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1. The Plaintiff is a limited company incorporated in accordance with the laws of Northern Ireland and its objects include carrying out petroleum exploration activities in Northern Ireland, in the State and elsewhere. The current ownership of the issued share capital of the Plaintiff is as follows:-

2. Currently, there are only two directors of the Plaintiff, Mr. Kenny and the first Defendant.

3. The first Defendant is a geologist by profession who, since 1982, has operated as a geological and independent exploration consultant in the petroleum and gas industries. The second Defendant is a company incorporated in accordance with the laws of the State of Colorado and the United States of America. It is principally owned by the first Defendant who is its company manager, which is an office equivalent to that of a director of a company in the State. The third Defendant is a company incorporated in accordance with the laws of the State of Colorado. The fourth Defendant is the Minister who currently has responsibility for the performance of the functions conferred by the Petroleum and Other Minerals Development Act, 1960, including the granting of prospecting licences under Section 9 of that Act. I will refer to the fourth Defendant, and the predecessors of the fourth Defendant who performed similar functions, as "the Minister" for the sake of brevity.

4. This judgment deals with two applications which were heard last week. The first is the Plaintiff's application on foot of a Notice of Motion dated 14th May, 1997 for the following interlocutory reliefs:-

5. The second application is the Minister's application on foot of a Notice of Motion dated 25th July, 1997 seeking the following reliefs in the following terms:-

6. The Minister's application was grounded in part on an Affidavit sworn by Patrick Ryan ("Mr. Ryan") on 13th June, 1997 and in part on an Affidavit of Keith Robinson ("Dr. Robinson") sworn on 25th July, 1997. The Plaintiff filed an Affidavit sworn by Mr. Kenny on 7th July, 1997 in response to Mr. Ryan's Affidavit. Because of time constraints, the Plaintiff did not file an Affidavit in response to Dr. Robinson's Affidavit and sought to have the Minister's application adjourned until the Michaelmas Term. In my view, the two applications are so inextricably connected that it was appropriate to hear both together. Having heard both together and having considered both matters, I am of the view that the Plaintiff will not be prejudiced in not having had an opportunity to respond to Dr. Robinson's Affidavit. Nonetheless, I think it important to record that the Plaintiff cannot be taken as tacitly accepting in their entirety the facts deposed to in Dr. Robinson's Affidavit.

7. Mr. Gallagher, Counsel for the first and second Defendants, conceded for the purpose of the Plaintiff's interlocutory application that as between the Plaintiff, on the one hand, and the first and second Defendants, on the other hand, there are fair issues to be tried. A similar concession was made by Mr. Gordon, Counsel for the third Defendant, in relation to the position of the Plaintiff vis-à-vis the third Defendant. Notwithstanding these concessions, it is necessary to extract from the welter of documentation submitted to the Court, which runs to in excess of 1,200 pages, and which is replete with disputes as to facts, comment and argument, the essential undisputed elements of the factual background which give rise to these claims.

8. In relation to the licence, the grant of which is sought to be prevented by the Plaintiff, the most complete and, I must assume, accurate account of the basis of the licence application and the intentions of the Minister is to be found in Mr. Ryan's Affidavit, wherein it is disclosed that on 2nd October, 1995 the second and third Defendants jointly applied to the Minister for an option over the North Western Carboniferous Basin ("the Basin"). The application was revised on 20th February, 1996, the second and third Defendants seeking two licensing options over the same area. On 31st May, 1996 the second and third Defendants applied for a petroleum prospecting licence over the same area. Discussions and negotiations took place between the second and third Defendants and officers of the Minister's department. Having considered the resources, experience and expertise available to the second and third Defendants, the Minister is satisfied that they are fit to hold a petroleum prospecting licence and has directed that one should be issued to them in respect of the Basin, the licence to run for a period of three years from 1st March, 1997. The Minister announced his intention to grant the petroleum prospecting licence, which is to be a non-inclusive licence, by means of a notice published in the Irish Independent on 2nd July, 1996. Moreover, the Minister has determined that the second and third Defendants should be granted two licensing options in respect of the area covered by the petroleum prospecting licence, which will run for a period of 18 months with provision for extension. The work programmes to be carried out during the term of the options have been agreed. The exercise of the licensing options by the second and third Defendants will entitle them to the grant of one or more exploration licences, which could lead to the grant of a lease by the Minister conferring the exclusive right to produce petroleum within the area.

