[15] That leaves us with the balance of convenience. That follows the decision of the House of Lords in American Cyanamid which I attempted to analyse for my own assistance, at least, in McLaughlin and Harvey Ltd v Department of Finance and Personnel No. 1 [2008] NIQB 122 . I pointed out that the judgment of Lord Diplock is of such magisterial quality that it is perhaps unwise and presumptuous to try and gloss it or recast it or summarise it and I set it out in extenso. I do so at paragraph 5 and 6 of that judgment. I quote Lord Diplock's rejection of the purported rule that a plaintiff had to have a more than 50 per cent change of success as he said at page 47(g):
[16] That is the first of what seems to be seven tests that have to be applied by the court in a situation like this. I conclude a serious issue is to be tried here. If it has, has it been shown that damages would not be an adequate remedy for the plaintiffs and would be an adequate remedy for the defendant if an injunction were granted and ultimately succeeded? Well as to the first we are dealing with an unusual factual situation and we are dealing with a duty in equity and I am not at this stage confident that a subsequent action, if an injunction was refused, for damages by Mr O'Kane could adequately compensate him. That is partly because of the difficulty of calculating it, partly because Mr O'Kane would have to be in the position to bring such an action which he may not be if this injunction is refused.
[17] Furthermore, I have to consider an adequate remedy for the defendant if the injunction were granted but it ultimately succeeded and I will return to that in a moment. I consider the balance of convenience here, there are difficulties but happily counsel with their customary good sense are agreed that if the court is granting an injunction the property should be remarketed and sold in a proper way. The balance of convenience therefore seems to me to favour the plaintiffs slightly because the defendants get on with their sale. If I refused the injunction there is the risk of an appeal and either the defendants or ABCO might be unwilling to complete until such a course had been exhausted whereas if I grant the injunction there will be a sale and either ABCO buy it or the plaintiffs buy it, or of course, some third party buys it but there is no harm in that because that will reduce the debt of the original lender. In that regard I can be said to be preserving the status quo i.e. at the moment the property is not sold and significantly the defendants are not in contract. The relative strength of one party's case might be said to be stronger in favour of the plaintiffs. There are special factors to which I have briefly alluded. I have the statutory power and duty under Section 91 of the Judicature (Northern Ireland) Act 1978 to grant an injunction "where it appears to the court to be just and convenient to do so for the purposes of any proceedings before it".
[18] I am persuaded of that here. The defendants may well be right that the plaintiffs bid to secure these premises may be unrealistic but they are still earning, it seems to me and I have not been corrected on this, that they are funding this litigation and the difference between them and ABCO is a relatively modest one. That is because ABCO succeeded in obtaining a reduction in their initial offer of £700,000 to one of £650,000. So that is only £60,000 more than the friends of the O'Kanes were offering. Now given that the rent role of the property is somewhere between £25,000 and £80,000 a year these are not large sums and it seems to me given that millions of pounds was lent on the property some years ago that Messrs O'Kane may well be able to make a realistic bid. What if they do not? What if the property now sold and ABCO bid a lower amount and the friends of Mr O'Kane do not come up to scratch with their undoubtedly rather complex proposal but a more than arguable proposal, a proposal that may well succeed or if they do not find somebody else to lend them money to re-purchase the property and in effect through some friends or relative of theirs or what if no third party comes in, well then the defendants could say well we had an offer of £650,000 and owing to the O'Kanes intervention we now only have £600,000. Well that is possible. Mr Orr argues, I think rightly, that it does not necessarily mean that they would be liable for that amount but I think something needs to be put in place in that regard and I think some protection has to be put in place for the receiver without making a final ruling.
[19] This is not a case where the undertaking in damages of itself can be of any value because of the very large debts of the two plaintiffs but the injunction which I do propose to grant here would be subject to the payment into court of £30,000. I will hear Mr Orr in a moment as to the timescale for that but I am thinking of 21 days. The injunction will restrain the defendants from proceeding to accept and enter into contract with ABCO Marine (Ireland) Ltd or its directors Messrs Osborne, Osborne and Magill for the sale of property on foot of their earlier offers in this case.
[20] It is out of place to mention this but I will mention it now. Needless to say I have not set out everything in this extempore ruling which has been dealt with on the papers or in argument but I have taken all the factors into account but this factor does bear one express reference. Throughout the papers, including the affidavits of Mr Stephen Cave, Insolvency Practitioner, there was reference to a sale to ABCO but as the documents disclosed belatedly by the defendant show the Memorandum of Sale does not mention ABCO, - it names these three gentlemen, John Vincent Osborne, Brendan Osborne and Niall Magill. Those gentlemen are perfectly welcome to bid for the property and I say absolutely nothing against them. It is right to say that in the additional special conditions there is provision for the vendor transferring the property to the purchaser or to any nominee of the purchaser which could well be this ABCO. I do find it unsatisfactory at least that the deponents for the defendants at no stage disclosed to the court what the correct position was. That should have happened and it is a factor that falls to support the decision of the court in favour of the plaintiffs here.
[21] The defendants are at liberty to resell the property. I will now say a word about that but I would then ask counsel for the plaintiffs to draft an order and seek the agreement of Mr Dunlop as to the precise wording of that and that could be put for my approval. The sale should be by way of private treaty not auction or sealed process. There had better be a fresh advertisement of the property as the defendants are advised. I do not direct the defendants to leave their present agents nor to retain their present agents but I do direct that the persons named, one a deponent, one not a deponent, named in the papers in this regard have no involvement with the sale. BTW Shiels are obviously a large firm and I can see no reason why some other member or members of that firm should not conduct the sale. So if the defendants choose to stay with BTW Shiels some other members of the firm must conduct the sale. All bids are to be recorded in a bidding book which is to be produced to the court in due course. I will accept Mr Dunlop's suggestion that this court approves, that I approve of the sale but that will be done on summons and affidavit and exhibiting the bank book. I expressly contemplate that it would be proper for the defendants to give the O'Kanes a period of time, which I think Mr Dunlop is probably right in saying may be a couple of months rather than weeks or perhaps three months to put all their processes in place. The defendants are not obliged to do that unless the O'Kanes are the highest bidders by, I suggest and rule, subject to counsel's submissions, by a five figure sum. If they are five figures clear of the next bidder, well then I think it is appropriate for the defendants to give them some time and if not, not.