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Claim No: CFI 021/2020

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

(1) TP ICAP GROUP SERVICES LIMITED

(2) TULLETT PREBON (EUROPE) LIMITED

Claimants/Applicants

and

(1) GMG (DUBAI) LIMITED

(2) OPEYEMI OLAYANJU

Defendants/Respondents

ORDER WITH REASONS OF H.E JUSTICE ALI AL MADHANI

PENAL NOTICE

IF YOU (1) GMG (DUBAI) LIMITED OR (2) OPEYEMI OLAYANJU DISOBEY THIS ORDER YOU MAY BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE IMPRISONED, FINED OR HAVE YOUR ASSETS SEIZED

ANY PERSON WHO KNOWS OF THIS ORDER AND DISOBEYS THIS ORDER OR DOES ANYTHING WHICH HELPS OR PERMITS ANY PERSON TO WHOM THIS ORDER APPLIES TO BREACH THE TERMS OF THIS ORDER MAY BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE IMPRISONED, FINED OR HAVE THEIR ASSETS SEIZED

This Order prohibits you from doing the acts set out in paragraphs 1 and 2 of this Order and obliges you to do acts. You should read it all carefully. You are advised to consult a solicitor as soon as possible. You have a right to ask the Court to vary or discharge this Order.

UPON the Claimants’ claim issued on 24 February 2020

AND UPON the Claimants’ Application Notice dated 25 February 2020

AND UPON hearing Counsel for the Claimants and Counsel for the Defendants at the hearing on 3 March 2020

AND UPON reviewing the witness statement of Mr. Andrew Berry on behalf of the Claimants and the evidence exposed so far in the matter

AND UPON accepting the undertakings in Schedule A to this order

AND UPON considering all the relevant documents recorded in the case file

IT IS HEREBY ORDERED THAT:

INJUNCTIONS

1. The First Defendant must not, until judgment at trial before this Court or further order discharging this Order in the meantime, whether directly or indirectly or through any other person acting on its behalf:

2. The Second Defendant must not, until judgment at trial or further order discharging this Order in the meantime, whether directly or indirectly or through any other person acting on his behalf be employed or engaged or concerned or interested in any capacity in the conduct of GMG’s business, or otherwise assist the business of GMG, whether by undertaking employment with or rendering services thereto, or in any manner taking part in or lending his name, counsel or assistance thereto, whether for reward or otherwise, or otherwise howsoever.

3. Nothing in this Order shall prevent the Second Defendant holding or being interested in listed or unlisted investments representing not more than 3% of any class of securities in any one company, with the prior written consent of the Claimants.

DEFINITIONS

4. For the purposes of the injunctions in this Order, the following definitions will apply:

INTERPRETATION

5. Unless otherwise stated, references in this order to “the Defendant” or “the Respondent” mean any or all of them; and this Order is effective against any Defendant on whom it is served or who is given notice of it.

6. A Defendant who is an individual who is ordered not to do something shall not do it himself or in any other way. He shall not do it through others acting on his behalf or on his instructions or with his encouragement.

7. In this Order containing Undertakings the words “he”, “him” or “his” include “she” or “her” and “it” or “its”.

DIRECTIONS

8. There shall be liberty to apply.

PARTIES OTHER THAN THE APPLICANT AND RESPONDENTS

9. It is a contempt of court for any person notified of this Order knowingly to assist in or permit a breach of the terms of this Order. Any person doing so may be imprisoned, fined or have their assets seized.

NAME AND ADDRESS OF CLAIMANT’S SOLICITORS

10. The Claimants’ Legal Representatives in the DIFC Courts proceedings are

Eversheds Sutherland (International) LLP Emaar Square – Building 6

Level 8, Unit 803 Burj Khalifa

PO Box 74980

Dubai

United Arab Emirates Tel: +971 4 389 7000

Fax: +971 4 389 7001

Email:RebeccaCopley@eversheds-sutherland.com and SarahAnderson@eversheds-sutherland.com

COMMUNICATION WITH THE COURT

11. All communications with the DIFC Courts in respect of this Order should be electronically sent to: registry@difccourts.ae quoting case number CFI-021-2020.

COSTS

12. Costs reserved to the Trial Judge.

SCHEDULE OF REASONS

Introduction

1. By all accounts, Mr. Opeyemi Olayanju appears to be a very bright young man with a promising future ahead of him. In October 2016 after completing his studies, Mr. Olayanju commenced employment in London with Tullett Prebon (Europe) Limited (“Tullet Prebon”), one of the world’s leading inter-dealer broking businesses and a subsidiary of the global firm, TP ICAP Group Services Limited (“TP Group”). Just over a year later, on 27 November 2017, Mr. Olayanju was promoted within Tullet Prebon to the rank of Trainee Broker and only a year-and-a-half after that, on 20 May 2019, he was promoted again, this time to the rank of Broker. As a Broker, Mr. Olayanju worked on Tullet Prebon’s Emerging Markets Africa Desk where he specialised in certain African products and currencies and was paid a handsome basic wage of GBP 50,000 per annuum.

2. Then in December 2019, Mr. Olayanju began a new job here in the DIFC, now working for GMG (Dubai) Limited (“GMG”), another inter-dealer broking business.

3. But on 24 February 2020 events took a turn for the worse for Mr. Olayanju. TP Group and Tullet Prebon (the “Claimants”) issued proceedings in the DIFC Courts against Mr. Olayanju and his new employer (the “Defendants”), asking the Court to restrain the former from continuing to work for the latter and to restrain the latter from continuing to engage the former, by way of final injunctive relief (the “Claim”). In brief, the alleged basis of Claimants’ claim was that Mr. Olayanju was a current employee of theirs, that he was in flagrant breach of his employment contract – principally for commencing work with a competitor – and that GMG had induced or procured the breaches in question.

