Carving out an exception to injunctive relief

Virgin Atlantic v Premium Aircraft (t/a Contour) [2009] EWCA Civ 1513, a decision at the tail-end of last year from the Court of Appeal for England and Wales (Lords Justices Jacob and Patten, Mr Justice Kitchin), concerned an application for a stay of a damages inquiry and final injunction in light of (i) Contour's application to the Supreme Court for leave to appeal, and (ii) an appeal in European Patent Office opposition proceedings.

While dismissing the applications, the court in a judgment delivered by Jacob LJ exceptionally allowed a modification of the final injunction in order to allow Contour to complete the supply of a relatively small number of infringing seats to Delta, subject to conditions, even if leave to appeal was to be refused. Having reviewed the principles that applied to the grant of a permanent injunction both during the pendency of an appeal and after any possibility of appeal had been exhausted, Jacob LJ concluded:

"First and most important is that the infringing seats will not be used in competition with Virgin Atlantic. Second, there is only a limited number of them, 400 when already 2,800 have been supplied. Third, the period of infringement would be very short ... Fourth, there is the significant effect of the £1 million penalty clause [in the contract to supply the infringing seats] which could otherwise bite. Fifth, there is the potential effect on employment. I only give slight weight to this not because people losing their jobs is not a very significant matter for it is. The reason I give slight weight is because the ultimate decision in this case lies with the parent company Seton which is supporting Contour. If jobs are lost it will be the parent company's decision, just as it has been the parent company's decision to support Contour up until now which has prevented job losses until now ...".