McKenna Breen Ltd v James

Where an interim injunction has been granted and the defendant did not appeal against it, an application to discharge it is not a rehearing of whether it was correctly granted. The question is whether circumstances have changed so that continuation is no longer necessary to protect the claimant’s business pending trial. The court may continue the injunction on sufficient material showing a legitimate continuing need for protection, while leaving disputed questions of truth and possession to the trial judge. A fair hearing is not denied merely because a judge prevents oral repetition of points already contained in a skeleton argument. The application for permission was refused, with no order for costs.

McKenna Breen obtained an interim injunction from Hunt J in December 2000 restraining Mr James from using or disclosing its customer database and requiring delivery up of relevant materials. Mr James did not appeal against that order. After asserting that he had destroyed the only copy of the database, he applied to Gray J to discharge the injunction. Gray J refused, concluding that circumstances had not changed so as to remove the need for interim protection. Mr James sought permission to appeal, alleging an unfair hearing and breach of Article 6, exclusion of argument about his earlier letter, and reliance on unsafe evidence. The central issue was whether the injunction should continue pending trial without resolving disputed facts.

Application refused; no order for costs.

1. Gray J correctly identified the issue. Because Mr James had not appealed against Hunt J’s December 2000 injunction, the application to discharge could not reopen whether the injunction was rightly granted. The relevant question was whether circumstances since its grant had changed so that continuation had become unnecessary for the protection of McKenna Breen’s business pending trial.
2. The judge was entitled to conclude that sufficient material established a legitimate continuing need for protection against future misuse of information on the database. That conclusion did not determine whether Mr James had destroyed the CD Rom or whether Kate Pearce was telling the truth. Those disputed factual questions remained for the trial judge.
3. There was no denial of a fair hearing and no breach of Article 6 of the European Convention on Human Rights. Gray J had read Mr James’s skeleton argument, and his refusal to permit oral repetition of it did not prevent consideration of the points raised. Argument directed to the reasons for the original injunction was substantially outside the issue on discharge.
4. There was no realistic prospect of the Court of Appeal allowing an appeal. The action should proceed to trial so that the factual dispute could be resolved. If Mr James established that the injunction should not have been granted, he could pursue any claim for loss under the claimant’s cross-undertaking in damages.

• Court of Appeal (Civil Division): In [2001] EWCA Civ 1912, Lord Justice Clarke refused permission to appeal and made no order for costs.
• Queen’s Bench Division, Gray J: On 8 August 2001, refused Mr James’s application to discharge the interim injunction.
• Queen’s Bench Division, Hunt J: On 13 December 2000, granted the interim injunction restraining use or disclosure of the customer database and requiring delivery up of relevant materials.