High Court of Ireland Decisions

1. The parties are agreed that there are substantial issues for determination at the trial.

2. Subject to one point regarding the question of requiring from the Competition Authority an undertaking as to damages, it is therefore appropriate that I should move directly to a consideration of the balance of convenience.

3. Heavily in favour of granting the Order sought by the Authority must weigh the fact that it is implementing statutory policy on behalf of the public and in particular the policy of avoiding what it considers to be a likely breach of the Competition Act if the proposed agreement between the Defendants were to proceed. The Competition Authority has, in particular, asserted that any deal between the Defendants which goes ahead cannot be "unscrambled", given, especially, that parties who are not before the Court would be involved.

4. On the other side of the scales I must weight several factors mentioned on behalf of the Defendants, but in particular the following:-

5. With regard to this last point, I have carefully considered the evidence and helpful submissions made by Counsel on both sides and I conclude that damages (even supposing they were exigible from the Authority) would not be an adequate remedy in the event that I were to grant the injunction sought and were proved incorrect at trial.

6. Even so, I must consider, in the special circumstances of this case, whether I should, notwithstanding, grant the order sought because it is sought by a State Authority implementing statutory policy set out in the Competition Act.

7. Even if the Competition Authority is correct in its primary submission that the policy of the Act is to require an injunction despite the fact that such would cause loss to the Defendant which is not compensatable, Counsel for the Authority does not go so far as to submit that I have no discretion in dealing with this application. I consider that I do have discretion, albeit that I must give particular weight to the Applicant's case in the manner to which I have already referred.

8. However, in light, especially, of the

9. I refuse to make the order sought by the Competition Authority.

10. In those circumstances it is not necessary that I make a determination one way or the other as to whether an undertaking as to damages is something which can be required from the Authority in such an application as this as a matter of course.