9. The Basin is a geological area which stretches from Donegal, Sligo and Mayo in the west to Armagh in the east. It straddles the border between Northern Ireland and the State and is in part located within the territory of Northern Ireland and in part located within the State. The Department of Economic Development in Northern Ireland has issued seven licences to the third and fourth Defendants enabling them to prospect in the portion of the Basin located within the territory of Northern Ireland.

10. The factual background against which the allegations of wrongdoing, on which the Plaintiff bases its entitlement to the injunctive relief it seeks, arise is as follows:-

11. It was provided that the foregoing restriction should continue to apply after the termination of the agreement without limit in point of time but should cease to apply to information or knowledge which might reasonably be said to have come into the public domain. It is this provision which the Plaintiff alleges has been breached by the first Defendant.

12. The Plaintiff alleges that the use by the first Defendant of the data in her possession in relation to the Basin and her surreptitious attempts to get access to the seismic tapes in the Hays Facility, which he foiled, were wrongful and in breach of the consultancy agreement and in breach of her fiduciary duties to the Plaintiff. The Plaintiff further alleges that the first Defendant has put herself into a conflict of interest situation and that she has denied the Plaintiff a significant corporate opportunity, i.e. that of participating in a petroleum prospecting licence with a US company, and that she has availed herself of that opportunity at the expense of the Plaintiff. It is further alleged that she is competing with the Plaintiff in a manner which involves the widespread use of the Plaintiff's confidential and proprietary information.

13. The first Defendant contends that the data in her possession, while it was once confidential and proprietary, ceased to be so in 1990/1991. She also denies that she acted in an illicit or underhand manner in her contacts with the Hays Facility in relation to the seismic tapes. She denies that she was ever in breach of any fiduciary duty owed to the Plaintiff, or that she ever at any time disclosed or sought to disclose or exploit information which was confidential or proprietary to the Plaintiff. She points to clause 3.3 of the consultancy agreement, which provided that the Consultant should not during the term of the agreement or during a period of 12 months from the date of its termination consult or compete with the Plaintiff in areas in which the Plaintiff holds licences to explore oil and gas in Northern Ireland.

14. The Plaintiff alleges that the second and third Defendants are seeking to profit from the unlawful activities of the first Defendant and that they are engaged in a conspiracy with the first Defendant to profit from her unlawful activities. In an Affidavit filed on behalf of the third Defendant, Robbie Gries, a director and shareholder of the third Defendant, averred that all of the data which was studied and used to evaluate the Basin was in the public domain. In particular, she averred that the data listed in the inventory attached to the revised application to the Minister has not been analysed or used by the third Defendant.

15. Having regard to the nature of the reliefs sought by the Minister, it is necessary to consider in some depth the factual and legal basis of the Minister's claim. In doing so, I reiterate my awareness of the fact that Mr. Kenny did not have an opportunity to respond to Dr. Robinson's Affidavit.

16. According to the Affidavit evidence filed on behalf of the Minister, the original members of the consortium which held Onshore Licence No. 2/80 were Marinex Petroleum of Ireland Limited ("Marinex"), Aran Onshore Holdings Limited and Walter Wood Wakefield. Marinex was originally the operator under the consortium's joint operating agreement and was responsible for communicating with the Minister's department in relation to the operation of the licence. In 1983, there was a change in the membership of the consortium when Aran Energy Limited (subsequently Aran Energy Plc) and North West Oil & Gas Exploration (NI) Limited joined. At that stage, Aran Energy Limited became the operator with the approval of the Minister. At a later stage, Santa Fe Minerals (UK) Limited became a member of the consortium.

17. Neither a counterpart nor any copy of Onshore Licence No. 2/80 has been exhibited. However, Mr. Ryan, in his Affidavit, averred that it incorporated the set of terms known as "Ireland Exclusive Offshore Licensing Terms" which were published by the Department of Industry and Commerce in April 1975. The Minister relies on two provisions of the 1975 Terms, namely:-

18. In his Affidavit, Dr. Robinson averred that in the case of Onshore Licence No. 2/80 the periods for confidentiality stipulated were amended so as to provide that the obligation would subsist until four years had elapsed after being furnished or two years after revocation, surrender or expiry of the licence, whichever was the earlier.

