| Commentary

(2) Injunctions

| Commentary

(2)     Injunctions

Generally speaking, there are three types of interim orders sought by employers in restrictive covenant/employee competition cases: (1) a prohibitory injunction, preventing the employee from doing something (typically breaching the terms of the restrictive covenants or confidential information clauses); (2) a springboard injunction (used to cancel out any unlawful head start gained as a result of unlawful conduct); and (3) a mandatory injunction (requiring the employee to do something; such as deliver up the employer's confidential information or property).

Injunctions are, of course, an equitable remedy. The jurisdiction to grant an injunction stems from s 37(1) of the Senior Courts Act 1981: 'The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so'. The starting point is therefore always that an injunction must be 'just and convenient'.

In addition to s 27(1) of the Senior Courts Act 1981, in deciding whether or not to grant an injunction the court will have regard to the so-called American Cyanamid principles (from the case of the same name), which principles are effectively a three-part test. First, there must be a serious issue to be tried: 'the court no doubt must be satisfied that the claim is not frivolous or vexatious, in order words, that there is a serious question to be tried'. The court is not, at this stage, interested in resolving conflicts of evidence

To continue reading
Analyse the law and clarify obscure passages all within a practical context.