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Campus Oil Ltd & Ors v Minister for Industry and Energy & Ors [1983] IEHC 4 (24 March 1983)

The High Court

Between

Campus Oil Limited and Others

Plaintiffs

And

Minister for Industry and Energy and Others

Defendants

1982 No. 9256 P [24^th March, 1983]

Status: Reported at [1983] IR 88

Keane J.:

The defendants have applied to the Court for an order giving them liberty to amend the defence already, filed by the addition of a counter-claim; for an interim injunction restraining all the plaintiffs (other than the fifth plaintiff) from failing to comply with the provisions of the Fuels (Petroleum Oils) Order, 1983, and, in particular, articles 4, 7 and 14 thereof; and for a mandatory injunction directing those plaintiffs to comply with the provisions of the order of 1983, and with the shipping programme laid down by the first defendant.

The proceedings were commenced by plenary summons which was issued on the 1^st September, 1982. The plaintiffs are a group of Irish companies engaged in the business of importing petroleum products for resale in the State. The events leading up to the issuing of the proceedings have been fully set out in the statement of facts incorporated in the reference (of certain questions arising in the proceedings) made by Mr. Justice Murphy of the Court of Justice of the European Communities. It is unnecessary to set them out again this judgment; it is sufficient to say that the plaintiffs seek to prevent the defendants from implementing what has become known as the "mandatory regime" under which the plaintiffs, in common with all other persons importing petroleum products into the State, are required to take a defined proportion of their requirements of such products from the Whitegate oil refinery, which is owned and operated by the fourth defendant on behalf of the State.

By notice of motion dated the 1^st September, 1982, the plaintiffs applied to the High Court for an interlocutory injunction restraining the defendants from implementing the mandatory regime. In the proceedings, the plaintiffs claim that the Fuels (Control of Supplies) Order, 1982 (the predecessor of the order of 1983) is ultra vires as being inconsistent with certain articles of the Treaty establishing he European Economic Community and with certain articles of the Constitution of Ireland, 1937. The plaintiffs' application for an interlocutory injunction was heard by Mr., Justice Murphy on the 8th and l0th September, 1982, and was refused by him on the 13th September, 1982. In a written judgment delivered on the 22nd September, 1982, he gave his reasons for refusing the plaintiffs' application: see Campus Oil Ltd, v. Minister for Industry and Energy [1983] IRLM 258

Subsequent to the hearing of the plaintiffs' motion, Mr. Justice Murphy decided to refer certain questions to the Court of Justice of the European Communities. That application was opposed by the defendants, on the grounds that it was either unnecessary or premature to refer any question to the Court of Justice at that stage. The defendants appealed to the Supreme Court from the order of Mr. Justice Murphy but that court held that it had no jurisdiction to entertain an appeal from such a reference made by the learned High Court judge in the exercise of is jurisdiction: see Campus Oil v. Minister for Industry [p.82]. Accordingly, that reference has now been transmitted to the Court of Justice.

While these legal skirmishes were iii progress, the first and fourth defendants were endeavouring to implement the mandatory regime; but it was becoming increasingly apparent that s me at least of the plaintiffs, notwithstanding the refusal of Mr. Justice Murphy to grant to them the interlocutory relief they sought, were unwilling to comply with, the regime pending the ultimate outcome of the present proceedings, A considerable volume of correspondence between the first and fourth defendants and the plaintiffs was exhibited, to which it is unnecessary to refer in detail. It is sufficient to say that, in regard to the third plaintiff, the defendants were confronted with an unequivocal refusal to comply with the regime until the conclusion of legal proceedings - this refusal being conveyed by telex from Mr. Noel McMullan to the Secretary of the Department of Energy on the 3rd March, 1983. It is clear, however, that the defendants' present application was precipitated by the equally u equivocal intimation on behalf of two of the multinational companies- Irish Shell Ltd. and B.P. (Ireland) Ltd. - that they were not prepared to comply with the regime until such time as it was applied, without distinction, to all importers. The defendants say that a refusal by the multinational companies to comply with the regime would mean the closure of the refinery within a matter of days; and that the only method which is open to the defendants of ensuring the continued compliance of the multinational companies with the regime is by securing, by appropriate legal process, the compliance of such of the plaintiffs as are unwilling to comply voluntarily.

