England and Wales High Court (Technology and Construction Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

		St. Dunstan's House Fetter Lane London, EC4A 1HD
		20th November 2008

The Honourable Mr Justice Coulson:

A. INTRODUCTION

1. The Claimant, Talaris (Sweden) AB ("Talaris") were formerly known as De La Rue International Limited. They make cash handling machines. Pursuant to a written exclusivity agreement with Network Controls International Ltd. ("NCI") the software for the Talaris cash machines is currently provided by NCI, who are not permitted to provide software to anyone else pursuant to the terms of that agreement.
2. In August of this year, NCI were bought by NCR, themselves manufacturers of cash handling machines, and therefore one of Talaris' competitors. On 19^th November at the BAI Retail Delivery Show in Orlando, Florida, on the NCR stand, a Talaris machine and an NCR machine were being demonstrated side by side, both being operated by NCI software. Talaris had not given permission for this demonstration. They requested an undertaking that this marketing cease because, so they said, it was a breach of the exclusivity agreement. No such undertaking was offered by NCI.
3. On 19^th November, 2008 I granted an ex parte injunction in Talaris' favour prohibiting the marketing, selling, or production of NCI software in such circumstances. Although NCI were not represented at that hearing, their junior counsel, Mr. Pilbrow, attended at the conclusion of the hearing and informed me that NCI were anxious, if at all possible, to have the return day the following day, i.e. today. That was duly arranged.
4. I therefore set out this Judgment in the following way. At Section B, I deal with the terms of the Exclusive Distributor Agreement. In Section C, I summarise very briefly the evidence, which is more extensive than it was when I granted the original Order yesterday. In Section D, I set out briefly the applicable principles concerning the grant of interim injunctions in circumstances like this, although there is little between the parties on those principles. In Section E, I set out the terms of the original Order. Then, at Sections F, G, and H, I address the issues between the parties as to whether or not there is a serious issue to be tried; the adequacy of damages; and the general balance of convenience. There is a very short summary of my conclusions in Section I.

B. THE EXCLUSIVE DISTRIBUTOR AGREEMENT

5. By written agreement, effective from 1^st October, 2004 and described as the "Exclusive Distributor Agreement" NCI agreed to appoint Talaris as its exclusive distributor of its software throughout the world with the exception of Norway and Sweden. I set out below some of the important provisions from the EDA.
6. The relevant terms of Clause 1 were as follows:

"1. Appointment.

1.1 Subject to the provisions of this Agreement NCI appoints De La Rue as its sole distributor of Software in the Territory commencing on the Effective Date and continuing for a period of three years ('Initial Period').

1.2 De La Rue will promote the Software as its connectivity solution for Twinsafe Classic, TCR Twinsafe, TCD 9000 and TCD 2000.

1.3 Subject to Clause 20, this Agreement may be renewed on the expiry of the Initial Period (or any subsequent renewal period thereafter) if both parties agree in writing not later than twelve months before the expiry of the Initial Period or any subsequent renewal period. If this Agreement is not so renewed NCI shall be entitled to make arrangements with third parties during the last twelve months of the term of this Agreement to ensure continuity in the sale and support of the Software in the Territory on the expiry of this Agreement. Furthermore, if this Agreement is not renewed it shall expire upon completion of its term and shall not be regarded as continuing in effect by virtue of any continuing relationship between the parties and neither party shall, by reason of the failure to renew this Agreement, be liable to the other for any damages or injunctive relief of any kind.

1.4 NCI shall not sell Software in the Territory which offers substantially the same functionality as the Software set out in Appendix C hereto".

Appendix C identified six separate pieces of NCI software. That was "the Software" for the purposes of the EDA.

