Daren Frank

This is a costs endorsement following the dismissal of an injunction motion brought by the plaintiff (former employer) against the defendants (former employees) for operating a competing business.

The defendants sought costs on a substantial indemnity basis or, alternatively, partial indemnity.

The court awarded the defendants full partial indemnity costs, rejecting the claim for substantial indemnity, as the plaintiff's conduct was not reprehensible and most work was done before the defendants' offer to settle.

The plaintiff, a health services business, brought a motion for an interlocutory injunction against two former part-time employees (a chiropractor and a physiotherapist) and their new competing business.

The plaintiff alleged breach of fiduciary duties, misappropriation of confidential information, and breach of restrictive covenants.

The court dismissed the motion, finding that the plaintiff failed to establish a strong prima facie case that the defendants were fiduciaries or that the restrictive covenants were enforceable.

Although there was a substantial issue to be tried regarding the breach of confidence, the plaintiff failed to demonstrate irreparable harm, as damages could be quantified monetarily, and the balance of convenience favoured the defendants.