Date: 20001109
Docket: T-2521-97
IN THE MATTER OF ss. 7, 9, 19, 20, 22, 25, 50, 52, 53,
53.1 and 53.2 of the Trade-marks Act, R.S.C. 1985, Ch. T-13
AND IN THE MATTER OF ss. 3, 5, 6, 13, 25, 27 and 34-39 of
the Copyright Act, R.S.C. 1985, Ch. C-42 as amended
BETWEEN:
HAVANA HOUSE CIGAR & TOBACCO MERCHANTS LTD.
and EMPRESS CUBANA DEL TABACO trading as
CUBATABACO and HABANOS S.A.
Plaintiffs
- and -
JANE DOE and JOHN DOE and
OTHER PERSONS, NAMES UNKNOWN,
WHO OFFER FOR SALE, SELL, IMPORT, MANUFACTURE, DISTRIBUTE,
ADVERTISE, OR DEAL IN UNAUTHORIZED OR COUNTERFEIT
HAVANA HOUSE MERCHANDISE, AND THOSE PERSONS LISTED
IN SCHEDULE "A" TO THE STATEMENT OF CLAIM and
1116270 ONTARIO INC. t/a KOZY KORNER'S, ANTHONY NIGRO
and 714660 ONTARIO INC. t/a COPA-HABANA SMOKE & CIGAR SHOP
Defendants
AND BETWEEN:
1116270 ONTARIO INC. t/a KOZY KORNER'S,
ANTHONY NIGRO and 714660 ONTARIO INC. t/a
COPA-HABANA SMOKE & CIGAR SHOP
Plaintiffs by Counterclaim
- and -
HAVANA HOUSE CIGAR & TOBACCO MERCHANTS LTD.,
EMPRESS CUBANA DEL TABACO trading as
CUBATABACO and HABANOS S.A.
Defendants by Counterclaim
REASONS FOR ORDER
GIBSON J.:
THE MOTION BEFORE THE COURT
[1] By motion filed the 1st of March, 1999, the defendants 1116270 Ontario Inc. t/a Kozy Korner's, and Anthony Nigro (the "Kozy Korner's defendants"), and 714660 Ontario Inc. t/a Copa-Habana Smoke & Cigar Shop (the "Copa-Habana defendant") seek the following reliefs:
| 1. An Order granting to the Defendants and Plaintiffs by Counterclaim their costs in this action, forthwith, on a solicitor and client basis, as agreed or assessed, or in the alternative, on a party-and-party basis, as agreed or as assessed in accordance with column V of the table to Tariff B [to the Federal Court Rules, 1998]. |
| 2. An Order setting aside the Defence to Counterclaim filed by the Plaintiffs and Defendants by Counterclaim. |
| 3. An Order granting leave to the Plaintiffs and Defendants by Counterclaim to file a Defence to Counterclaim within ten (10) days from the date of the Order, on terms that the Plaintiffs and Defendants by Counterclaim shall, before any other step is taken, pay their costs forthwith and shall not commence any further proceeding on the same cause of action regardless of the date of alleged infringement, and failing such filing on such terms by the Plaintiffs and Defendants by Counterclaim, granting Judgment to the Defendants and Plaintiffs by Counterclaim on the Counterclaim. |
| 4. An Order directing that this Court determine whether, as a matter of law, it has jurisdiction in this action to render judgment for the Defendants and Plaintiffs by Counterclaim for the relief claimed in the Counterclaim including, inter alia: |
| (i) a declaration that the sale in Canada, by the Defendants and the Plaintiffs by Counterclaim, of Cuban cigars bearing the marks of the cigar manufacturers does not infringe the trade-mark and copyright rights asserted by the Plaintiffs and Defendants by Counterclaim in the Statement of Claim, as claimed in paragraph 42(a) of the Statement of Defence; |
| (ii) a declaration that the trade-mark registrations particularized in the Statement of Claim are invalid pursuant to Section 18 of the Trade-marks Act, as claimed in paragraph 42(b) of the Statement of Defence; |
| (iii) damages and costs pursuant to s. 36 of the Competition Act arising from the action of the Plaintiffs and Defendants by Counterclaim in conspiring to lessen competition unduly contrary to s. 45 of the Competition Act, as claimed in paragraph 42(f) of the Statement of Defence; and |
| (iv) damages for trespass, conversion and loss of reputation suffered by the Defendants and Plaintiffs by Counterclaim arising from the improper execution of the Anton Piller Order of Justice Jerome of November 24, 1997 against the Defendants and Plaintiffs by Counterclaim, Kozy Korner's and Anthony Nigro, as claimed in paragraphs 42(c), 42(d) and 42(e) of the Statement of Defence. |
