2020-02-29
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When injunctive relief is "completely disproportionate"

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Posted by Gemma Carson on 04 September 2018

Gemma Carson - Head of Commercial Disputes and Litigation
Gemma Carson Partner - Head of Dispute Resolution

Wright Hassall successfully acted for one of four Defendants (Ms Susan Cawley) in an application for injunctive relief (brought by Tenon FM Limited) that was described as “completely disproportionate” by a Judge in the High Court.

The facts

Our client, Ms Cawley, had been employed at Tenon FM Limited ('Tenon') for 10 years.  On 3 May 2018, she gave her notice of termination of her employment as Tenon's Operations Director and member of its Senior Leadership team. 

Tenon claimed that they discovered Ms Cawley was trying to recruit one of her team to join her at her new employer, a competitor company, which was contrary to the restrictive covenant in her contract of employment. Tenon’s case was that initially Ms Cawley was employed by a written 2008 Contract but that this had been replaced by a 2011 Contract. Both contracts contained restrictive covenants, but those contained in the 2011 Contract were more onerous.

Ms Cawley's position was that she had signed neither of her contracts of employment, on the basis that she did not agree to the restrictive covenant clauses in either contract.

Tenon wrote to Mrs Cawley outlining their concerns about her alleged breach of the restrictive covenants, giving her only 12 hours to respond. In any event, the Letter Before Action sent to her made it clear that proceedings would be commenced, regardless of any response. Tenon knowingly served its application for an injunction to enforce the restrictive covenants on Ms Cawley on the eve of her father’s funeral, and at a time when (as held by the Judge) there was no apparent need to do so.

In court, Tenon was unable to produce a signed copy of the 2008 or 2011 Contract.  Shortly before the hearing before His Honour Judge Bidder QC, sitting as a Judge at the High Court, the Claimant served a copy of yet a further unsigned contract; this one dated 2012 and also containing restrictive covenants. It now relied on this rather than the 2011 Contract. Tenon’s evidence was silent as to whether any consideration had been provided in respect of any of the covenants it sought to rely on.

According to its Statement of Costs, Tenon had spent approximately £200,000 in making the application for injunctive relief.

The decision

The Judge held that Tenon’s claim failed on several fundamental issues:-

  1. In respect of the fact that the employer could not produce a signed contract – he found that Ms Cawley’s positive evidence that she had refused to sign the Contract was not effectively countered by Tenon.
  2. He held that the position was even clearer in respect of the complete absence of any evidence as to the required consideration for the covenants and that this “cannot have been an issue that the Applicant (Tenon) was not aware of”.
  3. He was critical of the way in which the application had been pursued saying “there is in my judgment much force in the contentions of all four Defendants that the conduct of the Claimant in relation to the claim was unreasonable or even vexatious”.
  4. He said that it was difficult to see the necessity of service of proceedings for injunctive relief on the eve of Ms Cawley’s father’s funeral; that there was a wholly inadequate opportunity to any of the Defendants to obtain legal advice before the first Court Hearing; that a reasonable request for an extension of time was refused; that the application was not so urgent that the Pre-Action Protocol should have been substantially ignored by the Claimant; and that the Claimant’s costs appeared to be “completely disproportionate”.

Conclusion

The defence of the case was a resounding success for the Defendant and her legal team at Wright Hassall: Gemma Carson, Andrew Spooner, Tariva Thomas, and Kelly Schofield – who instructed Chris Quinn of Littleton Chambers to appear on behalf of the First Defendant in the High Court.

About the author

Gemma Carson

Partner - Head of Dispute Resolution

Gemma specialises in commercial litigation and has a wealth of experience in dealing with all types of commercial contract dispute.

Gemma Carson

Gemma specialises in commercial litigation and has a wealth of experience in dealing with all types of commercial contract dispute.

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