The High Court has refused an employer’s application to suspend an injunction preventing the termination of an employee’s employment while the employer considers an appeal. It also ordered that the employee recover her costs of the injunction application, subject to a stay that would allow set-off if the employer succeeds at trial.
Mr Justice Rory Mulcahy delivered the ruling on 24 July 2023. The court had granted the interlocutory injunction on 19 July, in terms set out in a separate judgment. The ruling addressed the employer’s stay application and the costs of the injunction application; it did not decide the underlying action or any appeal.
The judge accepted, for the purpose of the stay application, that the employer had identified arguable grounds of appeal. Those included arguments that the court had not considered all factors relevant to whether trust and confidence between the parties had broken down, that the employee had not established a strong case likely to succeed, and that investigative and disciplinary procedures had been wrongly treated as insufficiently distinct.
However, the judge said none of the identified grounds suggested a fundamental error affecting the balance of justice assessed when the injunction was granted. Suspending the order pending appeal would deprive the employee of its benefit, he said, and the stay application was refused. The ruling noted that an application for a stay must first be made to the High Court under the applicable court rules, even if a further application may later be made to an appellate court.
On costs, the employee argued that she had won the injunction application and that the court could decide costs at that stage. The employer sought to reserve costs, arguing it would be unjust if she ultimately won the case but had already been ordered to pay the application costs. The judge concluded that the costs question should be decided primarily by reference to the injunction application, while allowing for the possibility that the evidence could prove unreliable at trial.
The judge ordered the employee’s costs of the interlocutory injunction application to be adjudicated in default of agreement. He stayed that costs order so it would be available for set-off to the employer if the employer succeeds at trial. The ruling records that if the employer is ultimately entitled to dismiss the employee, the employee’s remedy would be damages, and that an undertaking as to damages had been required.