4. The Claimants sought voluntary undertakings from the Defendants that Mr. Olayanju would not continue to work for GMG until the matter was determined at trial, but the Defendants refused to do so. In the circumstances, on 25 February 2020, the Claimants made an application to the Court for interim injunctions to the same effect as those they sought in a final form, and on an urgent basis (the “Application”). The matter was deemed by the Court’s Registry to be urgent and it was accordingly expedited and heard before myself on 3 March 2020. A difficult decision to make, I initially reserved judgment before finally, on 10 March 2020, granting the Claimants the injunctions they sought with reasons to follow (the “Order”). Herein are my reasons.

Background

5. As mentioned above, Mr. Olayanju began his employment with Tullet Prebon in October 2016. His initial contract of employment has been varied twice since then upon each of his promotions, most recently by letter dated 30 April 2019 (the “Contract”). The governing law of the Contract is English law and the Contract provides, amongst other things:

Your employment under this Employment Agreement, subject to the provisions of clause 11.1 of the attached Schedule of Standard Terms, shall be for a further minimum term of 24 months (“the Term”) starting from the Start Date [being 1 May 2019] and shall continue thereafter unless terminated by either party giving to the other not less than 12 months written notice such notice not to be given before the end of the initial minimum term 30 April 2021.

In other words, Mr. Olayanju agreed to work for Tullet Prebon for a minimum term from 1 May 2019 to 30 April 2021, and only at the end of that minimum term would he be entitled under the Contract to give notice to terminate his employment, with the notice period required to be twelve months. So long as the Contract remained binding, then, the earliest Mr. Olayanju could cease working for Tullet Prebon was on 30 April 2022.

6. The Contract also provided that Mr. Olayanju owed ongoing obligations of loyalty to Tullet Prebon for the duration of his employment:

7. Furthermore, under clause 10.5 of the Contract, Mr. Olayanju expressly acknowledged that his employer was relying on his services for the full term of his contract:

The services to be rendered by you under this Employment Agreement are special, unique and have extraordinary character, and you acknowledge that the Company is relying upon such services from you for the full Term. You further acknowledge the vital interest of the Company in retaining its employees and that the level of your benefits, including salary and bonuses, constitutes adequate consideration for your obligations and commitments under this Employment Agreement.

8. The foregoing is uncontroversial. Mr. Olayanju has not disputed that he entered into the Contract with Tullet Prebon and nor has he contested its terms. Neither is it denied that Mr. Olayanju went on to enter into a new employment contract with GMG – a competitor of the Claimants – in December 2019. Disagreement between the parties, instead, pertains to events which occurred between the dates these two employment contracts were concluded.

9. On 19 December 2019, Mr. Olayanju purported to resign without notice from Tullet Prebon. He considered himself to have been constructively unfairly dismissed because of an alleged repudiatory breach of contract by his employer and he considered himself to be, therefore, discharged from any duties under the Contract. The purported resignation was sent by Mr. Olayanju after a grievance hearing organised by Tullet Prebon to discuss his grievances and in the main the purported resignation reiterated those grievances he had previously conveyed to the company. It seems that at the time of Mr. Olayanju’s purported resignation, Tullet Prebon personnel had suspicion or perhaps confirmation that Mr. Olayanju was already in negotiations with GMG. In an email sent immediately after Tullet Prebon’s receipt of Mr. Olayanju’s purported resignation, a Senior Managing Director of TP Group, Mr. Andrew Berry, wrote to the Head of Employee Relations, Ms. Anna King, and HR Business Partner, Ms. Jasmine Joshi, saying:

He has been in negotiations with GMG to start there. They have his contract and have been finalising the deal last week. So he is far from telling the whole truth hete [sic].

Ms. King, who had chaired the hearing, wrote back saying:

Graham and I held the grievance hearing with [Mr. Olayanju] this morning. His resignation was sent within 5 mins of that meeting ending. We need to respond to the points he’s raised and I’ll liaise with Jasmine about sending a response to him.

It should be noted, however, that the Defendants deny that they had been in negotiations with each other prior to Mr. Olayanju’s purported resignation from Tullet Prebon.

10. Later the same month, Mr. Olayanju began working for GMG. The Claimants conducted their own investigations and by early February they were convinced that Mr. Olayanju had commenced working for GMG. Accordingly, the Claimants’ legal representatives wrote to each of the Defendants on 10 February 2020, setting out their concerns about the Defendants’ conduct and seeking voluntary undertakings that Mr. Olayanju would not continue to work for GMG. Both letters stated, amongst other things:

If you fail to comply with these requirements by 5.00pm on Thursday, 13 February 2020, we will advise our client to commence proceedings and to apply to the court for injunctive relief without further notice to you…

11. No undertakings were given by either of the Defendants. Instead, in a somewhat vague response to the Claimants dated 13 February 2020, GMG suggested to them that their position was unsubstantiated:

For his part, Mr. Olayanju did not respond to the letter and nor to subsequent emails or phone calls and messages to his WhatsApp mobile-phone application.

12. In the circumstances, on 24 February 2020, the Claimants issued the Claim for final injunctive relief to restrain the Mr. Olayanju from working for GMG and to restrain GMG from engaging Mr. Olayanju, and they reserved their rights to pursue a claim for damages and other reliefs. The Claimants submit in their Claim that Mr. Olayanju’s assertion that he had been constructively unfairly dismissed was wholly artificial and that it was designed to help him join GMG, while they have not accepted Mr. Olayanju’s purported resignation. Therefore, they submit, Mr. Olayanju is in flagrant breach of his Contract, including of the express terms set out above and implied terms under English law such as those pertaining to the duties of fidelity and trust and confidence. Furthermore, the Claimants submit in their Claim that in continuing to employ Mr. Olayanju while knowing that he is a serving Tullet Prebon employee and that he cannot lawfully leave Tullet Prebon until April 2022, GMG is unlawfully inducing or procuring a breach of a legal right and unlawfully interfering with a contract, in breach of Articles 32 and 34 of DIFC Law No. 5 of 2005, being the Law of Obligations, respectively.

