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*459 Timeload Limited v British Telecommunications Plc

Court of Appeal 30 November 1993

[1995] E.M.L.R. 459

Sir Thomas Bingham MR, Hoffmann and Henry LJJ 30 November 1993 Contract breach contract for supply of telephone services on standard terms application for interlocutory injunction to restrain purported termination on notice whether on true construction of contract BT entitled to terminate on notice without good cause whether clause entitling BT to terminate on notice without cause subject to requirement of reasonableness under UCTA whether clause approved by a public authority injunction granted appeal dismissed.

HEADNOTE
The plaintiff decided to set up a free telephone inquiry service for persons needing particular professional or commercial services. The plaintiff would pay for the incoming calls but would obtain income from the professional and commercial enterprises which would pay to be kept on the plaintiff's books. The plaintiff had the idea of operating this service using the freephone number 0800 192192, 192 being the number of BT's directory inquiries services. The plaintiff succeeded through an intermediary N in obtaining the allocation of this number and entered into a contract on BT's standard terms. BT contended that the number was allocated to the plaintiff at best as a result of a mistake but more probably as a result of a breach of duty by a BT employee who had dealt with N. After the plaintiff had commenced promoting and marketing its service BT sent the plaintiff a letter before action complaining of passing off by use of the telephone number 0800 192192. Shortly afterwards BT sent the plaintiff one month's notice of termination of the contract relating to that telephone number and offering an alternative number. In the notice of termination BT relied on *460 clause 18 of the standard terms which provided that at any time the contract could be terminated by BT on one month's notice. The plaintiff applied for an interlocutory injunction to restrain BT from terminating the contract. The plaintiff contended that it was an implied term of the contract that BT was only entitled to terminate under clause 18 for good cause and that there was no such cause. In support of this the plaintiff relied on the terms of BT's licence as a public telecommunications operator, which required BT to provide every person who requested telephone services with such services and prohibited BT from exercising undue discrimination against particular persons or classes of person. The plaintiff also relied on clause 6 of the standard terms which entitled BT inter alia to change the number allocated where necessary for operational reasons, but required it to restore service as soon as practicable after temporary suspension, as being inconsistent with BT being entitled to terminate on notice without cause. In the alternative, the plaintiff argued that by virtue of section 3(2) of the Unfair Contract Terms Act 1977 BT was not entitled to rely on clause 18 to deliver a performance substantially different from that reasonably expected of it or to deliver no performance at all unless that clause satisfied the requirement of reasonableness. On the question of reasonableness BT relied on the fact that its standard terms had been approved by the Director-General of Telecommunications as an approval by a public authority within section 29(2) of the 1977 Act. The judge granted an injunction and BT appealed. Held, dismissing the appeal: 1. The terms of BT's licence as a public telecommunications operator were part of the background against which the contract fell to be considered. Against that background it was not clear that the classical approach to the implication of terms was appropriate. There were strong grounds for the view that in the circumstances of this contract BT should not be permitted to exercise a potentially drastic power of termination without demonstrable cause for doing so. Furthermore it was not altogether easy to reconcile clause 6 with clause 18 if the latter enabled BT to terminate without any reason.

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2. If a customer reasonably expected a service to continue until BT had substantial reason to terminate it, it was at least arguable that a clause purporting to authorise BT to terminate without reason purported to permit partial or different performance from that which the customer expected and thus was subject to the requirement of reasonableness. 3. The law of England, while eschewing any principle of good faith in the field of contract, had responded to demonstrated problems of unfairness by developing a number of piecemeal solutions. It was at least arguable that, if the letter of the Unfair Contract Terms Act did not apply, the common law could treat the clear intention of the legislature expressed in the *461 statute as a platform for invalidating or restricting the operation of an oppressive clause in a situation of the present kind. 4. Although the Director-General was a public authority within section 29(3) of the 1977 Act and might be said in a general way to have approved BT's terms and conditions, it was very doubtful that he could be said to have approved those terms and conditions in the exercise of any statutory jurisdiction or function. The Court's provisional view was that if section 3(2) applied, and if clause 18 was arguably unreasonable, it was not saved by section 29(2) of the 1977 Act. 5. The judge had correctly assessed the balance of convenience as favouring the grant of the injunction.

