“The Defendant shall publish on the homepage of each of their websites a notice which informs each visitor to those websites of: (i) the fact of the Block; (ii) the Block’s period of operation; and (iii) the effects upon customers trying to access or use Lebara apps or Lebara websites.”
“The court no doubt must be satisfied that the claim is not frivolous or vexatious, in other words, that there is a serious question to be tried. It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial.”
“OBLIGATION TO PROVIDE THE SERVICES 2.1 Lycamobile will provide the Services to you using its own Network and the Networks of one or more telecommunications operators. Occasionally any of these Networks may be unavailable for maintenance, modifications, upgrades, emergencies or to protect the security of the Network. At these times the Services may be temporarily unavailable.”
“The mobile telephone services that Lycamobile provides to you, including voice calling, messaging and data services, voicemail, …”
“That leaves the other part of the injunction. Clearly “world-wide” is much too wide. There is no evidence that Dunhill's trade elsewhere than in those countries whose names appear in the last document in the green bundle, to which I referred earlier. There is no evidence as to the local law in relation to those countries, other than Switzerland. Mr. Alexander bravely tried to argue that he did not need any evidence as to that local law but he could rely upon the presumption that foreign law was the same as English law. Asked to produce authority for that proposition in a case of this kind, not surprisingly perhaps he found himself unable to do so. I think Mr. Dillon was right when he said that the effect of Mr. Alexander's argument on this branch of the case was to cast a negative burden on a defendant when in truth the whole of the burden of proof rests on the plaintiff. On the present evidence, therefore, I cannot see my way to grant a wider injunction than in relation to the United Kingdom and Switzerland.”
“… it is better to abandon the terminology of presumption, and simply to say that where foreign law is not proved, the court applies English law.”
“The recent practice of the English courts also suggests that the default application of English law where foreign law is not proved, is not unqualified, and is more likely to be challenged where the rule of English law is statutory rather than being a rule of the common law.” (para. 9-07) “The conclusion is that there are cases in which the default application of a rule of English law is simply too problematic to be appropriate, but that apart from the fact that a court should not “invent” a rule of English law to be applied in default of proof of foreign law, no sharp line exists to define the limits of the principle that in default of sufficient proof, foreign law will be taken to be the same as English law.”
“But having said that, let me add this. If at some later stage acts are done or attempted to be done in other countries, similar to those acts which I would restrain in relation to this country and Switzerland and Dunhill's were to return under a liberty to apply with a fresh application for an injunction in relation to any of those other countries, supported by proper evidence of attempted passing off in those other countries, of confusion, and all the rest, whatever the local law is, then, if the evidence were satisfactory, a judge of the Chancery Division might, in the light of this judgment, see fit to grant a wider injunction. But at this stage I think that it would be wrong to grant a wider injunction than that I have already indicated.”
“(1) Subject to paragraphs (2) and (3), traffic data relating to subscribers or users which are processed and stored by a public communications provider shall, when no longer required for the purpose of the transmission of a communication, be– (a) erased; (b) in the case of an individual, modified so that they cease to constitute personal data of that subscriber or user; or (c) in the case of a corporate subscriber, modified so that they cease to be data that would be personal data if that subscriber was an individual.” (a) erased; (b) in the case of an individual, modified so that they cease to constitute personal data of that subscriber or user; or (c) in the case of a corporate subscriber, modified so that they cease to be data that would be personal data if that subscriber was an individual.”
“(1) A person who suffers damage by reason of any contravention of any of the requirements of these Regulations by any other person shall be entitled to bring proceedings for compensation from that other person for that damage.”
“9 The threshold question, as it seems to me, is whether Microsoft Corporation has a cause of action under these Regulations at all. That is to be determined according to the normal principles applicable to deciding whether a private person (whether a natural person or a corporation) has a cause of action for breach of a statutory requirement. The court must first be satisfied that the person who claims the cause of action was within the class of persons for whose protection the relevant statutory requirement was imposed. Second, the court must be satisfied that the terms in which the statutory requirement was imposed enables a claim for relief to be brought. 10 As I have said the domestic regulations were made in order to conform with the provisions of the Directive and part of the policy of the Directive was, in my judgment, to protect the providers of electronic communications' systems. Consequently, I am satisfied that Microsoft is within the class of persons for whose benefit the statutory requirement was imposed.”
“… the governing principle is that the court should first consider whether, if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction, he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant's continuing to do what was sought to be enjoined between the time of the application and the time of the trial. If damages in the measure recoverable at common law would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff's claim appeared to be at that stage.”