19. The Minister also contends that clause 3.2 of the Rules and Procedures for Offshore Petroleum Exploration Operations issued in July 1986 by the Department of Energy also governed the relationship of the Minister and the consortium. That clause provided:-

20. It is clear from the Affidavit evidence that the real value of the seismic tapes in storage in the Hays Facility is their capacity to be reprocessed. This procedure is succinctly explained in Ms. Gries' Affidavit in which she averred that new geophysical technology over the last 15 years enables old data to be reprocessed so that previously unseen information can now be enhanced and evaluated for new exploration potential.

21. Onshore Licence No. 2/80 expired on 30th April, 1987. In his Affidavit, Dr. Robinson averred that on its expiry the North West company which had been involved in the consortium did not apply for an extension of that licence. However, North West Exploration Plc applied for a new licence and negotiations ensued between that company and the Minister's department but at no stage during the negotiations was the question of seismic tapes discussed or referred to as an obligation formerly resting upon the consortium members. By letter dated 4th May, 1988, the Minister's department wrote to Mr. Kenny indicating that the Minister was prepared to offer licences to North West Exploration Plc in respect of the Lough Allen and Donegal Bay Basins in the Basin, the offer being conditional upon evidence being provided before 30th June, 1988 that North West Exploration Plc had sufficient funds to enable it to carry out the programmes of exploration work specified. The precondition was not satisfied and, by letter dated 27th March, 1989 to Mr. Kenny, an extension of the conditional offer was refused.

22. Mr. Ryan, in his Affidavit, to which Mr. Kenny has responded, averred that on the expiry of Onshore Licence No. 2/80, Aran Energy Plc, the operator, indicated that it wished to hand over the seismic tapes relating to the Basin to the Minister's department. Mr. Kenny wrote to the department on 21st July, 1988 on behalf of the North West Exploration Plc in the following terms:-

23. In a letter dated 27th September, 1988, Dr. Robinson responded to the letter of 21st July, 1988 as follows:-

24. Dr. Robinson also indicated that he was agreeable that the tapes should remain in storage in England and that North West should take over responsibility for them directly from Aran Energy. This was arranged on 29th September, 1988.

25. The Minister's claim to ownership of the tapes in the Hays Facility (formerly operated by Rockall Data Services Limited), as set out in Dr. Robinson's Affidavit, is based on the second sentence in clause 3.2 of the 1986 Rules.

26. In a letter dated 26th January, 1996 addressed to Mr. Kenny at North West Exploration Plc, the Minister's department demanded return of the tapes. Mr. Kenny's response of 13th February, 1996 has been roundly criticised by the other parties and it will be a matter for the trial Judge to determine whether these criticisms are justified. In any event, the current position is that the tapes remain in the Hays Facility to the order of the Plaintiff on the sole signature of Mr. Kenny and Mr. Kenny refuses to return them or to sanction their release to the Minister. Mr. Kenny has set forth on Affidavit a number of answers, some of them contradictory, to the Minister's claim to ownership and possession of the tapes. He averred that the Minister has not established that he owns the tapes, merely that he has a right to obtain information and that that obligation has been fully complied with. He contended that the tapes were co-owned by the consortium members and that Aran Energy, without the agreement of all the consortium members, which it did not have, could not have transferred ownership of the tapes to the Minister. The Plaintiff acquired title to and possession of the tapes under the assignment dated 24th November, 1989. The tapes have not yet been reprocessed by the Plaintiff. However, the Plaintiff accepts the right of the Minister to have the tapes handed over "at the appropriate time", the implication being that "the appropriate time" has not yet arrived.

27. It is clear from the Affidavits filed on behalf of the Minister and from the submission of his Counsel, Mr. O'Neill, that if the Court grants a mandatory injunction to the Minister, the Minister proposes making the tapes available to the second and third Defendants to enable them to reprocess the tapes in connection with their activities on foot of the licences which the Minister proposes granting to them.

28. I think it logical to determine the Minister's application before determining the Plaintiff's application because the outcome of the Minister's application has a bearing on the issues which arise in determining the Plaintiff's application. The Minister has not entered into the fray between the Plaintiff and the first, second and third Defendants. It was submitted on behalf of the Minister that he is under a duty to exploit the State's natural resources. The information he seeks is already in the public domain. He is entitled to and to use all hard data generated under Onshore Licence No. 2/80 under clause 3.2 of the 1986 Rules which is applicable in relation to the seismic tapes, as acknowledged in Mr. Kenny's letter of 21st July, 1988. Mr. Kenny cannot resile from the position he adopted in that letter. It was submitted that the claim of the Minister to return of the tapes is unanswerable and that because of the impact non-production of the tapes will have on the operation of any licence which the Minister may grant in relation to the Basin mandatory relief should be granted.