7. Clause 2 of the EDA was concerned with Talaris' obligations. Many of these, such as Clauses 2.1, 2.2, and 2.5, were connected with the promotion and marketing of the NCI software. It was plain that this was one of Talaris' principal obligations under the Agreement.
8. Clause 3 provided a number of prohibitions on Talaris, many of which were relatively standard for an agreement such as this, such as the prohibition on altering or adding to the software. It is right to point out that there is no equivalent series of prohibitions relating to NCI.
9. Clause 4 is important because it sets out NCI's obligations. I shall not read all of them out, but there are some which are important for the purposes of this application. They are:

" During this Agreement NCI shall ...

4.1 provide De La Rue free of charge with such amount of sales aids and literature in the English language used by NCI in the United Kingdom as NCI considers reasonably sufficient with a view to assisting De La Rue to promote sales of the software in the Territory; ...

4.3 advise De La Rue of any technical changes to the Software which NCI decides to make for whatever reason. This advice will be in the form of data sheets and/or other written details and drawings; ...

4.5 assist De La Rue in its sale and support of the Software at the reasonable request of De La Rue, including visits to Customers at the cost of NCI in the Territory of relevant personnel upon the reasonable request of De La Rue who shall have regard to the resources available to NCI in making such visits; ...

4.7 provide evaluation copies of the Software to De La Rue as follows:

4.7.1 each evaluation copy of the Software to have the name 'Evaluation Copy' encrypted within;

4.7.2 each such Evaluation Copy to have an expiry date encrypted within;

4.7.3 NCI shall always issue the latest version of the Software as an Evaluation Copy;

4.7.4 NCI shall issue each Evaluation Copy of the Software at least ninety days before the effective expiry encrypted within the Evaluation Copy;

4.8 be responsible for all maintenance and modifications and revisions of the Software;

4.9 ensure that all new versions of the Software, including those with the same or similar functionality, are available to De La Rue under the terms of this Agreement and that such new versions of the Software are compatible with earlier versions supplied by NCI under the terms of this Agreement; ...

4.11 ensure that the Software and screens will display the De La Rue and NCI logos and, if appropriate, the logo of any end user Customer…. in a form and style to be agreed by the parties hereto; ...

4.15 NCI will exercise due discretion in all its contacts with Customers and shall keep De La Rue informed of all such communications. De La Rue may, at its absolute discretion, give written notice to NCI that NCI shall have no contact with a customer and in such cases NCI shall subsequently make written request to De La Rue prior to making any contact with that Customer".

10. Other relevant clauses of the EDA included:

(a) Clause 13, which dealt with intellectual property. Clause 13.1 provided that "copyright in and title to the software shall at all times remain the property of NCI or its licensors";

(b) Clause 16.1, which provided for an indemnity in respect of intellectual property rights being provided by NCI to De La Rue against any damages, costs and expenses which may be finally awarded against De La Rue by a court as a result of any claim that any of the Software or their use by De La Rue or its customers infringed the intellectual property rights of any third party;

(c) Clause 17, which dealt with termination;

(d) Clause 19, which dealt with the limitations of liability on the part of each party. These are largely mirror obligations and involve, at Clause 19.1, a limit on Talaris' ability to recover damages against NCI and, at Clause 19.2 an exclusion clause in relation to "loss of profits, loss of business, loss of data, or loss of use or any other indirect, incidental, special or consequential loss or damage whatsoever and howsoever arising….".

There were then similar terms in relation to Talaris' liability to NCI at Clauses 19.4 and 19.5, the latter also purporting to exclude liability for the same loss of profits and other alleged indirect losses.

(e) Clause 21 was a prohibition against assignment.

(f) Clause 24 was an entire agreement clause.