The parties to the present application by the defendants have made complaints in the affidavits about the conduct of the other parties. The plaintiffs said that the mandatory regime is being operated inequitably since some importers are selling petroleum products within the State without complying with the regime and that the defendants have not made any attempt to secure the compliance of those importers. For their part, the first and fourth defendants say that some of the plaintiffs have availed of the higher prices permitted to be charge by the relevant pricing regulations (brought in to offset the effect on importers of the mandatory regime) while continuing to make purchases on the spot market without complying with, the mandatory regime, and that the have thereby made (it is said) an unjustified profit from the increase in the permitted prices. It seems to me, however, that these complaints, although made the subject of vigorous charges and countercharges in the affidavits, are not material to the issue that has to be resolved on the present application.

The issues which have to be determined now are whether the plaintiffs are bound in law to abide by the regime until such time as these proceedings have been determined and whether, in such circumstances, the defendants are entitled to an interlocutory injunction compelling the plaintiffs to comply with the regime.

The principles applicable by the Court in determining whether interlocutory relief should be granted ha e generally been accepted as being correctly stated in the following passages from Kerr on Injunctions (6th ed. 1927) which were cited with approval by Lavery J. in Educational Company of Ireland Ltd. v. Fitzpatrick.[1961] IR 323 The first passage is taken from p. 2 of that edition: -

"The interlocutory injunction is merely provisional in its nature, and does not conclude a right. The effect and object of the interlocutory injunction is merely to keep matters in statu quo until the hearing or further order. In interfering by interlocutory injunction, the Court does not in general profess to anticipate the determination of the right, but merely gives it as its opinion that there is a substantial question to be tried, and that till the question is ripe for trial, a case has b en made out for the preservation of the property in the meantime in statu quo. A man who comes to the Court for an interlocutory injunction, is not required to make out a case which will entitle him at all events to relief at the hearing. It is enough if he can show that he, has a fair question to raise as to the existence of he right which he alleges, and can satisfy the Court that the property should be preserved in its present actual condition, until such question can be disposed of."

The second passage appears at pp 15-16 of that edition:-

"The office of the Court to interfere being founded on the existence of the legal right, a man who seeks the aid of the Court must be able to show a fair prima facie case in support of the title which he asserts. He is not required to make out a clear legal title, but he must satisfy the Court that he has a fair question to raise as to the existence of the legal right which he sets up, and that there are substantial grounds for doubting the existence of the alleged legal right, the exercise of which he seeks to prevent. The Court must, before disturbing any man's legal right, or stripping him of any of the rights with which the law has clothed him, be satisfied that the probability is in favour of his case ultimately failing in the final issue of the suit. The mere existence of a doubt as to the plaintiff's right to the property, interference with which he seeks to restrain, does not of itself constitute a sufficient ground for refusing an injunction, though it is always a circumstance which calls for the attention of the Court."

In a number of recent cases, however, reliance has been placed on the decision of the House of Lords in American Cyanamid v. Ethicon Ltd. [1975] AC 396 and, in particular, on the speech of Lord Diplock in that case where he disapproves of the application of the "balance of probability" criterion in the context of the exercise of this discretionary power and states (pg. 407) the applicable principle to be as follows:- "The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried." In his judgment ruling the plaintiffs' earlier motion in this case, Mr. Justice Murphy has pointed out that the approval by Lavery J., of the passages cited from Kerr on Injunctions should be considered in the light of the observation by Lavery J. later in his judgment (p. 337) that the plaintiff had to establish "that there is a fair question raised to be decided at the trial" – which phrase is almost identical with the above formulation of the test by Lord Diplock, viz: -"The court no doubt must be satisfied…that there is a serious question to be tried."

A test which is more akin to the "balance of probability" test, now discarded in England, appears to have been favoured by Ó Dálaigh C.J. in Esso Petroleum Co. (Ireland) Ltd. v. Fogarty [1965] IR 531 where, in language almost identical to that used by Kerr in the passage cited, he said at p. 539 of the report: -"The Court before stripping him [the defendant] of this right must be satisfied that the probability is in favour of the defendant's case ultimately failing in the final issue of this suit." In the same case, however, Mr Justice Walsh referred (p. 541) to the test as being whether "there is a substantial question to be tried." Lavery J. concurred in the judgment of the Chief Justice without delivering a separate judgment. It appears from a footnote on p. 11 of the supplement to Wylie's Irish Land Law that the Cyanamid test has been approved by the Supreme Court in at least two cases, but no written judgments appear to be available.

