KB-2025-003244 - [2025] EWHC 2386 (KB)

There is a significant degree of overlap between this issue and the question of balance of convenience.

Mr Cleaver relied on the fact that case-law has recognised that in situations such as this, it will generally be obvious that damages are not an adequate remedy for the Claimant. For example, in Sunrise Brokers at [53], Underhill LJ held that:

“In a case of this kind there are evident and grave difficulties in assessing the loss which an employer may suffer from the employee taking work with a competitor; even where it is possible to identify clients who have transferred their business (which will not always be straightforward, particularly where the new employer is outside the jurisdiction) there may be real issues about causation and the related question of the length of the period for which the loss of the business could be said to be attributable to the employee’s breach…There may be other intangible but real losses to the employer’s reputation.”

Similarly, in Derma Med Ltd v Dr Zack Ally [2024] EWCA Civ 175 at [76], Males LJ observed that “[a]lthough it is not a rule of law that damages can never be an adequate remedy for breach of a covenant not to compete, the cases have recognised that the factors identified [by the judge who granted the injunction at first instance] will generally mean that they are not”.

Mr Cleaver also relied on the detail of Mr Shalom’s evidence. Mr Shalom set out the context for the serious potential consequences of the Defendant’s conduct as follows. The Claimant is a relatively new entrant to the boxing promotion sector, which is otherwise dominated by two large and very well-established promoters. It is at an important transitional point in its history with the end of its contract with Sky, a new venture with the BBC having just been announced and sensitive negotiations with other TV partners being underway. Accordingly, Mr Cleaver argued that this case has many of the features identified in Sunrise Brokers. In addition, the Defendant is in a particularly significant role in the business, which is at a particularly important moment in its development.

Mr Miletic argued that the risks identified by Mr Shalom appear to be exaggerated. He contended that the Claimant’s evidence was focussed on specific interactions between the Defendant and Sky, concerning the Boxxer/Sky relationship, rather than establishing some broader intent to interfere with any other relationship of the Claimant’s or to otherwise target the Claimant’s business.

However, as I have observed, the Claimant’s position is that there is evidence that the Defendant actively undermined the attempt to secure a new agreement between the Claimant and Sky in early 2025, by secretly corresponding with Sky about proposals for an alternative venture. Mr Shalom states that Boxxer “remains open to an ongoing and important commercial relationship with Sky”, but that will obviously be much more difficult if the Defendant is free to work against the Claimant’s interests in the same or similar ways.

Moreover, as Mr Shalom explained, the Claimant has just announced a venture with the BBC and is in discussions with other TV partners. Mr Miletic highlighted that there is no evidence that the Defendant is seeking to interfere with the Claimant’s relationship with the BBC or any other unnamed pay TV broadcaster entity. However, as Mr Shalom explained at paragraph 59.5 of his statement, any broadcaster involved in boxing and contracting with a promoter would want to know that the promoter is stable and reliable. If the Defendant was able to undermine the Claimant from within, that would make the Claimant’s dealings with broadcasters much more difficult.

As he explained at paragraphs 59.2 and 59.6, maintaining stability is also important to the Claimant’s relationships with its fighters and the company’s current strategy would be put at risk if there appeared to be any lack of credibility in what it was offering. Similar considerations apply to the Claimant’s relationships with other current and potential future commercial partners.

The evidence therefore shows that if, during this important period, the Defendant was able to work actively against its interests or for the benefit of a competitor or potential competitor, that could be enormously damaging, not just because of the advantage it would give a competitor but also because of the damage it would cause to the stability and commercial reputation of the Claimant. Further, that danger is particularly serious if the Defendant is free to induce or persuade other employees of the Claimant to do the same.

Mr Miletic argued that there would appear to be no “existential threat” to the Claimant, given the BBC deal and the various other opportunities it is pursuing. Although its financial statements for the year ending 30 June 2025 have not yet been prepared, preliminary figures produced by the Financial Director show an EBITDA for the year of around £1.2 million and £2 million cash in the bank. This is not a case, he said, involving a company with only one business relationship, such that without the injunction that relationship (and all income) would be lost. However, Mr Cleaver is right to highlight that a Claimant making an application of this kind does not need to show an “existential threat”, merely the risk of irremediable harms of precisely the kind recognised in the case-law, which Mr Shalom described.

Mr Miletic submitted that the focal point is the need to protect the Claimant’s relationships with its fighters, who are the “lifeblood” of its business. If the Defendant sought to interfere in the contractual relationships of those fighters under contract with the Claimant, notwithstanding exclusivity provisions to prevent such interference, that could be compensated in damages. He points to the fact that the pre-action correspondence intimated a claim for inducement of breach of contract in those circumstances.

However, even if that is right, and even if other aspects of the harm that the Claimant could suffer would be adequately compensated in damages, it is highly unlikely that the Defendant would be able to meet any such award. He has not provided any detailed information about his means, but Mr Shalom’s evidence is that the Defendant said he still had a mortgage to pay on his family home, had hoped to pay it off with the bonus he would have received if the Sky deal had been renewed, and could not afford to earn less at this stage of his career. The Defendant’s own evidence refers to his need to support his family, with his son still at school and hoping to go to university. His case is that he could not afford to take the one third pay cut, to £6,000 a month, which the Claimant proposed to him on 4 August 2025 after the Sky contract came to an end.

For all these reasons I conclude that damages would not be an adequate remedy for the Claimant, if the injunction was not granted.