C. EVIDENCE

11. There were ultimately three statements before the court. There were two from Mr. Cust, general counsel and company secretary of the De La Rue Corporation, of which Talaris is part. There is one statement from Mr. Paul, NCI's operations director. The brief summary of the evidence that I set out below comes from these statements.
12. There is no agreement between the parties that the EDA will continue beyond its current expiry date of 31^st March, 2009. There is, I am told, a dispute as to whether proper notice was given, or should have been given, by Talaris in order to extend the EDA. That dispute is not before me. For present purposes I therefore assume that the EDA has about four months or so left to run.
13. Although the statements refer to discussions between the parties as to the position for the future, Mr. Paul makes clear that NCI have announced to the market that they do not want to continue with an exclusive distributorship in any event, and that additional distributors, including its corporate parent, NCR, are likely to be involved in the future.
14. The Retail Delivery Show in Orlando, Florida (to which I have already referred) started on Tuesday, 18^th November. It appears that the critical event was the display on the NCR stand. Since it is important, I set that out verbatim from para. 3 of Mr. Cust's second statement:

"I also attach some photographs taken Tuesday evening by Talaris personnel which show the NCR stand in Orlando. The Retail Delivery Show ("RDS") is the largest retail banking exhibition in the world and is attended by retail and central banks from all over the world. It will be attended by very many of Talaris' customers. The photographs show in particular the presence of a Teller Cash Recycler machine made by De La Rue (now known as Talaris) linked to a PC on which is running the Software licensed by NCI. Not only has this been personally observed by my colleagues, but on several of the photographs there is a sign confirming that on display and available for demonstration is the Software owned by NCI, a subsidiary of NCR. Photographs also show that NCR has positioned their CIMA cash recycler along side the Talaris Teller Cash Recycler with both machines being run by NCI software. This form of comparative advertising by NCR can only be for one purpose, which is to demonstrate that the NCR product will now operate with the NCI software. It must be remembered that for the last 7 years the NCI software has only been available from Talaris (De La Rue as was) and is exclusively associated with the Talaris product. The demonstration was making a very public statement that the NCI software has now been adapted to function with the NCR machine and was now 'available' with the NCR product. Until now the NCI product had not been compatible with the NCR CIMA product. The NCI software must have been recently and secretly adapted by making alterations at driver (code) level, which could only have been performed by the technical staff at NCI. I am informed by Michael Bielamowicz that the computers on NCR's stand displayed Version 5.05n. Version 5.05 is the current version of the Software supplied to Talaris, but Talaris has not been supplied with Version 5.05n. I am advised by one of my colleagues at the RDS show that NCI had one of their technical staff on the stand available to assist NCR in marketing the NCI software and indirectly the NCR re-cycler".

15. Mr. Paul's statement says that NCI has not sold or licensed the software through any distributor other than Talaris. As to the new software, he said at para. 17 of his statement:

"Further, the software NCI displayed at RDS is not the Software. It is software that NCI created uniquely and specifically for the RDS show and is only 'demo' software. It does not fully operate and could not be sold as such now. It will not be ready for sale until 2009. It was not offered for sale at the RDS show. No sale of it was proposed at the show; nor is a sale even possible. Whilst screens of the software NCI displayed at the show were created for the RDS show, this was done because the demonstration software that NCI displayed is in development".

16. Mr. Paul accepts that the set-up at the show in Orlando described by Mr. Cust comprised the first marketing by NCI of the software that they are currently developing. He says that this marketing work is critical for NCI, so as to ensure that when the EDA comes to an end at the end of March next year, NCI have in place both a new distributor and a developed software.

D. THE APPLICABLE PRINCIPLES

17. The applicable principles of law relating to the granting or otherwise of an interim injunction of this kind are set out in American Cyanamid Co. -v- Ethicon Ltd. [1975] AC, 396. The correct approach is to ask:

(1) Is there a serious question to be tried? If the answer to that question is, 'Yes', then there are two further related questions concerned with the exercise of the Court's discretion. They are:

(2) Would damages be an adequate remedy for a party injured by the Court's grant of or its failure to grant an injunction? If not:

(3) Where does the balance of convenience lie?

All of the cases make clear that the first question is the threshold question and the other two are concerned with the exercise of the court's discretion.

