Nike European Operations Netherlands BV v Rosicky

The High Court may grant interim relief under Civil Jurisdiction and Judgments Act 1982, section 25, in support of proceedings in another Brussels or Lugano Convention state where the statutory conditions are met and there is a sufficient connection between the defendant, the subject matter and England. The parties’ choice of a foreign court does not itself oust that supporting jurisdiction.

In deciding whether to grant relief, the court should seek to avoid inconsistency with the foreign court’s forthcoming decision. Where damages are inadequate, the court assesses the balance of convenience, gives appropriate weight to preserving the status quo, and may require undertakings to commence and pursue the foreign proceedings expeditiously. Interim relief may be limited to the period before the foreign court determines its own application.

Nike applied for an interim injunction restraining Tomas Rosicky, an Arsenal footballer, from wearing Puma-marked football boots. Nike alleged that its endorsement agreement had been extended for a further two years under an option requiring written notice by 30 September 2006. Rosicky denied receiving the relevant notice and had entered into a later agreement with Puma.

The substantive contractual dispute was subject to Dutch law and an Amsterdam jurisdiction clause. Nike sought interim relief in England under section 25 of the Civil Jurisdiction and Judgments Act 1982 in support of proposed Dutch proceedings. The central issues were whether the English court had jurisdiction to grant ancillary relief, whether it was inexpedient to do so, and whether an injunction should be granted pending the Dutch court’s determination.

1. Jurisdiction. The court had jurisdiction under section 25 of the Civil Jurisdiction and Judgments Act 1982 and Article 31 of Regulation 44/2001. The Amsterdam jurisdiction clause clearly conferred jurisdiction over the substantive dispute, but the evidence did not establish that it excluded the English court’s power to grant interim relief. The defendant’s residence and professional activities in England provided a sufficient connection under the guidance in Van Uden Maritime BV v Firma Deco-Line. It was not inexpedient to hear the application merely because the Dutch court was the chosen forum.
2. Interim relief principles. Applying the American Cyanamid principles, damages were unlikely to be adequate for either party. The value of displaying a trade mark through a prominent footballer could not readily be quantified. The defendant’s reputation and good faith were also relevant, and could not necessarily be restored by damages. The application therefore turned on the balance of convenience.
3. Strength of the case and status quo. The evidence of delivery of the option notices, together with the email correspondence and the absence of contrary expert evidence on Dutch law, gave Nike a high degree of assurance that it could establish valid service. That approach was consistent with the guidance in Zockoll Group Ltd v Mercury Communications Ltd. In any event, preserving the pre-existing position for a short period was preferable. Allowing the injunction to expire before the Dutch court’s hearing would cause greater disruption through the change of sponsor and planned publicity.
4. Order. An interim injunction was granted, limited to the effective hearing of the Dutch interim application. Rosicky was permitted to wear unmarked boots. The parties were required to commence and pursue the Dutch proceedings, including the interim application, with all dispatch and to seek an expedited hearing. Nike was awarded the costs of the application, subject to detailed assessment if not agreed.