When can an injunction which is deliberately timed to damage another party be refused on discretionary grounds?
This case concerned two rival tribute shows in Blackpool and an injunction to prevent a Michael Jackson impersonator leaving one show to join the other. The Claimant in this case was Legends Live, a multi-tribute show containing a number of different acts, which included the Defendant, Craig Harrison, as a Michael Jackson impersonator. There was a rival show a few minutes along the seafront, ‘The Kings and Queen of Rock’, a similar tribute show, which featured Freddie Mercury and Elvis Presley impersonators.
At the end of 2015, after a dispute about the number of shows and his pay, Craig Harrison decided not to appear in Legends Live’s show for 2016 as he had previously indicated that he would. In December 2015 he contacted The Kings and Queen of Rock (the rival show) to discuss joining them and it was announced on 3rd January 2016 that the Legacy (Craig Harrison) would be joining the Kings and Queen Show.
Legends Live had the following restrictive covenant in his employment contract:
“The artiste also agrees to undertake a covenant not to compete on any other look/soundalike shows in Blackpool for a period of 12 months from the final date of their current contract”.
Legends Live applied for an injunction to enforce the restrictive covenant and prevent Craig Harrison from joining the rival show.
The Judge looked at the equitable principle of laches: the loss of a remedy because of Legends Live’s conduct in delaying seeking that remedy from the court. The defence arises if the following conditions apply:
Craig Harrison’s first performance of his new show was due to take place on 25th March 2016 and Legends Live’s solicitors set a deadline of 23rd March 2016 for Craig Harrison to agree to comply with his covenant not to perform. Blackpool shows are a seasonal business and it takes a few months to rehearse. Craig Harrison declined to agree, however proceedings were not instituted by Legends Live until two months later, during which time Craig Harrison had started rehearsals and performances and time and money had been invested. In the absence of any explanation for the delay the Judge inferred that the injunction was not simply used to protect Legend Live’s rights, but as a weapon to cause Craig Harrison avoidable damage, loss and disruption.
The key point is that it is not the length of the delay that matters, but the surrounding circumstances. The Judge held that an injunction which is deliberately timed to damage others (bearing in mind the seasonal nature of the Blackpool shows) may be refused on discretionary grounds if it was avoidable by taking sensible and proper steps. The Judge said that if the injunction had been applied for on 24th March or shortly after then it would have been granted.
The lesson for employers is to act quickly when seeking an injunction as unreasonable delay may result in your application being refused.