While there has been no express disavowal in this country of the probability test - at least in any written judgment of the Supreme Court - and some expressions of approval of that test in the decisions to which I have referred, it seems open to this Court to apply the test propounded by Lavery J. in the Educational Company Case [1961] IR 323 and to determine whether the person seeking the relief pas shown that there is a fair question raised to be decided at the trial. I respectfully agree with the view of Mr. Justice Murphy that this, in all material respects, is the same as the test propounded by Lord Diplock and that the reasons advanced 'by the latter in support of it are of so persuasive a nature that its application to the granting or withholding of an injunction at the interlocutory stage is appropriate.

The plaintiffs have submitted that, even allowing (which they do not) that this is the appropriate test in the case of a prohibitory injunction, it is not appropriate where, as here, the essential relief claimed is mandatory. They say that in these circumstances a different test is required and that an applicant's case has to be unusually strong and clear before a mandatory injunction can be granted at the interlocutory stage. In particular, they rely on two decisions to that effect of Megarry J., as he then was, in Shepherd Homes Ltd. v. Sandham [1971] Ch. 340 and Hounslow London Borough Council v. Twickenham Garden Developments Ltd. [1971] Ch. 233

There is, of course, no doubt that the relief claimed by the defendant~' is mandatory in essence, although in form the first injunction sought by them is prohibitory. It is also the case that, in the absence of special circumstances, such relief should not be granted on motion. However, it is clear from the authorities that the granting or withholding of the injunction remains a matter of discretion. The factors which would normally lead a court to treat, such an application with Homes particular caution must be borne in mind. They are explained by Megarry J. in the Shepherd Case [1971] Ch.340 as follows at p. 348 of the report:-

"By granting a prohibitory injunction, the court does n9~0~e than prevent for the future the continuance or repetition of, the conduct of which the plaintiff, complains. The injunction does not attempt to deal with what has happened in the past; that is left for the trial, to be dealt with by damages or otherwise. On the other hand, a mandatory injunction tends at least in part to look to the past, in that it is often a means of undoing what has already been done, so far as that is possible. Furthermore, whereas a prohibitory injunction merely requires abstention from acting, a mandatory injunction requires the taking of positive steps, and may (as in the present case) require the dismantling or destruction of something already erected or constructed. This will result in a consequent waste of time, money and materials if it is ultimately established that the defendant was entitled to retain the erection."

I am satisfied that neither of those factors should affect the exercise of my discretion in the present case. In the first place, in common with the normal prohibitory form of relief, the relief sought by the defendants looks essentially to the future rather than the past. It is true that this may necessarily involve the plaintiffs in removing stocks of petroleum products which have accumulated as a result of their failure to comply with the regime up to now; but in essence the defendants seek the regulation of the conduct of the plaintiffs between now and the hearing of the action, which is the precise area in respect of which interlocutory prohibitory relief normally operates. In the second place, there is no question of the plaintiffs being required either to carry out work or to undo work involving disproportionate expense, waste of time and inconvenience in the event of them succeeding in the action. I conclude from this that, in the circumstances of this case, the defendants are not required to show the "unusually sharp and clear" case for a mandatory injunction mentioned by Megarry J. at p. 352 of the report of the Shepherd Homes Case. [1971] Ch. 340

It is clear, and necessarily follows from other passages in the judgments of Lavery J. and Lord Diplock, that on an application for an interlocutory injunction the Court should not normally express any concluded opinion upon the issues raised between the parties. In this case, as in all others of a similar nature, a final determination of the issues between the parties must await the full hearing of the action.

The first matter to be decided is whether the defendants have raised "a fair question" to be decided at the trial. The defendants say that the order of 1983 which they now seek to enforce was made by the first defendant in exercise of his powers under the Fuels (Control of Supplies) Acts, 1971 and 1982. Accordingly, it is part of the law of the State and should be enforced by the Court unless and until the parent enactment or the subordinate legislation, or both, have been shown to be invalid because of the provisions of either the Constitution or the Treaty. The plaintiffs say that the order of 1983 contravenes, blatantly and unarguably, articles 30 and 31 of the Treaty, and that the onus of establishing that the order of 1983 is saved by one or more provisions of the Treaty lies o the defendants. The plaintiffs say that, until such time as the Court of Justice has ruled on the questions of law posed in the reference made by Mr. Justice Murphy, the defendants are in clear violation of the obligations imposed upon the State and that, accordingly, they do not meet the requirements for the exercise of the Court's discretion in their favour. Alternatively, the plaintiffs say that the only article which the defendants can invoke to justify their alleged breach of articles 30 and 31 (viz., article 36) is patently not applicable to the order of 1983.

