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

Mr Miletic drew support from Lord Diplock’s observation in American Cyanamid a p.408C that an evaluation of the relative strength of either party’s case could tip the balance where otherwise the scales remain even, “where it is apparent upon the facts disclosed by evidence as to which there is no credible dispute that the strength of one party’s case is disproportionate to that of the other party”. He referred to the various arguments that the Defendant advances to show that the draft consultancy agreement did not incorporate the terms on which the Claimant relies.

I do not consider that these submissions assist him: this is not a case where I consider that the scales “remain even” such that the relative strength of either party’s case could potentially be relevant; and even if that was the case, this is not a situation where the suggested strength of the Defendant’s case is “apparent upon…evidence as to which there is no credible dispute”: on the contrary, the evidence is very much disputed. For those reasons this aspect of Lord Diplock’s observation in American Cyanamid is not engaged.

Accordingly, pulling all these threads together, application of the American Cyanamid principles favours the grant of an injunction in this case.