Countrywide Estate Agents Limited v Jack Marchant & Ors [2025] EWHC 2654 (KB)

[2025] EWHC 2654 (KB)Case No KB-2025-003035
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 28 th August 2025
Before
THE HONOURABLE MRS JUSTICE FARBEYB E T W E E N:
Between
COUNTRYWIDE ESTATE AGENTS LIMITEDClaimantTRADING AS JOHN D WOOD & COClaimantJACK MARCHANTDefendantJESSICA HAMPTONDefendantWITH US PROPERTY LIMITEDDefendantMR D NORTHALL KC appeared for ClaimantTHE FIRST DEFENDANT appeared In Person for in personTHE SECOND DEFENDANT appeared In Person for in personTHE THIRD DEFENDANT appeared In Person for in personAPPROVED JUDGMENTThis Transcript is Crown Copyright. It may not be reproduced in whole or in part, other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.

Introduction

[1]By a claim form issued under CPR Part 7 on 19 August 2025, the claimant seeks £21,000 in damages together with a final injunction and other relief against each of the defendants. By an application notice issued at the same time, the claimant seeks an interim injunction for the preservation and protection of confidential information and for the enforcement of restrictive covenants following the termination of the first and second defendants’ employment with the claimant. It is not in dispute that after leaving their employment with the claimant, the first and second defendants together established a new business, which is the third defendant in the claim.[2]The application for an interim injunction was listed urgently on notice. At a hearing held by video link on 26 August 2025, I heard submissions from Mr Daniel Northall KC on behalf of the claimant. Mr Marchant and Mrs Hampton submitted joint written submissions with the assistance of a solicitor. They each appeared before me as litigants in person. Mrs Hampton read out joint oral submissions which were supplemented by Mr Marchant. Owing to a lack of court time, I reserved my decision and reasons until today.[3]The defendants have been served with a copy of the proposed draft order sought by the claimant and with the bundle of documents on which the claimant relies. Mr Marchant and Mrs Hampton have each filed and served a witness statement with exhibits. These documents have been incorporated into the claimant’s bundle. I have also been provided with copies of detailed undertakings signed by Mr Marchant and Mrs Hampton. The claimant has rejected the undertakings as giving inadequate protection between now and trial. The documents are entitled “contractual undertakings” and are not undertakings to the court.[4]Both sides contend that the witness evidence of the other side is unreliable and inaccurate. Detailed factual findings will be the task of the trial judge. For present purposes, I shall set out the key facts which are either not in dispute or not realistically in dispute: they derive from undisputed documents or are a matter of common-sense inference.

Factual background

[5]The claimant is an estate agency. Part of its operations is the letting of residential property. Its clients include the landlords of residential properties. Mr Marchant and Mrs Hampton were employed at the South Kensington Lettings Office. Both were also involved in the Earls Court branch.