| 5. An order fixing the time limits for the filing and service of motion records by the parties and an order fixing a time and place for the argument of the questions of law. |
| 6. An order extending the time for the service and filing of a Reply to the Defence to Counterclaim by the Defendants and Plaintiffs by Counterclaim. |
| 7. Costs of this motion on a solicitor and client basis. |
| 8. Such further and other relief as to this Honourable Court seems just. |
[2] At the hearing of the motion at Toronto on the 19th of October, 2000, submissions centred on the first relief, that is to say, the claim by the applicants for costs of the action. Reliefs 2 and 4 were not pursued. The plaintiffs' defence to counterclaim referred to in the third relief was previously filed and the circumstances of its filing, though referred to, were not seriously contested. A schedule for the filing and service of motion records as referred to in Relief 5 had previously been dealt with by teleconference between counsel and the Court. The relief sought in paragraph 6, an order extending the time for the service and filing of a reply to the defence to counterclaim is integrally related to a consent order that the Court was led to understand will shortly be submitted by counsel regarding the filing of an amended counterclaim, a related amended defence to counterclaim, and a reply to any amended defence to counterclaim. In the event that no amended defence to counterclaim is filed in accordance with a consent order, at the opening of the hearing, the Court indicated that it would, by separate order, extend the time for filing of a reply to defence to counterclaim. The issue of costs of the motion itself was dealt with rather summarily at the hearing.
[3] In the result then, argument on this motion centred on the sole issue of costs on the plaintiffs' discontinued action against the Kozy Korner's defendants and the Copa-Habana defendant.
THE PARTIES
[4] Each of the plaintiffs is a producer and/or distributor of genuine Cuban cigars. Havana House Cigar & Tobacco Merchants Ltd. is a corporation incorporated under the laws of the Province of Ontario. Both Empress Cubana del Tabaco, trading as Cubatabaco (manufacturer), and Habanos S.A. (exporter) are state-owned corporations incorporated under the laws of Cuba. The plaintiffs at all relevant times were in the business of, among other things, offering for sale, selling, importing, manufacturing, distributing, advertising, printing, storing, shipping or otherwise dealing in tobacco products.
[5] Once again at all relevant times, Cubatabaco was the owner of the registered trade-mark COHIBA, among other intellectual properties. Havana House was the exclusive licensee in Canada of COHIBA and some other intellectual properties.
[6] The defendant/plaintiff by counterclaim, 1116270 Ontario Inc. trading as Kozy-Korner's is a corporation incorporated under the laws of the Province of Ontario. It operates a retail food and convenience store. At all relevant times, the retail sale of cigars by Kozy-Korner's was a minor part of its food and convenience retail business with cigars being inventoried on a consignment basis.
[7] The defendant/plaintiff by counterclaim, Anthony Nigro was at all relevant times the owner of Kozy Korner's.
[8] The defendant/plaintiff by counterclaim, 714660 Ontario Inc., trading as Copa-Habana Smoke & Cigar Shop, is a corporation incorporated under the laws of the Province of Ontario and is engaged in the retail and wholesale distribution of cigars and cigar related products. Its owner is the brother of Anthony Nigro. At the relevant time, it was a consignor of cigars to the Kozy Korner's defendants.