It should be said at the outset that, in their pleadings and on their application before Mr. Justice Murphy, the plaintiffs relied on other articles of the Treaty as invalidating the order made but, at the hearing of this motion of the defendants, the plaintiffs confined their arguments to the articles which I have mentioned.

So far as relevant, articles 30 and 31 of the Treaty provide as follows: -

"Quantitative restrictions on imports and .all measures having equivalent effect shall, without prejudice to the following provisions, be prohibited between Member States."

"Member States shall refrain from introducing between themselves any new .quantitative restrictions or measures having equivalent effect…"

It is clear and, indeed, not disputed by the defendants that those articles form part of the domestic law of this State and that the Courts must give effect to them as if they had been enacted by the Oireachtas. However, it is submitted by the defendants that the question of whether the measures now introduced are in breach of the provisions of the Treaty must be determined ultimately in the light of the answer to the first question posed in the reference made by Mr. Justice Murphy and that, in any event, the measures are not the equivalent of a quantitative restriction within the meaning of article 30. It is possible that such a conclusion (i.e., that the order of 1983 is not equivalent to a quantitative restriction) ay be reached by the Court of Justice and the High Court in the ultimate determination of these proceedings. However, having regard to the undisputed fact that without the mandatory regime the overwhelming bulk of this country's requirements of refined petroleum products would be imported from another member State, i.e., the United Kingdom, it is difficult to understand how, on any view, the mandatory regime could escape being treated as a measure which is equivalent to a quantitative restriction. Articles 30 and 31 are clearly fundamental to the operation of the economic community which was established by the Treaty; the broad sweep of the articles has been emphasised by the Court of Justice in two leading cases. First, in Procurer du Roi v. Dassonville [1974] ECR 837 the Court of Justice said at p. 852 of the report:-

"All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions."

More recently, in Commission v. Italy [1982] ECR 2187 the Court of Justice said at p. 2203 of the report:-

"As the Court has held on man occasions, it is sufficient for the purposes of the prohibition of all measures having an effect equivalent to quantitative restrictions on imports laid down by Article 30 that the measures in question should be held to hinder, directly or indirectly, actually or potentially, imports between Member States."

In the light of those decisions, which are s much part of our domestic law as the Treaty itself, it is difficult even to formulate the "fair question" as to the construction of article 30 of the Treaty and its application to the facts of the present case - which facts, the defendants say, justify the granting of the interlocutory relief which they seek. However, the defendants claim that, even if article 30 does prima facie invalidate the order of 1983, the article is saved (at least arguably) by article 36. So far as material, article 36 provides: -

"The provisions of Articles 30 to 34 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security…Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member State."

The defendants say that the importance to Ireland of having its own refining capacity concerns purely economic considerations and brings the order of 1983 within the protection which is afforded by article 36 to measures that are justified on grounds of public policy or public security. They argue that the absence of its own refining capacity would render Ireland vulnerable to serious disruptions in oil supplies and to grave consequences for the essential functioning of the entire economy and for the operation of the Army, the Gardaí and emergency services generally. They say that this risk is augmented by a growing world-wide trend towards fewer and more complex refineries.

The plaintiffs say that the previous decisions of the Court of Justice establish that article 36 is to be construed restrictively and that it is not directed towards the economic interests of the member States. They rely on the following passage from the judgment of the Court of Justice in Commission v. Italy [1982] ECR 2187 at p. 2204 of the report:-

"It must be recalled that in accordance with the settled caselaw of the Court, Article 36 must be strictly interpreted and the exceptions which it lists may not be extended to cases other than those which have been exhaustively aid down and, furthermore, that Article 36 refers to matters of a non-economic nature."