Mr Marchant

[6]Mr Marchant began his employment on 10 December 2020. He resigned in December 2024. His employment terminated on 8 January 2025. When he resigned, Mr Marchant was the Head of Lettings. The P45 issued to him following the end of his employment indicates that his total pay for the nine-month period from 6 April 2024 to his leaving date of 8 January 2025 was £67,702.10.[7]Mrs Hampton began her employment on 5 September 2011. She went on maternity leave on 25 March 2024. Electing after a time to take 12 months leave, she resigned on 13 February 2025. Her employment terminated on 12 March 2025. When she resigned, her job title was “Lettings Manager, South Kensington”. Her P60 for the 12-month period to 5 April 2024 shows that she earned £67,869.59 in that period.[8]I do not propose to set out in detail the history of changes to Mr Marchant’s and Mrs Hampton’s contracts of employment. It is sufficient to say that, on 20 January 2023, Mr Marchant was issued with fresh restrictive covenants. The key provisions of the covenants are reproduced in the witness statement of Ms Tanya Hasking, who is the claimant’s Letting Operations Director, as follows: “2. In order to protect the Confidential Information and business connections of the Company and of each Group Company to which the Employee has access as a result of and in the course of his/her Employment, the Employee covenants (or promises) to the Company that he/she shall NOT [sic] (the following actions and/or inactions in any Capacity): A) a) during the Employment and for 12 months after Termination, solicit, canvass, approach or endeavour to entice away from the Company or from any Group Company the business or custom of a Restricted Client with a view to providing services to that Restricted Client in competition with any Restricted Business; or;… B) d) during the Employment and for 12 months after Termination, be involved with the provision of services to (or otherwise have any business dealings with or facilitate or assist in any business dealings with) any Restricted Client in the course of any business concern which is in competition with any Restricted Business; or… C) f) at any time after Termination, use or allow to be used any document, database or work that was created by the Company or by any Group Company (even if the Employee was the creator or author) as under the Employment, the copyright for (or ownership of) such document, database or work belongs to the Company or to the Group Company at law; or… D) g) during the Employment (except in the proper course of his/her duties) and at any time after Termination, transmit, forward, divulge or communicate in any way including by email, printing or memorising any Confidential Information including (but not limited to) information relating to: i. clients, customers or business (or prospective clients, customers or business) of the Company or of any Group Company; or ii. employees (present or ex-employees) of the Company or of any Group Company; or iii. the business, management, finances or affairs of the Company or of any Group Company. If, at any time, any information described in this paragraph does come into the possession of parties outside the Company or outside the Group Company, the Employee will (immediately upon the Company’s request) require or procure (using best endeavours) the third party immediately to return the information to the Company... E) 6. During the Employment and for 12 months after Termination, the Employee shall procure using all reasonable endeavours that any business concern (employing or engaging the Employee) which is in competition with Restricted Business will not solicit, canvass, approach or endeavour to entice away from the Company or from any Group Company the business or custom of a Restricted Client”.[9]There are definitions for various terms in the covenants which, in so far as material, are as follows:
“(a) Capacity: as agent, consultant, director, employee, owner, partner, shareholder or in any other capacity whether acting directly or indirectly. (b) Confidential Information: information (whether or not recorded in documentary form or stored on any magnetic or optical disk or memory) which is not in the public domain relating to the business, clients (including prospective clients), business contacts, products, affairs and finances of the Company or of any Group Company for the time being confidential to the Company or to any Group Company, including in particular (by way of illustration only and without limitation), information about the Company’s or Group Company’s clients (or prospective clients) or about the Company’s or Group Company’s employees, officers or consultants. (c) Employment: the employment of the Employee by the Company. (d) Group Company: means any limited company or unlimited company which is a part of the Countrywide Limited group of companies. (e) Restricted Business: those parts of the business of the Company (or of any Group Company) in which the Employee was involved or with which the Employee dealt in the 12 months before Termination. (f) Restricted Client: any client, firm, company or person who, during the 12 months before Termination, was a client or customer or prospective client or customer of or in the habit of dealing with the Company (or with any Group Company) with whom the Employee had contact or about whom he/she became aware or informed in the course of his/her Employment. (g) Termination: the termination (for any reason) of the Employment of the Employee with the Company”
(emphasis added).[10]The claimant does not hold a signed copy of these covenants. Mr Marchant’s case is that he never agreed to or accepted the covenants, which he did not like and regarded as unfair and onerous. He says that he rejected the covenants in common with other employees. He accuses the claimant of being underhand, alleging that the claimant would present new pay deals to staff in an attempt to “slip in” new terms and conditions.[11]By letter dated 18 December 2023, following changes to Mr Marchant’s remuneration which the claimant regards as enhanced terms, fresh restrictive covenants were again issued, which mirror the covenants that I have read out. Mr Marchant does not agree that he was subject to remuneration enhancement and accuses the claimant of failing to identify new restrictive covenants. He claims to have been discontent with his remuneration package.[12]As I have said, Mr Marchant resigned on 12 December 2024, giving one month’s notice. He was placed on gardening leave. His resignation followed discussion about his relocation to the Belgravia branch. Mr Marchant informed the claimant in his resignation email that he had no intention of moving. He says in his witness statement that the attempt to transfer him to Belgravia was a way of pushing him out of the company.[13]At the time of his resignation, Mr Marchant managed a team of three people including Mrs Hampton. He claims that, contrary to the claimant’s case, he was not a senior member of staff. I accept that the term “senior” (as used by the claimant) is open to interpretation in the context of a large organisation such as the claimant’s business.[14]Nevertheless, Mr Marchant was the head of the lettings branch as his job title demonstrates. On the basis that any other conclusion is implausible, I accept Ms Hasking’s evidence that, as an estate agent and as a branch manager, Mr Marchant had direct contact with the claimant’s landlord clients.[15]Mr Marchant does not deny – and could not plausibly deny – that he had contact with three clients in particular: Baljit Singh Sanghera, Home Minders and Monica Holdings Inc. All three of these landlords were clients of the South Kensington branch at the time that his employment with the claimant terminated.[16]For present purposes I accept Ms Hasking’s evidence – because it is no more than common sense – that Mr Marchant would as the Head of Lettings have been exposed to a range of confidential information about the claimant’s landlord clients – such as the personal details of landlords; financial information including records of fees paid by landlords; and property-specific documents such as ownership documents, tenancy agreements, and records of communications between the landlord, tenant and agency.[17]Ms Hasking says, and Mr Marchant does not clearly deny, that as the Head of Lettings Mr Marchant was integral to creating the budget and business plan for the South Kensington branch. He was privy to the monthly profit and loss reports of the branch and the weekly KPI reports for the claimant’s entire business. In addition to his own specific work, it is implausible that he would not have been exposed to confidential information about the claimant’s clients in the course of supervising others in the branch.[18]In his oral submissions, Mr Marchant criticised the claimant on a number of grounds including an allegation that the claimant had taken an intransigent attitude towards a flexible working pattern for him.