THE BACKGROUND
[9] On the 24th of November, 1997, the plaintiffs filed a Statement of Claim in this Court claiming ownership in a range of trade-marks. They alleged that the defendants, then only Jane Doe and John Doe and other persons, names unknown who offer for sale, sell, import, manufacture, distribute, advertise, or deal in unauthorized or counterfeit Havana House merchandise, carry out such activities in relation to wares of inferior quality, engage in false or misleading representation of the inferior quality goods, and mislead the public, make false representations to ultimate consumers calculated to injure the business or goodwill of the plaintiffs and to deceive the public with a resultant serious depreciation in the value of the goodwill attached to the plaintiffs' trade-marks resulting in serious irreparable harm to the plaintiffs and to the valuable reputation of the plaintiffs' trade-marks. On the basis of the Statement of Claim filed, on ex-parte motion, the Court issued an Anton Piller order granting to the plaintiffs broad powers to search for and seize unauthorized or counterfeit merchandise and related materials. In the Anton Piller order, the plaintiffs provide the following undertaking as to damages:
| 26. This order is issued on the plaintiffs' undertaking to obey promptly any order of the Court with respect to damages, that may issue, arising out of any unauthorized execution of this order or upon the setting aside of the order. |
[10] In the period of time surrounding the date on which the plaintiffs' Statement of Claim was filed, the Royal Canadian Mounted Police were pursuing investigations into allegations that counterfeit and non-duty paid cigars were being offered for sale in the Hamilton/Niagara Falls region, the region in which the Kozy Korner's defendants carried on business.
[11] On the 26th of November, 1997, the Royal Canadian Mounted Police conducted searches of several stores, including Kozy Korner's, and seized cigars considered to be counterfeit and/or non-duty paid. Representatives of the plaintiffs attended with the Royal Canadian Mounted Police at Kozy Korner's and the Statement of Claim and Anton Piller order were served on the Kozy Korner's defendants.
[12] No cigars or other merchandise or materials were seized from the Kozy Korner's defendants pursuant to the Anton Piller order.
[13] On the 8th of December, 1997, the service of the Anton Piller order on the Kozy Korner's defendants was reviewed by this Court and an order (the "review order") issued adding the Kozy Korner's defendants as named defendants in the plaintiffs' action and extending the injunction set out in the Anton Piller order on an interlocutory basis. The Kozy Korner's defendants were aware of the date and time fixed for the review and were then represented by counsel. They nonetheless failed to appear personally or through counsel at the review hearing. Counsel for the plaintiffs indicated to the Kozy Korner's defendants or their counsel that the plaintiffs would cooperate on a motion brought on behalf of the Kozy Korner's defendants to set aside the review order. However, the Kozy Korner's defendants and their counsel chose not to bring such a motion.
[14] The Royal Canadian Mounted Police laid charges against the Kozy Korner's defendants in respect of the cigars seized from them. Those charges were never pursued and were eventually dropped.
[15] On the 2nd of February, 1998, the Kozy Korner's defendants moved before this Court to add Copa-Habana as a party defendant to the action. The plaintiffs contested the motion. The Kozy Korner's defendants were successful and Copa-Habana was added as a party defendant. Costs were awarded in the cause.
[16] Again on the 20th of February, 1998, the Kozy Korner's defendants moved to compel examination of counsel for the plaintiffs on an affidavit sworn by him and filed in this action on the 13th of February, 1998. Once again the motion was granted and the examination followed. Costs were awarded to the Kozy Korner's defendants and Copa-Habana.
[17] The defendants' statement of defence and counterclaim was filed on the 15th of April, 1998.
[18] On the 8th of February, 1999, a consent order issued authorizing the plaintiffs to file late their reply and defence to counterclaim. Notwithstanding the consent order, only a defence to counterclaim was filed. At the time the defence to counterclaim was filed, a notice of discontinuance of the plaintiffs' action as against the Kozy Korner's and Copa-Habana defendants was filed.
[19] As previously indicated, the filing of the motion now before the Court followed on the 1st of March, 1999. From that time to this hearing of this motion, there was only procedural activity before the Court involving the plaintiffs and the Kozy Korner's and Copa-Habana defendants/plaintiffs by counterclaim.
ANALYSIS
[20] Rule 402 of the Federal Court Rules, 19981, provides as follows:
402. Unless otherwise ordered by the Court or agreed by the parties, a party against whom an action, application or appeal has been discontinued or against whom a motion has been abandoned is entitled to costs forthwith, which may be assessed and the payment of which may be enforced as if judgment for the amount of the costs had been given in favour of that party.
402. Sauf ordonnance contraire de la Cour ou entente entre les parties, lorsqu'une action, une demande ou un appel fait l'objet d'un désistement ou qu'une requête est abandonnée, la partie contre laquelle l'action, la demande ou l'appel a été engagé ou la requête présentée a droit aux dépens sans délai. Les dépens peuvent être taxés et le paiement peut en être poursuivi par exécution forcée comme s'ils avaient été adjugés par jugement rendu en faveur de la partie.