Cases referred to
Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433 Liverpool City Council v Irwin [1977] AC 239

Legislation referred to
Unfair Contract Terms Act 1977, sections 3(2), 29(2),(3)

Representation
Geoffrey Hobbs QC and Malcolm Chapple, instructed by British Telecom Group Legal Services, for the defendant (appellant). Mark Platts-Mills, instructed by Blythe Liggins, for the plaintiff (respondent).

TEXT OF DECISION
The Master of the Rolls: This is an appeal against a decision of Mr E G Nugee QC, sitting as a Deputy Judge of the Chancery Division, on 30 September 1993, when he granted an injunction restraining British Telecommunications plc (whom I shall call BT) from in effect terminating the plaintiffs' use of a certain telephone number. BT complains that the learned judge was wrong to grant that injunction. The plaintiffs in the action are the party in whose favour the injunction was granted, Timeload Limited. To explain how the dispute arises it is necessary to say something of the factual background. As is very well known, anyone wishing to learn the telephone number of a person whose name and address they know, can do so by dialling 192. That puts the caller through to BT's Directory Enquiry service and the information is given. Each year millions of calls are made to Directory Enquiries. As a result the number 192 - not an inherently memorable number in itself - has become deeply embedded

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in the public consciousness and has become a very familiar telephone number. Less universally known, but still very well known, is a service which BT makes available *462 under the prefix number 0800. This is known as Linkline or Freephone and is designed for use by those whose business consists in, or derives from, soliciting enquiries from members of the public. The way in which this number works is in essence very simple. It is the subscriber, not the caller, who pays for the telephone call. Thus, if I have the telephone number 0800 1234 anyone telephoning that number will do so free but I, as the subscriber, will pay for the call at an enhanced rate and pay a rental for the use of the number. This system is beneficial to members of the public, who can telephone businesses soliciting their custom at no expense to themselves. It is beneficial to subscribers because it encourages members of the public to telephone, which is what such subscribers want. It is beneficial to BT which is paid for the calls at an enhanced rate and enjoys the benefit of increased telephone traffic. In this case those who are now running the plaintiffs, Timeload Limited, had two good ideas. The first of those good ideas was to set up an 0800 enquiry service with a difference. The difference was that the caller would telephone, not seeking the telephone number of the subscriber whose name and address he knew, but seeking the names of those providing particular specialised professional or commercial services of which the caller was in need. For example, a member of the public needing the services of a local plumber, and not knowing the names of any local plumbers, would telephone free to this 0800 service and would be given three names and telephone numbers of local plumbers. Timeload Limited, as the operators of the enquiry service, would pay for incoming calls but would derive income from all the professional and commercial enterprises who would pay to be kept on their books. This was not an entirely original idea. A BT subsidiary already operated a very similar service on the number 0345 600 900 under the name Talking Pages. That was not an entirely free service. The caller paid for the call at a local call rate. This 0800 classified directory service was thought to have potential. The second good idea was to combine the 0800 prefix number with the number 192 192. This was a repetition of the very familiar number for directory enquiries, was memorable and was thought to be attractive to members of the public. There was only one problem from the plaintiffs' point of view: they had to obtain allocation of the number 192 192 from BT to use with the 0800 prefix. The initial approach was made to BT by National Connect plc (NatCo) through Mr Nigel Porter, a BT employee, whose job it was to run NatCo's account with BT. The first answer that NatCo received was that the number was reserved and was not available. But in January 1993 NatCo were told that the number was now available and a little bit later it was allocated to NatCo. In due course it was transferrred to the plaintiffs, Timeload. The details of those transfers and orders are contained in *463 the documents before us but the detail does not, I think, matter for present purposes. It is accepted for the purposes of this interlocutory application that by June 1993 at the latest a contract existed on BT's standard conditions of sale for the use by Timeload of the Freephone number 0800 192 192. Since that time Timeload and their subsidiary, Free Pages Limited, have advertised extensively, solicited custom from professional and commercial concerns and spent a great deal of money promoting and selling their classified directory enquiry service under the name Free Pages. NatCo, Free Pages and Timeload have spent, and committed themselves to spending, very substantial sums on television advertising and upon soliciting the subscription of customers. On the evidence before us it seems safe to assume at this stage that BT by some, at least, of its officers, appreciated the type of service which Timeload were intending to operate. It is necessary to mention one feature of the case on which no conclusion can at this stage be expressed, not even a tentative or provisional conclusion. It is a matter which will loom large in the parties' respective cases when, and if, the action comes to trial. BT says that the number 192 192 was allocated to NatCo and Timeload at best as the result of a mistake in its internal organisation, and more seriously, and more probably, as the result of a breach of the duty of loyalty owed to it by its accounts executive responsible for NatCo, Mr Nigel Porter. BT says that he was seduced into investing money in his wife's name in NatCo and in effect tricked or deceived BT into allocating the number 192 192 to NatCo and Timeload which BT would never have done with its eyes open. That allegation is strongly resisted and is the subject of detailed rebuttal on behalf of Timeload in the evidence before us. It is an issue which this Court cannot resolve at an interlocutory stage, but it is an important part of the background and helps to explain the marked acrimony and distrust that now exist between these parties.

