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1. The first named plaintiff in these proceedings is the Controller of Patents, Designs and Trade Marks. The second named plaintiff is the present holder of that office. He was joined as second plaintiff at his own request during the course of closing submissions made by Counsel on his behalf in this application.

The plaintiffs seek three Orders at this stage of the proceedings. First, they seek an Order restraining the third named defendant from implementing or bringing into operation Sections 4 and 5 of the Intellectual Property (Miscellaneous Provisions) Act of 1998 until further Order of this Court.

Secondly, they seek an injunction restraining the defendants from interfering with the functions, powers and duties of the plaintiff in the performance by him of his office or from unilaterally altering or purporting to alter the terms of his appointment, warrant, contract or independence of his office.

And finally, they seek an Order for Discovery as against the defendants of all documentation in relation to the preparation, drafting, advice, changes, amendments, discussions with and briefing of Dail Deputies and Members of Seanad Eireann concerning the Copyright Amendment Bill 1998, as initiated in Dail Eireann on the 29 April of this year and presented by the first defendant, and the Bill as changed to the Intellectual Property (Miscellaneous Provisions) Act, 1998, as passed by the Dail on the 1 July of this year.

The second named plaintiff was appointed to his office on foot of a decision of the Government made on the 13 September 1983. By that decision he was appointed to office for a term commencing on the 14 September 1983 and ending on the 14 May 2008. Having been offered the post, he accepted it and executed a document in the following terms, and I quote, "(1) I am prepared, on appointment to the post of Controller of Patents, Designs and Trade Marks in the Department of Trade, Commerce and Tourism, to perform under the general superintendence and direction of the Minister of Trade, Commerce and Tourism, the duties assigned by legislation to the office of Controller of Patents, Designs and Trade Marks. (2) If at any time I am reassigned or transferred to another post, whether in the same or another Department, which, in the opinion of the Minister for the Public Service, is of no greater importance than the post now offered to me, I shall be prepared to accept such reassignment or transfer without additional remuneration". It is signed by the second named plaintiff and dated 11 October 1983. The second named plaintiff has held the office of Controller since that time. He is paid the same salary as a principal officer in the Civil Service, plus an allowance.

In January of this year, he was given leave to commence judicial review proceedings seeking a variety of reliefs to which I shall return in a few moments. He began those proceedings and they are now pending before the Court and awaiting trial. It is clear from an inspection of those proceedings that the genesis of them was a decision made by the Government to move the Patents Office to Kilkenny some considerable time ago.

While these proceedings were, and indeed are still, before the Court, things were happening in Parliament which have given rise to grave disquiet and upset on the part of the plaintiff. A Bill called the Copyright Amendment Bill 1998 was initiated in the Dail on the 29 April of this year. It was a Bill of four Sections. It dealt exclusively with copyright matters. It was passed by the Dail on the 28 May of this year. From there it moved to the Senate. Whilst before that House, the third named defendant, the Minister, introduced a series of amendments to the Bill. These amendments went completely outside of the scope of copyright law. The Bill became one of six Sections.

This application is principally concerned with the two additional Sections which were added by way of amendment, namely Sections 4 and 5. These Sections amend provisions of the Patents Act 1992 and deal with the office of Controller. The amendments were adopted by the Senate on the 18 June of this year and by the Dail on the 1 July. The title of the Bill was changed to the Intellectual Property (Miscellaneous Provisions) Bill, 1998. This was a clear recognition it was no longer merely dealing with copyright matters. The Bill was signed into law by the President on the 7 July and it is therefore now part of the law of the State. However, Sections 4 and 5 will not come into operation unless and until the Minister makes an Order to that effect. (See Section 6 of the Act).