13. On the same day, and in light of the fact that they had been unable to establish contact with Mr. Olayanju, the Claimants made an application to the Court seeking the Court’s order that alternative service on Mr. Olayanju by way of either a personal email address or via his WhatsApp mobile-phone application would be deemed good, valid and sufficient service. The application was heard on the same day before me and was granted, but with Mr. Olayanju’s English home address added as a third channel for service and with each of the three channels stipulated as compulsory – “and” instead of “or” – for service on Mr. Olayanju to be deemed good.

14. On 25 February, the Claimants issued this Application, serving the Defendants with it later that same day. The Claimants again invited the Defendants to give undertakings in correspondences on 26 February 2020. The Defendants, again, refused to do so, however, and so the hearing which had been listed for 2 March 2020 went ahead.

Discussion

15. By this Application, the Claimants seek to restrain alleged wrongdoing by the Defendants on an interim basis; they seek orders from the Court stopping alleged damage being wrought by the Defendants to its business pending trial. At the interim stage, the principles from the case of American Cyanamid v Ethicon [1975] AC 396 apply. Accordingly, in this Application, the Court must consider, firstly, whether there is a serious issue to be tried; secondly, whether damages would be an adequate remedy for the Claimants if injunctive relief was not granted, and, if not, whether the Defendants would be adequately compensated by cross-undertaking in damages if they succeeded at trial; and thirdly, the Court must consider the balance of convenience. The Defendants “strongly” resist the Application on the bases, they contend, that the DIFC Courts are not the correct forum for bringing this Application, principally because of a lack of jurisdiction, and that the Application is in any event without merit.

Jurisdiction

16. The first issue that must be discussed is jurisdiction, without which even the most serious of issues cannot be tried and with which the doors of this Court are unlocked. The Defendants say that the Application should be struck out on the ground that this Court does not have jurisdiction to determine it. The Claimants submits that this is incorrect and that, in any event, the Defendants have submitted to the Court’s jurisdiction, thereby establishing jurisdiction in circumstances where it might even have been lacking initially.

17. There are three important points of discussion in relation to DIFC Courts jurisdiction or the lack thereof in the instant matter, namely an exclusive jurisdiction clause in the Contract, the Defendants’ alleged submission to this Court’s jurisdiction and conventional jurisdiction by way of the “jurisdictional gateways” of Article 5(A)(1) of Dubai Law No. 12 of 2004, being the judicial authority law (the “JAL”). I will discuss each point now in turn.

Clause 20 of the Contract

18. In disputing the DIFC Courts’ jurisdiction over the instant matter, the Defendants principally rely on Mr. Olayanju’s Contract with the Claimants and in particular its governing law and dispute resolution provision, clause 20, which provides:

This Employment Agreement is governed by and shall be construed in accordance with the laws of England and the parties to this Employment Agreement submit to the exclusive jurisdiction of the English courts to settle any dispute, which may arise in connection with your employment. (emphasis added)

The Defendants submits that this term is unequivocal and that, pursuant to it, the instant claim should have been issued in the English courts and not those of the DIFC.

19. Moreover, the Defendants have informed the Court that Mr. Olaynaju is intending to bring in the English courts an employment tribunal claim for unfair dismissal contrary to section 98 of the Employment Rights Act 1996 (UK) and race discrimination claims contrary to sections 13 and 26 of the Equality Act 2010 (UK). These are not claims that the DIFC Courts have jurisdiction over, the Defendants submit. In written submissions, the Defendants have given the following cautions:

20. The Defendants have further taken the Court to the case of Jong v HSBC Private Bank (Monaco) SA [2015] EWCA Civ 10574 in which the English Court of Appeal held that although the claimant in that case had related claims against two English defendants and had the right to sue those defendants in England, the judge below had been entitled to give greater weight to an exclusive jurisdiction clause in favour of the courts of Monaco and the fact that trade between the claimant and the defendant bank had all been carried out in Monaco. In the instant matter, the Contract in question contains an exclusive jurisdiction clause in favour of the courts of England, it was entered into in England and the employment relationship it established existed in England, too. The Defendants ask this Court to not assume jurisdiction over the claim instead of the courts of England.

21. In my view, there is a distinction to be made between recourse against disputes which might arise in connection with Mr. Olayanju’s employment with the Claimants on the one hand and recourse otherwise available to an aggrieved party to the Contract upon a guilty party’s breach of its contractual obligations under the Contract on the other. For while in the second scenario there may be dispute as to whether a breach had in fact occurred, it is not necessarily the case that there will be: a breach can be admitted without dispute. I make this observation as clause 20 of the Contract is concerned specifically with disputes and not with legal action in general. Applying this to present considerations, while disputes in connection with Mr. Olayanju’s employment will, on the face of it, be captured by clause 20 of the Contract, I think a breach that is undisputed, on the face of it, will not.

22. This distinction between recourse against disputes and recourse against breaches where there is no dispute will diminish in importance as the wider disagreement between the parties approaches resolution – with non-controversies in the matter being weeded out over time – but at the interim stage, in my view, the distinction is important. If there is no dispute between the parties regarding the facts which justify granting the injunctions, I do not think that clause 20 of the Contract prevents this Court from being the court to do so.

23. While there is, of course, dispute between the parties – most notably on the issue of whether Mr. Olayanju was constructively unfairly dismissed – for this DIFC Claim to be within the scope of, and in turn possibly precluded by, clause 20 of the Contract, in my view, those disputes will have to be active within the confines of the DIFC Courts Claim itself and not merely in the background of the wider disagreement. Whether disputes are active within the DIFC Courts Claim for injunctive relief or not will become clearer upon the Application being determined below, but, in any event, I will leave it to the Defendants to themselves consider this question.

