised profits, Article 42 (now Article 46), guaranteeing equal treatment to all shareholders in the same position, and Article 8 (continues to be Article 8), the prohibition on the issuing of shares at a price lower than their nominal value are also alleged to have been breached.
11.21 At the relisted hearing, counsel for the Minister submitted that ECJ jurisprudence, particularly Case C-441/93 Pafitis v Trapeza Kentrikis Ellados AE [1996] ECR I-1347, relied upon by the appellants was either not of relevance or could be departed from for three reasons. First, it was said that the legislative intention of the Directive was to protect shareholders from actions taken within a company. Its scope was said not to protect shareholders from an extraneous decision, like in the present case, where the decision is said to have been taken by a court. Secondly, the Minister contended that the various authorities referred to do not deal with a situation where there is simply no option available other than to raise capital. The cases cited by the appellants, it was said, all dealt with circumstances where there were potential alternatives available. Finally, it was submitted that the cases relied upon have to be seen in the context of their time, which is not similar to present economic crisis engulfing the global economy and particularly, the Eurozone, and that the appellants' arguments fail to take into other legislative and political changes since their determination.
11.22 The appellants sought to counter those submissions by arguing that the authorities relied on still represent the law in this area as they have not yet been revisited by the ECJ, which is, of course, the only body with the authority to revisit the relevant jurisprudence. The opinions by various other European bodies, relied on by the Minister, could not, it was said, usurp the paramountcy of the existing jurisprudence. The appellants also say that due to the constraints imposed on the High Court under Part II of the 2010 Act, there was no real adjudication by an independent court adequately appraised of all the material facts, and thus the authorities, it is argued, cannot be distinguished in this manner. The political and legislative changes emphasised by the Minister are said to be irrelevant to the matter in question, particularly as it was open to the European legislature to amend the legislation to provide for certain necessary actions in emergency situations. It was noted that this was not done but rather that the legislature have sought to consolidate the existing legislation upon which the cited authority is based.
11.23 As already noted the Court did not consider it necessary to assess whether the Minister had, as a result of those arguments, established an arguable defence to the 2011 Application.
11.24 Given the Court's conclusion that the Minister has an arguable defence to these proceedings and having regard to the analysis of the legal test conducted earlier in this judgment, it was next appropriate to return to the application of the Okunade test to the facts of this case.
12. Application of the Okunade Test
12.1 It is, therefore, necessary to turn to the application of the Okunade test but also applying, for the reasons already analysed, a requirement to include, as part of that analysis, a consideration of whether the application of that test might result in a failure to provide an effective remedy.
12.2 In applying the Okunade test to the facts of this case, the first leg posed no problem. The Minister had conceded, for the purposes of this application only, that there is fair issue to be tried. Also, for the reasons already identified, the Court is satisfied that there is an arguable defence on the part of the Minister.
12.3 Therefore, the assessment necessarily proceeded on the basis that it is possible that the appellants will ultimately succeed in establishing that the Minister did not lawfully own Irish Life as a result of the 2012 Direction Order. It is clear that it is possible that the reason for the Court coming to such a conclusion could be based on a finding that the measures used by the Minister to bring about that situation were in breach of EU law. It was necessary to analyse the consequences for the appellants of such a finding.
12.4 However, it also was necessary for the Court to have regard to the possibility that the Minister will succeed in his defence. In that context, it was necessary to assess the consequences for the Minister, in that eventuality, of having been subject to an interlocutory order until such time as his success was finally established (at least insofar as his ownership of Irish Life might be concerned). Having regard to the possibility of appeals and, indeed, the fact that either the High Court or this Court may consider it either desirable or, indeed, obligatory, to refer certain issues to the ECJ for a preliminary ruling, it remains necessary to consider that it could be quite some time before all challenges to the Minister's legitimate ownership of and right to sell Irish Life have been resolved. The Court was required, therefore, to approach this application on the basis that, if granted, and even allowing for the maximum expedition which could be expected, any interlocutory order made might well remain in place for a number of years pending the final resolution of all material issues. Thus the Court was required to take into account the consequences for the Minister of being subjected to an injunction for such a period in circumstances where the Minister may ultimately succeed and where, with the benefit of hindsight, it would, in those circumstances, be clear that the Minister's rights had been interfered with as a result of the imposition of the interlocutory injunction. It was thus necessary to consider both of those eventualities, first, for the purposes of determining whether irreparable harm would be caused and second, in the event that irreparable harm would result in both cases, in assessing where the least risk of injustice lies.