These developments gave rise to an understandable anxiety and concern on the part of the plaintiff. This was heightened by the fact that, whilst the plaintiff was furnished with a copy of the Bill as initiated, he was neither informed nor consulted as to the amendments. He has become further concerned because of certain statements made in Parliament concerning briefings and discussions which took place between the Minister, Civil Servants and politicians during the progress of the legislation through the Houses of Parliament. He is further concerned at the fact, and this will emerge more clearly in a moment, that this legislation was put to both Houses, in unusual circumstances while his judicial review proceedings, to which I have already referred, were pending before this Court and neither he nor the Court were informed of that fact.

It is now necessary to look at the provisions of Sections 4 and 5 of the legislation which have caused such concern and anxiety to the plaintiff. Section 4 makes an amendment to Section 6 of the Patents Act of 1992 by the substitution of the original Subsection 3 of the 1992 Act with the following, and I quote, "The office of the Controller shall be under the control of the Controller who shall act under the general superintendence and direction of the Minister".

Section 5 introduces a new Section 97 to the 1992 Patents Act, and in its amended form it is set forth in the table to Section 5 of the 1998 Act. It is as follows,

"97(1)(a): The Government shall appoint, as occasion arises, a person to the office of Controller for a term of five years on such terms and conditions as shall be specified by the Government when making the appointment.

(b) A person appointed under Paragraph (a) of this Subsection whose term of office expires otherwise by reason of a person being removed from office shall be eligible for reappointment.

(c) Notwithstanding Paragraphs (a) and (b) of the Subsection, a person appointed to the office of Controller shall retire on attaining the age of 65 years.

(d) Without prejudice to Paragraphs (a), (b) and (c) of this Subsection, the person holding office as Controller immediately before the commencement of this Subsection shall hold that office on the same terms and conditions, including the conditions as to superannuation or other allowance for gratuity as specified by the Government when making this appointment to that office.

Subsection 2: The controller shall receive such remuneration as the Minister for Finance shall determine.

Subsection 3: Subject to the Controller being in good health at the time of the appointment, and notwithstanding that the Controller is appointed without a certificate from the Civil Service Commissioners, the Controller shall, during his term of office, be deemed to be employed in the Civil Service of the State. The office shall be located in such a place in the State as may be designated from time to time by the Minister and the Junctions of the office of Controller shall be discharged at that place subject to such exceptions that the Minister may, from time to time, specific in writing.

Subsection 4: Whenever the Controller is temporarily unable to attend to his duties or his office is vacant, the Minister may appoint a person to perform the duties of Controller during such inability or vacancy, and any person so appointed shall, for as long as the office remains in force, have all the powers of Controller under this Act as otherwise determined by law, and shall receive such remuneration as the Minister shall sanction under the Minister for Finance's direction.

4(a): Notwithstanding Subsection 1, the Government may remove from the office of Controller a person who has become incapable through ill health of effectively performing the duties of Controller or for stated misbehaviour, or whose removal appears to the Government to be necessary for the effective performance of the functions of Controller.

Subsection 5: Any act or any direction to be done by or to the Controller under this Act or any other enactment may be done by or through any officer authorised by the Minister.

Subsection 6: An authorisation under Subsection 5, (a) may be made subject to such directions as the Minister may specify and, (b) may at any time be modified or revoked by the Minister".

The plaintiff contends that these provisions have fundamental and far-reaching consequences for him, and he therefore claims the reliefs which are sought.

In the course of argument, the defendants raised, but did not press in a strong fashion, an argument that the Court has no jurisdiction to entertain this application. This point was made by reference to Article 25(4)(1) of the Constitution, and the inability of the Court to interfere with the President in signing a Bill into law. It was said that the Court could not enjoin the Minister from making an Order under Section 6 of the Act by analogy with the Constitutional provisions concerning the signing of a Bill into law by the President.

I am not persuaded that the defendants have demonstrated with the degree of clarity required to justify an in limine dismissal of this application that the Court is devoid of jurisdiction to interfere. I am fortified in this view by the judgment of Mr Justice Barron in the High Court, and by the judgment of the Supreme Court, in the case of O'Cleirigh versus the Minister for Agriculture, the decision of the Supreme Court having been given on the 27 March 1998.

