Interim Injunction granted to prevent further breaches of an employee’s non-compete contractual provisions ahead of trial

Emma Brendling

The claimant, a recruitment agency specialising in the supply of nursing staff to NHS hospitals, sought an interim injunction against a former employee and competitor companies to prevent further alleged breaches of confidentiality obligations and post-termination restraints.

The first defendant was a senior recruitment consultant, employed by the claimant. During the four years in which he worked for the claimant, the first defendant had access to confidential information, including a database of the claimant’s temporary workers and clients. When the first defendant resigned, the claimant placed him on garden leave. The terms of his garden leave, to which the first defendant had agreed, included a restriction on working for other businesses without prior written consent.

The second and third defendants were competitor companies of the claimant. In applying for the interim injunction, the claimant alleged the first defendant had worked for the second and third defendants during his garden leave. The claimant submitted evidence supporting these allegations. In response, the second and third defendants submitted that an interim injunction was unnecessary and disproportionate.

When deciding whether to grant an interim prohibitory injunction, the courts must apply the guidelines set down in the case of American Cyanamid Co v Ethicon Ltd [1975] AC 396. Firstly, there must be a serious question to be tried. Secondly, the court must consider whether damages would be an adequate remedy and thirdly, whether the balance of convenience lies in favour of granting or refusing the injunction (i.e. which cause of action would cause the least damage). Finally, the court must take into account any special factors.

In this case, the High Court held that, on the basis of the evidence, there was a dispute between the parties and the claimant had a prima facie case for there being a breach of confidence and potential breaches of contract by the first defendant. The court then considered whether damages would be an adequate remedy if the injunction was not ordered. Under Section 50 of the Senior Courts Act 1981, the court can award damages instead of (or in addition to) an injunction. On this point, the High Court considered that this was not a serious issue as all parties had adequate resources. While the position of the second and third defendants needed to be considered at trial, it was noted that the first defendant was assumed to already be prohibited from such action by the contractual agreement entered into upon resigning. When considering where the balance of convenience lay, the court ruled that an interim prohibitory injunction was required to protect the position of the other parties, pending trial.

Coyle Personnel v Hackett & Ors (2018) (unreported)

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