12.5 It is first appropriate to turn to the potential irreparable harm which might be caused to the appellants. The first difficult question which arises is as to the legal remedies which may be available to the appellants in the event that they succeed in some or all of the related proceedings. This raises many issues at least some of which are far from straightforward. Two of the related proceedings, of course, involve a statutory form of challenge to the respective direction orders. Direction orders are, as has been pointed out, provided for in Part II of the 2010 Act and the disputed orders in these proceedings are made pursuant to s. 9 of the Act. As the relevant cases are the first of their type brought under the legislation concerned, there is no jurisprudence as yet in place which offers any guidance as to the range of remedies which might be available in the event that the appellants succeed and, in particular, what the consequences of the setting aside of a direction order might be in practical terms where at least some steps had been taken on foot of the order concerned. However, as this application is concerned solely with the ownership of, and right to sell, Irish Life, it is as to the effect of success in any of the related proceedings on that question that the analysis must concentrate.
12.6 The first question centres on the arguments made by the appellants which suggest that, in the event that Irish Life is sold, the proceedings might be argued to be moot (at least insofar as the proceedings concerned the ownership of Irish Life). If the sale of Irish Life were, indeed, to be said to render any aspect of the proceedings which were concerned with the validity of the ownership of the Minister of Irish Life completely moot then there would, undoubtedly, be a strong case for the proposition that the appellants would suffer serious and irreparable harm. It was for that reason that the Court invited the Minister, when the matter was relisted for further argument, to state his position on the question of mootness. In the light of the very short period of time which the Court was given to consider this matter (a difficulty which, for the reasons already analysed, must at least be placed partly at the foot of the appellants), it would have been impossible for the Court to reach any concluded view on the mootness question, apart altogether from the undesirability of the Court reaching a concluded view on any such issues in the context of an interlocutory application such as this. It follows that, in the absence of an indication by the Minister that no attempt would be made to argue that any of the proceedings had become moot by virtue of the sale of Irish Life, it would have been impossible for the Court to find other than that significant and irreparable harm might be caused to the appellants by the failure to grant an interlocutory injunction.
12.7 The second way in which it was said that irreparable harm might be caused was because of the difficulty, whether as a matter of law or as a matter of practicality or, indeed, both, of reversing the transaction whereby the Minister sold Irish Life. These are issues which could not, in any event, be finally resolved at this stage. If a sale of Irish Life goes through then the rights of the purchaser, Canada Life, also would come into consideration. Canada Life is not, of course, represented at this hearing and serious questions would arise as to whether it would be legitimate to make a decision which would pre-empt what might become the property rights of Canada Life (assuming the sale goes ahead and Irish Life thereby becomes the property of Canada Life) without giving them an opportunity to be heard. It follows that this Court could not reach any definite conclusion at this stage which could amount to a finding that the transaction could be reversed as a matter of law.
12.8 In addition, the Court did not have sufficient information to allow it to form any true assessment as to the extent to which the transaction might, even if it were legally permissible, be capable of being reversed in practice. It follows that the Court had to operate on the assumption that, even if the appellants succeed in one or more of the related proceedings to an extent sufficient to establish that the Minister did not truly own Irish Life at the relevant time, it may prove impossible to reverse any sale. There is obviously a sense in which, therefore, irreparable harm will be caused. Even if the Minister is required to pay full compensation, the asset will be lost.
12.9 In that context, it is relevant to refer to AIB v. Diamond [2011] IEHC 505, where Clarke J. made the following comments on the adequacy of damages for the loss of property rights. At para 8.2, he said:
“The courts have always been anxious to guard property rights in the context of interlocutory injunctions. See for example Metro International SA v Independent News & Media plc [2006] 1 ILRM 414. The reason for that is clear. Even though there may be a sense in which it may be possible to measure the value of property lost, declining to enforce property rights on the basis that the party who has lost its property can be compensated in damages would amount to a form of implicit compulsory acquisition. If someone could take over my house and avoid an injunction on the basis that my house can readily be valued and he is in a position to pay compensation to that value (even together with any consequential losses), then it would follow that that person would be entitled, in substance, to compulsory acquire my house. The mere fact that it may, therefore, be possible to put a value on property rights lost does not, of itself, mean that damages are necessarily an adequate remedy for the party concerned is entitled to its property rights instead of their value.”
