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
Craig Rajgopaul considers three
interesting practice points that arise from the open judgment.
Littleton Chambers’ Naomi Ellenbogen QC and Sam Neaman represented the Appellant.
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.
in practice it necessary to include a realistic (and often unliquidated) sum in
the Claim Form, in circumstances where:
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.
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:
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).