The plaintiffs also point to the fact that, since Mr. Justice Murphy delivered his judgment ruling the plaintiffs' earlier motion, the Commission of the European Communities has invoked its powers under article 169 of the Treaty and, by letter dated the 1st February, 1983, has requested the Irish Government's observations on the contention advanced in that letter that the order violates the Treaty. This letter calls upon the Government to submit its observations within one month and reserves the right to deliver a reasoned opinion on the matter as provided by article 169.

The argument advanced on behalf of the defendants depends upon the establishment of facts which have been explored, to some extent, in the affidavits filed for the purpose of this application and the earlier application. So far as these facts are concerned, it would be impractical on an interlocutory application to conduct a detailed investigation of them and, in any event, it would be wrong in principle to arrive at any concluded opinion on them at this stage of the proceedings. The case made by the plaintiffs, however, is that, whatever facts may be established, the matter remains outside the ambit of article 36 of the Treaty as being essentially economic in its nature. On a first reading, the wording of article 36 would certainly suggest that it was intended to permit a derogation from the requirements of articles 30-34 for non-economic reasons only. It would also appear more probable that article 36 did not envisage the sort of quantitative restriction which would appear to be involved in the present proceedings, but rather a qualitative ban or prohibition such as might be permissible in the case of obscene books or films (on the ground of public morality) or firearms and explosives (on the ground of public security).

However, it cannot be said that the question raised by the defendants under article 36 is not at least a fair question to be tried at the hearing of the action. Nor can I disregard the fact that the question has been referred by Mr. Justice Murphy after hearing lengthy debate last September; and that, the same issue has again been the subject of detailed argument at the hearing of the present motion. Moreover, there is no decision of the Court of Justice on the proper construction of the words "public security" and, to that extent, the issue must be regarded as res integra. It must also be observed that it was at the request of the plaintiffs that Mr. Justice Murphy referred the questions to the Court of Justice. In fairness to the plaintiffs, however, it should be added that they were deprived of an earlier determination of the referred questions because of the prosecution by the defendants of an unsustainable appeal to the Supreme Court from the decision of Mr. Justice Murphy.

The plaintiffs advance a further argument based on what they say is the clear violation by the defendants of articles 30 and 31 of the Treaty. At this stage, they say, there has been no determination by the Court of Justice saving the impugned measures from their (alleged) invalid status under articles 30 and 31. In these circumstances, it is submitted, the High Court must enforce the law of the European Economic Community as it now stands. In this context, the plaintiffs rely on article 5 of the Treaty which provides:-

"Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty."

In addition, they rely on the decision of the Court of Justice in Amministrazione delle Finanze dello Stato v. Simmenthal [1978] ECR 629 where the court ruled as follows at pp. 645-6 of the report:-

"A national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provisions by legislative or other constitutional means."

I accept entirely the obligation of the Court to enforce not merely the Constitution of Ireland and the laws of this State but also the provisions of the Treaty, being also part of the law of the State. However, that does not preclude the Court from continuing to exercise its traditional jurisdiction in relation to the granting of interlocutory injunctions where the applicant raises a fair question as to whether a particular right he asserts is being violated and where both the balance of convenience between the parties, and the desirability of preserving the status quo, are in favour of the granting of such relief. To depart from that principle would be not merely contrary to well-settled authority but might also hinder the objects of the Treaty itself and the institutions established thereunder since it would seem proper that, in an appropriate case, the status quo should be preserved by interlocutory order so far as is consistent with the rights of the parties, pending the determination of the issue in question by the Court of Justice of the European Communities. Support for this view of the law is to be found in the decision of the Court of Justice in Hoffman-La Roche v. Centrafarm [1977] ECR 957

It as also submitted on behalf of the plaintiffs that, in the event of the defendants failing in these proceedings, the impugned order must be regarded as having been void from its making. In support of this view the plaintiffs relied on the decision of the Supreme Court in Murphy v. The Attorney General [1982] IR 241 and, in particular, the observations of Mr. Justice Henchy at p. 310 of the report in relation to legislation conflicting with the provisions of the Treaty. It may well be that, in the event of the plaintiffs so succeeding, the impugned order will be properly treated as having been void ab initio and not merely voidable. In my view, however, it would not be correct to treat that consideration as a basis for depriving the defendants of injunctive relief to which they would otherwise be entitled. To do so would be to depart again from the well-established principles on which such relief is granted. I have been told that Mr. Justice McWilliam in Brennan v. The Attorney General [1983[ IRLM 449 (a case involving the unconstitutionality of the valuation code) declined to restrain the collection of rates on that basis, and that his decision was upheld by the Supreme Court.

