The claimant said that the defendant jockey had agreed to ride the claimant’s horse in the Epsom Derby (to be run on the date of the hearing), and that he should not be allowed to ride another horse. The parties had entered into a Rider Retainer Agreement under which the defendant had been paid to ride the claimant’s horses as and when requested, and not to ride any other rival horse instead. The defendant’s evidence had been found ‘verging on fanciful’, but the judge had refused an injunction, saying that damages were an adequate remedy. The claimant appealed.
Held: The grant of such an injunction remained a discretionary remedy, though: ‘Where the defendant is proposing to act in clear breach of a negative covenant, in other words to do something which he has promised not to do, there must be special circumstances (e.g. restraint of trade contrary to public policy) before the court will exercise its discretion to refuse an injunction.’ In this case whilst the court could not assess any possible damages they may be substantial and there was no evidence that the defendant would or would not be able to meet any award. The defendant had special knowledge of the claimant’s intended tactics in the race and the lost prestige was not remediable. An awrd of damages alone may not be adequate.
This was an exceptional case where it would be proper to reverse the discretion exercised by the judge: ‘The defendant voluntarily entered into a contract for substantial reward containing both positive and negative obligations. There is nothing special about the world of racing which entitles the major players to act in flagrant breach of contract. The defendant has promised in the context of a commercial agreement that he will not compete against Native Khan in the Derby this afternoon. In my view, that promise should be enforced.’
Elias LJ said: ‘In a case where the breach of a negative covenant is clear, there is no magic in the fact that the injunction is being sought at an interlocutory stage. All questions of balance of convenience are then immaterial.’
Jackson, Elias LJJ
[2011] EWCA Civ 668
Bailii
England and Wales
Citing:
Cited – Doherty v Allman HL 2-Apr-1878
Two leases were granted of pieces of land with some buildings on them, one granted in 1798 for 999 years, the other granted in 1824 for 988 years. There was no reservation of a power of re-entry for breach of covenant, nor was there any negative . .
Cited – Hampstead and Suburban Properties Ltd v Diomedous ChD 1969
A covenant against causing nuisance or annoyance is to be read to refer to wider nuisance than is referred to by the tort of nuisance. It is to be applied ‘according to robust and common sense standards’ Megarry J granted an interlocutory injunction . .
Mentioned – Attorney General v Barker CA 1990
A claim was made for an injunction to enforce an express covenant in a contract of employment by a member of the Royal Household by which he undertook (amongst other things) not to publish any information concerning a member of the family which came . .
Cited – Warner Brothers Pictures v Nelson 1936
Bette Davis contracted with the plaintiff film company to render her services as an actress exclusively to that company. With nearly six years of the contractual term yet to run, Ms Davis contracted with a third person to appear as a film artist. . .
Cited – Hadmor Productions Ltd v Hamilton HL 1982
The Court of Appeal was not in general entitled to reverse the decision of the Administrative Court in the grant of discretionary interlocutory relief: ‘it is I think appropriate to remind your Lordships of the limited function of an appellate court . .
Cited by:
Cited – NATS (Services) Ltd v Gatwick Airport Ltd and Another TCC 2-Oct-2014
NATS had tendered unsuccessfully for a contract to provide air traffic control services at Gatrwick airport, and challenged the award. GAL denied that the Regulations applied and now sought disapplication of the automatic suspension from the award . .
Lists of cited by and citing cases may be incomplete.
Contract, Litigation Practice
Updated: 02 November 2021; Ref: scu.440444