On 12 February 2016, in D v P  EWCA Civ 87, the Court of Appeal considered the approach that should be taken to granting injunctions to enforce restrictive covenants. The judgment – available at http://www.bailii.org/ew/cases/EWCA/Civ/2016/87.html - is short, because the hearing was held in private, and the full judgment is also private.
Craig Rajgopaul considers three interesting practice points that arise from the open judgment.
First, the Court of Appeal affirmed that it can be (and on the facts was) appropriate to hold hearings in private where a party asserts confidentiality both in the information itself, and also in the "very existence of [the] information”. The Court approved the principle that, where the effect of publicity would be to destroy the subject matter of litigation as to a secret process, it may well be that justice could not be done at all if it had to be done in public. In those circumstances, the general rule as to publicity of Court proceedings must yield to the interests of justice. It is well worth advisors bearing this in mind when dealing with confidential information cases, and making the appropriate applications at the earliest opportunity.
However, in practice it necessary to include a realistic (and often unliquidated) sum in the Claim Form, in circumstances where:
However, the fee for a ‘non-money’ claim is currently £480. If a claimant is genuinely only concerned about obtaining injunctive relief, it may well be worth issuing a claim solely for permanent injunctive relief accompanied by an application for interim relief, without any alternative claim for damages. Careful consideration will of course need to be given to the impact that not seeking damages might have on matters such as settlement discussions/what the client will ultimately recover.
Finally, in words which will no doubt frequently be cited in support of applications for injunctive relief, the Court of Appeal gave ringing endorsement to the principle that the Court’s approach to a claim in respect of an (enforceable) restrictive covenant should reflect "a firm recognition that the remedy to which [the claimant] ought prima facie to be entitled is an injunction”, holding that:
The possibility that the Court may still refuse to grant relief in the absence of proof of damage means that applicants for injunctive relief will continue to need to include in witness statements sections dealing with the difficulty of quantifying damages, and the loss and damage that the applicant expects to suffer. However, P v D should assist applicants in focusing the Court’s mind on whether or not the restrictive covenants are enforceable, and obtaining injunctive relief where the Court concludes that they are (or, at the interim stage, that there is a good arguable case that they are enforceable).