Petter v EMC Europe Ltd & Anor

Expedition requires real, objectively assessed urgency and a good reason for giving the proceedings priority over other court business. The court must consider the administration of justice, prejudice to the parties and any special factors. The categories suitable for expedition are not closed.

Commercial certainty may justify expedition when assessed in context. An employer’s decision not to seek an injunction is not determinative. A former employee’s exposure to an unquantifiable future damages claim may create sufficient urgency, particularly where the employee might alter their conduct if a restrictive covenant is enforceable.

A former employee sought declarations that post-termination non-competition and non-solicitation clauses were unenforceable. His former employer had not sought an injunction but declined to undertake that it would not claim damages. The employer’s US parent had also commenced related Massachusetts proceedings.

Mitting J ordered a speedy two-day trial of the claims against the former employer. The employer appealed, contending that there was no objectively justified urgency and that the judge had considered irrelevant matters while overlooking delay and tactical considerations.

The central issues were whether the judge had applied the correct principles governing expedition and whether his case-management discretion could properly be disturbed.

1. Appeal dismissed. The judge had applied the correct principles and his decision remained within the generous ambit in which reasonable judicial disagreement was possible. A concise judgment which did not cite the authorities did not establish that the judge had overlooked them.

2. Expedition requires real, objectively assessed urgency. Since giving one case priority may delay others, the overriding objective requires a good reason for expedition. The categories of cases suitable for expedition are nevertheless not closed. The court must consider all aspects of the overriding objective, its available resources and the interests of other court users.

3. The four relevant factors identified in WL Gore and Associates GmbH v Geox SpA [2008] EWCA Civ 622 were: whether there was good reason for expedition; whether expedition would interfere with the good administration of justice; whether it would prejudice the other party; and whether any other special factors existed.

4. The absence of an application to enforce the covenants by injunction was relevant but not determinative. The former employer’s refusal to undertake that it would not sue exposed the employee to an unquantifiable damages claim. A damages claim could therefore justify expedition, depending on the circumstances. The need for commercial certainty had to be evaluated in its proper context; the differently situated patent authorities did not establish a contrary rule.

5. Objectively justified urgency existed. The employee had good reason to establish whether continuing his new work might expose him to damages and whether he should take avoiding action. An available trial window meant that expedition would not impede the administration of justice. No material prejudice to the well-resourced employer was shown, and the employee’s brief delay did not constitute a special factor against expedition.

1. Court of Appeal (Civil Division): The employer’s appeal was dismissed and the application was refused: [2015] EWCA Civ 480.

2. High Court: Mitting J ordered a speedy two-day trial of the claims concerning the restrictive covenants and refused permission to appeal. No citation is stated.

3. Permission to appeal: Burnett LJ granted permission and directed an expedited appeal after concluding that it had real prospects of success.