12.10 However, in assessing the extent to which it might be said that the appellants could suffer irreparable harm, it was necessary to have regard to the question of whether the Minister could be ordered to pay full compensation. It must, of course, be recalled that what the appellants directly own is a shareholding in Holdings. That shareholding has a value which is dependant on the assets of the company. The appellants will never directly own Irish Life irrespective of the outcome of these or any of the other proceedings. Even if an injunction were granted and the appellants ultimately succeeded in a way which required the Minister to place Irish Life back into the ultimate beneficial ownership of Holdings, the only practical effect would be that the appellants would own shares in a company whose value included whatever its ownership of Irish Life might contribute but would also, almost certainly, have to suffer whatever diminution in the share value of Holdings might be attributable to a repayment of the monies paid by the Minister for Irish Life. The extent of any irreparable harm which the appellants might suffer is, therefore, to a material extent, affected by the question of whether full damages could be awarded. In the event that full damages were capable of being awarded, then it seems unlikely that there would be any significant effect on the value of the appellants' shareholding in Holdings for the court would be able to ensure that the Minister would be required to deal with Holdings in a way which compensated that company for any losses which could reasonably be said to be attributable to what would, in that eventuality, turn out to be a sale by the Minister of an asset which ought to have been returned to Holdings. In such eventuality while there would, in one sense, be irreparable harm, the weight to be attached to that harm would be relatively small for Holdings would be enabled to recover any losses arising and the value of any shareholding in Holdings would not be materially affected.
12.11 It was for that reason that the Court invited the Minister to indicate his position in relation to mootness at the relisted hearing. Counsel for the Minister obtained explicit instructions and informed the Court that the Minister would not argue that any of the substantive related proceedings would become moot in the event that Irish Life had been sold by the time that such proceedings came to be finally determined. It followed that it will be open to this Court to consider, in any appeal which can properly be brought against that decision of Peart J., whether the 2012 Direction Order is valid even though Irish Life may have been sold by the time that any hearing relating to that appeal comes before the Court. It further followed that there is no procedural barrier, or other barrier based on mootness, which would prevent the appellants or Holdings from receiving full compensation for any consequences which could be said to flow from such invalidity even in the event that Irish Life is sold. It further followed that any questions which arise directly in these proceedings concerning the validity of the Minister's ownership of Irish Life or the Minister's entitlement to lawfully sell Irish Life, can remain alive notwithstanding the sale of Irish Life. If necessary, a claim for damages can be included in addition to the declaratory relief sought in these proceedings.
12.12 None of that will, of course, guarantee that it would be possible, either as a matter of law or on the facts, to reverse the sale of Irish Life to Canada Life. What it does mean is that there will be no procedural or other bar to the appellants being entitled to pursue a claim for full compensation in the event that they are able to establish that the Minister's sale of Irish Life to Canada Life was unlawful subject to the ordinary rules concerning the assessment of damages. In assessing the extent of any irreparable harm it is, therefore, for the reasons already analysed, necessary to have regard to the fact that the Minister will, should a valid case in that regard be made out, be obliged to pay appropriate damages and that the value of the shareholding of the appellants in Holdings will, thus, be proportionately increased. Furthermore, to the extent that the appellants establish any invalidity in the 2011 Direction Order which results in any adjustment in the shareholding structure of Holdings, it follows that the participation by the appellants (and, indeed, any other original shareholders in Holdings) in any increased value in Holdings attributable to damages awarded against the Minister will be enhanced.