I am, therefore, for the purpose of this application, prepared to assume that there is jurisdiction to grant the reliefs sought, although I do not purport to decide that interesting question at this stage. In any event, as I have already said, the issue, whilst raised, was not pressed strongly by the defendants and, therefore, I propose to assume jurisdiction, although without deciding that issue in a final or definitive way.

The next question with which I must concern myself is the way in which this jurisdiction falls to be exercised. Are the ordinary principles applicable on an application for an interlocutory injunction, the appropriate ones to apply here or not? Those principles have been enunciated by the Supreme Court in the Campus Oil decision, and by the House of Lords in American Cyanimid versus Ethicon. They are well-known. They require a plaintiff who seeks to obtain an interlocutory injunction to demonstrate to the Court first the existence of a serious issue to be tried at trial, secondly, that damages would not be an adequate remedy for the wrong which he apprehends, and thirdly, that the balance of convenience lies in favour of granting rather than refusing the injunction.

Mr Stewart, on behalf of the plaintiff, contends that the ordinary test, such as I have just enunciated, is the one applicable on this application. Mr Hogan says not so. He contends that in a case where relief of this sort is sought, it is not enough that a mere serious issue to be tried be demonstrated. He says that a plaintiff must show a stronger case than that. There is no authority directly on the point in respect of an injunction of the type which is sought here. On the one hand there are statements which are contained in the speech of Lord Goff in the Factortame litigation in England, that is to say Factortame and Others versus the Secretary for State for Transport. Some statements in that speech suggest that in order to obtain an injunction of this sort what is called a strong prima facie case must be shown. Elsewhere the same law lord seems to suggest a different test to be applied in an individual case. I therefore derive little assistance from that decision of the House of Lords in England. Closer to home, and of course binding on me, is the decision of the Supreme Court in Pesca Valentia Limited versus the Minister for Fisheries reported at 1985, Irish Reports, the report commencing on page 193. In that case, Chief Justice Finlay indicated that no special principles were applicable to an injunction of the type sought there, and whilst the type of injunction sought there is not identical to this, nonetheless I derive assistance from the views expressed by the Chief Justice in that case. The principal basis for the assertion made by Mr Hogan for the application of a different test, is the fact that this legislation carries with it a presumption of constitutionality. In addition he says that there is a requirement that there should be legal certainty and the needs of the community wider than the parties to this suit ought also to be taken into account. Whatever about those two matters, there can be no doubt but that Mr Hogan is correct concerning the existence of the presumption of constitutionality and, indeed, it is accepted by Mr Stewart that the other two matters which were mentioned are relevant factors for the consideration of the Court at least on the question of the balance of convenience.

It seems to me that the mere existence of the presumption of constitutionality in favour of the Act which is impugned in these proceedings does not lead to the formulation of new or different rules to be applied to this application. Rather, I am of the view that I must weigh the presumption of constitutionality in the balance when deciding the question of whether a serious issue to be tried has been shown. And furthermore, I must weigh it in the balance again when deciding on the question of the balance of convenience. I am fortified in that approach by the expression of opinion by the Chief Justice in Pesca Valentia where, on page 200, he says, and I quote,

"I am, therefore, satisfied that the presumption of constitutional validity which applies to the Fisheries Amendment Act, 1983, expressly authorising the insertion of this condition in these licences is material in relation to the determination by the Court as to whether the plaintiff has established a fair question to be tried at the hearing of his action. I am also satisfied that the consequence arising from the making of an interlocutory injunction of preventing the Executive from carrying out powers vested in them by a statute enjoying that presumption and, in particular, the consequence of postponing the bringing to trial of a criminal offence created by such a statute, is a matter for consideration on the balance of convenience. I am not, however, satisfied that there is any special principle applicable to an application for an interlocutory injunction of this kind."

I likewise am of that view in the context of this application, but as I have already stated, the presumption of constitutionality must be weighed in the balance when considering whether or not the plaintiff has made out a serious issue to be tried, and again considered when the balance of convenience falls to be determined.