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I return to the narrative. The Free Pages service was vigorously marketed, such promotion being reinforced as BT alleges, and Timeload deny, by false and misleading suggestions that Timeload were in some way associated with BT. The legal warfare between the parties began with a letter written by the BT Legal Department to Free Pages on 18 August 1993. That complained of passing off and requested that Free Pages should immediately cease all advertising, promotion and use of the number 0800 192192. Free Pages responded to that letter very promptly through their solicitors on 20 August. Although we have not seen that letter we have seen a further letter of the same date, 20 August, written by BT's legal department to solicitors acting for Free Pages. That also was a letter threatening action. On 6 September 1993 the BT legal department wrote to Timeload giving *464 notice of termination of the Linkline telephone number 0800 192 192 at midnight on 6 October 1993. In the course of that letter reliance was expressly placed on BT's terms and conditions of business and in particular on clause 18(1) to which I shall return. The penultimate paragraph of that letter read: This action is being taken because of deep concerns on the part of BT's management as to the manner and circumstances in which 0800 192 192 appears to have been obtained and used. In the meantime BT reserves all rights in respect thereof. That paragraph is, I think, to be understood as putting the termination on the basis both of the manner in which the number was allocated to Timeload in the first place and on the basis of the passing off which was alleged to have taken place subsequently. In the last paragraph of the letter BT offers Timeload the use of another telephone line. That letter prompted the issue of a writ by Timeload on 15 September 1993 and on the same day a notice of motion seeking an injunction was issued. Accordingly the matter came, and was the subject of a substantial hearing, before Mr Nugee resulting in the order to which I have already referred. The effect of the injunction which Mr Nugee granted was that BT was restrained until judgment, or further order, from acting upon the notice of termination given to the plaintiffs by BT by way of the letter dated 6 September 1993 (to which I have referred) and acting upon any further notice of termination that might be given to the plaintiffs by BT under clause 18 of the terms and conditions of business. In the course of his careful and clear judgment, Mr Nugee approached the issue on classical Cyanamid principles. The first question for him to consider was whether there was a serious issue to be tried, and he held that there was a serious issue to be tried upon two grounds. The first of those grounds concerned the proper construction and effect of BT's terms and conditions and particularly clause 18(1). The second issue concerned the possible application of section 3 of the Unfair Contract Terms Act 1977. Mr Nugee did not, of course, decide these issues in favour of Timeload, but simply considered whether there were serious and substantial issues for the trial. For BT Mr Hobbs Q.C., seeking to set aside the interlocutory injunction, submitted in a very able argument that the learned judge was wrong and that in truth there was no serious issue to be tried. It is accordingly necessary to look briefly at the issues. I turn first to BT's terms and conditions of business. In clause 2.1, describing themselves as "we", and the customers as "you", the terms provide: We agree to provide you with service on the terms and conditions of this contract. *465 Clause 5 provides: The minimum period of service (beginning on the day when service is first made available) is 12 months or the applicable period set out in our Price List but it does not prevent us from exercising our rights to suspend service, or you or us from terminating this contract or the provision of a service or facility under it. Clause 6 is headed "Our general powers". This has been relied upon as of some significance and it reads as follows:

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We may: (1) whenever necessary for operational reasons, change the name of the exchange serving your line, or its number, or any other name, code or number allocated in connection with service. Then I omit various provisions and continue. but before doing any of these things we will give as much written or oral notice as is reasonably practicable in the circumstances, and we will restore service as soon as is reasonably practicable after temporary suspension. Clause 16 deals with cancellation before service has begun. Clause 18.1 contains the term upon which BT has in this instance relied. It provides: Termination of service by notice. At any time after service has been provided this contract or the provision of any service or facility under it can be ended. (1) by one month's notice by us; or (2) by seven day's notice by you.