[21] The general rule then, in the absence of agreement of the parties or an order of this Court, is that a party against whom an action has been discontinued is entitled to costs forthwith. In McCain Foods Limited v. C.M. Mclean Limited2, the Federal Court of Appeal concluded that discontinuation of actions that have little chance of success ought to be encouraged and not discouraged. In the result, the Court of Appeal set aside an award of costs that was seen to penalize a party unduly for a delay in discontinuing its action.
[22] At the hearing of this motion, the Kozy Korner's and Copa-Habana defendants/plaintiffs by counterclaim urged that they did not seek to penalize the plaintiffs who discontinued their action against them but rather to characterize a costs award above the normal scale as damages recoverable against the plaintiffs' undertaking in damages given in the Anton Piller Order issued in their favour and quoted earlier in these reasons. That undertaking was based on an undertaking given in an affidavit on behalf of the plaintiffs filed in these proceedings and sworn the 21st of November 1997.3 In support of this position, counsel cited Church of Jesus Christ of Latter Day Saints v. King3 where, in respect of an action commenced the 23rd of October, 1990, the plaintiffs sought leave to discontinue their action against certain defendants on a without-costs basis. The motion was not heard until December of 1995, at which time an interlocutory order restraining certain action by the defendants had been in force for over five years. The defendants sought costs on a solicitor and client basis. The motions judge dissolved the restraining order against the defendants and dismissed the action as against them with costs fixed on a party and party scale.
[23] The question that was before the Court of Appeal was whether or not the motions judge erred in not granting costs to the defendants/appellants on a solicitor and client basis in view of the undertaking as to damages given by the plaintiffs at the time they sought the interlocutory restraining relief.
[24] Finlayson J.A., for the Court, wrote at page 395:
| The result arrived at by the motions judge is not consonant with the critical role played by undertakings made in pursuit of interlocutory relief. They find their origins in equity. It is trite law, but bears repeating here, that a plaintiff's undertaking as to damages reflects the recognition by the court of the risk that a defendant may be wrongfully damaged by an injunction granted on a summary hearing. Courts exercising equitable jurisdiction have long required undertakings before exercising their powers in this regard; rule 40.03 is but the codification of this equitable principle. |
| [25] Rule 40.03 of the Ontario Rules of Civil Procedure4 reads as follows: |
40.03 On a motion for an interlocutory injunction or mandatory order, the moving party shall, unless the Court orders otherwise, undertake to abide by any order concerning damages that the Court may make if it ultimately appears that the granting of the order has caused damage to the responding party for which the moving party ought to compensate the responding party.
40.03 La partie qui présente une motion visant à obtenir une injonction ou une ordonnance de faire interlocutoire s'engage, sauf ordonnance contraire du tribunal, à se conformer à l'ordonnance de dommages-intérêts que le tribunal peut rendre s'il paraît finalement que l'ordonnance a causé à la partie intimée un préjudice pour lequel l'auteur de la motion devrait la dédommager.
[26] I am satisfied that the foregoing rule contemplates an undertaking in damages substantially broader than that which the plaintiffs here undertook to provide and in fact provided by them in the Anton Piller order issued in their favour, albeit the Rule contemplates damages arising only from an interlocutory order and not from an Anton Piller order as here.
[27] Mr. Justice Finlayson continued at page 395:
| The importance of an undertaking is all the more critical when the interlocutory relief sought and granted consists of Mareva injunctions and Anton Pillar orders, as was the case here. In addition, the increasing ease with which plaintiffs may obtain interlocutory relief necessarily requires correspondingly enforced undertakings. ... |
[28] At page 398, he continued:
| I am of the opinion that as rule 40.03 is but the codification of equitable practice, it is to be exercised within the bounds of discretion dictated by equitable principles. Accordingly, in the appropriate case, costs may indeed be awarded under the rubric of damages. This is such a case. The appellants endured, for more than five years, the damage to their professional reputation that flows from the serious allegations made here. In addition, they have borne the expense of defending against the action and the attendant motions. Simply because they had no stake in the substantive issues that were the basis of the action is no reason to conclude that the interlocutory injunction caused them no damage. The only issue that remains is the scale on which the costs should be ordered. |
| This Court has not previously decided the question before us. However, there have been instances where a motions judge, in an exercise of discretion in awarding costs on an abandoned or discontinued action, has decided to elevate the usual scale of costs to solicitor and client based upon the nature of the allegations made in the action. Had this been done in the case in appeal, the cost issue would be academic. While the case law on this question is divided, it is instructive as to the factors that motions judges have looked to in making such an award. Most have found that an award on this scale is appropriate where allegations of fraud and other serious malfeasance are either baselessly made or are never proven at trial; where the effect of the allegations made or of the granting of the interlocutory relief is to seriously affect a defendant's professional reputation; and where a plaintiff fails to retract unmeritorious allegations in a timely fashion. |
The learned justice concluded at page 401:
| I want to be clear that I am not suggesting that costs on a solicitor-client basis must always be granted pursuant to the undertaking as to damages given by a plaintiff seeking injunctive relief. But this is not to say that they are not warranted in the particular case. I think the motions judge erred in not taking into consideration whether the full costs of retaining a solicitor fell within the ambit of the undertaking as to damages. That undertaking was given to the court to obtain the injunction. |
| In my opinion, properly considered, this case more than warranted an award of solicitor and client costs. Since the respondents maintained to the end, including on this appeal, that the allegations were true, such an award is the only public rehabilitation of the appellants' reputation. |
[29] Applying the foregoing against the facts of this matter, I conclude that an award of costs on a solicitor-client scale, as damages, is not warranted.
[30] First, in respect of the Copa-Habana defendant, the Anton Piller order was not served on that defendant and no injunction was thus obtained against that defendant. In the result, the undertaking as to damages is simply not applicable in respect of the Coba-Habana defendant. That such is the case was not in dispute before me.
[31] By contrast, it was equally not in dispute that the undertaking in damages contained in the Anton Piller order extended to the Kozy Korner's defendants on whom the Anton Piller order was served and reviewed with a resultant interlocutory injunction against them. The allegations made in the Statement of Claim in this matter as against defendants such as the Kozy Korner's defendants fall short of fraud but are nonetheless serious. Given the discontinuance of the action, they were never proved at trial. On the other hand, on the evidence before me, I cannot conclude that they were baselessly made nor can I conclude that their impact and the granting of the interlocutory relief seriously affected the Kozy Korner's defendants. Kozy Korner's itself was a convenience store. Cigars, particularly high-end cigars, would appear to have been merely a sideline handled on a consignment basis only. The evidence would appear to indicate that the allegations contained in the statement of claim were hardly central to the reputation of the convenience store or, for that matter, of its owner. Given the foregoing, I do not place much weight on the fact that the evidence before me indicates that the plaintiffs never retracted the allegations against the Kozy Korner's defendants, in a timely fashion or otherwise.
[32] Based upon the relatively narrow terminology of the undertaking as to damages in the Anton Piller order, which I am satisfied overtook the offer of such an undertaking in the affidavit filed on behalf of the plaintiffs and cited earlier, related as it is to damages arising out of any unauthorized execution of the Anton Piller order or upon the setting aside of the Anton Piller order, and I find that any damages that might arise with respect to the Kozy Korner's defendants here do not arise out of an unauthorized execution of the order or as a result of the setting aside of the order because no setting aside in fact took place, and the foregoing considerations drawn from the King case, I conclude that this is not an appropriate case for an award of costs on a solicitor-client scale as damages against the undertaking in damages.
[33] Having reached for the foregoing conclusion, I turn to the question of whether or not the normal rule reflected in Rule 402 of the Federal Court Rules, 1998, that costs flow to a defendant on the discontinuation of an action should be varied by my order. I conclude that the answer is that the normal rule should prevail. The evidence before me on this motion simply does not lead me to a conclusion that the Kozy Korner's defendants and the Copa-Habana defendant should be disentitled to costs on the ordinary scale. Similarly, once again based on the evidence before me, I cannot conclude that the conduct of the plaintiffs or, indeed, the conduct of the Kozy Korner's defendants and the Copa-Habana defendant, warrants an award of costs above column 3 of Schedule B to the Federal Court Rules.