24. It can be said now, however, that there seems to be a degree of hopelessness or pointlessness in the Defendants’ reliance on clause 20 of the Contract. Even if the Court was persuaded that clause 20 prevented it from restraining Mr. Olayanju from continuing to work for GMG, it is unlikely that the clause could interfere with the Claimants’ right to pursue GMG in this Court or with the Court’s ability to restrain GMG from continuing to engage Mr. Olayanju, if their application was successful. The effect of only one injunction, then, is identical to that of both. Indeed, the only substantial difference between these two scenarios is that, by virtue of being added to these proceedings, Mr. Olayanju has been afforded the opportunity to argue his case at the earliest opportunity and to resist both injunctions while doing so.

25. Nor do I find it concerning that Mr. Olayanju intends to bring claims against the Claimants in the English courts. I do not think that this necessitates a real risk of inconsistent findings of fact. In the context of this DIFC Courts Claim, if it so happened that an English decision was presented to this Court establishing that Mr. Olayanju had indeed been constructively unfairly dismissed, any injunctions granted by this Court against the Defendants would be discharged immediately. If, on the other hand, the parties decided to have the entire dispute determined here instead, that is their prerogative. And if, finally, the Defendants have submitted to the jurisdiction of this Court, then presumably, and consistent with their above cautions, they themselves will opt to have the entire dispute determined here.

Submission to the DIFC Courts’ jurisdiction

26. As noted above, the Claimants contend that the Defendants have submitted to the jurisdiction of this Court. Needless to say, if this is correct, the above clause 20 considerations will be rendered largely irrelevant as any right the Defendants may have had to insist that recourse is made to the English courts will have been waived by their submission.

27. The crux of the Claimants’ argument that the Defendants have submitted to the jurisdiction of this Court is that, from their initial interactions with these DIFC Courts proceedings and up until the submission of their skeleton argument for this Application, the Defendants had not contested the jurisdiction of this Court to determine the Claim. Crucially, the Defendants did engage with the merits of the dispute. For their part, the Defendants have taken the Court to the case of Ronald Dennis v Tag Group Limited and others [2017] EWHC 919 (Ch) in which, at [19], Mr. Registrar Briggs helpfully summarised the authorities on submission to jurisdiction in the context of applications for injunctions:

I will consider these principles now against the instances of alleged submission that the Claimants have presented for the Court’s consideration.

28. In the Defendants’ counsel’s first letter to the Claimants’ counsel upon service of the Claim dated 26 February 2020, the former stated, amongst other things:

It will be noted that in this letter the Defendants made explicit their intention to contest the Claimants’ Claim but no mention was made of an intention to contest the Courts’ jurisdiction. The latter, in my view, should have been given priority by the Defendants – to the extent that they actually intended to contest jurisdiction at this time; I take their current position at face value – and it should have been considered more worthy of assertion in this first response to the Claim. At the end of the letter, the Defendants’ counsel stated, “our clients’ rights remain fully reserved in relation to the matters addressed in this letter, and generally.” The Defendants say that their right to contest the jurisdiction of the DIFC Courts was one such right reserved by way of this statement. I think this is farfetched, but nor do I believe that in this letter the Defendants had clearly passed the threshold of submission to jurisdiction as outlined in Ronald Dennis.

29. In a subsequent letter to the Courts’ Registry on the same day, the Defendants’ counsel stated, amongst other things:

Again, nothing was mentioned of jurisdiction. It is significant, however, that counsel for the Defendants expressed that it was “in both parties’ interests to have this matter dealt with as soon as reasonably possible,” as at that stage the Defendants were not subject to any injunction. Had they been, their desire for the matter to do dealt with as soon as reasonably possible would have likely been only a desire to have an opportunity to resists the injunctions and for them to be discharged. But as they were not, the same desire, for me, is not easily explained except as a demonstration that Defendants accepted that this Court had jurisdiction over the matter and that the Defendants had their own grievances which they wanted the Court to address.

30. In a subsequent letter to the Courts’ Deputy Registrar, Ms. Nour Hineidi, also on 26 February 2020, the Defendants’ counsel stated, amongst other things:

Yet again, nothing was said of jurisdiction, but much was said on the merits of the Claim. Moreover, the “Court” referred to in the final sentence of this citation is, of course, this Court. As such, by this final sentence, counsel for the Defendants stated, in my judgment explicitly and unambiguously, that it consented to this Court hearing and determining the Application. As Mr. Briggs said in Ronald Dennis, a defendant may submit if he takes a step in the proceedings without making it clear that he wishes to argue jurisdiction as a preliminary issue. For me, by this email to the Deputy Registrar, the Defendants comfortably passed this threshold and, accordingly, submitted to the jurisdiction of this Court.

31. When this explicit submission to the jurisdiction of the DIFC Courts is coupled with the Defendants’ implicit submission by way of steps taken which are not easily explained except as being predicated on the Defendants’ acceptance that this Court has jurisdiction as well as their omission to contest the same, in my view, it is simply not open to the Defendants to now say that they have not submitted to the jurisdiction of this Court. It is not insignificant in this regard that Mr. Olayanju’s Contract is of a reasonable length and clause 20 is sufficiently prominent. Moreover, counsel for the Defendants is an experienced and reputable law firm that is not, needless to say, unfamiliar with issues that may arise in respect of exclusive jurisdiction clauses. And nor can it be argued that the urgent basis with which this Application has been dealt with prevented the Defendants from having a proper opportunity to comprehensively respond to the Claim: if this Court does not have jurisdiction to hear and determine the matter, the Claimants and the Court should have been notified of this first before anything else; indeed, the other submissions made by the Defendants are necessarily of only secondary importance in the presence of a contest to jurisdiction, yet several other submissions were made and elaborated on by the Defendants. The Defendants belated communication that they contested the jurisdiction of this Court by way of their skeleton argument for this Application dated 29 February 2020 cannot supersede actions they took before then. In my regard, the steps taken by the Defendants in the initial stage of these proceedings unquestionably amount to submission to the jurisdiction of this Court – to a high degree, moreover – and, under Ronald Dennis, this submission cannot be revoked.

The jurisdictional gateways of Article 5(A)(1) of the JAL

32. With the Defendants’ submission to the jurisdiction of this Court having been established, there is no need for me to spend much time determining whether the DIFC Courts have jurisdiction via the Article 5(A)(1) jurisdictional gateways of the JAL. Very briefly, then, in my view, jurisdiction for this Court to hear and determine the Claimants’ Claim and this Application is established in three ways via the jurisdictional gateways, namely those of Article 5(A)(1)(a), (b) and (c). Article 5(A)(1)(a) provides:

This gateway is engaged insofar as GMG is a party to the Claim and it is a licensed DIFC establishment. Article 5(A)(1)(b) provides:

This gateway is engaged insofar as the Claim arises out of or relates to an employment contract, being that between Mr. Olayanju and GMG, concluded, finalised and performed within the DIFC pursuant, presumably, to express terms stipulated in the contract. Finally, Article 5(A)(1)(c) provides:

This gateway is engaged insofar as GMG’s contracting of Mr. Olayanju, out of which the Claim arises or to which it relates, amounts to an incident or transaction which has been performed within the DIFC.

Conclusion on jurisdiction

33. This Court’s jurisdiction over the Claim and Application is established on four separate bases, namely on the basis of the Defendants’ submission to this Court’s jurisdiction and on the bases of the jurisdictional gateways provided for by Article 5(A)(1)(a), (b) and (c) of the JAL. As such, the exclusive jurisdiction clause in Mr. Olayanju’s Contract with Tullet Prebon is not of any avail to the Defendants in resisting the Claimants’ DIFC Courts Claim or this Application.

The American Cyanamid test

34. The parties are in agreement that the relevant test for determining this Application for an interim injunction is that from the case of American Cyanamid. There are three limbs in the American Cyanamid test and the first of these is the question of whether there is a serious issue to be tried.

A serious issue to be tried

35. Helpfully, it is common ground that there is a serious issue to be tried. It goes without saying that the Claimants who have brought this Application regard that there is a serious issue to be tried. I do not need to recount their submissions. The Defendants, too, have made clear that they take the same position. In particular, the Defendants regard the question of whether Mr. Olayanju was constructively unfairly dismissed by the Claimants as an issue for trial. In one of the emails dated 26 February 2020 cited above, it will be recalled that the Defendants’ counsel stated:

…It is only when the proper meaning of a restrictive covenant is determined that the court can decide whether the employee has acted in breach of that covenant and therefore whether the court ought to grant the interim injunction. Insofar as the Court will need to determine the test set down by American Cyanamide, when assessing whether to give an interim injunction, this issue plainly goes towards whether there is a serious issue to be tried. (emphasis added)

36. This brief statement is nevertheless sufficient to establish that the first limb of the American Cyanamide test is made out. For competition, however, I will add a few further remarks. The Defendants have asked the Court to consider, along with the three limbs of the American Cyanamide test, whether the Claimants have a real prospect of succeeding in their claim for a permanent injunction. Though the Defendants did not take the Court to this passage, in American Cyanamid, Lord Diplock said on page 408:

…unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought.

The Defendants submit that in this case there is a real question about whether the substantive claims against the Defendants have any real validity. They make this assertion on several bases, each of which I will briefly discuss now.

37. The Defendants have argued that the restrictive covenants in Mr. Olayanju’s Contract as well as the terms relating to the Contract’s fixed period of two years and the requirement for twelve months’ notice are unenforceable as they are unduly onerous and restrictive. They also submit that the Claimants have the burden of demonstrating that the terms and covenants are necessary for the protection of some legitimate proprietary interest owned by the employer and that any restraint is no more than is reasonably necessary to protect the employer’s legitimate interests. The authorities on which the Defendants have relied with respect to these arguments, however, relate to post-termination restraints, that is, not to restraints placed on current employees. The inference, then, is that the Defendants wish for the Court to handle this interim Application as though it had been preceded by a finding that Mr. Olayanju had been constructively unfairly dismissed at trial. Needless to say, this is not possible.

38. A finding of constructive dismissal is not something that can be made in passing. For such a claim to be made out, the court must identify conduct on the part of the employer which must be likely to have destroyed or seriously damaged the relationship of trust and confidence with its employee. In the case of Elsevier Ltd v Munro [2014] IRLR 766, the English High court explained at [32]:

While I do not say that Mr. Olayanju was not constructively dismissed, I do say that he has not yet established to the Court that he was; to any standard, and much less to the high standard required by Bank of Credit. Moreover, as Lord Diplock’s stated in American Cyanamid, on page 407:

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.

The Claimants submit that Mr. Olayanju’s constructive unfair dismissal claim is fabricated. This claim is, therefore, in dispute. The claim, moreover, can only be determined upon detailed argument and mature considerations: the Defendants themselves contend that Mr. Olayanju should not be stifled from bringing his claim in the English employment tribunal exactly because of the employment tribunal’s “specialist expertise” in dealing with constructive unfair dismissal matters. It is not appropriate for the Defendants to encourage this Court to proceed with this Application as though Mr. Olayanju’s alleged constructive unfair dismissal has already been proven. This encouragement is tantamount to the Defendants asking the Court to decide this interim Application on the basis of a finding that they themselves regard can only be made at the dispute’s conclusion. As was said in the case of Evening Standard Co v Henderson [1987] ICR 588 on pages 593-4 regarding similar pleadings at the interim stage, including an assertion that the contract in the case had been repudiated:

[The defendant] can argue that when this case comes to trial, if it ever does. All I need to say is that, for the purposes of deciding whether we should apply the principles of American Cyanamid…, that is a somewhat fanciful view of the case. So far as Cyanamid principles are concerned, there is, in my judgment, no serious issue as to liability [which the defendant raises]. There is a serious issue as to the appropriate remedy for the defendant’s seeming clear breach of his contract.

Until any alleged constructive unfair dismissal is properly established, and certainly at this stage of the proceedings, Mr. Olayanju must be taken to be a current employee of the Claimants’ and not as an individual subject to post-termination restraints.

