The High Court has reserved for trial whether Estuary Logistics and Distribution Company Limited must pay €109,500.54 under an undertaking given when it obtained an interlocutory injunction requiring Lowenergy Solutions Limited to continue supplying heating devices.
In a judgment delivered on 6 December 2007, Mr Justice Clarke refused to order immediate enforcement of the undertaking. He did not decide whether it should ultimately be enforced. That question is for the trial judge, who will be able to consider the wider dispute and the parties’ overall financial position.
The injunction, granted in February 2007, required Lowenergy Solutions to continue supply under payment terms set by the court. Estuary Logistics gave an undertaking to abide by any later order for damages if the court concluded Lowenergy Solutions had suffered loss because of the injunction. The injunction was discharged in May 2007.
Lowenergy Solutions, which was in liquidation, applied for immediate payment of €109,500.54. The amount represented goods supplied while the injunction was in force. The judgment records that the value and non-payment of those goods were undisputed. A separate part of the application concerning money once believed to be held by solicitors was not pursued, as no such funds remained held.
The injunction had been discharged after the court found, on undisputed facts, that Estuary Logistics and its principal, Mr Brosnan, had abused the process by acting inconsistently with the order. The judgment said Mr Brosnan had sought an alternative supply and made some of Lowenergy Solutions’ product available to another manufacturer, despite arrangements providing for exclusivity. The court stressed that the injunction was discharged because of that conduct, not because it had concluded the injunction should never have been granted. The underlying contractual dispute remained undecided.
Mr Justice Clarke said the trial judge might find that Lowenergy Solutions had been contractually obliged to supply the goods even without the injunction. That and other unresolved claims could affect whether enforcing the undertaking would be fair. The judge also considered the risk that an immediate payment to the company in liquidation could be spent and unavailable for repayment if Estuary Logistics ultimately prevailed in the main proceedings. He saw no comparable disadvantage to Lowenergy Solutions from waiting until trial.
The court therefore reserved the enforcement decision to the trial judge. It made no immediate payment order and did not resolve the merits of the parties’ underlying dispute.