Aquinas Education Ltd v Miller & Ors

A springboard injunction may restrain otherwise lawful conduct where unlawful acts have given a defendant an existing competitive head start. The remedy is available for breaches of confidence, contract or fiduciary duty. It must restore the parties to the position they would have occupied without the wrongdoing, rather than punish the defendant.

The claimant must identify the nature and duration of the continuing advantage. The court should consider the effect of the wrongdoing and the extent of the illegitimate advantage. On an interim application which will effectively determine the relief, the court should assess the likely outcome at trial and then consider convenience and discretion.

Aquinas Education Limited operated an educational recruitment agency. Two former employees, Dorian Miller and Max Pembleton, together with Charles Gatter and Link3 Recruitment Limited, established a competing business while the employees remained employed by Aquinas.

The defendants admitted copying and using Aquinas’s information, including teachers’ CVs and lists of teachers and schools, to obtain business for Link3. Interim orders restrained use of confidential information and dealings with specified teachers and schools. The issue was whether those restraints should continue and whether a springboard injunction should be granted until trial.

1. Interim approach. A conventional interim injunction restraining unlawful conduct is governed by the American Cyanamid principles. A springboard injunction is different because it restrains conduct which would otherwise be lawful and may, in practical effect, finally determine the issue before trial. The court should therefore assess the likely outcome on factual issues on the balance of probabilities, then consider the balance of convenience and other discretionary matters, following CEF Holdings v Mundey [2012] EWHC 1524 (QB).
2. Springboard principles. The court may deprive a wrongdoer of an unlawful competitive advantage arising from breaches of confidence, contract or fiduciary duty. The advantage must still exist when relief is sought. Relief should restore the parties to the competitive position they would have occupied without the misconduct, and should not operate as punishment. The claimant must identify the precise nature and period of the advantage. Monetary compensation may be inadequate where loss is difficult to assess or recovery is doubtful.
3. Confidential information. The copied material was likely to fall within the contractual confidentiality provisions, and the defendants were required to return company records and documents on termination. Continued protection was ordered in clearly defined terms. Information retained merely in the employees’ heads about schools or the general market was not shown to justify interim restraint. The distinction between trade secrets and other confidential information described in Roger Bullivant v Ellis [1987] ICR 464 was relevant.
4. Application. The defendants had obtained a modest temporal head start by using Aquinas’s information to establish initial business and placements. The court assessed that advantage at approximately six weeks. The existing orders had already restrained trading for about that period, so the unlawful advantage had expired. No continuing springboard injunction was therefore granted, although the injunction protecting defined confidential information was continued until trial or further order.

First-instance decision. The judgment records earlier interim orders made by Picken J on 12 January 2018 and by a Deputy High Court Judge on 7 February 2018. The present court continued defined restraints protecting confidential information but declined to grant a continuing springboard injunction.