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

Under the Senior Courts Act 1981, section 37 the High Court may grant an interlocutory or final injunction in all cases in which it appears to the court to be just and convenient to do so.

The availability of an interim injunction in these circumstances is generally subject to the well-known principles set out in American Cyanamid v Ethicon [1975] AC 396 at p.407G-408G. First, the Claimant must show that there is “a serious question to be tried”. Second, the court must consider whether damages are an adequate remedy. If 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 if it turned out at trial that the injunction should not have been granted, an injunction should normally be granted.

If there is doubt as to the adequacy of the respective remedies in damages available to either party or to both, then the balance of convenience arises. In that situation 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 Corp Ltd [2009] UKPC 16, [2009] Bus LR 1110 at [17], per Lord Hoffmann.

Cases such as Sunrise Brokers LLP v Rodgers [2014] EWCA Civ 1373 and [2015] ICR 272 and Elsevier Ltd v Munro [2014] EWHC 2648 (QB) confirm the availability in principle of injunctive relief to restrain an individual from engaging in conduct that would breach obligations under a contract of employment or service, for example providing assistance to a competitor; and that where the contract of employment is ongoing, such obligations are not subject to the doctrine of restraint of trade, and do not need to pass any test of reasonableness in order to be enforceable: Elsevier at [55].

It is well-established that the court will not exercise its discretion to enforce a contractual prohibition on working for another during a notice period if that would be tantamount to granting specific performance of the contract of service: Elsevier at [56]. However the question is whether the order would in fact compel the individual to return to work against his will, “not simply whether the employee will suffer some degree of hardship by being held to the negative obligations in his contract – and certainly not…whether he will be prevented from earning his living during the period of the restraint”: Sunrise Brokers at [33], per Underhill LJ.