Mrs Hampton

[19]Mrs Hampton was issued with new restrictive covenants when she became the Lettings Manager on 4 March 2024. These freshly issued covenants were identical to those issued to Mr Marchant and I will not read them out again. There is no signed copy of the covenants. Ms Hasking says that the claimant has no record of Mrs Hampton objecting to the covenants at any time. In her resignation email dated 13 February 2025, Mrs Hampton said that she wanted to leave her employment with the claimant as her working pattern in the office was insufficiently flexible.[20]The nature of Mrs Hampton’s work and her daily tasks is not seriously in dispute. She is not said by the claimant to have had dealings with landlords during the period of her maternity leave; but the claimant does maintain that she had dealings with, among others, Mr Sanghera, Home Minders and Monica Holdings in previous years. She bore no management responsibility but otherwise had a similar sort of exposure to landlord and tenant information as Mr Marchant.

Third defendant

[21]The third defendant was incorporated on 21 March 2025, which was within days of the termination of Mrs Hampton’s employment. Mr Marchant and Mrs Hampton are its shareholders and statutory directors. It is not in dispute that the third defendant is an estate agency and that it wants to solicit landlord clients in the Royal Borough of Kensington and Chelsea, including in particular the SW7 area.[22]On the basis of the timing of its incorporation, Ms Hasking asserts with some force that Mr Marchant and Mrs Hampton must have planned to establish a company in advance of Mrs Hampton’s resignation. They deny any such advanced planning. For today’s purposes it does not matter. I note, however, that Mr Marchant and Mrs Hampton consulted someone called David Stacey on 10 March 2025 about the practicalities of setting up a company; and Mrs Hampton accepts in her witness statement that she and Mr Marchant spoke about going into business together at the end of January 2025 and at the start of February 2025.

The claimant’s clients

[23]On 31 July 2025, Mr Sanghera withdrew instructions from the claimant after 14 years of business with it. Mr Sanghera’s property is listed for letting on the third defendant’s Rightmove account and on its Instagram account. I was told by Mr Marchant that the third defendant has not managed to let Mr Sanghera’s property and has made no money from him. Nevertheless, neither he nor Mrs Hampton is willing to give him up as a client: both have offered contractual undertakings under which they would expressly be allowed to retain his business.[24]In addition, one of the Home Minders flats that has been historically let as part of the claimant’s portfolio is listed for let on Rightmove and Instagram via the third defendant, as are three of Monica Holdings’ flats. In the case of these landlords, the claimant remains one of the agents instructed. On the basis of the contractual undertakings offered by Mr Marchant and Mrs Hampton, it is plain that they wish to retain these landlords with these properties as clients.[25]Against this background, I turn to the familiar elements of American Cyanamid Co v Ethicon Ltd [1975] AC 396.