29. In effect, what I am being invited to do by the Minister at this stage in the proceedings is to express a concluded view on very complex factual and legal issues: the ownership of the tapes, the entitlement to possession of the tapes and whether the tapes are confidential to the owner, if the owner is somebody other than the Minister. It would be entirely inappropriate for me to express any view on these issues, even if I were to assume that Mr. Kenny has no further evidence to put forward on these issues. In my view, these are issues which must be left for determination to the plenary hearing of the Plaintiff's action and any counterclaim the Minister may bring in it.

30. It is well settled that it is only in very exceptional circumstances that the Court will grant a mandatory injunction at the interlocutory stage. In my view, the instant case does not manifest such exceptional characteristics as would justify an order which, in reality, would finally determine the dispute. The Plaintiff has de facto control of the disputed seismic tapes. There is no suggestion that the tapes are in jeopardy. What the Minister seeks is that the status quo be altered and that de facto control of the tapes be removed from the Plaintiff. Not only that; the Minister proposes to make the tapes available to parties with whom the Plaintiff is in dispute pending the trial of the action, so that the status quo may be altered irrevocably to the detriment of the Plaintiff. In my view, the equitable remedy of an interlocutory injunction cannot be used in this way and, accordingly, I refuse the Minister's application.

31. I will now return to the Plaintiff's application. As I said at the outset, for the purposes of this application, both Counsel for the first and the second Defendants and Counsel and third Defendant concede that there are fair issues to be tried between the parties. On behalf of the Plaintiff, Mr. Walsh submitted that insofar as the Plaintiff seeks injunctive relief to restrain a breach of the negative or restrictive covenant in the consultancy agreement, the question of balance of convenience does not come into play. In support of that submission he relied on a line of authority starting with Doherty -v- Allman [1878] 3 App Cas 709 and continuing through to Dublin Port & Docks Board -v- Brittania Dredging Company Limited [1968] I.R. 136. In Irish Shell -v- Elan Motors [1984] I.R. 200, McCarthy J., with whom the other members of the Supreme Court agreed, endorsed the views expressed by Keane J. in TMG Group -v- Al Babtain [1982] I.L.R.M. 349 on the proposition that the Dublin Port & Docks Board case laid down a general principle that, in all cases where the Plaintiff establishes a prima facie case of a breach of a negative stipulation in a contract, the Court should disregard any question of the balance of convenience as between the parties, which it was contended could be extrapolated from the judgment of O'Dalaigh C.J. Keane J. said:-

32. Having endorsed those views, McCarthy J. went on to say at page 229:-

33. Apart from the various points which the first Defendant raised in answer to the allegation that she has acted in breach of the restrictive convenant contained in the consultancy agreement, which I have outlined above, the first Defendant contended that the restrictive covenant is void and unenforceable as an unreasonable restraint of trade and further, or in the alternative, as contrary to the provisions of Section 4 of the Competition Act, 1991. I have no doubt that the Plaintiff does not come within the ambit of " the most exceptional circumstances " envisaged by McCarthy J. in the passage which I have quoted above. Accordingly, the question of where the balance of convenience lies, including the adequacy of damages as a remedy, must be considered on this application.

34. The basis on which the Plaintiff contended that the balance of convenience favours the grant of the injunctive relief it seeks is that, if the Minister proceeds to grant a licence to the second and third Defendants, the Plaintiff may be irrevocably excluded from any future petroleum prospecting in the licensed area, with consequential loss of profit and opportunity to the Plaintiff, which Mr. Kenny contends is not quantifiable in damages. In his Affidavit sworn on 4th July, 1997, Mr. Kenny expanded on this point and suggested that, if there were to be a commercial discovery of gas, the profitability of that discovery would be impossible to calculate at the trial of the action. By contrast, it was suggested that the effect of granting the relief sought by the Plaintiff is merely to postpone the granting by the Minister of the licence until the trial of the action, which it may be possible to have in six months time.

35. Mr. Gallagher, on behalf of the first and second Defendants, sought to resist the Plaintiff's application on the following grounds:-

36. Mr. Gordon, on behalf of the third Defendant, adopted Mr. Gallagher's arguments. He characterised the Plaintiff's application as "spoiling litigation". He submitted that the Plaintiff's case against his client, which is based on conspiracy, is thin and that it is inconceivable that at the trial of the action a permanent injunction would be granted against his client. He also contended that the Plaintiff delayed unduly in bringing its application and that it was not entitled to the luxury of waiting having regard to the existence of the Northern Ireland licences, of which the Plaintiff was aware.