18. There are some cases where the granting of an interim injunction may be determinative of the entire dispute between the parties. In such cases the court must be very careful to ensure that an interlocutory injunction is not granted merely because there is a triable issue. In those cases a much stronger case is required. In this regard I was taken by Mr. Joseph, Q.C. for NCI to the Court of Appeal decision in Cayne -v- Global Natural Resources plc [1984] 1 All E.R. 225. There, if an injunction had been granted, the plaintiff would essentially have been able to take over the defendant company and, as the Court of Appeal made clear, it was unlikely that there would then have been any further proceedings or trial. For the reasons which I explain below, I do not consider that this case is in that sort of category. This is a more standard claim for an interim injunction.
19. The guidelines for deciding whether or not there is a serious issue to be tried are set out at s.15-8 of the White Book, Vol.2. I do not repeat those guidelines here. In addition, the guidelines on questions of adequacy of damages and the balance of convenience, taken from Fellowes & Son -v- Fisher [1976] 1QB 122, are set out at para. 15-10 of the White Book, Vol.2. Again, I do not propose to set out those guidelines here. I have had regard to both sets of guidelines in formulating this judgment.

E. THE ORDER

20. The Order that I made on 19^th November contained the following provisions:

"INJUNCTION.

"5. Until the return date or further order of the Court the Respondent must not:

(1) allow or permit, whether directly or indirectly, NCR Corporation of 1700 S Patterson Boulevard, Deighton, Ohio 45479 United States of America ("NCR Corporation") or NCR Financial Solutions Group Ltd., Kingsway West, Burley Industrial Estate, Dundee. DE2 3XX United Kingdom ("NCR UK") or ay other person to act as a distributor of the Respondent's computer software ("the Software") anywhere in the world, excluding Norway or Sweden on or before 31^st March, 2009;

(2) hold out any person other than the Claimant as distributors of the Software anywhere in the worlds save for Norway and Sweden at any time on or before 31^st March, 2009;

(3) sell, whether through NCR Corporation or NCR UK, or any of its officers, servants or agents, or any other person, the Software at the BAI Retail Delivery Conference and Expo ("RDS") in Orlando, Florida, USA on 19^th - 21^st November, 2008 or anywhere in the world excluding Norway or Sweden on or before 31^st March,2009;

(iv) market, whether through NCR Corporation or NCR UK or any of its officers, servants, or agents, or any other person, the Software at the BAI Retail Delivery Conference in Expo ("RDS") in Orlando, Florida, USA on 19^th - 21^st November, 2008, or anywhere in the world, excluding Norway or Sweden on or before 31^st March,2008;

(v) have contact with any of the Claimant's customers whether through NCR Corporation or NCR (UK), or any of its officers, servants, or agents or any other person at the BAI Retail Delivery Conference and Expo ("RDS") in Orlando, Florida, USA on 19^th - 21^st November, 2008;

(vi) produce software which does not display the Claimant's logos at the BAI Retail Delivery Conference and Expo ("RDS") in Orlando, Florida, USA from 19^th - 21^st November, 2008."

21. On behalf of NCI, Mr. Joseph, Q.C. made his submissions by reference to the terms of that Order. I consider that that is a helpful way of considering whether or not there is a serious issue to be tried under these various heads.

