The High Court set aside an interim injunction restraining the deportation of an anonymised Nigerian applicant after finding that an earlier unsuccessful injunction application had not been disclosed. The judge accepted that the omission was inadvertent and that there was no intention to mislead, but said the earlier refusal and the directions given by another judge were materially relevant.
Mr Justice Gerard Hogan’s judgment, delivered on 6 January 2012, concerned an injunction he had granted ex parte on 13 October 2011. It had since been continued by consent. The respondents sought its discharge, arguing that the applicant had failed to tell the court that Mr Justice Herbert had refused an injunction application in September on the same or similar grounds.
The applicant’s solicitor filed an affidavit explaining that the solicitor was not present when the October application was made, and the agent attending counsel did not know about the September application. The judge accepted that, under time pressure, counsel had forgotten to mention it. Both legal representatives apologised, and their apologies were accepted.
The court nevertheless found the information objectively material. Mr Justice Herbert had directed that any fresh injunction application arising from new circumstances be made on notice to the State and that the court be told of his earlier refusal. Mr Justice Hogan said those directions had not been followed in October. He concluded that the non-disclosure went to the heart of the ex parte order and that it was not appropriate to leave that order in place.
The judgment set aside the interim relief granted on 13 October. It did not determine whether the applicant was entitled to an injunction on his arguments concerning his Irish citizen child and the Court of Justice of the European Union’s 2011 Zambrano decision. The judge said that question remained controversial and for further argument. He also noted that related custody proceedings were ongoing in the District Court and that questions in those proceedings were for that court alone.
The applicant’s application for an interlocutory injunction remained to be heard and determined. The order setting aside the earlier relief was expressly without prejudice to its outcome.