Boxxer Limited v John Wischhusen

On an application for an interim injunction restraining a senior employee from competing with, or undermining, his employer, the court applies the American Cyanamid principles.

The threshold of a serious issue to be tried is low. Damages may be inadequate for an employer where competitive conduct risks intangible commercial harm, including damage to business relationships and reputation. Continued payment of the employee may make damages adequate for the employee if the injunction later proves unjustified. The court may grant a negative injunction during the contractual engagement, provided it does not compel continued service. A proposed compromise is insufficient where it fails to preserve the position pending trial.

Boxxer Limited, a boxing promoter, sought an interim injunction against John Wischhusen, its Head of Boxing, pending an expedited trial of claims for breach of contract and damages.

Boxxer alleged that Mr Wischhusen had worked secretly on a competing boxing venture, corresponded with Sky about alternative boxing proposals, and deleted relevant emails. Mr Wischhusen disputed the contractual terms relied on and the allegations of breach. He offered narrower undertakings, but Boxxer maintained that wider protection was required.

The central questions were whether there was a serious issue to be tried, whether damages were adequate for either party, where the balance of convenience lay, and whether the proposed order would improperly amount to specific performance of a contract of service.

1. Relief granted. Applying the principles in American Cyanamid v Ethicon [1975] AC 396, the court granted the injunction sought until trial or further order.
2. There was a serious issue to be tried. The threshold was no more than that the claim was not frivolous or vexatious. The court should not resolve conflicts of evidence at the interlocutory stage.
3. Damages would not be an adequate remedy for Boxxer. The alleged conduct risked serious and difficult-to-quantify harm to its relationships with broadcasters, fighters and commercial partners, its stability and its reputation. An existential threat was unnecessary.
4. Damages would be adequate for Mr Wischhusen if the injunction later proved unjustified. Boxxer would continue paying him, he had no definite alternative offer, and the asserted losses were not shown to be incapable of quantification.
5. Although the balance of convenience did not strictly arise, it favoured Boxxer. The risk of irremediable harm to Boxxer from allowing its Head of Boxing to support a competing venture was greater than the presently remote risk of irremediable harm to Mr Wischhusen.
6. The injunction did not engage the restraint of trade doctrine merely because it restricted competing work during the engagement. Nor did it amount to specific performance, since it did not compel Mr Wischhusen to return to work; it enforced negative obligations only.
7. The proposed compromise was rejected. It assumed that Mr Wischhusen could establish a competing venture and did not sufficiently preserve the position pending trial. The order appropriately restrained competing boxing activity, interference with Boxxer’s fighters and staff, and relevant communications with Sky and other third parties.