Direct link Share on

An injunction which is deliberately timed to damage others may be refused on discretionary grounds if that was avoidable by sensible and proper steps, according to the High Court in refusing injunctive relief at trial to enforce a restrictive covenant.

It is trite law that when applying for an injunction to restrain a breach of contract, an applicant must move without unreasonable delay. But there is not much authority on when delay is unreasonable, and when this will defeat an application. Legends Live v Harrison provides a vivid illustration of what this means in practice.  

The facts

In the summertime, thoughts turn to the seaside. And where better than Blackpool seafront and a legends tribute show? Not just one, but two rival shows. The claimant’s show called Trevor Chance’s Legends is a multi-tribute show featuring a number of acts by performers who each perform in the character of a different famous artist. It features a live band, a compere and usually has about nine or ten different acts. The defendant, Craig Harrison, is a Michael Jackson tribute performer.

For many years until 2012, Legends was performed at the Central Pier Show Bar in Blackpool. In 2012, the claimant had a dispute with the owner of The Central Pier and moved its show to The Sands. The Central Pier Show Bar in Blackpool is now the venue for another multitribute show, known as Kings and Queen of Rock, which competes directly with the claimant’s show. The Central Pier and The Sands are both on the seafront at Blackpool and not very far apart.

As is well known, the Blackpool market is seasonal. The busiest times are August during the school holidays and September when, as Mr Justice Edis reminds us, “the famous illuminations are switched on”.

For the 2014 season, Kings and Queen of Rock featured Clayton Mark as Elvis Presley and Kevin King as Freddie Mercury. In 2015 they decided to add a third character which would ease the burden on these two legends. Frederick Henry was engaged for 2015 to perform as Michael Jackson. Edis J notes, perhaps with a hint of disappointment, “I have not heard from Mr Henry, either as a witness or as a performer”. It seems that everyone who gave evidence agreed that Mr Henry was not suitable as the Michael Jackson part of the Kings and Queen of Rock show and had to be replaced, though we are left to wonder why this was. Nevertheless, Kings and Queen of Rock intended to continue into the 2016 season and was in want of a Michael Jackson performer. 

Meanwhile at The Sands, the defendant was doing very well. The witnesses were as unanimous about him as they were about Frederick Henry. The defendant “is a very good Michael Jackson act indeed”. The defendant agreed in evidence “having been urged to put modesty aside”, that his act was very well received wherever it is performed.

At the end of the 2015 season, the defendant decided not to appear in the claimant’s show in 2016 as he previously indicated he would. The claimant had offered different terms for 2016 from those in the 2015 contract meaning that the defendant’s overall income would be lower. In December 2015, the defendant approached the artistic director of the Kings and Queen show and asked whether they wanted a Michael Jackson act. On 3 January 2016, it was announced that “The Legacy (Craig Harrison) would be joining the Kings and Queen Show”.  

The covenant

The contract between the claimant and the defendant contained the following covenant:  

“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”.

The claimant's delay

Laches is the technical term for the loss of an equity remedy because of the claimant’s conduct in delaying in seeking it from the court. At [81], Edis J cites from Spry on Equitable Remedies as follows:  

“The defence of laches arises if two conditions are satisfied: First, there must be unreasonable delay on the part of the plaintiff in the commencement or prosecution of proceedings, and secondly, in view of the nature and consequences of that delay, it must be unjust in all the circumstances to grant the specific relief that is in question, whether absolutely or on appropriate terms or conditions.”

The position of third parties who may have been affected by the delay in question is relevant also.


The first performance by the defendant for the Kings and Queen of Rock was due on 25 March. The claimant’s solicitors set a deadline of 23 March for the defendant to agree to comply with his covenant and not perform. The defendant declined to agree, yet no proceedings were instituted until two months later.

In the absence of any explanation for the delay, the judge inferred that the injunction was used not simply as a protection of the claimant’s rights but as a weapon to cause avoidable damage, loss and disruption to a rival. It is not the length of the delay which matters but the circumstances in which it occurred and, to a significant extent, the reason why it occurred: [104]. It is clear, the judge held, that an injunction which is deliberately timed to damage others may be refused on discretionary grounds if that was avoidable by sensible and proper steps: [105].  

+44 (0)207 5831770

Clerks

Staff