Summary

Thomas Grant QC, Narinder Jhittay, Ryan Turner, and Charles King were instructed by Berkeley Rowe International Lawyers in a commercial dispute in the Circuit Commercial Court on behalf of the UK College of Business & Computing. At the outset, Thomas Grant QC and Ryan Turner successfully obtained an interim injunction to restrain the defendant, Bath Spa University, from acting on its purported termination of a long-term services contract with the claimant in the midst of the pandemic. Thomas Grant QC then led Narinder Jhittay, with further assistance from Charles King, for the expedited trial of the proceedings, which settled on confidential terms shortly prior to the commencement of the hearing.

Maitland Chambers is ranked as a leading set for commercial litigation in both Chambers & Partners and Legal500 and members of Chambers of all levels are regularly instructed to seek or resist interim injunctions in commercial disputes, often at short notice.

Facts

The claimant provided higher education services to students of Bath Spa University under a long-term services contract. The university had an express contractual power to terminate the contract if the claimant omitted to register with the Office for Students by a contractually-specified date. The date — which fell during the pandemic — passed without the claimant successfully registering with the Office for Students and the university purported to terminate the contract on this basis. However, it was the claimant’s case that the university had either waived its entitlement to terminate the contract or was estopped from doing so due to representations that were alleged to have been made to it on behalf of the university.

The claimant also sought to rely on a force majeure clause in the contract. On the claimant’s case, the pandemic and its effect on the business and personnel of the claimant had prevented it from registering with the Office for Students. In turn, this threw up questions as to the proper construction of the force majeure clause and whether it operated so as to prevent the termination of the contract in the circumstances.

Held

Following a remote hearing, His Honour Judge Pelling QC granted the interim injunction sought by the claimant on conventional principles, namely those set out in the judgment of Lord Diplock in American Cyanamid Co v Ethicon Ltd [1975] AC 396.

The university disputed the factual account of the claimant — and, in particular, that the university had made the alleged representations that founded the claimant’s reliance on an estoppel and waiver — but, as is ordinarily the case, the factual dispute was not capable of being resolved on the written evidence before the court at an interim stage. There was, therefore, a serious question to be tried sufficient to sustain the grant of an interim injunction pending the determination of the dispute on an expedited basis.

The judgment of His Honour Judge Pelling QC is particularly notable for its application of the now-well-established guidance of the Court of Appeal in AB v CD [2014] EWCA Civ 229 in assessing whether damages are an “adequate” remedy. That guidance facilitates the grant of an interim or final injunction to restrain a breach of contract where the contract limits or excludes the damages that would be recoverable by a claimant. Where a contract includes a clause of this kind, the court is more likely to find that damages are “inadequate” because it is unjust to confine a claimant to a remedy in contractual damages if those damages do not properly reflect the interest of the claimant in the performance of the contract (that is to say, if a specific remedy such as an injunction or an order for specific performance carries benefits for which there would be no, or a lesser, monetary remedy, the monetary remedy is likely to be “inadequate”). So, in this case, where the contract included a detailed limitation of liability clause, it was fairly clear that there was a considerable risk of the claimant suffering irremediable prejudice if no injunction were granted.

The judgment has been reported with neutral citation [2020] EWHC 2157 (Comm)