I turn now to the serious issues to be tried. Mr Stewart identified three issues which he said will fall for determination at trial. They are as follows:

First, a contention on his part that the legislation which is impugned in these proceedings interfered with the judicial review proceedings pending before the Court. Such interference, he said, was offensive to the separation of powers contained in the Constitution and constituted an impermissible and improper trespass into the judicial domain. He called in aid of that proposition the well-known Sinn Fein Funds case and the various decisions that flowed from that jurisprudence.

The second triable issue which he says can be identified relates to a complaint on the part of the plaintiffs that the independence of the office of Controller is materially impaired and diluted by this legislation.

The third point which he says will fall to be tried at action is a contention by him that the passage of the legislation through Parliament was improperly procured.

I will take these points one by one. In the time available to me it is not possible to rehearse in detail all of the submissions which have been made to me. Nonetheless I have taken them all into consideration and I propose to deal with my conclusions in relation to those submissions presently.

As to the interference with the existing judicial review proceedings, judicial review proceedings are quite unlike an ordinary plenary summons where a plaintiff may, without leave or permission, commence proceedings against anyone and make the widest claims imaginable, whether there are grounds to support such claims or not. Judicial review proceedings, on the other hand, are instituted only with the leave of a judge. They claim specific reliefs and at the time of application those reliefs have to be supported by grounds which are set out in the statement grounding the application. Those grounds are also the subject of judicial scrutiny at the time leave is sought. It seems to me, given that form of procedure, I am entitled to look not merely at the reliefs which are sought, but also at the grounds upon which those reliefs are sought, when attempting to answer the question in this action, Has the plaintiff demonstrated a serious issue to be tried in respect of this complaint? To do otherwise would be to blinker the Court in a form which, in my view, would be quite impermissible and would lack any common sense.

Having examined the reliefs sought and the grounds upon which they are sought in the judicial review proceedings, I am of the opinion that the real issue between the parties in that litigation concerned a failure on the part of the respondents to comply with proper procedures so as to accord with the principles of natural and constitutional justice. Indeed, it is remarkable that all of the grounds which are set out in the statement grounding the application make complaint of a failure to furnish documents to the plaintiff.

Now, there is a contention on the part of the respondents that those complaints have long since been addressed and those documents have now been furnished. I am not here deciding the judicial review proceedings in any shape or form, and the respondents may or may not be correct in that regard. That is a matter that will fall to be determined by the trial judge. But I am obliged, I believe, to look at both the reliefs sought and the grounds so as to establish whether the plaintiff has made out a serious issue for trial on this application.

In my view he has not. The first ten reliefs which are sought in the judicial review proceedings in my view either would not be granted in the form sought or are not necessary to address the particular problems of which the plaintiff made complaint in those proceedings. Indeed it is difficult to see how some of those reliefs would ever be granted. The reliefs which are sought at Paragraphs 11 to 15 are, in my view, the ones which address the complaints made by the applicant in those proceedings. In order that this may be understood, I shall recite what the first ten reliefs are. The first is a declaration that the applicant is the holder of the office of Controller and is a Civil Servant of the State. The second is a declaration that he is, and continues to be, the holder of the office of Controller pursuant to Section 97 of the Patents Act, 1992. The third is a declaration that Sean Fitzpatrick is the holder of the office of Controller of Patents, Designs and Trade Marks pursuant to and by decision of the Government made on the 13 September 1983 as published in Iris Oifiguil on the 20 September 1983. The fourth is a declaration that Sean Fitzpatrick is, and is entitled, and continues to be the holder of the office of Controller of Patents, Designs and Trade Marks up to and including the 14 May 2008. The fifth is a declaration that the respondents are not entitled to remove Sean Fitzpatrick or terminate his employment as holder of the office of Controller of Patents. Designs and Trade Marks, save in accordance with statute and the principles of natural and constitutional justice. The sixth is an Order of Prohibition by way of application for judicial review that Sean Fitzpatrick not be removed as holder of the office of Controller of Patents, Designs and Trade Marks. The seventh is an Order of Prohibition and an injunction restraining the respondents or any of them from appointing any other person to the post of Controller of Patents, Designs and Trade Marks. The eighth is an Order of Prohibition by way of an application for judicial review prohibiting the respondents from allowing the Civil Service Commissioners to appoint any other person to that position of Controller to which the applicant was appointed by decision of the Government made on the 13 September 1983 until after May 2008. The ninth is an injunction compelling the respondents, their servants and agents, to pay all salary and other emoluments, perquisites, travel and subsistence allowances to the Controller of Patents, Designs and Trade Marks, arising out of an incidental to the performance of his appointment and the duties of Controller in accordance with law. And the tenth is an Order of Mandamus directing the respondents to observe the Patents Act 1992 in accordance with the rules of natural and constitutional justice.