Serious issue to be tried

[26]As I have indicated, I have endeavoured to limit my account of the factual background to matters that are not seriously in dispute. Even if I turn out to be wrong about any of the facts, the claimant’s detailed evidence is sufficient at this stage to support the proposition that there is a serious issue to be tried.[27]It will be a matter for the trial judge to determine whether the post-termination obligations issued to Mr Marchant and Mrs Hampton became part of their terms and conditions of employment. Given that they continued to work for the claimant after the issue of fresh covenants knowing that the claimant had issued them, there is a serious issue to be tried in this regard.[28]In any event, as Mr Northall sets out in his skeleton argument, the contracts of employment contained implied duties of loyalty and good faith (Attorney-General v Blake [1998] 2 WLR 805; Kynixa Limited v Hynes and others [2008] EWHC 1495 (QB), para 283). There is sufficient material on which the Court may conclude at this stage that there is a serious issue to be tried as to whether the post-termination obligations have contractual force. The claimant easily surmounts that hurdle.[29]As Mr Northall pointed out, the defendants’ case at this stage is not that they have not solicited, and do not wish to solicit, the claimant’s clients. Their case is that an interim injunction in the terms sought would damage their nascent business and cause them personal financial hardship by blocking them from soliciting certain landlords. They contend that the restraints would be unduly anti-competitive. Given that they appear both to have solicited the claimant’s restricted clients and to regard such action as warranted, I accept that there is a serious issue to be tried as to whether they have breached, and will continue to breach unless restrained by the Court, the claimant’s post-termination covenants.[30]It is not in dispute that, at trial, the claimant will need to demonstrate that the post-termination obligations are not more stringent than is necessary to protect the claimant’s legitimate business interests (TFS Derivatives Ltd v Morgan [2005] IRLR 246, paras 37-8). The defendants submit that the obligations are not necessary because the claimant is so large that solicitation of its clients would cause no real loss to its business overall. I reject that submission. The claimant is entitled to protect its business with its client base and with longstanding landlords such as those solicited by the defendants. There is at the very least a serious issue to be tried in this respect.[31]Overall, although draft particulars of claim have not been provided, Mr Northall made clear both in writing and orally that the claimant alleges an unlawful conspiracy between Mr Marchant and Mrs Hampton to solicit the claimant’s clients. On the evidence and submissions before me, there is plainly a serious issue to be tried in that regard.[32]This aspect of the American Cyanamid test is met. Prospects of success Defendants’ submissions

Prospects of success

[33]Mr Marchant and Mrs Hampton submitted that the test in American Cyanamid should be modified because this is a case where the period of restraint is so short as to preclude the opportunity for a trial. As such, it is submitted that the claimant needs to demonstrate not only that there is a serious issue to be tried but also that it is more likely than not to succeed at trial. Mr Marchant and Mrs Hampton referred in their written submissions to N.W.L Ltd v Woods [1979] 1 WLR 294 and to Lansing Linde Ltd v Kerr [1991] 1 All ER 418. Mr Northall very properly acknowledged the force of this line of cases.[34]Mr Marchant and Mrs Hampton submitted in essence that the claimant will not succeed at trial because the post-termination obligations were not likely to be found to be part of the contracts of employment and were not likely to be found reasonable. They submitted that a period of restraint of 12 months, as stipulated in the fresh covenants, was likely to be found greater than the minimum reasonably required to protect the claimant’s interests. A six-month period, which had been stipulated in the original covenants before fresh obligations were issued, was likely to be found reasonable. That period had lapsed for Mr Marchant and was soon to elapse for Mrs Hampton.[35]Mrs Hampton submitted, in addition, that the claimant was not likely to prove that she had breached any of her own obligations, and that the Court at trial would weigh the inequality of bargaining power between the claimant and her.

Claimant’s submissions

[36]Mr Northall submitted that the case can readily be listed on an expedited basis before the expiry of the covenants. He submitted that, in any event, the claimant had sufficient prospect of success to warrant injunctive relief at this stage.