39. This being the case, it is not possible for this Court to “mingle” the authorities for pre- and post-termination restraints. In Sunrise Brokers LLP v Rodgers [2015] ICR 272 at [41], Underhill LJ said:

The obligation of an employee not to work for a competitor during the currency of his employment cannot be equated with an obligation under a clause providing for post-termination restraints; and the principles governing their enforcement by injunction are different. In the former case the obligation arises inherently from the employee's duty of fidelity to the employer; and the Court will, rightly, be very ready to enforce it, subject only to the constraints discussed above deriving from the rule against enforcement of a contract for personal services. In the latter case the restraint on the employee’s activities is prima facie unlawful and requires to be fully justified in accordance with the well-known principles. The enforceability of these separate obligations should be addressed separately and in their own terms. I am conscious that this may appear a little artificial, since long notice periods (coupled with the right to put the employee on garden leave) and post-termination restraints may both, from an employer’s point of view, be means to the same end, namely delaying the date at which an employee who wishes to leave can go to work for a competitor. But the distinctions between pre- and post-termination restraint are nevertheless real, and it is liable to lead to confusion and loss of principle if the two streams are mingled.

Homing in on the Defendants’ submissions relating to “reasonableness,” “legitimate interest” and the “restraint of trade” doctrine more generally, Elsevier provides further useful guidance at [55]:

Covenants restraining an employee from working for a competitor during his employment are not subject to the doctrine of restraint of trade, and do not need pass any test of reasonableness in order to be enforceable…There is no doubt that the court has power, if there is evidence of a treat to breach such a negative obligation, to grant an injunction to prevent this.

Considerations of “reasonableness” and “legitimate interest,” then, have no relevance at all at the interim stage of this case. In short, the Defendants’ submissions premised on Mr. Olayanju’s alleged constructive unfair dismissal are all for trial and not for this Application.

40. The Defendants have also alleged that Mr. Olayanju was unduly influenced by his employer when he signed a variation to the terms and conditions of his employment which provided for the employment term and notice period which he is now subject to under the Contract, and they have outlined various possible legal implications of such undue influence. I do not recall if the Claimants denied this allegation in particular at the hearing. On the evidence submitted by the Claimants, however, it can be taken for granted that the Claimants do or will deny it. In an internal TP Group email dated 26 November 2019 – which had been highlighted in my bundle – one Mr. James Potter who has not been identified to the Court wrote to Mr. Berry and Ms. Jasmine Joshi, copying in others, saying:

Earlier this year [Mr. Olayanju] asked for a pay rise. Steven Bright explained that he could have a pay rise but we wanted [Mr. Olayanju] to stay in the company so we asked [Mr. Olayanju] to sign a new two year fixed term contract as well the [sic] pay rise in the normal way. [Mr. Olayanju] claims it was not explained to him, by Steve, that he would be signing a two year contract as well as getting a pay rise. [Mr. Olayanju] said that he was given the contract extension letter and had, in his own words, two week to look at it before Steve called him in and, [Mr. Olayanju] says, asked him to sign the contract saying there was no other option. [Mr. Olayanju] says he didn’t understand what he was getting himself into. I did explain to [Mr. Olayanju] that he had ample time to read the two page extension letter and he always had an option not to sign the document if he didn’t like it. (emphasis added)

In any case, whether or not this allegation is denied by the Claimants, Lord Diplock’s guidance cited above applies and this allegation, too, is not to be determined at the interim stage without detailed argument and mature considerations. Far from proving that this Claim has no real prospect of success, such an allegation instead supports the argument that there is a serious issue to be tried.

41. The Defendants submit, furthermore, that the covenants in the Contract are not applicable in the instant matter as Mr. Olayanju’s new job with GMG is “very different” from that with Tullet Prebon. This argument can be dismissed summarily: the covenants in the Contract concern working for competitors as such and are not qualified such that they might not apply in circumstances where, though Mr. Olayanju works for a competitor, he performs a very different role to his former one. As a matter of straightforward construction, it is sufficient for Mr. Olayanju to merely work, in some way, for a competitor for the covenants in question to be breached. And to the extent that these covenants should be construed in some way other than straightforwardly, such a position would have to be supported by authority and detailed argument, while this Court must avoid conducting a mini-trial at the interim stage. The Defendants will have the opportunity to further develop this point later, like those points mentioned above, if the matter proceeds to trial.

42. With respect to GMG only, it has been argued that any claim against it for inducing a breach of contract is “inherently difficult” as it was not until after Mr. Olayanju was constructively unfairly dismissed that he approached and accepted a new job offer from GMG, while liability for inducing a breach of contract cannot be established unless, firstly, there has in fact been a breach of contract and, secondly, the alleged inducer is aware that he is inducing a breach of contract. This submission is also appropriate for the application of Lord Diplock’s above-cited dictum. In short, this argument, too, is one for trial.

43. In conclusion, the Defendants have fallen far short of demonstrating that the Claim has no prospect of success. In attempting to demonstrate this position, the Defendants have encouraged the Court to resolve conflicts of evidence as to facts and to decide questions which require detailed argument and mature considerations. None of this is possible at the interim stage; the Court must refrain from conducting a mini-trial. As such, the Defendants’ attempts to demonstrate a lack of prospect of success on the part of the Claim with such arguments can only have the effect of strengthening the argument that there is a serious issue to be tried; indeed, they have demonstrated that there are several serious issues to be tried.

44. Before moving onto discussing the second limb of the American Cyanamide test, it is worthwhile very briefly mentioning that, in my view, the nature of the instant dispute is such that there is unavoidably a serious issue to be tried. The following remark of Jack J in the English High Court case of Tullett Prebon plc v BGC Brokers LP [2010] IRLR 648 at [86] is important in this regard:

Mr. Olayanju is a highly-paid individual who has moved to a competitor of his employer and who, it has been both alleged and denied, had secured this employment prior to purporting to resign. Moreover, Mr. Olayanju has argued repudiatory breach as a basis for being relieved of his notice period and the covenants in his Contract. Tullet Prebon – the authority, that is, and not the Second Claimant in this matter – therefore, asks this Court to scrutinise closely the arguments advanced by Mr. Olayanju as to his alleged constructive unfair dismissal. Close scrutiny, in my view, is consistent only with there being a serious issue to be tried and, furthermore, it can only take place within the context of the issue’s trial.