As I say, in my view, those reliefs would not be granted in the form sought or are not necessary to address the particular problems which the plaintiff has identified in the grounds supporting the application for those reliefs.

The relief sought at number eleven is an Order of Mandamus by way of an application for judicial review directing the respondents to furnish to the applicant all documentation grounding their consideration of the termination of the appointment of Sean Fitzpatrick as the holder of the office of Controller of Patents, Designs and Trade Marks. Number twelve is an Order of Mandamus by way of an application for judicial review directing the respondents to furnish to the applicant a copy of the submissions made to the Government in respect of the transfer of the post of Controller of Patents, Designs and Trade Marks, together with all other information put before the Government in relation to this matter.

Number thirteen is an Order of Mandamus by way of application for judicial review directing the respondents to furnish to the applicant a copy of the Government decision, if any, transferring the post of Controller of Patents, Designs and Trade Marks to Kilkenny.

Number fourteen is an Order of Mandamus by way of application for judicial review directing the respondents to furnish the applicant with a copy of the Government decision in relation to this matter following its meeting on the 2 December 1997.

Number fifteen is an Order of Mandamus by way of application for judicial review directing the respondents to furnish to the applicant a copy of the grounds upon which the decision of the Government in respect of the post of Controller of Patents, Designs and Trade Marks was taken at its meeting on the 2 December 1997.

At number sixteen he seeks a declaration that the respondents acted contrary to the rules of natural and constitutional justice and in breach of his appointment to the office of Controller of Patents, Designs and Trade Marks, and in breach of contract.

It has been accepted in this Court on this application that the relief at number sixteen is one to which the plaintiff would be entitled, save only for the deletion of the words "in breach of contract", because it has been accepted that procedures were undertaken by the respondents which did not comply with the rules of natural and constitutional justice and that the applicant was entitled to the documents in respect of which complaint is made.

Now, there remains an issue for determination in the judicial review proceedings as to whether that has been a sufficient compliance with the plaintiffs entitlements or not.

I am satisfied on a perusal of the grounds that the gravamen of the plaintiff's complaint has to do with the failure to furnish him with documents, and whether or not that failure has been sufficiently addressed is a matter for trial in the judicial review proceedings.

I return now to the remainder of the reliefs set forth in the statement grounding the judicial review. He seeks at seventeen an Order restraining the respondents from engaging or participating in any decision to terminate his appointment as holder of the office of Controller of Patents, Designs and Trade Marks without furnishing the documentation requested by him.

And then at eighteen he seeks what is a legal impossibility, namely an Order of Quo Warranto restraining the respondents from purporting to appoint any person other than him to the post of Controller.

Now, my views concerning these matters are supported when one looks at the grounds upon which the reliefs are sought. I have already said they relate exclusively to an alleged failure to furnish documents. These grounds are narrow and refer to procedures which have not been followed.