F. SERIOUS ISSUE TO BE TRIED

F.1 Distribution

22. Paragraphs 5(1) and 5(2) of the Order concern the possibility of NCI dealing with distributors other than Talaris. In this connection, I have concluded that, on the basis of the evidence, particularly that of Mr. Paul, there is not a serious issue to be tried and no arguable breach. That would therefore mean that sub-paragraphs (1) and (2) should be excised from the Order. My reasons for that view are as follows.
23. First, there is no evidence that NCI has had any dealings with another company as a potential distributor, and there is no evidence that any other company has been held out as a distributor of the software. There is therefore no evidence on which I could properly continue an injunction incorporating paragraphs 5(1) and 5(2). However, even if I was wrong about that, there is a second reason why, in all the circumstances, I would not want to make an order in the terms of sub-paras. 5(1) and (2).
24. This second reason is the express provision at clause 1.3 of the EDA, set out at paragraph 6 above. This provision has caused me some concern, both yesterday and today. As I have indicated, I have to assume that this Agreement will be coming to an end at the end of March 2009, and that we are therefore in the last twelve months of the EDA. Clause 1.3 permitted NCI "to make arrangements…to ensure continuity in the sale and support of the Software". It seems to me that those arrangements must include the opening up of discussions with other potential distributors, so as to see whether a commercial relationship will be possible for the period after 31^st March 2009. It would, I think, be wrong and unfair to continue an injunction prohibiting dealing with potential distributors in circumstances where that is one of the very things, so it seems to me, that Clause 1.3 was designed to provide.
25. I recognise that, because of the unusual involvement of NCR here - because NCR are both a competitor to Talaris and the parent corporation of NCI - there are particular concerns about NCR, particularly by reference to the events at the fair in Florida. However, as will I think become apparent below, I am confident that that can be dealt with in another way. I deal with that in greater detail in Section F3 below.

F.2 Sales

26. Paragraph 5(3) of the Order is concerned with sales. There was a good deal of debate about whether or not the software on show in Orlando is being sold. Mr. Walker, on behalf of Talaris, says that it was being marketed, and that was merely a prelude to it being sold. Mr. Joseph, Q.C. pointed to the evidence which showed that the software was still being developed and was plainly not in a position where it could be sold now; indeed, the evidence was that it could not be sold until some time next year.
27. In my judgment, what was happening in Orlando was marketing. I think that there is a dividing line between sales and marketing. I deal at Section F3 below with whether or not there is a serious issue to be tried in relation to the marketing that was occurring in Orlando. However, on the evidence before me, since that evidence makes plain that there was no selling in Orlando - nor could there be - it seems to me that there is no triable issue as to the sale of the software. NCI and NCR were seeking to build up business for next year after the EDA has, on their case, expired.
28. For those reasons I do not believe that it would be appropriate for any interim Order to include the provisions of sub-paragraph 5(3).

F.3 Marketing

29. This is para. 5(4) of the original order. For the avoidance of doubt, I find that NCI were marketing a new, or revised, version of the software at Orlando in conjunction with an NCR cash handling machine. They were openly comparing the Talaris machine with the NCR machine. Was that an arguable breach of the EDA, such that a triable issue has been raised? In my judgment that conduct was, at the very least, an arguable breach of the EDA, such that there is a triable issue between the parties. There are a number of reasons for that conclusion.
30. First, Clause 2 of the EDA makes clear that it is Talaris who are obliged to market the software, with NCI's assistance. There is nothing whatever that permits NCI to market the software without the involvement of Talaris, much less so in conjunction with one of Talaris' principal competitors. The whole notion of Talaris being an exclusive distributor of the software falls away if NCI can market that software in conjunction with one of Talaris' competitors.
31. Secondly, it is plainly arguable that the version of the software 5.05n is based upon, and indeed simply the next version of, Version 5.05. That is the version of the software provided by NCI for Talaris. The versions are close enough to warrant the same identification number which, in software development terms, often denotes a close degree of relationship. In that event, so it seems to me, it is clearly arguable that Version 5.05n should have been provided to Talaris pursuant to Clauses 4.3 and/or 4.7 and/or 4.9 of the EDA. It was not. Therefore I consider that there is a second triable issue, as to whether or not NCI were entitled to market their software with NCR when, on Talaris' case, that software should have been provided to them and not to NCR.
32. Thirdly, the second sentence of Clause 1.3 does not, in my judgment, help NCI on this aspect of the dispute. I am quite prepared to accept that Clause 1.3 allowed them to negotiate with other distributors. Subject to the provisions of Clauses 4.3, 4.7, and 4.9 there may also be some leeway that allows them to develop a certain amount of software for any such distributor, again in private. But, it does not permit NCI to market publicly what appears to be a new version of the Talaris software in conjunction with one of Talaris' competitors.
33. In essence, as Mr. Joseph fairly accepted, he had to say that during the currency of the EDA, albeit during what he said was its last twelve months, NCI were entitled to market the software in conjunction with another distributor, with the express purpose of generating sales not now, but at some point in the future. I consider that there is at least a serious issue to be tried, that such a stance operates as a breach of the Exclusive Distributor Agreement.
34. Another point taken by NCI was to the effect that the Order at sub-paragraph 5(4) was too wide. I have given that careful thought, and I have concluded that it is not too wide. It seems to me that marketing means what it says. It is anything concerned with public demonstrations, public pronouncements; it covers any communication with the market. It is that aspect of NCI's conduct, so it seems to me, that arguably falls outside the proviso in Clause 1.3. I consider that Clause 1.3 envisages arrangements being made in private such that, once the EDA has come to an end, but only then, those arrangements can then be made public. In essence, the problem here is that NCI have jumped the gun.
35. My conclusion that there is a triable issue in relation to this marketing point seems to me to address any lingering concern about NCR's role as a potential distributor. For the reasons previously noted, I do not consider that the Order should retain current sub-paragraphs 5(1) and (2), concerned with distribution. The dividing line between private negotiations and public marketing, relevant to 5(4), is, I think, sufficient protection for Talaris' purposes. It would unnecessarily complicate things, and potentially give rise to an injustice to NCI, if anything beyond 5(4) was added in relation to the dealings between NCI and NCR.

