question, issue three C two and three er we say that  in relation to two as a matter of  have categorize this as a question of law we say it probably categories a question of fact because if they're right in there analysis of law and article eighty directive, all it means is, is that there is no market outside and that the restriction is insignificant  if that being so  one would answer the question, is not capable as a matter of pure law of infringing article eighty five, but in the light of the discussion yesterday afternoon of course when my learned friend comes to apply for this strike out, we may have difficulty in contesting that provision it's not, not er, a, a major part of our case that we, we would have to re-consider it and, and I did ask your Lordship erm if your Lordship would minded to find otherwise not to block out at least the possibility of application for leave to amend and of course we'd have to make, have to consider whether we could make a proper case out of it on what we do 