Brian Lenihan Jnr (Dublin West, Fianna Fail)

The Senator has raised an interesting point. The Supreme Court, in referring to this issue, was not advocating that we reform the law by insisting that applicants give an undertaking as to damages before they obtained a barring order or an interim barring order in this instance. What the Supreme Court did in its judgment was to contrast the arrangement in ordinary civil cases where frequently a plaintiff or a defendant seeking interlocutory relief has to give an undertaking as to damages with the peculiar nature of this remedy where no such undertaking is required.

No doubt that was a factor that influenced the Supreme Court in arriving at the conclusion that there should be a strict time limit in the operation of this type of order. In ordinary civil proceedings a plaintiff can be required to say a particular activity shall cease on the proviso that the person trying to restrain the activity offers to compensate the party affected, if the person seeking the restraining order is proved wrong at the conclusion of the case. That is the undertaking with regard to damages.

That has never been a feature of this particular remedy. Since its inception in 1976, this remedy has proceeded without any undertakings being required of the parties. It does not require a great leap of the imagination to see why, because undertakings by many of the parties to this particular litigation would not be of great value and would be inclined to give rise to more litigation subsequently and dispute over a pot of gold that does not exist. For that reason the undertaking has not been a feature of our legislation and the Oireachtas, when it provided for this remedy, never provided for undertakings as to damages. It provided a specific system of remedies for an unique problem of domestic violence.