F.4 Customers

36. There can be no triable issue in relation to sub-paragraph 5(5) of the Order. As Mr. Joseph has demonstrated, Clause 4.15 of the EDA expressly permitted NCI to have direct contact with Talaris' customers. Accordingly, that paragraph will have to be excised from the Order.

F.5 Logo

37. The EDA also provides an answer to this point. Clause 4.11 obliged NCI to provide software that displayed Talaris' logo. It seems clear that the software at Orlando did not do so. It therefore seems to me that there is an arguable case, and a serious issue to be tried, as to whether or not that was a breach of the EDA. Although Mr. Joseph makes the point that no request was ever made for the logo to be displayed, it seems to me that that misses the central point, which is that the logo ought to have been on the software from the outset, in accordance with Clause 4.11. Paragraph 5(6) of the Order must therefore be retained.

F.6 Summary

38. For these reasons, I consider that there is no triable issue in respect of the matters covered by sub-paragraphs (1), (2), (3), and (5) of the current Order. Those paragraphs should be deleted. I consider that there is a triable issue in respect of sub-paragraphs (4) and (6). I then have to go on to consider questions such as the adequacy of damages and the balance of convenience to see whether or not, as a matter of discretion, the Order should be maintained in relation to those two sub-paragraphs.

G. ADEQUACY OF DAMAGES

39. In general terms, it seems to me that damages may well not be an adequate remedy for Talaris if the injunction is not granted and it turns out that it should have been. Similarly, damages may not be an adequate remedy for NCI if the injunction is granted and it turns out that it should not have been. This is because both parties have, I think, broadly the same legal hurdles in their way. Both parties accept that their losses will be hard to quantify and hard to prove. In addition, each will be faced with an argument by the other that the clauses of the contract operate, or may operate, as a bar or a limit on the sort of damages that might be recoverable.
40. For those reasons I do not accept that either party is in a significantly different legal position to the other in terms of recoverability of loss. I do not think that there is any significance in the point that, if there is loss, Talaris will suffer that over the next four months whilst NCI will suffer it thereafter when, on their submissions, a lull comes after 31^st March 2009 and there is no software to replace the version supplied to Talaris. It is, however, necessary for me to consider whether or not either party is likely to suffer any loss as a matter of fact. I do that by considering, first, Talaris' position and then that of NCI.
41. I do not accept Mr. Joseph's submission that Talaris will not suffer a loss at all if NCI continue to market their software in conjunction with NCR, as happened in Orlando. Indeed, I believe that the only logical conclusion is that they would suffer a loss. NCI are keen to continue this marketing exercise according to Mr. Paul because they want to generate sales of NCR cash-telling machines next year. A potential customer for the Talaris equipment, if he is told of newer, better technology next year (and, of course, new technology is always said to be better, whether it actually is or not) may well wait for the new machine. In those circumstances Talaris will inevitably suffer a loss of revenue as a result.
42. On the other hand, there is at least some force in the suggestion that NCI will not suffer a loss if they are not allowed to market the new software in conjunction with NCR, or with any other distributor, until after 31^st March, 2009. Up until 31^st March, 2009, NCI will recover monies from Talaris for the licences in respect of their software used in conjunction with the Talaris machines. After that date those machines will still be being sold. Therefore, profits will continue to be made by NCI. At the same time, NCI will then be in a position to go into a distribution business with one or more other distributors, and will be able to gear up to provide and sell their new software. In those circumstances it may be rather more difficult to say that NCI would suffer a loss if the injunction is wrongly granted at this stage. I have taken on board all of Mr. Paul's statement and the points that he makes, but I remain of that view.