In my view, the legislation which was passed by the Oireachtas and which now forms part of the law of the land did not interfere with the existence of those judicial review proceedings in an improper, impermissible or unconstitutional fashion. I am also satisfied that a serious issue for trial has not been made out, having regard to the fact that many of the provisions of the legislation in respect of which complaint is made is prospective in effect, and it will affect the next rather than the present Controller. In fact, I think it cannot be denied, but that in one respect at least, having regard to the provisions of Section 97(1)(d) that his position is actually strengthened having regard to the fact that he is given there a statutory guarantee concerning the continuance of his existing conditions, superannuation, allowances and gratuities.

I am satisfied, having regard to the submissions made by the defendants concerning the construction of the statutory provisions in suit, that those submissions are largely correct. Many of these statutory provisions merely reintroduce provisions which were in force at the time that the plaintiff was appointed to his office. Others in fact provide for a greater measure of protection than existed heretofore. For example, the new Section 97(4)(a) places a restriction upon the Government from removing the holder of the office of Controller save in accordance with what is there contained. Up to then, the holder of that office was a Civil Servant governed by the 1956 Civil Servant Regulation Act and held office at the will and pleasure of the Government. So far as the holder of the office of Controller is concerned, that is no longer so. He may only be removed from office where he has become incapable through ill-health of effectively performing the duties of controller or for stated misbehaviour or his removal appears to the Government to be necessary for the effective performance of the functions of Controller.

In addition, of course, it must be said that even that power has to be exercised in accordance with the rules of natural and constitutional justice and would be subject to the judicial scrutiny and review of this Court, if required.

I am, therefore, not satisfied that a serious issue for trial has been demonstrated concerning these statutory provisions. I do not think that a case has been made out that they are unconstitutional in themselves or that they interfere in a constitutionally impermissible form with the judicial review proceedings which remain standing before the Court.

The second serious issue which is contended for is the alleged interference with the independence of the plaintiff's office. It must be made clear that the plaintiff is a statutory and not a constitutional officer. The departure from the provisions of the Patents Act 1992 by this new legislation does, it seems to me, give rise to a lesser and more diluted form of independence to the office of Controller than was the case under the 1992 legislation. It is a reversion for the most part to the pre-1992 position. Some might think that undesirable. Some might think a position of independence decided upon as recently as 1992 by the legislature should not be departed from, but that is a matter of policy for the legislature. What the legislature gives it may take away. It does not, in my view, give rise to a serious issue for trial at the suit of the plaintiff since I am unable to identify any triable issue on this account.

In my view, the plaintiff has not demonstrated that this legislation in this form will give rise to him suffering any constitutional or legal wrong as a result of the change brought about by it.

The third and final issue identified by Mr Stewart as raising a serious issue for trial is the one which he described as the improper passage of the legislation through Parliament. By that he means that the legislation was procured in an improper way. In assessing whether a serious issue has been raised under that heading or not, I have to have regard to the provisions of Article 15 of the Constitution and I also have to have regard to the decision of the Supreme Court in the case of O'Malley versus An Ceann Comhairle. In considering Article 15, and in particular Article 15.13, that decision of the Supreme Court suggests to me there is much force in the defendants' submission that what happened in Leinster House, either in the upper or lower House, is neither cognisable by this Court or relevant to the issue that has to be tried. Furthermore, I have regard to the decision of Mr Justice Murphy, then a judge of the High Court, in the case of An Blascaod Mor Teoranta versus the Commissioners of Public Works in Ireland, reported at 1994 Second Irish Reports, where he said, and I quote,

"I respectfully agree with the views expressed by Lord Wilberforce"

(This was from the speech of Lord Wilberforce in the case of Pickin and the British Railway Board [1974] AC 765). Mr Justice Murphy says,

