Arqiva Ltd & Ors v Everything Everywhere Ltd & Ors

An interim injunction requires a serious issue to be tried, damages to be an inadequate remedy, and a balance of convenience favouring relief. The court must assess those requirements on the evidence available and should not grant a holding injunction merely because an application is urgent or complex. Quantifiable financial loss will ordinarily make damages adequate, subject to exceptional cases involving loss incapable of compensation. Where the application is dismissed on limited material, permission may be given to re-apply if subsequent proceedings provide materially fuller evidence on adequacy of damages or the balance of convenience.

The claimants sought an urgent interim injunction preventing or delaying the respondents’ application to Ofcom for transfer of wireless telegraphy licences. The application arose during related proceedings before Mr Justice Ramsey concerning contractual breaches and the validity of an earlier purported licence transfer. The claimants relied principally on alleged breaches of contractual licence-retention and assignment provisions, and on possible liabilities to site landlords.

The court considered whether there was a serious issue to be tried, whether damages would be an adequate remedy, and, if necessary, where the balance of convenience lay. The application was heard on very limited notice and material.

1. Application dismissed. The court was not satisfied that there was a serious issue to be tried on the arguments advanced.
2. The interim injunction principles stated in the American Cyanamid case require consideration of:
   1. whether there is a serious issue to be tried;
   2. whether damages are an adequate remedy; and
   3. where necessary, whether the balance of convenience favours an injunction.
3. Clause 9.3 of the site-sharing agreement required the client to retain its statutory licence. On the material available, the clause was more readily read as requiring compliance with statutory licensing requirements. If no licence was statutorily required, there was a strong argument that the client was not obliged to retain it. The court therefore found no serious issue on that point.
4. The court saw no reason to doubt the earlier judge’s reasoning on clause 28. Permission to appeal granted by a single Lord Justice for related construction issues was treated as an appeal-management decision, not as evidence that the issue had a realistic prospect of success.
5. The evidence did not establish that damages would be inadequate. Earlier losses had been quantified by reference to site use, and any additional rental or compensation payable to landlords appeared generally quantifiable. Exceptional cases might exist where a landlord’s objection could not be compensated in damages, but the evidence did not establish such a case.
6. The balance of convenience was, alternatively, assessed as approximately even and therefore did not favour an injunction. The court hoped that Ofcom might voluntarily defer its decision, but expressly gave no direction to Ofcom.
7. The claimants were permitted to re-apply, particularly in light of fuller evidence or findings by Mr Justice Ramsey concerning adequacy of damages and the balance of convenience. The court did not regard its conclusion on the serious-issue question as re-arguable merely by repetition.

The ruling arose during related proceedings before Mr Justice Ramsey. His earlier judgments had addressed the contractual and licensing background, and a further judgment was pending. An appeal concerning related construction issues had been postponed until October, but no appellate decision is stated in this judgment.