43. There is a second reason why, on a consideration of the adequacy of damages as a remedy, Talaris are in a slightly stronger position than NCI. That is because the financial statements of NCI demonstrate a relatively small net asset position - namely, about £600,000 - which is, of course, far less than Talaris have indicated they will suffer by way of loss if the injunction is not granted.
44. For those reasons, therefore, it seems to me that, on a consideration of the question of adequacy of damages, the overall conclusion is slightly in favour of Talaris for the two reasons that I have given. My consideration of this aspect of the dispute certainly does not lead me to conclude that the interim injunction, limited as it would be to the existing paragraphs 5(4) and 5(6), should not be granted.

H. BALANCE OF CONVENIENCE

45. Save for questions of case management, it seems to me there is little that can be added in relation to the question of balance of convenience. Most of the points have already been dealt with above, in one guise or another.
46. There is, however, an important case management point. I have made plain to the parties during the submissions that, in my judgment, the issues that arise on this dispute are very limited. There are a number of issues concerned with the construction of certain clauses of the EDA. In addition, there may be the need for some evidence as to the software, particularly the relationship between Versions 5.05 and 5.05n. However, there is no reason why those issues should not be determined promptly, given the limited evidence that I would envisage. Indeed, I would consider that the case would be suitable for a two-day trial starting at the beginning of next term - that is to say, in January - which is only about six or seven weeks' time.
47. I should add that a number of related disputes between the parties, concerned with the construction of the EDA, have been identified during the course of the hearing. Although they are not currently within the ambit of the injunction dispute, they are closely related to it. These include, for example, the EDA extension dispute and whether or not it could be said that Talaris have failed to give sufficient notice so that they have no rights to obtain any further extension beyond 31^st March, 2009. That issue, and possibly others like it, could conveniently be dealt with at the same time, if that is what the parties wish. Such disputes are again largely a matter of construction, and will turn on a consideration of the relevant documentation. I do not believe that they would add significantly to the two-day estimate that I have indicated for the full trial of the issues involved in the injunction dispute.
48. As I indicated this morning, it is important that the court does not decide to grant an injunction simply because it is also going to give directions for a speedy trial of the underlying issues. By the same token, it is plainly a factor that the court should take into account when considering the balance of convenience. It seems to me that the knowledge that these matters can be finally resolved within, say, six to seven weeks, is a further factor in favour of exercising my discretion in granting the limited injunction to which I have referred.

I. SUMMARY

49. For all those reasons I consider that, in accordance with the principles set out in American Cyanamid, and on the evidence before me, I should order an interlocutory injunction, but strictly limited to the existing paragraphs 5(4) and 5(6). That Order will remain in force for the next six or seven weeks until the final trial on the issues which underpin this application.
50. I would now propose to go on and indicate the sort of directions that I consider appropriate. But, before doing that, in concluding this Judgment, I would like to thank all counsel, and indeed those sitting behind them, for the clear presentation of the issues on this application for an interim injunction.