KB-2025-002427 - [2025] EWHC 1993 (KB)

The application for an injunction

The first issue to consider is whether the threshold for injunctive relief is met.

American Cyanamid v Ethicon [1975] A.C. 396 at pp 406-409 established that in considering an application for an injunction the court will consider (a) whether there is a serious question to be tried, (b) whether damages will supply an adequate remedy and (c) where the balance of convenience lies.

As noted above, counsel for D4 and D5 accepted for the purposes of the hearing that there was a serious question to be tried and that damages would not be an adequate remedy. However, they submitted that the balance of convenience did not favour the grant of injunctive relief as sufficient undertakings had already been offered.

Where does the balance of convenience lie?

In Lansing Linde Ltd v. Kerr [1991] 1 WLR 251, the Court of Appeal described the balance of convenience as an exercise in identifying the “lesser evil: will it do less harm to grant an injunction which subsequently turns out to be unjustified, or to refuse one if it subsequently turns out that an injunction should have been granted.” The underlying principle is that the court should take whichever course seems likely to cause the least irremediable prejudice to one party or the other: National Commercial Bank Jamaica Ltd v Olint Corpn Ltd [2009] UKPC 16, [2009] 1 WLR 1405. This principle applies whether the court is considering a mandatory injunction as much as it applies to a prohibitory injunction: see Lord Hoffmann at paragraph 19:

“What is required in each case is to examine what on the particular facts of the case the consequences of granting or withholding of the injunction is likely to be. If it appears that the injunction is likely to cause irremediable prejudice to the defendant, a court may be reluctant to grant it unless satisfied that the chances that it will turn out to have been wrongly granted are low; that is to say, that the court will feel, as Megarry J said in Shepherd Homes Ltd v Sandham [1971] Ch 340, 351, “a high degree of assurance that at the trial it will appear that the injunction was rightly granted”.

The willingness of an applicant to give the respondent a cross-undertaking in damages (as is the case in respect of this application) is a very material consideration for the court in determining whether or not the interim injunction should be ordered. The fact that an ultimately unsuccessful claimant will have to compensate the defendant for losses suffered by them through their complying with the interim remedy for the duration of the period during which it took effect is a major factor in assessing the balance of convenience (SmithKline Beecham Plc v Apotex Europe Ltd [2006] EWCA Civ 658; [2007] Ch. 71, CA at [26] per Jacob LJ).

Applying those principles to the evidence currently available to the court I am able to reach the clear conclusion that the “least irremediable prejudice” to one party would be achieved by granting the Claimant an injunction against all the Defendants in respect of paragraphs 6, 10, 11, 12, 13 (Footnote: ¹), and 22 of the Claimant’s draft order (Footnote: ²) (i.e. the provisions prohibiting the use of any confidential information and the preservation, delivery up and deletion and destruction provisions).

I accept the Claimant’s submission that although it is important to look at the evidence in relation each Defendant individually it is important also to step back and look at the evidence holistically. Having done so, I do not accept that the court can draw all of the inferences that the Claimant has sought to draw (see paragraph 31 above), in particular those inferring dishonesty. However, insofar as I am required to do so, I have a high degree of confidence that at trial the Claimant will be able to establish that the injunction was rightly granted.