Discussion

[37]I agree with Mr Northall. The Court is able to expedite the trial. Alternatively, I would at this stage assess the defendants’ prospects of success as comparatively low and the claimant’s prospects as comparatively high.[38]The defendants took “pot shots” at Ms Hasking’s evidence and invited me to conclude that she is an unreliable witness. However, the foundation of the claimant’s case is clear. Mr Marchant and Mrs Hampton have set up a business together and seek to build their client base by resorting to soliciting the claimant’s clients in the area, at the very least, of SW7. These are the likely building blocks which the trial judge is likely to consider.[39]On the basis of these building blocks, the defendants are free to continue to conduct business and compete with the claimant for clients even in SW7. The restrictions sought by the claimant simply prevent them from soliciting restricted clients as defined in the contracts under which Mr Marchant and Mrs Hampton were likely working. It is likely that the trial judge will conclude that Mr Marchant breached enforceable post-termination obligations and that Mrs Marchant conspired with him to achieve this.[40]I emphasise that the trial judge may take a different view on additional evidence. I do not seek to usurp the role of the trial judge. However, for present purposes, I do not accept the defendants’ submissions on the respective merits of each party’s case. Arguments on the prospects of success do not assist the defendants. I would at this stage judge that the claimant is more likely than not to succeed.

Adequacy of damages as an alternative remedy

[41]Mr Marchant and Mrs Hampton submitted that damages will be an adequate alternative remedy for any breach which a trial judge might determine to have been committed. They submitted that it is well established that in cases where the remaining restrictive period is particularly short at the stage of interim relief, the Court will have good reason to consider damages to be an adequate remedy. Their written submissions refer in general terms to Phoenix Partners Group LLP v Maurice Asoyag [2010] EWHC 846.[42]However, the Court of Appeal has recently held in Derma Med Limited v Ally [2024] EWCA Civ 175: “75. [A]s Mr Justice Constable had recognised in his judgment when granting the without notice injunction: '27. The Claimant points to the following factors which demonstrate that damages would not be adequate. First, it is likely to be problematic to identify and quantify the loss to the Claimant which is attributable to D1's wrongdoing. Whilst this may be less likely in respect of the use of the Zettle machine (although this might depend if it was being used for some legitimate purpose as well), this point clearly has force where, as here, the evidence suggests that cash has been taken. Second, the Claimants would face a number of evidential problems, including how to prove that the loss of a client was due to Dr Ally's misuse of Confidential Information or rather than for other reasons; and how to prove that the departure of a client was due to the Defendants' actions (and not something else). Knock-on consequential losses because even further difficulty. …' 76. Although it is not a rule of law that damages can never be an adequate remedy for breach of a covenant not to compete, the cases have recognised that the factors identified by Mr Justice Constable generally mean that they are not”.[43]The Court of Appeal, at para 76, cited the judgment of Underhill LJ in Sunrise Brokers LLP v Rodgers [2014] EWCA Civ 1373, [2015] IRLR, para 57 which states: “53. … In a case of this kind there are evident and grave difficulties in assessing the loss which an employer may suffer from the employee taking work with a competitor; even where it is possible to identify clients who have transferred their business (which will not always be straightforward, particularly where the new employer is outside the jurisdiction) there may be real issues about causation and the related question of the length of the period for which the loss of the business could be said to be attributable to the employee’s breach. … There may be other intangible but real losses to the employer’s reputation. I do not say that there may not be particular cases in which relief should be refused on the basis that damages are adequate remedy –-Mr Craig referred us to Phoenix Partners Group LLP v Asoyag [2010] EWHC 846 (QB), [2010] IRLR 594 - but unless a specific case to that effect was explicitly advanced, the judge was in my view fully entitled to proceed on the assumption that injunctive relief was the appropriate remedy”.