The clause goes on to provide for the payment of all sums due until the notice actually ceases. Clause 23 gives BT power to change the terms and conditions of the contract other than the charges payable under it by a notice referring expressly to clause 23 and signed by a duly authorised BT employee. Clause 27.3 provides: We will provide you with telephone service only on these "Conditions for Telephone Service" which set out our entire contract with you. At the end of the terms and conditions there is a reference to BT's licence to which I shall refer again in due course but which is said not to form part of the contract with the customer. *466 On behalf of BT Mr Hobbs submitted that the meaning of the contract, particulary the meaning of clause 18.1, was quite clear. BT could terminate on a month's notice at any time with or without reason, and no matter how great the loss such termination might, to BT's knowledge, cause the customer. There was, he said, no inconsistency, as the learned judge had thought, between the power to suspend for operational reasons under clause 6 and the power to terminate under clause 18. He argued that the factual matrix was irrelevant, since this was a standard form contract applicable to many millions of customers and the meaning of the contract did not vary depending upon the peculiar circumstances of those who happened to be parties to it. Furthermore, he said that there was no room for implication since terms were to be implied into the contract only if they were necessary and not because they were thought to be reasonable. In other words, Mr Hobbs propounded with great skill what could fairly and not pejoratively be described as an old-fashioned classical argument based upon a literal approach to the text of the contract. That may prove to be a good argument. It is certainly a view of the matter which has been accepted by judges on other occasions albeit in the absence of full argument. For my part, however, I share the judge's reservations. It is relevant to bear in mind that BT is a public telecommunications operator licensed by the Secretary of State under the Telecommunications Act 1984 to provide a public telecommunications service. It is subject to the oversight of the Director

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General of Telecommunications who has certain powers if BT should fail to comply with its licence. It is quite plain, as one would expect, that BT is indeed obliged to observe the terms of its licence. The terms of the licence are not, as I have pointed out, part of the contract with the consumer but they are, nonetheless, as I consider, an inescapable part of the background which falls to be considered. Clause 1.1 of the licence obliges BT, as the licensee: to provide to every person who requests the provision of such services at any place in the Licensed Area: (a) voice telephony services; and (b) other telecommunications services consisting in the conveyance of Messages.

Clause 16.1 obliges BT, except so far as the Director General of Telecommunications may otherwise agree, to publish a notice specifying the charges and other terms and conditions upon which it offers its services. Clause 17.1 prohibits it from exercising undue discrimination against, or in favour of, particular persons, or classes of persons. There is a limited qualification of the duty to provide telecommunication services to all those who want it contained in clause 53 of the licence. The terms of that *467 clause are extremely convoluted and so far as I can see are probably not relevant here. It is, however, perhaps correct to point out that BT is not obliged to offer telecommunication services to anybody who has obtained, or attempted to obtain, any telecommunications apparatus, or telecommunication service from BT by corrupt, dishonest or illegal means at any time. It is therefore correct, speaking very generally, to regard BT as a privatised company, no longer a monopoly, but still a very dominant supplier closely regulated to ensure that it operates in the interests of the public and not simply in the interests of its shareholders should those be in conflict. Against that background I am, for my part, by no means sure that the classical approach to the implication of terms is appropriate here. As Lord Cross pointed out in Liverpool City Council v Irwin [1977] AC 239, 257, implied terms can find their way into contracts either because the law lays down a general rule that in contracts of a certain type a certain obligation should be implied, or on grounds of necessity for business efficacy. Thus, pure necessity is not the only ground on which a term can be implied and I can see strong grounds for the view that in the circumstances of this contract BT should not be permitted to exercise a potentially drastic power of termination without demonstrable reason or cause for doing so. I also share the learned judge's view that it is not altogether easy to reconcile clause 6, enabling BT to suspend only for operational reasons, with clause 18, enabling it apparently to exercise the more drastic power of termination without any reason at all. It is in fact reasonable to suppose that Timeload would not have committed themselves to very substantial expenditure and indeed to found their business on the possession of a telephone number of which they could be deprived at a month's notice. In my judgment the courts must be wary of accepting a construction which so obviously flies in the face of what one party at least may be taken to have intended. The second issue, as I have mentioned, concerns section 3 of the Unfair Contract Terms Act 1977. That raises two questions. The first is whether section 3 is capable of applying to clause 18 at all. The second is whether, if it is, section 29of the Act applies. I deal first with section 3. Secton 3(1) provides that the section applies where one party deals on the other's written standard terms of business. That is a condition which is rightly accepted as applying here. One comes on, therefore, to section 3(2) which provides: As against that party, the other cannot by reference to any contract term (a) when himself in breach of contract, exclude or restrict any liability of his in respect of the breach; or *468 (b) claim to be entitled -