Then it was said on behalf of the plaintiffs that the relief sought by the defendants was in the nature of a quia timet injunction which should not be granted in the absence of clear evidence that the applicant will suffer the damage which he apprehends. It was submitted that the evidence of' an intention on the part of the multinational oil companies to decline to comply with the mandatory regime is secondary in its nature and affords too slender a basis for such relief. Apart from the consideration that evidence of such a nature is generally admissible on an interlocutory application, I have no doubt that there is no reason whatever to suppose that the multinational oil companies would continue to comply voluntarily with an uneconomic regime which was unenforceable, and shown to be unenforceable, against the plaintiffs.

It was also submitted on behalf of the plaintiffs that the Attorney General was not entitled to injunctive relief of the nature sought - particularly at the interlocutory stage - and that, in so far as the assertion and protection of public rights was one of the functions assigned to the Attorney General by the Ministers and Secretaries Act, 1924, this provision did not survive the enactment of the present Constitution. In a case such as the present, where the plaintiffs are alleged to be defying a statutory rule or order made by a Minister in what he conceives to be the public interest and not for the protection of any private interest, I am satisfied that the appropriate person to assert and defend the public interest, thus allegedly violated, is the Attorney General. This is clear from a number of decisions both prior and subsequent to the present Constitution: see for example Attorney General v. Northern Petroleum Tank Co. Ltd [1936] IR 450; Attorney General v. Dublin United Tramways Co. Ltd [1939] IR 590 and Byrne v. Ireland [1972] IR 241

The two remaining questions are, first, whether the balance of convenience requires the granting or refusing of the injunction sought by the defendants and, secondly, the effect on the status quo of any order made by the Court on the present application.

So far as the balance of convenience is concerned, I respectfully agree with the following view expressed by Mr. Justice Murphy when giving judgment determining the plaintiffs' motion for an interlocutory injunction: -"The whole basis of the mandatory regime is that it applies rateably to all persons importing petroleum oils into the State. That being so, it must be questionable whether the importers (other than the plaintiffs) would be prepared to operate the scheme-or indeed the Minister to impose it - if this fundamental principle was breached. Whilst the plaintiffs contend that the defendants might minimise their losses by selling the output of the Whitegate Refinery on the international market, I would accept that the collapse of the statutorily guaranteed outlets would have a very serious effect indeed on the operation of the refinery and the business of the corporation…At the present time, however, the Minister who has the statutory responsibility for so doing is purporting by virtue of the 1982 order to regulate the control and supply of petroleum oil by the means which he regards as most appropriate to promote the common good and contends that the frustration of his proposals, even temporarily, would jeopardise the public interests. If that view is upheld - and the presumption is that the Minister - has acted properly within the limits of the powers conferred upon him by the 1971 Act as amended by the 1982 Act - the loss which the Minister, and more particularly the public, may sustain could not be compensated for in money. It seems to me that this is a decisive consideration in the circumstances of the present case in refusing the plaintiffs' application for an interlocutory injunction." If anything, the position has altered to the plaintiffs' disadvantage since the hearing before Mr. Justice Murphy since there is now evidence (which there was not then), albeit secondary in nature, of a positive intention on the part of the multinational companies to cease complying with the mandatory regime.

So far as the preservation of the status q o is concerned, the position has also altered to the plaintiffs' disadvantage since the hearing before Mr. Justice Murphy. At that stage the mandatory regime had not been implemented; since then the first defendant has been endeavouring, with partial success, to secure compliance with it The effect of refusing the defendants' application would be to ensure hat the status quo was not preserved.

It follows that, in terms of the balance of convenience between the parties and the preservation of the status quo, the present circumstances point to the desirability of exercising the Court's discretion in favour of granting the relief sought by the defendants.

Accordingly, I will accede to the defendants' application to amend the defence by the addition of the counter-claim and I will grant an interlocutory injunction (pending the trial of the action) in the terms of paragraphs 2 and 3 of the notice of motion. In view of the unusual nature of the interlocutory relief sought, there will be liberty to all parties to apply pending the trial of the action. The costs of the present application will be reserved to the trial judge.

I should like to express my indebtedness to counsel for the meticulous and helpful manner in which this difficult and complex matter was argued.