Entserv UK Ltd v The Miles Consultancy Ltd & Anor

On an application for interim injunctive relief, the court may order both preservation and delivery up of data where there is a serious issue to be tried and damages may not provide an adequate remedy. The fact that delivery up is mandatory does not make the American Cyanamid principles irrelevant, although the court must address the additional features of mandatory relief. The overriding consideration is which course is likely to involve the least risk of injustice if the order proves to have been wrongly made. Appropriate provision must also be made for the reasonable costs of complying with the order.

Entserv UK Ltd sought continuation of an urgent injunction preventing The Miles Consultancy Ltd and The Miles Consultancy Europe Ltd from deleting or destroying employee-related data stored and processed under a services agreement. On the return date, Entserv also sought orders requiring the defendants to deliver up the data in an agreed format and by specified dates.

The defendants contended that the claimant already possessed the data in other reports and relied on the substantial cost of transferring it. The court found a serious triable issue concerning whether the claimant had equivalent data and considered the contractual provisions dealing with delivery and costs.

1. Interim relief granted. The injunction was maintained in substance, and the court ordered preservation and delivery up of the data pending trial, subject to appropriate provisions concerning the defendants’ reasonable costs.
2. There was a serious issue to be tried as to whether the claimant already possessed the relevant data in other documents or line-manager reports. That issue could not be finally resolved on the evidence available at the return date.
3. The court applied the established principles governing injunctive relief, including the consideration identified in American Cyanamid Co. v Ethicon Ltd. [1975] AC 396, and considered whether damages would be an adequate remedy by reference to Evans Marshall & Co. Ltd. v Bertola SA [1973] 1 WLR 349.
4. Although the law concerning mandatory injunctions involves different questions from those applicable to a purely prohibitory injunction, it is not entirely separate from the American Cyanamid approach. The overriding consideration is which course is likely to involve the least risk of injustice if it later proves to be wrong.
5. The contractual provisions contemplated payment of the supplier’s reasonable costs of collating, formatting and delivering the data. The claimant’s proposed payment of £35,000 appeared insufficient on the available evidence. The parties were therefore required to address the appropriate cost burden in the order and to return to court if agreement could not be reached.

First-instance decision on the return date of an urgent interim injunction granted by Mr Justice Martin Spencer on 24 December. The court continued the injunction and ordered preservation and delivery up of the data, subject to cost provisions.