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(i) to render a contractual performance substantially different from that which was reasonably expected of him, or (ii) in respect of the whole or any part of his contractual obligation, to render no performance at all, except in so far as (in any of the cases mentioned above in this subsection) the contract term satisfies the requirement of reasonableness. Mr Hobbs says that section 3(2)(a) is directed to an exemption clause of the classic type exonerating a contractual party in default form the ordinary consequences of the default. I agree, and it seems clear that that subsection has no application here. The argument accordingly turns on section 3(2)(b) and that I find more difficult. Mr Hobbs submits that the subsection cannot apply where, as here, the clause under consideration defines the service to be provided and does not purport to permit substandard or partial performance. He says that the customer cannot reasonably expect that which the contract does not purport to offer, namely enjoyment of telephone service under a given number for an indefinite period. That may indeed be so, but I find the construction and ambit of this subsection by no means clear. If a customer reasonably expects a service to continue until BT has substantial reason to terminate it, it seems to me at least arguable that a clause purporting to authorise BT to terminate without reason purports to permit partial or different performance from that which the customer expected. If, however, section 3(2) does not in its precise terms cover this case, I do not myself regard that as the end of the matter. As I ventured to observe in Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433, 439, the law of England, while so far eschewing any broad principle of good faith in the field of contract, has responded to demonstrated problems of unfairness by developing a number of piecemeal solutions directed to the particular problem before it. It seems to me at least arguable that the common law could, if the letter of the statute does not apply, treat the clear intention of the legislature expressed in the statute as a platform for invalidating or restricting the operation of an oppressive clause in a situation of the present, very special, kind. I say no more than that there is, I think, a question here which has attracted much attention in Commonwealth jurisdictions and on the continent and may well deserve to be further explored here. I turn then to the second sub-question concerning section 29(2). That deals with the situation where a term alleged to be unreasonable has been approved by a Government Department or public authority. It seems to me that the Director General is indeed a public authority within the definition in subsection 3 of section 29. It is also true that the Director General saw BT's proposed terms and conditions and discussed them in some detail and over a period of time. He did not in any way *469 object to clause 18 and may be said in a general way to have approved all the terms and conditions as they finally emerged. He certainly did not object to clause 18. I have, nonetheless, very grave doubts whether the Director General can be said to have approved those terms and conditions acting in the exercise of any statutory jurisdiction or function. He has, so far as I can see, no statutory jurisdiction or function to approve terms and conditions as such and he gave no formal approval. My provisional view, therefore, is that if section 3(2) applies, and if clause 18 is arguably unreasonable, it is not saved by section 29(2) of the Act. On the first and major issue, therefore, I share the learned judge's view. I must, however, emphasise that even if Timeload are right and notice can only be given under clause 18 for good cause, there remains the very real chance that BT may be able to establish such cause, either on the basis that it was induced to allocate the number by some form of deceit or on the grounds of passing off. Those issues cannot be investigated at an interlocutory stage and I express no view whatever about the strengths and weaknesses of the parties' respective positions. I turn then to consider the balance of convenience, or justice, to decide which course will cause the minimum injustice. That involves looking to see whether damages will be an adequate remedy to Timeload if an injunction is not granted, and to BT if an injunction is maintained. The learned judge held that the balance came down in favour of granting the injunction and I would not myself disturb that assessment unless the judge were shown to be significantly wrong. In fact I am persuaded that his assessment was correct.