[44]The Court of Appeal went on to hold at para 77 as follows: “Even more fundamentally, an injunction will generally be the appropriate remedy to enforce a lawful negative covenant on the straightforward basis that this is what the parties have bargained for. As it was put in D v P [2016] EWCA Civ 87, [2016] ICR: ‘15. The substantive effect of the defendant’s opposition to the claim for injunctive relief was to ask the court to release him from this contractual restraint so that he could be free to take up immediate employment with the very type of competitor in respect of whom the restraint was intended to apply. Had the claimant made an alternative claim for damages for breach of the restriction (which it did not), it might be said that he was not substantively seeking a total release from the restraint since he would or might still be exposed to a claim for damages for its breach. But in cases such as this damages are not what an employer wants. The damage potentially sufferable by a covenantee such as the claimant by a breach of the relevant restraint will usually be unquantifiable and will rarely, if ever, provide the covenantee with an adequate substitute for an injunction. That is what the judge said about a remedy in damages in this case.16. Why, therefore, in circumstances such as these, should the court's approach to the claimant's claim be other than one reflecting a firm recognition that the remedy to which it ought prima facie to be entitled is an injunction? As Lord Cairns LC said in his well-known dictum in Doherty v Allman (1878) 3 App Cas 709, at 720: ‘If parties, for valuable consideration, with their eyes open, contract that a particular thing shall not be done, all that a Court of Equity has to do is to say, by way of injunction, that which the parties have already said by way of covenant, that the thing shall not be done; and in such a case the injunction does nothing more than give the sanction of the process of the Court to that which already is the contract between the parties. It is not then a question of the balance of convenience or inconvenience, or of the amount of damage or of injury – it is the specific performance, by the Court, of that negative bargain which the parties have made, with their eyes open, between themselves’.17. That statement is bottomed in the recognition of a basic principle of which sight should not readily be lost, namely that contracting parties should ordinarily be held to their bargain, which is all that the claimant was asking for by claiming the injunction that it did.18. That said, I do not lose sight of the also basic principle that an injunction, like all equitable remedies, is a discretionary remedy which will not be granted as a matter of course. In his review of the authorities in Insurance Co v Lloyd’s Syndicate [1995] 1 Lloyd’s Rep 272, 276-277 (under the heading ‘The availability of a permanent injunction’) Colman J correctly recognised this in his conclusion that negative covenants will generally be enforced without proof of damage but that: ‘Although absence of damage to the plaintiff is not in general a bar to relief, there may be exceptional cases where the granting of an injunction would be so prejudicial to a defendant and cause him such hardship that it would be unconscionable for the plaintiff to be given injunctive relief if he could not prove damage. In such cases an injunction will be refused and the plaintiff will be awarded nominal damages’.’ 78. Although D v P was a case of a final injunction after a trial, and the adequacy of damages is a relevant consideration at the interim pre-trial stage when a court is considering the balance of convenience, it nevertheless remains the case that what an employer, or in the present case the purchaser of a business, has bargained for is not an uncertain and evidentially difficult remedy in damages, but the opportunity to develop its business free of competition from the defendant during the currency of the noncompete obligation. That factor has all the greater weight when a significant element of the value of the business is attributable to the reputation of the vendor himself, here Dr Ally”.[45]Applying the approach in Derma Med, I accept that the claimant faces the loss of longstanding clients which it has worked over many years to obtain. I do not therefore accept the specific submissions of the defendants that the assessment of damages is quantifiable in the sense that it would amount to a loss of a few months’ fees. That unrealistic submission fails to capture wider factors identified by Underhill LJ in the Sunrise case as recently adopted in Derma Med.[46]I conclude that damages are not an adequate remedy. The Balance of Convenience Mrs Hampton’s position