37. In my view, the Plaintiff has not been guilty of delay such as would disentitle it to injunctive relief. Essentially, what the Plaintiff seeks to achieve from this application is to prevent the Minister from granting a licence to the second and third Defendants. The Plaintiff, through its former solicitors, opened correspondence with the Minister's department on this issue in a letter of 24th July, 1996. The correspondence culminated in a letter dated 4th April, 1997 from the Minister's department to the Plaintiff's former solicitors advising the Plaintiff that the Minister was proceeding to grant the licence to the second and third Defendants. The plenary summons was issued on 25th April, 1997.

38. Similarly, insofar as Mr. Kenny omitted to refer in his grounding Affidavit to matters which the other parties considered to be of relevance to the Plaintiff's application, in my view, there is no evidence of the element of turpitude on the Plaintiff's part which would lead to the conclusion that the Plaintiff has not come to Court "with clean hands" so as to disentitle him to equitable relief.

39. The outcome of the Plaintiff's application, in my view, turns on whether the balance of convenience lies in favour of granting or refusing the injunctions and, in particular, whether damages would be an adequate remedy for the Plaintiff and whether the position of the Defendants would be adequately safeguarded by the Plaintiff's undertaking as to damages.

40. Having refused the Minister's application for mandatory relief, what remains of the Plaintiff's case is that pending the trial of the action, if a licence is granted to the second Defendant and the third Defendant, the Plaintiff may be injured by the misuse by the first Defendant in conjunction with the second Defendant and the third Defendant of the data in relation to the Basin which is in her possession and has been for over ten years. What I have to consider is whether, in the event that there is such a misuse and that the Plaintiff is thereby injured, the Plaintiff would be adequately compensated by an award of damages for that injury. In my view, it is unreal to suggest, as Mr. Kenny does, that the measurement of any damage or loss the Plaintiff would incur would necessitate a prognostication as to the likelihood of a commercial discovery of gas in the Basin and the assessment of the profitability of that discovery. The natural resources in the Basin belong to the State. Put at its highest, the Plaintiff's case is that it owns information which is intrinsically valuable and which can be turned to account in exploring for hydrocarbons. I reject the proposition that misappropriation or misuse of that information for a limited period in conjunction with a party who has a licence from the Minister, if it occurred, would result in a loss to the Plaintiff which could not be compensated by an award of damages and that quantification of such damages would be an impossibility.

41. Moreover, I am not satisfied that, if the injunctive relief sought was granted to the Plaintiff and subsequently the Plaintiff was unable to make its case at the trial of the action, the Defendants would be adequately safeguarded by the Plaintiff's undertaking as to damages. The first Defendant, who, as a director of and minority shareholder in the Plaintiff company is in a unique position to assess the worth of the Plaintiff, has demonstrated in her Affidavit sworn on 16th June, 1994 that the nett current assets of the Plaintiff as per the draft accounts of the Plaintiff for the year ended 31st October, 1996 amount to £23,067 and that these are the only real assets of the Plaintiff. Mr. Kenny, in his replying Affidavit sworn on 4th July, 1997, has acknowledged that the only nett current asset of the Plaintiff is the sum of £23,067. He has denied that the Plaintiff is impecunious and averred that, as an exploration company, the Plaintiff could seek to raise funds for a suitable exploration prospect and that based on his significant history of successful fund-raising he is confident that he would be able to assist in such activity. In my view, the second Defendant and the third Defendant have demonstrated in the evidence adduced by them that, if the injunctive relief sought by the Plaintiff is granted and if it subsequently transpires at the trial of the action that it should not have been granted, it is probable that they will sustain a loss of considerably greater magnitude than the ability of the Plaintiff to meet an award of damages in their favour made on foot of its undertaking as to damages.

42. Accordingly, I am of the view that the balance of convenience unquestionably favours refusing the relief sought by the Plaintiff. Moreover, while the debate at the hearing of the interlocutory application focused on the reliefs sought in paragraphs (1) and (2) of the Plaintiff's Notice of Motion, I am of the view that the relief claimed in paragraph (3) is sought in terms which are much too vague and general to enable the Court to "police" the enforcement of an order in such terms.