The adequacy of damages

45. While the Defendants have conceded that there is a serious issue to be tried, they do not accept, as the Claimants maintain, that damages would not be an adequate remedy for the Claimants if injunctive relief was not granted. The Defendants submit that in light of the fact that, subject to their jurisdiction challenge, they seek a speedy listing of this trial, the prospect of any material loss caused to the Claimants if the interim injunctions are not granted would be minimal and short-term.

46. Somewhat confusingly, the Defendants have relied on the Claimants’ assertion that they have not been able to quantify the likely losses caused by GMG’s employment of Mr. Olayanju in arguing that damages would be an adequate remedy for the Claimants. The authorities in fact stipulate that this constitutes a reason for finding that damages would not be an adequate remedy. Per Underhill LJ in Sunrise Brokers LLP v Rodgers [2015] ICR 272 at [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.

Needless to say, the above misplaced reliance does not amount to the Defendants conceding to the Claimants’ submission; instead, it is merely a misunderstanding of the submission’s consequence, if this submission is accepted to be true.

47. The Claimants do not need the Defendants to concede to this submission, however. Courts have long recognised that in a case such as the present one, the primary relief that an employer is entitled to is an injunction and that damages will not be an adequate remedy. In D v P [2016] ICR 688, Sir Colin Rimer, sitting in the English Court of Appeal, said at [15] to [17]:

48. In my view, damages would not be an adequate remedy for the Claimants. There is a risk if Mr. Olayanju continues working for GMG that the Claimants will suffer loss and damage, possibly of serious and irreparable magnitude, but at the very least damage which will be difficult to quantify. In the Claimants’ grounding witness statement for this Application, the witness statement of Mr. Berry dated 25 February 2020, he stated in this regard:

The above, in my judgment, is self-explanatory and not at all farfetched and nor does it require extensive paraphrasing: if Mr. Olayanju leaves his employment with the Claimants, there will be a loss in terms of what has been invested into him of time, money and opportunity and there will likely to be further loss in terms of what can reasonably be expected to be guaranteed by his continued presence in the company as well as the length of time within which it can reasonably be expected that Mr. Olayanju might be replaced. All of this suggests, in my view, that damages would not be an adequate remedy for the Claimants if the injunctions were not granted.

49. Moreover, as the editors of Brearley & Bloch’s Employment Covenants & Confidential Information (4th edition; 2018) explain at [9.41]:

Where the employee purports to resign in breach of a notice provision, as frequently happens when the employee is planning to join a competitor, there are a number of options open to the employer…The employer can seek to hold the employee to his contractual obligations (albeit that he cannot force the employee to perform future services…) in which case employment ends when the contractually required notice would expire…

The Defendants have not demonstrated why the option of holding Mr. Olayanju to his contractual obligations should not be open to the Claimants and why they should instead settle for damages; they simply say, in not so many words, that they can settle for damages. As Sir Colin Rimer held in D v P at [21]:

I respectfully agree with the approach reflected in the Insurance Company and Strutt cases, namely that the starting point in the consideration of a claim by an employer to enforce an employee’s negative covenant is that the ordinary remedy is an injunction. Given, however, that an injunction is a discretionary remedy, that is not necessarily also the finishing point, although I would be wary of attempting to prescribe with any sort of particularity the types of circumstances in which it might be appropriate to refuse an injunction. The exceptional circumstances referred to by Colman J do, I consider, provide a helpful general explanation as to the type of cases in which it may be just to do so.

No exceptional circumstances have been highlighted to the Court which might justify it awarding damages to the Claimants instead of the injunctive relief they seek.

50. With all of this in mind, I do not see why this Court should insist that the Claimants quantify their damage and losses instead of simply echoing by way of order that which the parties have already agreed by way of contract, and in doing so preventing further quantifiable damage or loss as well as any damage or loss of a less quantifiable character.

The balance of convenience

51. In my view, there is obviously a serious issue to be tried in the instant matter and damages would not be an adequate remedy for the Claimants instead of the injunctive relief they seek. The third limb of the American Cyanamid test, the determination of the balance of convenience, is not as easily cleared, however. The allegations that the Defendants have submitted to this Court regarding Mr. Olayanju’s alleged mistreatment during his employment at Tullet Prebon, and in particular that alleged mistreatment which relates to racial discrimination, are not to taken lightly. Moreover, granting the injunctions could possibly result in Mr. Olayanju feeling he has no option but to return to Tullet Prebon. Indeed, the Claimants want him to do so. If Mr. Olayanju is truthful in his allegations against Tullet Prebon, the injunctions might, then, have the undesired consequence of encouraging Mr. Olayanju to return to employment with his tormenters. It is undeniable, too, that a junior Broker will be more replaceable for the broking company than broking companies will be for the junior Broker: if Mr. Olayanju refuses to return to Tullet Prebon and cannot work for any of its competitors, he will be far more disrupted than Tullet Prebon will be if the injunctions are not granted. As Hoffmann J (as he then was) said in Films Rover International v Cannon Film Sales Ltd [1987] 1 WLR 670, at page 680:

The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the court may make the “wrong” decision, in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial.

52. In the same paragraph, Lord Hoffman goes on to outline the principle that courts must be guided by when walking the tight rope of justice at the interlocutory stage:

A fundamental principle is therefore that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been “wrong” in the sense I have described. The guidelines for the grant of both kinds of interlocutory injunctions are derived from this principle.