12.13 On the other side, it was necessary to assess the position of the Minister. In the event that an interlocutory injunction was granted but the Minister ultimately succeeded then the practical effect is clear. The Minister would have been required by the injunction to hold on to Irish Life until all of the related proceedings were concluded which, for the reasons already analysed, may take quite some time. There can certainly be no guarantee that the current sale to Canada Life will still be in place or if still in place that the terms may not have disimproved. The Minister would be subject to the carrying cost of the monies which would otherwise be repaid from the national debt by the sale of Irish Life (together with any other consequences for the national finances consequent on a failure to reduce the national debt by that sum as anticipated) but would be able to set off against any cost whatever income might arise. Whether, and if so to what extent, the Minister might be at a net loss by virtue of those matters is impossible to ascertain with any degree of precision on the evidence and materials currently available. It did, however, appear to the Court that there must be a significant and material risk that the Minister will suffer a significant financial loss in the event that an injunction is now granted but the Minister ultimately succeeds. In addition there is a material risk to the national finances. The one thing that is absolutely clear is that, in the event of such loss arising, there are no practical circumstances in which the appellants would be able to compensate the Minister. It also needs to be recorded that, in that eventuality, the Minister would, even in the absence of financial loss, suffer irreparable damage in the sense that he would be deprived of what would, in that eventuality, be found to have been his right to deal with his own asset as he wished. That is something which cannot be reversed or compensated for. In addition, any consequences for the national finances could not be reversed. However, if there were no financial loss then the foregoing might be the only irreparable damage which the Minister would suffer. If there is financial loss, then it is loss which the Minister will in practice have to bear without compensation.
12.14 At the hearing the appellants placed great reliance on the fact that a strong party should not be allowed, simply because it has the capacity to compensate, to do wrong. It was graphically stated by Mr. Skoczylas that, if such were to be the law, a party could commit rape or other serious wrongdoing and simply answer that they could compensate. However, that argument misses the point. It is no answer to a claim made out for an order to prevent serious wrongdoing that compensation is available. It is for that very reason that this Court was required to analyse in some detail any potential defence which the Minister might have to these proceedings. If it were clear that what the Minister proposed to do in selling Irish Life was unlawful then it would, indeed, be no answer for the Minister to simply state that he could compensate.
12.15 The difficulty with much of the submissions made, both in writing and orally, by the appellants is that they assume that what the Minister proposes to do is necessarily unlawful whether as a matter of Irish or European Union law. However, that is not so. Whatever about the 2011 Direction Order, the Minister has put forward a significant defence to the effect that the 2012 Direction Order is valid (as held, subject to appeal, by the High Court) and that there is no sufficient connection or nexus between the 2011 Direction Order and the Minister's ownership of Irish Life which would render, even if the 2011 Direction Order is found to be invalid, the Minister's ownership of Irish Life as itself being invalid. In those circumstances, this Court was faced with a situation which is far removed from the graphic examples given by the appellants. The Minister is not saying that he should be permitted to commit an unlawful act simply because he can compensate. Rather, the Minister is saying that what he proposes to do is lawful but that, if he is wrong in that contention, he is in a position to compensate the appellants whereas they, in the event that they are wrong, are not in a position to compensate him.
13. Conclusions
13.1 It must first be noted that, in applying the Okunade test in many public law cases, the question of damages or financial compensation will not arise for the reasons identified in the judgment in Okunade itself. However, as that judgment acknowledges, there may be some cases where differing considerations will apply because of the commercial or financial nature of the public law issues arising. This case is clearly one such.
13.2 The ultimate test is as to where the least risk of injustice lies. There is a risk of injustice to the appellants. That risk stems from the fact that if they are able to establish any sufficient nexus between any illegality and the sale of Irish Life, then there might be circumstances where a court would, if it were possible to do so, and if there were measures which could be put in place which would allow that to happen (including a repayment by Holdings or any of its relevant subsidiaries of €1.3 billion to the Minister assuming that Holdings had access to such funds) order a transfer of Irish Life back into Holdings. Clearly, if Irish Life has been sold by the Minister, then there may be additional legal or practical difficulties in achieving that result. A failure to be able to effectively reverse the sale of Irish Life by the Minister to Canada Life in circumstances where the appellants succeed in these proceedings to a sufficient extent would, undoubtedly, amount to an injustice.
13.3 However, it is also clear that imposing an obligation on the Minister to refrain from selling Irish Life at what the Minister considers to be an opportune occasion, both from the point of view of the price to be achieved, but also from the point of view of the effect which a sale now will have on the national finances, also runs the risk of injustice if the Minister ultimately succeeds. In addition, any financial consequences, direct or indirect, of such a situation will not be capable, in practice, of being compensated in damages. Having regard to all of the factors in this case, this Court was satisfied that the least risk of injustice is met by not granting an interlocutory injunction.
13.4 In addition, for the reasons already analysed, it is necessary for this Court to consider whether such an eventuality might be said to deprive the appellants of an effective remedy as required by European Union law. However, it seems clear that a consideration of whether there is an effective remedy must be seen in the light of the jurisprudence of the ECJ which requires a balancing exercise to be engaged in in circumstances where the Court has to make a decision at an interlocutory stage when the ultimate result of the proceedings is not clear. If the Court were considering this matter after it had been established that the Minister could not lawfully sell Irish Life then it might very well be the case that a failure to put in place measures which prevented the sale of Irish Life would deprive the appellants of an effective remedy.
13.5 However, that is not the situation with which the Court was confronted. The Court was required to consider where the balance of justice lay in circumstances where it is necessary to recognise that granting the appellants the order which they seek also runs the risk of significant irreparable harm to the Minister and the national finances which the appellants acknowledge they will be unable to compensate. In those circumstances, it did not seem to this Court that a decision to decline to grant an interlocutory injunction could amount to a deprivation of an effective remedy. That conclusion was, in the Court's view, reinforced by the fact that, for the reasons already analysed, the Court is satisfied that, as a matter of Irish law, the appellants, if they succeed, will be entitled to full compensation so that there should not, in reality, be any material difference in the value of their shareholding in Holdings as a result of a successful conclusion to these proceedings than there would have been had Irish Life remained in the ownership of Holdings itself.
13.6 It was indicated earlier in this judgment that the Court would return to the question of delay when it had completed its analysis of the substantive issues. While it might well have been the case that the Court would have concluded that the undoubted significant and culpable delay on the part of the appellants would have deprived them of any entitlement to which they might have otherwise have had to an interlocutory injunction, it is, in the Court's view, unnecessary to reach a concluded view on that question. For the reasons already analysed the Court was satisfied that the balance of justice required the refusal of the injunction sought. Whether refusal could have been justified on the basis of delay as well does not, therefore, arise.
13.7 It was finally necessary to turn to the question of whether there should be a reference to the ECJ at this stage.
14. Reference under Article 267
14.1 As has already been made clear, the Court was not concerned at this point with deciding the issues between the parties in the four substantive related proceedings and, a fortiori, not concerned with whether the appellants are entitled to the remedies which they have sought in those proceedings. The merits of all the claims made by the appellants in each of those proceedings remain to be finally determined.
14.2 In case C-107/76 Hoffmann-La Roche v. Centrafarm [1977] ECR 957, the Court of Justice stated:-
“… The third paragraph of Article 177 of the EEC Treaty must be interpreted as meaning that a national court or tribunal is not required to refer to the court a question of interpretation or validity mentioned in that article when the question is raised in interlocutory proceedings for an interim order, even where no judicial remedy is available against the decision to be taken in the context of those proceedings, provided that each of the parties is entitled to institute proceedings or to require proceedings to be instituted on the substance of the case and that during such proceedings the question provisionally decided in the summary proceedings may be re-examined and may be the subject of a reference to the court under Article 177 [now Article 267].”
14.3 In a similar context it is important to note that the recommendations issued by the ECJ to national courts in relation to the preliminary ruling procedures suggest, at para. 18, that it is the national court which is in fact in the best position to decide at what stage of the proceedings a request for a ruling should be made. Paragraph 19 also makes clear that it is desirable that a decision to make a reference should occur after the referring court is in a position to define the legal and factual context of the case. It is, of course, also the case that it is for the Court to decide on whether to order a reference (and if so ordering to determine its form). While parties can make suggestions in that regard it is not a question of a party applying for a reference but rather one of the court itself deciding the matter,
14.4 In Fratelli Pardini SpA v. Ministero del Commercio con l'Estero and Banca Toscana - Case 338/85, the ECJ noted, in the context of a reference which occurred in respect of interim measures, that a national court was "not empowered to bring a matter before the Court by way of a reference for a preliminary ruling unless a dispute is pending before it in the context of which it is called upon to give a decision capable of taking into account the preliminary ruling. Conversely, the Court of Justice has no jurisdiction to hear a reference for a preliminary ruling when at the time it is made the procedure before the Court making it has already been terminated".
14.5 It, therefore, follows that the Court was not obliged to refer a question concerning the interpretation of European Union law to the ECJ pursuant to Article 267 of the Treaty on the Functioning of the European Union as the questions are raised in interlocutory proceedings and would be overtaken by events in any case. Insofar as the Court has a discretion whether or not to refer any such question, the Court was of the view that any question concerning the interpretation of European Union law may be the subject of a reference to the ECJ, if considered necessary, when all or any one of the related proceedings are being tried on their merits or on appeal.