“The standard question in relation to the grant of an injunction, “Are damages an adequate remedy?”, might perhaps, in the light of the authorities of recent years, be rewritten: “Is it just, in all the circumstances, that a plaintiff should be confined to his remedy in damages?”” “The courts have repeatedly recognised that there can be claims under contracts in which, as here, it is unjust to confine a plaintiff to his damages for their breach. Great difficulty in estimating these damages is one factor that can be and has been taken into account. Another factor is the creation of certain areas of damage which cannot be taken into monetary account in a common law action for breach of contract: loss of goodwill and trade reputation are examples…”
“If, on the other hand, damages would not provide an adequate remedy for the plaintiff in the event of his succeeding at the trial, the court should then consider whether, on the contrary hypothesis that the defendant were to succeed at the trial in establishing his right to do that which was sought to be enjoined, he would be adequately compensated under the plaintiff's undertaking as to damages for the loss he would have sustained by being prevented from doing so between the time of the application and the time of the trial. If damages in the measure recoverable under such an undertaking would be an adequate remedy and the plaintiff would be in a financial position to pay them, there would be no reason upon this ground to refuse an interlocutory injunction.”
“It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both, that the question of balance of convenience arises. It would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them. These will vary from case to case. 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. If the defendant is enjoined temporarily from doing something that he has not done before, the only effect of the interlocutory injunction in the event of his succeeding at the trial is to postpone the date at which he is able to embark upon a course of action which he has not previously found it necessary to undertake; whereas to interrupt him in the conduct of an established enterprise would cause much greater inconvenience to him since he would have to start again to establish it in the event of his succeeding at the trial. Save in the simplest cases, the decision to grant or to refuse an interlocutory injunction will cause to whichever party is unsuccessful on the application some disadvantages which his ultimate success at the trial may show he ought to have been spared and the disadvantages may be such that the recovery of damages to which he would then be entitled either in the action or under the plaintiff's undertaking would not be sufficient to compensate him fully for all of them. The extent to which the disadvantages to each party would be incapable of being compensated in damages in the event of his succeeding at the trial is always a significant factor in assessing where the balance of convenience lies, and if the extent of the uncompensatable disadvantage to each party would not differ widely, it may not be improper to take into account in tipping the balance the relative strength of each party's case as revealed by the affidavit evidence adduced on the hearing of the application. This, however, should be done only where it is apparent upon the facts disclosed by evidence as to which there is no credible dispute that the strength of one party's case is disproportionate to that of the other party. The court is not justified in embarking upon anything resembling a trial of the action upon conflicting affidavits in order to evaluate the strength of either party's case. I would reiterate that, in addition to those to which I have referred, there may be many other special factors to be taken into consideration in the particular circumstances of individual cases.”
“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 status quo is the existing state of affairs; but since states of affairs do not remain static this raises the query: existing when? In my opinion, the relevant status quo to which reference was made in American Cyanamid is the state of affairs existing during the period immediately preceding the issue of the writ claiming the permanent injunction or, if there be unreasonable delay between the issue of the writ and the motion for an interlocutory injunction, the period immediately preceding the motion. The duration of that period since the state of affairs last changed must be more than minimal, having regard to the total length of the relationship between the parties in respect of which the injunction is granted; otherwise the state of affairs before the last change would be the relevant status quo.”
“19 There is however no reason to suppose that, in stating these principles, Lord Diplock was intending to confine them to injunctions which could be described as prohibitory rather than mandatory. In both cases, the underlying principle is the same, namely, that the court should take whichever course seems likely to cause the least irremediable prejudice to one party or the other: see Lord Jauncey in R v Secretary of State for Transport, Ex p Factortame Ltd (No 2) (Case C-213/89 )[1991] 1 AC 603 , 682–683. What is true is that the features which ordinarily justify describing an injunction as mandatory are often more likely to cause irremediable prejudice than in cases in which a defendant is merely prevented from taking or continuing with some course of action: see Films Rover International Ltd v Cannon Film Sales Ltd[1987] 1 WLR 670 , 680. But this is no more than a generalisation. What is required in each case is to examine what on the particular facts of the case the consequences of granting or withholding of the injunction is likely to be. If it appears that the injunction is likely to cause irremediable prejudice to the defendant, a court may be reluctant to grant it unless satisfied that the chances that it will turn out to have been wrongly granted are low; that is to say, that the court will feel, as Megarry J said in Shepherd Homes Ltd v Sandham[1971] Ch 340 , 351, “a high degree of assurance that at the trial it will appear that the injunction was rightly granted”. 20 For these reasons, arguments over whether the injunction should be classified as prohibitive or mandatory are barren: see Films Rover[1987] 1 WLR 670 , 680. What matters is what the practical consequences of the actual injunction are likely to be. …”