BASF AG v ME2 Crop Protection Ltd & Anor

Interlocutory relief is a balancing of the potential injustices which may result from granting or withholding an injunction. Where infringement is strongly arguable, the claimant’s losses may be difficult to recover, and the injunction would prevent conduct outside the defendant’s regulatory approval while leaving lawful trading unaffected, an injunction may be justified.

BASF AG sought interlocutory relief against ME2 Crop Protection Ltd concerning the importation and sale of a herbicide marketed as BOOTY. BASF alleged that the product contained monoclinic Metazachlor but was not genuine BASF product and therefore was not a lawful parallel import under the relevant approval. ME2 accepted that BASF had an arguable infringement case, but disputed the need for an injunction and raised the possibility that the product was counterfeit. The application concerned whether ME2 should be restrained pending trial from importing or selling non-BASF monoclinic Metazachlor.

1. The application for an interlocutory injunction was granted in the terms sought. The injunction restrained the importation and sale of non-BASF monoclinic Metazachlor. It did not prevent lawful parallel importation in accordance with ME2’s approval.
2. The court approached the application as a balancing of potential injustices. BASF had established an arguable case that BOOTY contained monoclinic Metazachlor which was not genuine BASF product and was outside the scope of ME2’s approval.
3. BASF’s potential losses were principally financial, but future losses, including the effect of forced price reductions, would be difficult to calculate. The financial evidence also gave BASF reasonable grounds to fear that damages might not be recoverable. ME2’s opaque corporate ownership and the absence of satisfactory evidence about its financial position reinforced that concern.
4. The alleged counterfeiting could be put to one side for the purposes of the application. There was no substantive evidence supporting it, and the court proceeded on the basis that the product purchased by BASF was BOOTY and was probably not parallel-imported Butisan S.
5. The injunction would cause ME2 little harm. It merely prevented conduct which ME2 was not authorised to undertake under the approval regime and which, according to its correspondence, it did not wish to undertake. The balance therefore favoured interlocutory relief.

Not stated in the judgment.