"I respectfully agree with the views expressed by Lord Wilberforce. It would seem to me to be absurd and offensive to members of the Oireachtas to assume that whatever purpose of motive the promoters of a Bill might have, that such motive or purpose would be the effective cause of the enactment of the legislation. To know how or why legislation was enacted would require a far-reaching examination and analysis of the thinking of the members of the Oireachtas who supported or opposed the legislation, or indeed who absented themselves during its passage. The fact that all or some of them would have been exposed -- and properly exposed -- to pressure from constituents or interested parties, would not necessarily justify the conclusion that they accepted the submissions made to them. In legal terms, an analysis of the motivation for legislation would be meaningless in practice, and in my view wholly unjustified by the doctrine of the separation of powers. The validity of legislation must be tested by reference to the document ultimately enacted by the Oireachtas and not on the basis of the motive, intention or purpose of the Minister by whom the legislation is introduced, or those of any member of the Oireachtas who supports or opposes it. It seems to me, therefore, that any documentation dealing with such matters or any representations, submissions or arguments made to the Minister or his Civil Servants or to any member of the Oireacthas is wholly irrelevant for the purposes of discovery."

Having regard to those observations, I am likewise of the conclusion that on the third of the identified triable issues the plaintiff has not made out a serious issue for trial. Having come to that conclusion, it isn't necessary for me to go on to consider the other two matters, but lest I am wrong in some or all of the conclusions that I have come to, I will now proceed to deal with the question of both adequacy of damages and balance of convenience.

As to adequacy of damages, the position is that the plaintiff is a Civil Servant. He holds the office of Controller and there are circumstances in which he can be removed from that office, as indeed can any holder of any statutory office. It goes without saying that if that were to occur, it could only be brought about for good and sufficient reason with due compliance with the rules of natural and constitutional justice and in circumstances where the power would be exercised bona fide. Such an exercise would be subject to judicial review. But even if all of that were to occur and the plaintiff were to be removed from the position of Controller, he will still remain a Civil Servant earning the same salary as heretofore and enjoying the same conditions, both as to superannuation and other benefits. He therefore will suffer no pecuniary loss, and indeed that much is accepted by Counsel on his behalf. However, an improper or unconstitutional removal of him from office would give rise to a detriment being sustained, both to his standing and his reputation. If such damage were caused to him as a result of an unconstitutional act, it could, nonetheless, in my view, be compensated for in damages. There are now many instances in the decisions of this Court and the Supreme Court of damages being awarded for constitutional torts or wrongs, and I am satisfied that damages would be an adequate compensation for the plaintiff for whatever wrong, if any, which may be done to him if this injunction is refused.

True it may be that those damages might be difficult to assess, but I have to bear in mind what was said by Chief Justice Finlay in Curust Financial Services Limited versus Loewe-Lack-Werk, 1994 First Irish Reports 450 through 473 on this topic. He said on page 469,

"Difficulty as distinct from complete impossibility in the assessment of such damages should not, in my view, be a ground for characterising the awarding of damages as an inadequate remedy".

Consequently, even if I had held that the plaintiff had made out a serious issue for trial, I would nonetheless refuse the injunction on the basis that damages would prove an adequate remedy.

Lest I am wrong on both of my assessments, on each of these questions, I go on to consider the balance of convenience. Having regard to the observations that I have already made, having regard to the nature and effect of the legislation in suit, having regard to the exceptional nature of the relief which is sought, bearing in mind the presumption of constitutionality of the Act, I have come to the conclusion that on the balance of convenience the plaintiff likewise fails and it seems to me that the balance of convenience is more in favour of refusing rather than granting these injunctions.

Consequently, under all three headings I refuse to grant the injunctions sought.

There remains to be dealt with the application for discovery, which is sought as the third of the reliefs on this motion. Discovery at this stage of the proceedings is of course an unusual relief to be granted, but it is accepted on behalf of the respondents that there is the jurisdiction to grant such discovery orders, in particular circumstances, and it is not suggested that the circumstances here would not warrant the making of such an Order. However, having regard to the views which I have already expressed and to the passage I have cited from the judgment of Mr Justice Murphy in An Blascaod Mor case, it seems to me that it is appropriate that the Court should exercise its discretion on this aspect of the matter by refusing the Order for Discovery, and consequently I refuse the injunctions at Paragraphs 1 and 2 of the Notice of Motion, and I also refuse the Order of Discovery sought.