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I begin by touching briefly on the adequacy of damages for Timeload. Mr Hobbs took two main points. The first was that the relevant service was run by Free Pages Limited and not by Timeload. Free Pages was not a plaintiff. He argued that Timeload could not recover damages suffered by a third party. Secondly, he drew attention to the fact that BT had offered to run a free intercept service for six months to enable Timeload to introduce a memorable number other than 192 192 to their customers and the public. By that means, he suggested, Timeload would be protected against loss if the injunction were discharged. There is in my judgment weakness in both arguments. It is not clear to me that Timeload will not suffer damage if the Free Pages business founders and I think it not improbable that it can recover damages directly, if not indirectly; but if it cannot, then damages are an obviously inadequate remedy for those who will suffer loss on the plaintiffs' side. So far as the undertaking is concerned, it is necessary to recognise what this involves. Timeload have accepted deposits from commercial and professional undertakings on the basis of their advocacy of the peculiar *470 attractiveness to the public of the number 192 192. They have undertaken extensive and expensive public advertising. Commercially it would, as it seems to me, be very difficult to retain the confidence of their commercial customers if they were now to be told that another number was to be used and it would, of course, be a large undertaking to introduce the public to a new number with the prospect, if Timeload succeeded in the action, of eventually reverting to 192 192. This is, however, in my judgment hypothetical, because if the notice of termination were to take effect and Timeload and Free Pages were to be deprived of the use of this number, I think it extremely doubtful that either company would survive at all. They are not financially strong and an upset of this order would in my expectation be enough to push them into liquidation. So it would seem unlikely that Timeload would be there to recover any damages at all. That would be a very serious potential detriment on the plaintiffs' side. On the defendant's side, Mr Hobbs strongly urges that Timeload are not good for any damages that BT may be awarded. There is in my judgment force in this point which gives real cause for concern. On the other hand, I am not persuaded that such damages, even if established, are likely to be very great. Timeload's business is, as I have pointed out, a source of revenue to BT. What is good for Timeload is to some extent at least good for BT also. BT's complaint arises out of its injurious association with Timeload. It complains that the public has been misled into thinking that Timeload are associated with BT when this is not so, and it is urged that it is wrong that BT's very high reputation should suffer in such a way. This is, I think, a legitimate head of claim in principle, but there is very little recent evidence of confusion resulting from the activities of Timeload and Free Pages. Until very recently BT was willing to be publicly associated in its own publicity material with NatCo. Mr Hobbs is right to say that damage of this kind is very hard to particularise and quantify but on the material now before us it does appear that damages, if recovered by BT at all, would be insubstantial. However, that may prove to be wrong and I would, therefore, accept the undertaking given by Mr Platts-Mills on the express instructions of NatCo and Free Pages, that they will join Timeload's cross-undertaking in damages. On this basis the potential prejudice to BT, whatever the outcome, will, in my judgment, be minimised. I would, therefore, leave the judge's form of order untouched, save to add the cross undertaking of these two companies, and would dismiss this appeal. I would simply add this: it is in my judgment very undesirable that the present state of uncertainty should endure. It is clear from what I have already said that a number of issues of fact and law remain to be resolved. The parties have mustered much of the necessary material and the action is approaching the stage when it will be ready for trial. I accordingly express the hope that those responsible for fixing the trial *471 of actions in the Chancery Division will do whatever they can, bearing in mind the urgency of other cases in the list, to ensure an early and, if possible, expedited date for the hearing of this action. Hoffmann LJ: I join with the Master of the Rolls in his tribute to the skill of Mr Hobbs' argument which he may be able to deploy again on the more favourable terrain of the trial. Nevertheless, I agree that there is a triable issue on the question of whether BT is entitled to terminate the contract. It follows that the merits of the case cannot be determined until the trial. The judge, therefore, has to decide whether the likelihood of injustice being caused if an injunction were granted and the plaintiff subsequently lost is greater than if it was withheld and the plaintiff won. This balance of potential injustice is a matter for

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the judge's discretion, and in my judgment Mr Nugee's judgment shows no error of principle in the way in which that discretion was exercised. For the purposes of argument I am prepared to accept Mr Hobbs' submissions that the cross undertaking in damages is useless to BT, either because the damages would be too difficult to assess, or because the plaintiff group will not be good for the money. I do not think that this matters, because the likelihood of substantial damages being suffered by BT in the period before trial is not in my judgment very high. On the other hand, substantial damage to the plaintiff is virtually certain and there is a strong likelihood that it will be fatal to the plaintiff's business. I do not think that BT's offer to redirect calls is an adequate interim solution. It means that in practise the plaintiff will be in difficulty with its existing customers and will not be able to canvass for new ones on the basis of its existing number. Thus, in my judgment, the balance clearly comes down in favour of the grant of the injunction and I would therefore dismiss the appeal. Henry LJ: I agree with both judgments and have nothing that I wish to add. Appeal dismissed with costs.
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