ON APPEAL FROM
IN THE HIGH COURT OF JUSTICE- QUEEN'S BENCH DIVISION
MR JUSTICE MACFUFF
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ELIAS
| VEFA IBRAHIM ARACI
|- and -
| KIEREN FALLON
Graeme McPherson QC (instructed by Stewart Moore- Solicitors) for the Respondent
Hearing date: 3 June 2011
Crown Copyright ©
Lord Justice Jackson:
Part 1: Introduction,
Part 2: The facts,
Part 3: The present proceedings,
Part 4: The appeal to the Court of Appeal,
Part 4: Would damages be an adequate remedy?
Part 6: The judge's exercise of discretion.
"6. Jockey's Obligations
6.1 The Jockey and his agent(s) agrees that he shall:
(a) Not ride for any other horse where the Jockey has been retained to ride Native Khan under this retainer
(b) Ride the Retainers' Horses in races whenever possible to do so or as requested by the Retainers; and
(c) Wherever a conflict of interest or of a choice of horses to ride occurs for that include a Retainers' Horse, the Jockey shall always ride the Retainers' Horse, unless the Retainers otherwise agree; and
(d) Ride the Retainers' Horses in as diligent a way as possible, making all reasonable efforts to win; and
(e) Conduct himself and appraise the Retainers in an open and honest fashion relating to his subjective views about the training regime, fitness and potential of all the Retainers' Horses and recommendations for training and alternative jockeys when it is not possible for the Jockey to ride a Retainers' Horse in a race. In addition, the Jockey shall use all reasonable endeavours to ride the retainers horse at the trainers establishment at least twice per month for the purpose of forming such subjective views".
"8.3 In the case of a breach by Jockey by opting not to ride the Retainer's horse (unless injury) damages are to be liquidated and assessed at a sum of minimum £30,000 per race not ridden".
"For the purpose of this application, I proceed on the basis that the claimant's evidence is truthful. Without making a final determination, because I've not heard the witnesses, I find it verging on fanciful to believe that Mr Fallon's evidence could be accepted."
"1. First, where there is a negative stipulaton, breach may be restrained by injunction, as a matter of course, to restrain future breaches. It applies only to prohibitory injunctions; and that is this case.
2. Secondly, the balance of convenience test applies to applications for interim injunctions, except where there is a clear or uncontested breach of a covenant not to do a particular thing. In my judgment, that also applies here.
3. Third, where the granting of the injunction amounts in substance to a final determination at the interim stage, the court will take into account the strengths and weaknesses of the respective cases, and the likelihood of the claimant's eventual success at trial. I interpolate that is in effect something I have already done, in examining Mr Fallon's evidence.
4. Fourth, this is all subject to discretion, an injunction being an equitable remedy. Although, I emphasise the basic rule that an injunction in the circumstances described will be normally granted as a matter of course. But injunctive relief may be refused if it is oppressive to the defendant or cause him particular hardship, although it would not be oppressive merely because burdensome or little prejudice to the claimant."
"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 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."
"Thirdly, there is Doherty v Allman. I accept, of course, that Lord Cairns' words were uttered in a case where what was in issue was a perpetual injunction and not an interlocutory injunction. Indeed, the words seem to be obiter, for no negative covenant was present in that case. But these considerations do not preclude the words from having any weight or cogency in relation to an interlocutory injunction. Where there is a plain and uncontested breach of a clear covenant not do a particular thing, and the convenantor promptly begins to do what he has promised not to do, then in the absence of special circumstances it seems to me that the sooner he is compelled to keep his promise the better. In such a case I do not think that the enforceability of the defendant's obligation falls into two stages, so that between the issue of the writ and the trial the defendant will be enjoined only if that is dictated by the balance of convenience and so on, and not until the trial will Lord Cairns' statement come into its own. Indeed, Lord Cairns' express reference to "the balance of convenience or inconvenience" suggests that he had not forgotten interlocutory injunctions. I see no reason for allowing a covenantor who stands in clear breach of an express prohibition to have a holiday from the enforcement of his obligations until the trial. It may be that there is no direct authority on this point; certainly none has been cited. If so, it is high time that there was such authority; and now there is."
"Albeit not in the context of an employment case, an injunction here would be, for one short day, a restraint of trade and a prohibition on a major sportsman from carrying on his occupation. I say "one short day"; it is not just one day, it is Derby Day.
Although none of these considerations is decisive in itself, a combination of factors may, and in this case does, persuade the judge to exercise his discretion against the granting of an injunction.
By "these circumstances" I include the following: that the owners of Recital, for all I know potentially innocent victims of this dispute, may have difficulty in obtaining a substitute jockey at this late stage, certainly one of the same stature as Mr Fallon; that, as Mr McPherson has submitted, it is not known whether the British Horseracing Authority would react to an application to change jockeys at this late stage; also, that the betting public, as Mr McPherson further submits, to date have placed wagers in the belief that Recital, an enormously fancied horse, will be partnered by Mr Fallon, and there is no doubt at all that his chances in this major race would be reduced with a different rider.
Those are three further factors to be placed in the scales, none decisive but all capable of affecting the overall picture.
In my judgment, there is also a wider public interest. The Derby arouses interest in all segments of society. Mr Fallon is a major champion rider, and this is a premier race meeting. There is a public interest in maintaining that high regard."
"I am satisfied, as I have expressed earlier, that the true facts here are that the defendant believed he could just ignore this binding contract. I have little sympathy for him and in my judgment he has acted with deliberate selfishness."
Lord Justice Elias: