Alstom Power Ltd. v Somi Impianti S.R.L.

For an interim injunction, the court must be satisfied that there is a serious issue to be tried and must assess the adequacy of damages and the balance of convenience. The court may take account of unchallenged evidence and the defendant’s failure to provide evidence, while avoiding final findings on disputed merits. Damages may be inadequate where the defendant appears unable to meet a monetary judgment or where the subject matter cannot readily be recreated. The balance of convenience may favour preservation and return of documents essential to completing and handing over works. Substituted service is appropriate where the proposed methods provide a high degree of confidence that the order will promptly reach the defendant.

Alstom employed SOMI as a subcontractor on a power-station project. Following termination of the subcontract, Alstom sought injunctions requiring SOMI to return turnover-package documents removed from the site and taken to Italy. The documents were needed for completion and handover of the works.

An interim injunction had been granted or directions made on 10 November 2011, including an undertaking to return the documents to London. The undertaking appeared not to have been complied with. SOMI did not appear or provide evidence at the resumed hearing. The issues were whether the interim injunction criteria were met and whether substituted service should be ordered.

1. Serious issue to be tried. Applying the approach in Cyanamid, the court was satisfied that there was at least a serious question to be tried concerning the lawfulness of termination, ownership or control of the documents, and SOMI’s entitlement to remove them. The court did not finally determine those issues. In light of the unchallenged evidence and the absence of evidence from SOMI, there was also a high degree of assurance that Alstom would succeed.
2. Adequacy of damages. Damages were not an adequate remedy. Some documents could not readily be reproduced, and their absence threatened additional completion and handover costs. The evidence also suggested that SOMI was unable, or at substantial risk of becoming unable, to satisfy a monetary judgment.
3. Balance of convenience. The documents were important to the timely completion and handover of the project. SOMI appeared to be retaining them as a bargaining chip. Weighing the competing considerations, the balance of convenience favoured an injunction requiring the return and preservation of the specified materials. The apparent breach of the earlier undertaking was not relied upon to draw adverse inferences before SOMI had an opportunity to explain it.
4. Substituted service. Substituted service was appropriate by fax, email to SOMI’s executive directors and service at the London offices of its solicitors. Those methods gave the court confidence that the order would be communicated promptly. The order permitted either party to apply to vary it if genuine practical difficulties arose.

The injunction was granted in the agreed form, subject to minor timing adjustments.