[34] The material before me as to legal fees and disbursements that the Kozy Korner's defendants and the Copa-Habana defendant have incurred in the course of this proceeding led me to question whether an assessment of costs by reference to actual expenditures incurred could be reasonably undertaken and, if it could, would produce a result commensurate with the cost of any such assessment itself. Clearly, the Kozy Korner's defendants and the Copa-Habana defendant incurred fees and disbursements for legal advice related not only to the defence of the plaintiffs' action but also to their own counterclaim and to responding to the seizures by the Royal Canadian Mounted Police, the charges laid against the Kozy Korner's defendants and, ultimately, to the withdrawal of those charges. The allocation of fees and disbursements as between those three elements would appear to me to be either impossible, or if undertaken nonetheless, decidedly arbitrary on the material available.
[35] In the result, I determined that the most appropriate course of action was to award costs to the Kozy Korner's defendants and the Copa-Habana defendant determined solely by reference to what could be gleaned from the material before the Court and applied to the tariff, a process that counsel for the parties had already undertaken in a preliminary way. At the close of the hearing of this matter, I indicated to counsel that I would fix costs on a lump sum basis rather than refer the issue of costs to assessment. I provided counsel with a schedule on which to provide me written submissions on which to make a determination as to the appropriate lump sum.
[36] Counsel provided written submission and I have now had an opportunity to considered them. Counsel for the Kozy Korner's defendants and the Copa-Habana defendant urged that I should fix costs in the amount of $19,059.68 in legal fees and disbursements representing what counsel described as a "huge discount from fees and disbursements actually incurred." By contrast, counsel for the plaintiffs, given that I have determined to fix costs on a lump sum basis, urged that they be fixed in the amount of $7,000 or in the alternative in a lower amount, such as $5,298.59, all inclusive of GST and pre and post judgment interest, payable within 30 days of my Order. Counsel for the plaintiffs disclosed in her costs submission that the figure of $7,000 was proposed on behalf of the plaintiffs in settlement negotiations while the figure proposed on behalf of the Kozy Korner's defendants and the Copa-Habana defendant was very substantially in excess of the figure that they now advocate.
[37] On balance, I conclude that the proposal on behalf of the Kozy Korner's defendants and the Copa-Habana defendant is the more realistic of the two proposals. In the result, my Order will go fixing the costs payable by the plaintiffs to the Kozy Korner's defendants and the Copa-Habana defendant on the discontinued action at $19,000, inclusive of GST and pre and post judgment interest, payable within 30 days of the date of my Order.
COSTS OF THE MOTION BEFORE THE COURT
[38] As to costs of this motion itself, I determine that the appropriate course of action is to order that each side should bear its own costs, given divided success and the conduct of the parties as disclosed on the materials before me. My order will so provide.
OTHER RELIEFS ORIGINALLY SOUGHT
[39] In all other respects, the motion before me will be dismissed. As indicated earlier in these reasons, I would be prepared to entertain an application under Rule 369 of the Federal Court Rules, 1998 for a supplementary order regarding extension of time to file a reply to the defence to counterclaim, if required.
___________________________
J.F.C.C.
Ottawa, Ontario
November 9, 2000
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2521-97
STYLE OF CAUSE: HAVANA HOUSE CIGAR & TOBACCO
MERCHANTS LTD. ET AL.
v. JANE AND JOHN DOE ET AL.
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 19, 2000
REASONS FOR ORDER OF JUSTICE GIBSON
DATED: NOVEMBER 9, 2000
APPEARANCES:
| COLLEEN REPRESENTING THE PLAINTIFFS |
SPRING ZIMMERMAN
| JOHN BROWN REPRESENTING THE DEFENDANTS |
1116270 ONTARIO INC., ANTHONY NIGRO AND
714660 ONTARIO INC.
SOLICITORS OF RECORD:
| FASKEN MARTINEAU FOR THE PLAINTIFFS |
DUMOULIN
TORONTO, ONTARIO
| McCARTHY TÉTRAULT FOR THE DEFENDANTS |
TORONTO, ONTARIO 1116270 ONTARIO INC., ANTHONY NIGRO AND
714660 ONTARIO INC.
__________________ See the Motion Record herein at page 111 where Abel Gonzalez Ortego attests at paragraph 49:
The plaintiffs are prepared to undertake to the Court that should any interlocutory injunction granted by this Court be subsequently determined to be improperly granted, they are prepared to reimburse the Defendants for damages suffered by them as a result of the granting of the injunction, as assessed by this Court.