Capita Plc & Anor v Darch & Ors

Interim injunctions are discretionary remedies and must be justified by the particular evidence and the precise relief sought. Serious issues to be tried do not themselves justify an injunction, especially where the relief is mandatory, final in practical effect, unusually broad or difficult to obey.

A springboard injunction requires evidence of an unfair competitive advantage which continues, or will continue, to benefit the defendant. The remedy must proportionately remove that advantage and must not punish past wrongdoing. An injunction protecting confidential information must identify the protected information with sufficient precision.

Employers have no general proprietary claim to the contents of employees’ emails. A demand for disclosure of emails may engage privacy rights under Article 8 and must be justified by a proportionate balancing exercise.

Capita sought interim injunctions against former and current employees and Archus, a competing business associated with several of them. The application concerned alleged breaches of employment obligations, misuse of confidential information, database rights, recruitment and customer solicitation, and unlawful means conspiracy.

The relief sought included preservation and delivery up of documents and emails, disclosure of emails sent from Capita accounts to non-Capita accounts, confidentiality restraints, enforcement of restrictive covenants, and springboard injunctions. Several defendants offered undertakings, while the remaining relief was contested on the evidence available at the interim hearing.

The central issues were whether Capita had shown a sufficient prospect of obtaining the relevant final relief, whether damages were adequate, whether the proposed orders were precise and proportionate, and whether the email relief interfered unjustifiably with privacy rights.

1. Disposition. Save for protection or concessions offered by defendants and incorporated into the agreed order, the application was dismissed. The court accepted that there were serious issues to be tried concerning alleged wrongdoing, but held that this did not establish an entitlement to the particular injunctions sought.
2. Preservation and delivery up. The preservation order was refused because there was no pleaded or evidential basis for threatened destruction, tampering or disposal. Delivery up was mandatory and, in practical terms, final. The evidence did not establish a serious issue that the resisting defendants possessed relevant Capita property, and damages were adequate. The limited evidence concerning four emails did not justify the wider order.
3. Email disclosure and privacy. The proposed order requiring all emails received from Capita accounts to be forwarded was early disclosure, wider than standard disclosure and not needed to police other relief or protect Capita’s business. It would capture private communications. The contents of emails were not property merely because they were sent through an employer’s system. The order would engage Article 8 of the Convention, implemented by the Human Rights Act 1998, section 6. Privacy and any countervailing rights required an intense and proportionate balancing exercise, which the proposed order failed.
4. Confidential information. The proposed confidentiality injunction was impermissibly vague. An injunction must identify with sufficient precision what the defendant is forbidden to do, particularly because breach may lead to contempt proceedings.
5. Restrictive covenants and springboard relief. The customer and recruitment restrictions relied upon by Capita were likely too wide and unreasonable, including because they extended beyond persons with whom the employee had personal and material dealings. The settlement agreement had released Mr Short from his covenants, and Capita had not pleaded rescission or a sufficient basis for revival. Springboard relief required a continuing unfair competitive advantage and had to be proportionate in form and duration. The evidence did not show that the proposed relief was likely to be necessary to prevent continuing loss or that damages were inadequate.
6. The court also refused the proposed relief against Archus, Mr Darch, Mr Turner and others, subject to agreed undertakings and concessions. Any request for expedition required real, objectively viewed urgency and compliance with the applicable principles.

First-instance application for interim injunctions in the High Court (Chancery Division). The application was dismissed in substantial part, subject to agreed undertakings and concessions.