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

In light of my conclusions that there is a serious question to be tried, damages would not be an adequate remedy for the Claimant and damages would be an adequate remedy for the Defendant, the balance of convenience test does not strictly arise as a separate matter for consideration. However, in case I am wrong in any of my earlier conclusions, I have gone on to consider it.

Again, the case-law is in the Claimant’s favour on this issue. In Underwriting Exchange at [33], HHJ Seymour QC observed that:

“It would be an unusual case in which a former employer was seeking to enforce against former employees restrictive covenants in a contract of employment in which the court came to the conclusion that the balance of convenience favoured the employees”.

The Defendant’s statement confirms that he accepts that he was sending business plans and proposals to Sky at the same time as the Claimant was attempting to negotiate a renewal of its agreement with Sky; and that he deliberately deleted those emails in early August 2025 in an attempt to prevent Mr Shalom from seeing them. He suggests that there was nothing dishonest about this conduct, and that he was only doing what Mr Shalom had asked. The statement also effectively confirms that he intends to contravene what the Claimant submits are his contractual obligations unless he is restrained, militating in favour of the grant of an injunction.

I accept Mr Cleaver’s submission that all the factors that generally militate in favour of the grant of an injunction in cases of this kind, as described by Underhill LJ in Sunrise Brokers, are present here. As I have said, if the Claimant’s Head of Boxing is allowed to work for the benefit of a competing venture and to undermine the Claimant’s interests at this crucial time, the risk of harm is particularly acute. For the reasons I will come to, I do not accept Mr Miletic’s submission that the Defendant’s compromise offer tips the balance of convenience in his favour.

Given that the Claimant will continue to pay the Defendant and given that he has no definite offer of work, Mr Cleaver is right to contend that the risk of harm to the Defendant if it turns out that the injunction ought not to have been granted is at present relatively remote. I say this bearing in mind his high standing in the industry, as evidenced by the various testimonials he has provided, and the proposed expedited trial. As I have explained, the Claimant is better-resourced than the Defendant, and better able to pay any sum the court might in due course order it to pay. Accordingly, the risk of irremediable injustice to the Defendant involved in granting the injunction is plainly more remote and less than the risk of such harm to the Claimant if no injunction is granted.

For these reasons, to quote Lord Hoffmannin Olint, I am satisfied that granting the injunction in favour of the Claimant is the course which “seems likely to cause the least irremediable prejudice to one party or the other”.