With this guidance in mind, and despite the important considerations mentioned above, in my judgment, the balance of convenience lies in favour of the grant of the injunctions. If Mr. Olayanju was indeed constructively unfairly dismissed, the consequences of the injunctions will likely be more disruptive to him than it would be to the Claimants if he had not been so dismissed but was allowed, in breach of his Contract, to continue working for GMG. But Films Rover requires the court to take the course which appears to carry the lower risk of injustice. This Court is a court of law and its fidelity to the evidence put before it and to the authorities which stand above it is its surest way of ensuring justice; it is not for this Court to make an intervention based on the worst case scenario, but rather to make decisions consistent with its tried and tested procedures and principles. Mr. Olayanju’s allegations are grieve but they are as yet largely unsubstantiated. On the other hand, there is no doubt that Mr. Olayanju and Tullet Prebon entered into the Contract and nor is there ambiguity as to its terms. This Court has not been provided with sufficient evidence that the Contract has been validly terminated. On the other hand, there is no dispute that Mr. Olayanju now works for the Claimants’ competitor. In Evening Standard, the terms of the contract in that case were sufficient to tip the balance of convenience in favour of granting an interim injunction to “prevent the employee doing the very thing which his contract was intended to stop him doing, namely working for someone else during the period of his contract” (per Lawton LJ, page 594). Applying Evening Standard, the terms of the Contract in this case, and certainly at this interim stage, tip the balance of convenience in the Claimants’ favour with respect to granting the injunctions.

53. Evening Standard provides further support for granting the injunctions. On page 594 also, Lawton LJ stated:

Mr. Olayanju has been made the same offer: “[the Claimants] want Mr Olayanju to return to work.” The balance of convenience, again, then, is in favour granting the injunctions.

54. The Defendants have submitted that Mr. Olayanju would not be able or willing to return to Tullet Prebon to resume his employment given the stress, anxiety and health problems he suffered at that workplace and that, as such, he would effectively be without pay going forward if an interim injunction was granted. This prospect, needless to say, makes granting the injunctions more difficult. However, in the absence of proof of constructive unfair dismissal, again, Mr. Olayanju must be considered, for the time being at least, as having decided, himself, to leave Tullet Prebon. It is noteworthy, also, that the Defendants were asked from the outset of these proceedings to give undertakings that Mr. Olayanju would not continue working for GMG until the matter was determined at trial in order to regulate the position between the parties until the dispute was resolved. The Defendants refused to give such undertakings, however. This decision – which the Defendants were entitled to make – necessitated this interim Application, and which, needless to say, has had the effect of slowing down the proceedings significantly, particularly given their urgent nature and the Court’s willingness from the start to accommodate the matter on an urgent basis. Insofar as this decision was jointly taken by Mr. Olayanju, even if he is later found to be correct with respect to his allegation against the Claimants, still, it was a step he decided to take and one of the possible consequences of which was the slowing down of the proceedings.

55. Moreover, the Claimants have provided cross-undertaking in damages in order to compensate any possible prejudice to the Defendants if Mr. Olayanju is prevented from working for GMG and it turns out at trial that the injunction was wrongly granted. It is clear that the Claimants will be able to comfortably meet any exposure in respect of that undertaking. This cross-undertaking sufficiently counterbalances any injustice or inconvenienced that may be caused to the Defendants if it transpires that Mr. Olayanju was indeed constructively unfairly dismissed.

56. Another point can be said about the Defendants’ failure to give undertakings pending trial which does not stand in their favour. This Application, and the contested hearing before the Court, could have been avoided had the Defendants engaged with the Claimants’ correspondence and, in the usual way, simply volunteered undertakings pending an expedited trial. The Defendants were given every opportunity to do so, but they refused. As the English Court of Appeal has said, in Lawrence David v Ashton [1989] ICR 123:

A defendant who has entered into a contractual restraint, which is sought to be enforced, should seriously consider, when the matter first comes before the court, offering an appropriate undertaking until the hearing of the action, provided that a speedy hearing of the action can then be fixed, and the plaintiff is likely to be able to pay any damages on his cross-undertaking. It is only if a speedy trial should not be possible that it would then be necessary to have a contest on the interlocutory application.

Again, the instant matter had been deemed by this Court to be urgent since the proceedings were first issued. As such, there was no reason for Mr. Olayanju to think that a speedy trial would not be possible. Indeed, the Defendants have complained to this Court and to the Courts’ Registry in the leadup to the hearing of the Application the proceedings were moving too fast.

57. Moreover, regarding Mr. Olayanju in particular, his response to these proceedings – which included not responding to the Claimants’ attempts to serve him with notice of them, necessitating a urgent application for alternative service – has only served to delay determination of the matter further and frustrate the party whose rights are being infringed, which he submits is himself. Mr. Olayanju’s uncooperative attitude, needless to say, undermines the credibility of his submissions made to them. Of course, this can be rectified through Mr. Olayanju’s forthcoming engagement with the proceedings.

58. With these observations and the above authorities and findings in mind, this Court, in my judgment, is obliged to find that, again, the balance of convenience lies in favour of granting the injunctions. If the Court is “wrong” in the sense that Mr. Olayanju was in fact constructively unfairly dismissed, it is only hoped that the Defendants can establish this by way of evidence and authorities at the next stage of these proceedings.

Costs

59. The general rule, under Rule 38.7(1) of the Rules of the DIFC Courts, is that the unsuccessful party is ordered to pay the costs of the successful party. The Claimants are the successful parties in this Application. The Defendants shall, therefore, pay the Claimants’ costs.

Conclusion

60. For the reasons given above, the Claimants’ Application is granted and, accordingly, this Court grants the injunctions.

Issued by:

Nour Hineidi

Deputy Registrar

Date of Issue: 12 April 2020

Time: 3.30pm

SCHEDULE A – CLAIMANTS’ UNDERTAKINGS

The Claimants undertake as follows:

1. If the Court later finds that the injunctions or undertakings contained in this order have caused loss to the Defendants and decides that the Defendants should be compensated for that loss, the Claimants will comply with any order the Court may make.

2. Until trial or further order in the meantime, the Claimants will continue to pay the Second Defendant’s salary and contractual benefits insofar as any payment is required under his contract of employment with the First Claimant.