THE COURT DOESN’T LIKE MACHISMO, AGGRESSIVE LETTERS AND THE LIKE: HOWEVER A CLAIMANT STILL HAS TO GET ON WITH THINGS

There are some interesting observations about the conduct of litigation in the Court of Appeal judgment in Planon Ltd v Gilligan [2022] EWCA Civ 642.  The court made it clear that it is alive to “machismo” methods of conducting litigation. However in the current case the claimant had not acted speedily enough.  The court refused to grant an injunction because, amongst other things, any “harm” the claimant may have done would have occurred immediately upon their starting work for a new employer. These proceedings were not issued until several months afterwards.

 

“I would be the last person to encourage the approach of those litigators who fire off several aggressive letters per day, whether seeking to demonstrate their machismo, run up costs or simply batter the opposition into a state of exhaustion. But the Claimants’ approach in this case seems to me to have gone too far in the opposite direction.”

THE CASE

The claimant brought proceedings claiming breach of a non-competitive covenant by the defendant, their former employee.  The judge refused the claimant’s application for an injunction stopping the defendant working for a competitor.  The claimant appealed. The appeal was unsuccessful.  In addition to other matters Lord Justice Bean observed that any “harm” that the defendant did would be done almost immediately upon arrival at his new employer.   The defendant had handed his notice in on the 23rd July 2021, he was put on garden leave until 6th August 2021. He started with his new employer shortly after 23rd August 2021.  Proceedings were not issued until 21st October 2021.  No statements of case had been served by the time of the appeal hearing.

 

THE JUDGMENT OF LORD JUSTICE BEAN
    1. Finally, there is the issue of delay. I would be the last person to encourage the approach of those litigators who fire off several aggressive letters per day, whether seeking to demonstrate their machismo, run up costs or simply batter the opposition into a state of exhaustion. But the Claimants’ approach in this case seems to me to have gone too far in the opposite direction. Mr Gilligan joined ServiceNow on 1 September 2021. The very next day this came to Planon’s attention. The letter before action was not sent until 20 September, and proceedings were not issued until 21 October. By the time of the hearing before the judge on 5 November Mr Gilligan had been working for ServiceNow for over two months. By the time of the hearing before us that period had become seven months.
    1. The significance of this is not that the Claimants deserve censure for proceeding at such a stately pace. Rather, it is that if Mr Gilligan’s new job posed as severe a threat to Planon’s protectable trade secrets or customer connection as the Claimants sought to argue, the damage would surely have been done in the first few days, and certainly well before the lapse of two months. It is important, too, to bear in mind the observation of Lord Diplock in Cyanamid ([1975] AC 396 at 408F) that “where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo“. The judge would in my view have been justified in refusing an interlocutory injunction on this additional ground.
  1. I too would dismiss this appeal.