Lebara Mobile Ltd & Ors v Lycamobile UK Ltd & Ors

On an application for an interim injunction, the court must apply the American Cyanamid principles without conducting a mini-trial. The serious-issue threshold is low, including where mandatory relief is sought. The court must assess the likely practical consequences of granting or withholding relief and take the course likely to cause the least irremediable prejudice. The label “mandatory” is not itself decisive. The balance of convenience may include delay, the existing state of affairs, relative strength of the evidence, and the public interest. Where the injunction would operate for only a short period and the alleged losses are financial and reasonably assessable, damages and the cross-undertaking may be adequate despite some uncertainty.

Lebara, a mobile virtual network operator, sought an interim injunction requiring Lyca, a competing operator, to stop blocking Lyca customers from using Lebara Talk over Lyca’s mobile network. The application followed Lyca’s introduction of a technical block that initially affected Lebara websites and applications in several countries. After the hearing, Lyca agreed to limit the block to the IP addresses supporting Lebara Talk and to the countries where the service had launched.

The parties accepted that the block would end when a forthcoming EU regulation came into force at the end of April 2016. Lebara relied on conspiracy, unlawful-means torts, breach of contract, alleged breaches of privacy and consumer legislation, breach of confidence and related foreign-law causes of action. The central issues were whether there was a serious issue to be tried, whether damages were adequate for either party, and where the balance of convenience lay.

1. Application dismissed. The court considered the Modified Block, not the wider original block, because the parties had agreed its reduced scope and its temporary duration.
2. There were serious issues to be tried. The threshold was low, and it was inappropriate at this stage to resolve disputed facts or difficult questions of law. The pleaded claims concerning conspiracy, unlawful means, contractual restrictions on data services, privacy requirements, breach of confidence, consumer protection and foreign competition law were not frivolous or vexatious.
3. The wording of Lyca’s standard terms arguably required continuation of the data services previously supplied and did not clearly authorise the block. The proposed contractual amendment did not make the claim unarguable. Questions concerning unfair terms, consent, and the limits on contractual discretion remained open.
4. The court rejected a general proposition that evidence of foreign law is always required before an interim injunction may address foreign contracts. The approach in Dunhill v Sunoptic was treated as concerned with passing-off cases. In relation to EU privacy legislation, it was appropriate at this stage to assume implementation by relevant Member States, while recognising the evidential uncertainty.
5. Damages were not automatically adequate for either side, since losses might be difficult to quantify. However, the likely losses were financial, the Modified Block would operate only for a limited period, and the evidence did not show that Lebara Talk had failed to grow or meet its projections. Neither party’s ability to pay damages was in issue.
6. The mandatory character of the injunction did not impose a separate legal test. The relevant question was its practical effect and the likely irremediable prejudice. Delay, preservation of the existing state of affairs, the absence of a disproportionate merits advantage, and the limited public-interest considerations all weighed against relief. The alternative publicity order was also refused because there was no sufficient evidence of likely irremediable prejudice or a high degree of assurance of success at trial.