Capita Plc & Anor v Darch & Ors

Permission to appeal against discretionary interim-relief and costs decisions requires a real prospect of success or another compelling reason. Appellate intervention is especially limited where the challenged conclusions are multi-factorial findings or exercises of discretion.

A springboard injunction requires more than a serious issue as to past wrongdoing. The claimant must show a continuing unfair competitive advantage and that the proposed injunction is limited to the period of that advantage. Where trial will occur after the relevant period, the claimant must show a likelihood of establishing the necessary matters at trial.

Interim injunctions must have a proper basis and sufficiently precise scope. A conspiracy allegation does not, without more, establish a risk that every defendant will destroy evidence. Broad protection for confidential information may be refused where its terms are uncertain or disproportionate.

Capita sought permission to appeal from the Deputy Judge’s judgment of 26 May 2017, which had refused extensive interim relief in proceedings against former employees, a former employee’s company and others.

The proposed appeal concerned negative and mandatory injunctions relating to listed items, emails and confidential information, springboard injunctions based on alleged wrongdoing and restrictive covenants, and the exercise of the costs discretion. Capita relied on the asserted seriousness of the issues, alleged conspiracy, receipt or deletion of emails, and the wider significance of the rulings.

The central questions were whether the proposed grounds had a real prospect of success, or whether another compelling reason justified an appeal under CPR 52.3(6).

1. Permission refused. None of the proposed grounds had a real prospect of success, and no compelling reason justified an appeal. The likely passage of the relevant injunction periods and the occurrence of disclosure meant that any appeal would probably concern costs substantially or entirely.
2. Interim relief is discretionary and commonly involves multi-factorial assessment. Applying the appellate restraint described in G v G (Minors: Custody Appeal) [1985] 1 WLR 647, the judge held that the challenged findings were conclusions open to him on the evidence. An allegation of conspiracy did not establish that defendants who had not destroyed evidence had, or were likely to have, the same propensity.
3. A mandatory delivery-up order required more than a serious issue as to possession. The evidence did not establish adequately that the resisting defendants possessed the listed items, and damages were an adequate remedy for any interim retention. The proposed email order was also excessive in width and potentially captured personal and private material.
4. The informational content of emails was not property. The judgment distinguished between the physical medium, information and rights arising from information, following the analysis in Your Response Limited v Data Team Business Media Limited [2014] EWCA Civ 281. A possible agency-based route did not justify the relief sought because the order was too wide and included private emails.
5. Article 8 rights were relevant where the proposed injunction affected private and family life, including the rights of persons who were not parties. The court was entitled to consider those rights when assessing the scope and appropriateness of relief.
6. For springboard relief, the claimant had to establish an unfair competitive advantage which continued, or would continue, unless restrained, and a duration no longer than that advantage. Since trial would not occur before expiry of the claimed period, a serious issue was insufficient: the claimant had to show likely success at trial. The judge was not persuaded that this demanding test was met.
7. The proposed confidential-information injunction was unacceptably imprecise. Terms such as “including but not limited to” and “other similar information”, protection extending across the corporate group and third-party information, and undefined client information made the scope too wide or uncertain.
8. The costs orders involved a judicial discretion. The judge had considered the undertakings and pragmatic conduct relied on by Capita, and an appeal on costs alone was rarely appropriate.

Capita applied to the same High Court judge for permission to appeal from the judgment handed down on 26 May 2017. Permission to appeal was refused on all proposed grounds.