The Balance of Convenience

[47]Mrs Hampton submitted that she should not be subject to an interim injunction as she had not dealt with clients while on maternity leave. It followed that she did not have contact with restricted clients during almost the entirety of the 12-month period before the termination of her employment. She said that she was not involved with the claimant’s business in any meaningful way during that period. There was no reason why she should not be free on her own, and independently of Mr Marchant if needs be, to continue to solicit business in the South Kensington area. She submitted that there were no, or very few, potential property owners who would fall within the scope of interim injunctive relief in her case.[48]In my judgment this misses the point. The claimant’s case is that Mrs Hampton at the least conspired with Mr Marchant to breach his post-termination obligations. It cannot realistically be suggested that she is not at present a proper defendant in a claim that concerns an alleged conspiracy. There is no evidence that she intends to act independently of Mr Marchant. They have established a business together. There is no suggestion that Mrs Hampton is willing to forego that business. As Mr Northall submitted, the injunction would lose a great deal of force if its terms could be avoided through Mrs Hampton’s solicitation of clients.

The contractual undertakings

[49]Mr Northall explained why the claimant had refused to accept the contractual undertakings offered. He provided three principal reasons. First, he pointed out that the contractual undertakings would limit the definition of “restricted client” to those operating in the SW7 postcode whereas the South Kensington branch clients were not restricted to SW7. He submitted that the geographical restrictions sought by Mr Marchant and Mrs Hampton would permit them to solicit business from the claimant’s clients based outside SW7 and would not reflect either the restrictive covenants or the claimant’s practical working arrangements.[50]Secondly, he submitted that the contractual undertakings would exclude Mr Sanghera, Home Minders and Monica Holdings from the scope of any restraints, which would not meet the defendants’ obligations under the restricted covenants.[51]Thirdly, he submitted that contractual obligations were unsatisfactory in a case concerning breaches of contract. The defendants could not be trusted to adhere to contractual undertakings so that the claimants sought the added reassurance of undertakings to the Court. Mr Northall emphasised that the enforcement of contractual undertakings would require a separate claim to be launched or, at the very least, another court appearance.[52]In discussion with the Court, Mr Northall submitted that the willingness to offer the contractual obligations showed that in most respects the defendants could tolerate the restrictions that would be imposed by an interim injunction. He submitted that I could and should weigh in the balance of convenience the fact that most of the terms of the draft order appeared, in substance, in the undertakings that Mr Marchant and Mrs Hampton have signed.[53]I asked Mrs Hampton, who took the lead on oral submissions for the defendants, to explain why she and Mr Marchant were willing to provide contractual undertakings but would not give undertakings to the Court. She did not answer the question.[54]Mrs Hampton appeared at one stage to suggest that the claimant had positively refused to accept undertakings to the Court. However, there was nothing to stop Mr Marchant or her from offering undertakings to the Court irrespective of the claimant’s position.[55]I agree with Mr Northall that the willingness to offer undertakings to the claimant but not the Court has two effects. First, in the absence of any good reason to refuse undertakings to the Court, it suggests a lack of commitment to the undertakings. Secondly, it suggests that the balance of convenience lies in imposing on Mr Marchant and Mrs Hampton what they have expressed themselves as willing to do in the undertakings.[56]As a consequence, the real dispute is whether the balance of convenience favours a geographical limitation and whether an injunction should exclude the three landlords which the defendants wish to be excluded. The defendants’ main argument is that the claimant is so large that solicitation makes no difference to it, whereas non-solicitation will be ruinous to the defendants. The company will fail. Mr Marchant and Mrs Hampton will be unable to support themselves and their families.[57]In considering the balance of convenience, I take account that the claimants remain free to operate their business. They remain free to solicit new clients. They remain free to make money. There is no proper evidence that, without soliciting the claimant’s clients, their business will fail. There is no proper evidence that, without soliciting the claimant’s clients, they will be unable to manage daily life through lack of money. They have made no money so far from Mr Sanghera or from the other two landlords, but their new business remains alive. Their personal situations will be no different under an interim injunction than now: they will not make money from the claimant’s clients.[58]On the other hand, unless the defendants are restrained, the claimant is, in my judgment, at serious risk of losing business that it has built up over many years. Its efforts and success at building its business should not be belittled or underestimated because it is big. It is entitled to come to court to enforce bargains struck with its employees, whether it is large or whether it is small. That is what it seeks to do: no more or no less. The balance of convenience falls in favour of the claimant.

The terms of the proposed injunction

[59]The defendants have made no submissions on the terms of the draft order other than to oppose an interim injunction. As a matter of fairness to them, I asked Mr Northall whether the clause concerning delivery up of confidential documents was practical and enforceable. For example, Mr Marchant and Mrs Hampton may have client information on their phones. Short of examining the phones, which is out of the question, the Court cannot know whether they have stored information, and it may it be difficult for them to deliver up information on their phones. I suggested that the terms of the injunction might benefit from a list of documents that should be delivered up.[60]Mr Northall replied by saying that a list might obfuscate rather than clarify what the defendants would need to do. He submitted that modern technology would permit the defendants to transfer information on their phones to the claimant’s solicitor. I heard no submissions to the contrary on this, or any other, aspect of the wording of the injunction and I have therefore been provided with no grounds to amend the wording of the draft order.

Cross undertaking

[61]The claimant has offered an acceptable cross undertaking in damages.

Conclusion

[62]For these reasons, the claimant’s application is allowed. I shall grant an interim injunction in the terms sought and hear the parties on costs and any other consequential matters. I shall order a speedy trial and hear the parties on case management directions. Transcript of a recording by Acolad UK Ltd 291-299 Borough High Street, London SE1 1JG Tel: 020 7269 0370 legal@ubiqus.com Acolad UK Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof