BLL v STI

Introduction

The Applicant (“BLL”) is a company which issues digital media gift cards through the TG online platform (“the Platform”). The Respondent (“STI”) is a company incorporated and based in Canada which provides the software, hosting and support services which underpin the Claimant’s Platform. In 2016, BLL entered into a contract with a UK company, DT Limited (‘DT’), to undertake the development of the Platform comprising customised software for an e-commerce website and content management system integrated with a travel booking engine which operated in multiple currencies (the “Development Agreement”, considered further below). The Development Agreement contains an arbitration agreement. After paying £78,000 for the initial software build, BLL has since 2017 been paying a monthly fee in respect of operation of the Platform.

In 2017, DT’s business was sold to KTEL (‘KT’). In 2023, KT was acquired by STI and renamed STEL. From 30 June 2024, invoices have been issued by STI.

In February 2026, a data breach/cyber incident rendered the Platform non-operational until 6 March. Since then, the parties have been engaged in correspondence. BLL says that STI has refused its requests for the technical information required for the Claimant to investigate the cyber incident. On 26 March 2026, BLL sought an escrow deposit arrangement pursuant to which it required STI to deposit a complete set of materials necessary to recreate, restore, maintain and operate the Platform, purportedly pursuant to the Development Agreement. On 30 March 2026, STI gave notice that it would not host or provide technical support for the Platform effective 30 June 2026. On 28 May 2026, STI offered an extension to the date of termination to 31 August 2026. STI also confirmed that from 30 June 2026 the Defendant will not be able to provide support to BLL, and that some third-party licences and agreements would terminate on 30 June 2026.

BLL seeks, on an urgent without notice basis, wide-ranging mandatory injunctive relief under s44 Arbitration Act 1996. STI is based in Canada, out of the jurisdiction, and BLL also seeks permission to serve outside the jurisdiction pursuant to CPR 62.5(1)(b) and permission to serve by alternative service. BLL in fact gave informal notice of both applications to STI. Without prejudice to its jurisdictional arguments, STI submitted witness evidence in opposition to the relief sought, and attended the hearing. Both counsel agreed, sensibly, that although still formally without notice, the hearing should be treated as, effectively, the return date upon which the right to relief would be determined following argument from both sides. They also agreed that (in STI’s case, without prejudice to jurisdictional arguments) the collateral applications for service out and alternative service would stand or fall with the right to substantive relief.

I am grateful to counsel for their full and detailed submissions, and their willingness to deal with the substance of the evidence served, notwithstanding the inevitable compression of time to do so given the nature of the application.

The Legal Framework

Section 44 provides:

“44 Court powers exercisable in support of arbitral proceedings.

(1)

Unless otherwise agreed by the parties, the court has for the purposes of and in relation to arbitral proceedings the same power of making orders (whether in relation to a party or any other person) about the matters listed below as it has for the purposes of and in relation to legal proceedings.

Those matters are—

the preservation of evidence;

the granting of an interim injunction or the appointment of a receiver.

the permission of the tribunal or (as the case may be) the emergency arbitrator, or

the agreement in writing of the other parties.

The requirement of urgency is part of the jurisdictional threshold for making an application under section 44(3).

As confirmed by the Court of Appeal in Cetelem S.A. v Roust Holdings Ltd [2005] EWCA Civ 618; [2005] 1 W.L.R. 3555, the second jurisdictional element is the requirement that the order is necessary for the preservation of evidence or assets (see [47]).

In the same case, at [57], the Court held that a contractual right can be an “asset” for the purposes of s44(3). It is clear that in doing so, the Court will or may have to express a view about the existence of a right, which is itself a matter which is in dispute in the arbitration. This tension has been considered in a number of authorities. In Cetelem, Clarke LJ observed, whilst confirming that the Court had the power to make an order which had the collateral effect of making a preliminary determination of a contractual right which was to be the subject of dispute in the arbitration:

“… Those powers include a power to grant interim mandatory injunctions, although the authorities make it clear that the court should exercise such a power very sparingly. That would be particularly so in the context of proposed arbitral proceedings but that consideration does not go to the jurisdiction of the court but to the exercise of its jurisdiction.”

In Zim Integrated Shipping Services Ltd v European Container[2013] EWHC 3581 (Comm) at [21]-[24], the Court declined to grant such an injunction because it would interfere with determining disputed matters which were for the arbitrator to decide. Males J (as he then was) observed: “The closer any injunction comes to determining a matter which it is for the arbitrators to decide, the more wary the court should be as a matter of discretion.” In Euroil Ltd v Cameroon Offshore Petroleum SARL[2014] EWHC 52 (Comm), the Court emphasised the need for “considerable caution” in granting an injunction which would partially determine or interfere with the parties’ cases on their respective contractual rights.

The well known American Cyanamid principles apply to injunctive relief.

Ms Wright, for BLL, fairly accepts that, notwithstanding the manner of drafting of some of the orders sought in prohibitory terms, the substance of the orders sort are mandatory in nature. She also accepts that an applicant should generally in these circumstances surmount a higher burden on the merits than may be the case with prohibitory injunctions: the applicant must generally satisfy the Court to a “high degree of assurance” that it is right on the merits (see Nottingham Building Society v Eurodynamic Systems[1993] FSR 426 at 474; National Commercial Bank Jamaica Limited v Olint Corporation Limited[2009] UKPC 16; [2009] 1 WLR1405; Derby City Council v UYR[2025] EWCA Civ 1648 at [40].) As Cockerill J put it inEraaya Lifespaces Ltd v Elara Capital Plc[2025] EWHC 1506 (Comm)at [75], “A court will only grant a mandatory injunction if the case is “unusually strong and clear”, even if it is sought to enforce a contractual obligation.”

The Court will also consider the adequacy of damages, and the balance of convenience.

The Development Agreement

There is a fundamental dispute as to whether the hosting and provision of support services presently provided by STI were being provided pursuant to the Development Agreement.

The recitals explain the purpose of the contract is to build the website solution:

“(A)

BLL wishes to acquire a fully responsive or adaptive travel and lifestyle ecommerce and content management system for its online website portal, [website] and travel and lifestyle affiliated websites.

(B)

Supplier possesses the necessary skill and expertise and is willing to develop a fully responsive or adaptive travel and lifestyle ecommerce and content management system for BLL on the terms of this Agreement.”

The definitions set out in cl. 1.1 include the following:

“‘Acceptance Date’ means the date on which the Software passes the Acceptance Tests

‘Acceptance Tests’ means the acceptance tests in relation to the Software to be undertaken by the Supplier…

…

‘Bespoke Software’ means all computer programs and associated documentation to be designed, developed and written by Supplier specifically for the System, including all data, content, designs and the design layout of the System, but excluding any underlying standard functionality.

…

‘Completion’ means completion of the Project in accordance with the Project Plan including (without limitation) the passing of the Acceptance Tests”

‘Contractual Completion Date’ means the date for completion provided in the Project Plan, or any subsequent date for completion agreed in writing between the Parties”

…

‘Project’ means the work to be carried out and the services to be provided by the Supplier in connection with the System

‘Project Materials’ means all documents and records in tangible or electronic form relating to the System and all computer programs, documentation and other items forming part of the Bespoke Software, including preparatory design materials for them, and any media containing or recording any part of any of the foregoing items, which are made in the course of the Project;

…

‘Software’ means the Bespoke Software, Standard Software and Third Party Software, or any part of it (a ‘module’) including any associated documentation required for the System;

‘Source Code’ means the human readable form of the computer programs comprised in the Bespoke Software and Standard Software; however this will not be provided by the supplier to the client, except as specified in clause 2.8;

…

‘Standard Software’ means all computer programs and associated documentation forming part of the Software which is not Bespoke Software or Third Party Software;

‘System’ means the content management system described in the scoping document and the Proposal;

‘Term’ means the period during which this Agreement continues in force in accordance with clause 12;

‘Third Party Software’ means all computer programs and associated documentation forming part of the Software which is written or developed by a third party….’”

Clause 2.1 provides for the Supplier providing “the development and other work and provide the services described in the Scoping Document and the Proposal…”

Clause 2.2 sets out what the Supplier has to do as part of the project in 14 sub-paragraphs.

The first 13 generally relate to the design, development and testing of the System through to Completion. Of these Clause 2.2.8 provides:

“provide advice and assistance in relation to the operation of the System”

2.2.13 required the Supplier to “comply with the timetable in the Project Plan and achieve Completion by the Contractual Completion Date”.

Clause 2.2.14 provides, “if so agreed between the parties in writing, ensure the maintenance and updating of the Software in accordance with the Specification and the correction of any errors of failures to meet the Specification.”

Clause 2.7 provides:

“Supplier shall, subject only to payment of the Charges, forthwith deliver up to BLL all Project Materials which are provided by Supplier or which come into its possession during this Agreement and which relate to the System, both on request by BLL at any time during the Term and upon its termination, and shall not retain any such copies except as agreed with BLL in writing.”

Clause 2.8 provides:

“Supplier shall on Completion shall [sic] enter into such arrangements as BLL may reasonably require for the deposit with a suitable escrow agent of the source code for all software, including comments and documents as to the purpose and functionality (other than the Software) used in the production of the System or for development, administration or support purposes at the expense of BLL.”

Clause 7 deals with ownership of the Project Materials and the allocation of Intellectual Property Rights.

Clause 7.1 provides:

“The Project Materials, together with all Intellectual Property Rights in respect of them, shall belong exclusively to BLL.”

Clause 7.11 provides:

“Without limiting any other right or remedy of BLL, Supplier shall, without additional charge to BLL, make such additions, modifications, or adjustments to the System as may be necessary to correct any errors or defects, which are discovered in the System for a period of six months from the Acceptance Date.”

Clause 12 provides that the Development Agreement would continue in force “until the completion of the Project to the satisfaction of BLL and for so long as Supplier has any further obligation under this Agreement.”

Clause 13.15 contains an arbitration agreement:

“Any dispute between the parties arising out of or in connection with this Agreement shall (except as otherwise provided in this Agreement) be referred to the arbitration in London of a single arbitrator appointed by agreement between the parties or failing agreement between the parties within 30 days after a request for a reference is made by either party, nominated on the application of either party by the President for the time being of England and Wales”

The Scoping Document provided the following under ‘Maintenance and Support’:

The Evidence

BLL relied upon two statements from Mr G, Founder and CEO of BLL, and a witness statement from Mr S, a Partner at Kennedys Law LLP, which acts for BLL.

Mr G’s evidence is that BLL employs 18 people in 8 countries and has a revenue of c.£3.9M per year, with over 300,000 gift cards (stored value) processed and issued in multi-currency to date, since inception. He describes how the Platform has been developed, expanded and operationally embedded over many years through extensive bespoke development, custom integrations, extensive compliance and governance and operational configuration, leading to multiple industry awards and a substantial global B2B and B2C client base. Mr G explains that, in his view, the scope of the Development Agreement was a fully-automated, scalable software development project, “which we could ultimately operate independently if needed to.”

Mr G describes a twelve-month development and implementation process, following which the initial Platform launched on 12 December 2017. Subsequently, the Platform expanded operationally from 34 currencies to 103 currencies together with substantial increases in supplier integrations, customer functionality and operational complexity. He describes how the Claimant’s hosting environment and associated infrastructure are actively designed, managed and maintained by STI within Microsoft Azure environments controlled by STI. The Platform also relies on associated infrastructure and security services managed by the Defendant, including Cloudflare and other operational systems. Mr G’s evidence is that BLL is therefore entirely operationally dependent upon STI’s controlled infrastructure and technical services for the continued functioning of the Platform. He sets out wide ranging implications of material disruption to the Platform in support of his strong belief that, if the injunctive relief was not awarded, the swift and catastrophic collapse of BLL’s business would be unavoidable.

Mr G described how his business continued throughout to rely upon the ongoing operational relationship, technical support and development work provided by DT and subsequently by successor entities and personnel associated with the Platform.

His evidence is that, in November 2017, KT, another English entity, acquired DT. Despite the change in corporate structure, BLL continued to receive the same operational support and platform services through KT. They also updated the System login from DT to KT. There was continuity of personnel, operational management, platform support, development activity, ticket handling, technical communications, compliance with global operations and paid custom development to change payment gateways. He states that BLL and KT understood that the operational supplier relationship was continuing subject to the terms of the Development Agreement notwithstanding the change in corporate entities. The payments process was consistent, in that the company received invoices from the same finance assistant contact, billing monthly from a KT email address with a DT letterhead and reference.

Mr G describes how, following STI’s acquisition of KT in March 2023, invoicing continued with the same invoice template used by KT with the DT letterhead and the same billing address, although banking details changed in February 2024. He describes that in his experience there was continuity of the development, technical and finance teams, continuity of the Platform operations and support functions, and continuity in the manner in which services continued to be provided to the Claimant. His evidence was that he never once received a request from anyone at STI to alter the terms on which services were being provided. He considers that it was entirely reasonable to rely on the continuing operational relationship and continued supplier conduct.

In relation to the cyber incident in February 2026, Mr G described how an unauthorised user with escalated access was identified by BLL, and STI was notified via email. STI explained that on 28 February 2026 it had identified script files which had been placed onto the production server environment. STI also informed BLL that those scripts utilised the application database connection string to directly query the gift card database tables, and that amongst other things approximately 3,842 files titled ‘active gift’ cards were exported. At least three exported gift cards were reportedly redeemed prior to shutdown of the affected environment. Mr G says that an initial internal assessment conducted by the Claimant based upon the information provided by the Defendant’s developers identified that two of the exported artefacts, described as “available” and “expired”, potentially related to gift card codes with an aggregate stored value exposure estimated at £10,416,282.07.

BLL sought (via their representatives appointed by its Insurer) from STI immediate provision of:

Mr G asserts that STI has refused to provide this information. Without this information, he says that BLL is unable to conduct a proper forensic investigation or regulatory assessment. The information is also required to perform a risk analysis, for future cyber-attacks. At present, he says that his company has been unable to independently determine the full nature, extent or impact of the incident.

Mr G provides evidence that previous queries had, in later 2025 and early 2026 been dealt with unsatisfactorily, and that he became aware that STI’s lead developer appears to have left the business. Mr G states that following the cyber incident his company repeatedly requested access to logs, technical information, project materials, operational records and information relating to both the production environment and the associated development and staging environments. These requests were made in order to investigate the incident, assess the integrity and condition of the Platform, understand the underlying operational dependencies, and evaluate continuity, remediation and transition options. He says that the requested information and materials were not “fully” provided. He describes the tone of correspondence from Keystone, lawyers for STI, as dismissive, uncooperative and obstructive.

At a meeting on 27 May 2026, Mr G describes how NCC, experts instructed by BLL to investigate whether an escrow and validation arrangement could be put in place, were advised by Mr M of STI that no employees remained within the organisation with sufficient knowledge to demonstrate a full build process for the Platform infrastructure or to support with validating the viability of the build. Mr M also informed NCC that the Platform relies upon internal shared services which cannot be decoupled to provide a standalone customer solution and that a manual reconstruction of the cloud environment would not be feasible given the complexity of the architecture and the time required. Mr G expresses his concern that unless the current environment, supporting materials and technical records were preserved, critical knowledge and information necessary to understand, investigate, reconstruct or migrate the Platform may be permanently lost. He contends that critical materials including the logs, repositories, server images, cloud records, deployment materials, security records, audit trails and other electronically stored information relevant to the cyber incident, continuity assessment and reconstruction of the Platform “may be altered, overwritten, lost or become inaccessible before they can be independently examined.”

Mr G explained the Platform’s reliance upon third party providers and his concern that if third party licences were to lapse before independent experts could complete their assessment, there was a risk that the system would be put at risk, services may end and data may be lost.

Mr G describes how he prepared a Technical Questionnaire for STI to complete. In response, he describes how STI offered ‘a data dump of exports which would not have assisted the Claimant’.

Mr G considers that, in his view, it is not commercially or technically feasible to replicate or rebuild the entire Platform ecosystem within any timeframe that would enable the Claimant to continue operating safely and effectively without substantial interruption, and certainly not by STI’s proposed deadline for termination of 31 August 2026. Mr G does not provide greater granularity of the time period required, nor identify any specific steps taken to obtain quotes or estimates for the work involved (whether with or without the headstart the provision of information would provide). He states:

“In circumstances where key personnel have already departed, the standalone build process cannot be demonstrated, and critical dependencies remain undisclosed, I am concerned that decommissioning, service withdrawal, licence termination or changes to the operational environment may result in the loss of information, evidence and technical materials necessary for continuity, migration and investigation of the cyber incident.

[BLL] needs, urgently, to preserve the current operational environment, investigate the cyber incident, assess the Platform’s dependency and continuity risks, understand the extent of the Platform's reliance on shared services and third-party functionality, and enable any independent assessment of reconstruction, migration or standalone operation.”

Mr G then sets out an extremely wide ranging list of documents, data and other materials said to be required. These are reflected in the orders sought. This includes the provision of what is described as ‘Super Admin’ and infrastructure level access to allow investigation, remediation and continuity assessment.

The statement of Mr S, in support of the application for service out, service by alternative means, as well as injunctive relief, is predicated on a right, which is described as not capable of unilateral termination, whether on notice or at all, to continue to have access to the System, the Bespoke Software and the Standard Software. It describes the course of conduct as having given rise to a clear novation of the Development Agreement by conduct, or, at the very least, an assumption of its obligations which the Defendant is estopped from denying. The statement contends that services provided by STI cannot be easily transferred to an alternative provider due to the complexity of the systems and services, and would require a managed transition to take place with the support of STI, “and would be expected to take several months.” Whilst it says that the three months notice was not reasonable, Mr S does not assert a period contended for as reasonable.

STI rely upon the evidence of Mr M, employed as the VP of technology within STI, and Mr R, a director of STI.

Mr M explains that he was employed by DT as Director of Development at the time BLL engaged it to create a website solution for it. He accepts that he has some familiarity with legacy technology within the system and so, as the outdated DT system has been wound down, he has tried to help BLL, but he does not have the expertise or knowledge of the system to re-engineer it or provide the information sought. Mr M says that there is no-one else at STI who has that expertise.

In explaining some of the technology, Mr M distinguishes between “dedicated hosting” and “non-dedicated hosting”. Dedicated hosting is where a website owner’s website is hosted on a dedicated server, on an exclusive basis. Mr M says that, in his experience, this is usually the option chosen by businesses of the size of BLL. Non-dedicated hosting is where a website owner’s website is hosted by a service provider on a server together with the websites of other website owners. This is cheaper but means the server always has mixed use.

Mr M describes how DT’s strategy as a web site developer and hosting provider would allow users to utilise DT’s shared services including supplier connectivity, travel data and inventory data, booking and inventory management systems and hosting and infrastructure services within an existing framework, rather than requiring this to be developed individually. This meant that the website created would be designed and built into DT’s proprietary system. It would in effect ‘plug’ into the system and would only work within the system. The commercial benefit of this model was that users could avoid significant upfront development costs and ongoing operational overheads. Users were not paying for an independently existing and operating website structure and system, it only existed within DT’s system. He explains that BLL paid for the design, development, and implementation of its website solution in the sum of £78,000, which was a fraction of the cost it would have had to pay to have an independent system designed which did not plug into DT’s proprietary system.

Mr M describes how the system designed by DT, within which BLL’s website solution has existed for around a decade, is, whilst still functional, out of date. He explained that DT offered services by which solutions could be developed and enhanced over time. He describes how, in his view, BLL were a demanding customer and it was suggested on a number of occasions that they should move to a dedicated hosting service. This did not happen.

Mr M describes the cyber security incident as one where hackers were able to access the site using Mr G’s log in credentials. In his second witness statement, Mr G denies that this is the case. Mr M’s evidence was that having identified a serious, real breach with hackers in Brazil trying to gain unauthorised access to the system, STI had no option but to disable BL’s site whilst it investigated the position. He said the company worked flat-out on this issue for six weeks, and that he personally worked through three weekends. Mr M then states:

“This, together with BL’s unreasonable demands dressed up as ‘support’ make me worry that being forced to continue the system for BL alone will result in a nightmare scenario where BL constantly send me (as the only remaining person with any knowledge of the DT system) support demands and threaten me with breaches of an injunction.”

Mr R’s evidence makes clear that STI’s position is that it was never a party to that Development Agreement, which was about a project to develop a website solution in 2016. He states that STI never intended or agreed to become a party to that agreement or to be bound by any of the terms or to assume any obligations under that contract.

Mr R explains that in 2017, DT’s assets were acquired by KT. Then, in 2023, STI acquired DT. His understanding is that at the point KT acquired DT in February 2016, the platform supported approximately 140 active clients. Following the acquisition, KT undertook an extensive internal audit and began to withdraw many of the services which DT had offered in addition to basic hosting and support services. In or around 2017, KT decided to cease offering bespoke design services, including to existing customers. This meant that website solutions provided to clients on the DT system would age and become outdated, without an option to develop them or make substantive updates or upgrades. By the end of 2017, Mr R says that DT had effectively ceased acquiring new clients, and the market would have been aware that it was not seeking new business and winding down its business.

He goes on to state that when STI took over the DT business in 2023, it did not seek to immediately close down the DT platform but it understood that the platform was outdated and would need to be decommissioned relatively soon. He explains that when STI acquired the DT business it received little to nothing in the way of technical documents relating to the DT platform and with few original DT staff staying on, STI was conscious that it did not have the level of technical expertise regarding the DT platform that DT would have had at its peak. At the time of taking over KT, Mr R says that all DT was doing was hosting existing clients and their website solutions on the DT system and providing basic IT support.

In or around June 2024, STI sent a letter to each of the remaining clients on the DT system (including BLL). This said simply:

“Dear Sir/Madam,

Thank-you for your continued working relationship with DT, Contemporary Travel Solutions and STE.

Please note that effective June 30th, 2024, we are now operating as STI. We have consolidated our operations, and we are transitioning to a new financial services provider.

Please amend your records for our new business address below….”

Mr R describes how by January 2026, STI only had 15 ‘legacy’ customers (including BLL) left. All of the developers who had worked on or had knowledge of the platform had left and Mr M was the only person left who had any knowledge at all as to how the system operated.

Both witnesses explain how on 30 March 2026, STI gave all 15 customers 3 months’ notice of their intention to close down the system on 30 June.

Mr M explains that of the 15 customers who were remaining as of March 2026, all but BLL have received all their data, engaged alternative service providers and either have been successfully offboarded already or will have been before the end of June. Mr M described how STI had established a new shared mailbox for the purposes of offboarding, and each of the 14 other customers communicated with STI about the offboarding via that shared mailbox. STI informed their customers that their data would be made available to them. He explains how each of the other 14 customers identified alternative technology providers through which they would operate their websites going forward, that STI did not provide any recommendation or advice about this and that none of the 14 customers needed anything from STI to identify and chose their next service provider. STI has provided, or is in the process of providing, the customer data to each of these 14 customers, whose new technology providers will then use this data to create a new website solution – whether within their own proprietary system or in another way. Mr M confirmed that none of these 14 customers have requested any source code or elements of the proprietary DT system within which their website solutions operated.

Mr M explains:

“Since 30 March 2026, we have done everything possible to assist BL with their migration to an alternative supplier. As the correspondence shows, this has included completing two lengthy questionnaires as best we can and attending two meetings with BL’s appointed experts. At one of those meetings, on 27 May 2026 I demonstrated to those experts everything I could in relation to the system (BLL has produced a short note of the meeting…it is not a complete record). This was all in the face of increasingly hostile and unrealistic demands from BL. One of the key reasons for the position BL now finds itself in is its insistence on pursuing a route with its appointed experts to obtain the source code for the platform and have it placed into some form of escrow arrangement when we have been telling BL for quite some time that this is a pointless exercise as the items that BL is entitled to (its data, IP, and source code specific to its website solution) cannot function independently. This is because, as explained above, the website solution is low cost because it is not an independent website but a plug-in that exists only within the DT system. It would be akin to a Facebook user asking Facebook to give them all of their data and then expecting to be able to operate a functional Facebook page independently of the Facebook system and architecture (which is obviously not [sic]). In fact, extending that analogy, what the Claimant is now seeking is akin to asking Facebook to not only give the user all of the data and source code the user owns but also all of the proprietary source code needed to operate the general Facebook system.”

I address those aspects of Mr M’s evidence dealing with the specific heads of relief in due course as appropriate.

Mr G served a responsive witness statement in the early hours of the morning of the hearing. That witness statement included a section detailing what Mr G described as an issue with the Platform on 15 June 2026, in which error messages relating to Cloudflare (a third party service provider of web firewall services) appeared. He also gave evidence that he was informed that on 6 May STI had provided 90 days’ notice to cease its agreement with Ypsilon, a third party integrated into the Platform. That licence would expire beyond the end of August date presently indicated as the extended period for offloading provided by STI.

Mr G disputes the evidence of Mr M, which describes the solution as a low cost plug in. He distinguishes his business from general online travel agencies, explaining that the multi-currency gift card processing and travel booking redemption platform is of a fundamentally different nature such that it would not necessarily be able to move to another platform as easily as the 14 other customers. He contends that the Platform cannot be easily replaced by an alternative provider, as argued by STI, and points out that no evidence has been provided regarding the size, complexity, integrations, transaction volumes, customer base, contractual rights or operational requirements of those customers.

Mr G denies that no further development work has taken place since 2016. He generally denies being made aware of the gradual decline of DT business in the preceding years as described by Mr R.

The evidence plainly gives rise to numerous issues of fact which it is neither appropriate nor possible to make determinations in respect of. I do not doubt, and it was not suggested otherwise, that they give rise to what would be described as serious issues to be tried. Whether that is sufficient in the context of the injunctive relief sought I return to below.

Urgency

Ms Wright accepts that the jurisdiction of this Court is dependent upon establishing urgency. She relies upon the fact that STI has in recent correspondence confirmed that i) it will withdraw support from the Platform on 30 June 2026 and ii) licences and third party agreements will terminate on the same date. It is said that there is therefore a significant risk that by the time an arbitral tribunal can be constituted and is able to act, the Platform will have suffered irreparable damage.

The difficulty with this submission is that, in confirming its position in the correspondence referred to (in the context, in fact, of extending the date upon which the Platform would be decommissioned, but limiting the level of support beyond 30 June 2026), STI did or said nothing different to that which it had said in terms would happen on 30 March 2026. That is some two and a half months ago. BLL has taken no steps in that time to appoint an arbitrator. Even allowing for (a) STI taking the full 30 days contemplated within the Agreement and (b) the need for an application to the Court to assist with the identity of an arbitrator given the oddity of the wording within the clause, it seems likely that an arbitrator would by now have been appointed if BLL had acted with expedition. Even if this had not been possible, BLL would have been in a position where it had tried and failed to appoint an arbitrator to give effective resolution, and so could properly submit to the Court that its need to involve the Court, notwithstanding its agreement to resolve disputes through arbitration, was properly a matter which was outside its control. To the extent that there is presently an urgency, it has been caused or materially contributed to by BLL’s own failure to issue a Notice of Arbitration. Ms Wright fairly accepted that this delay had not been contributed to by any sort of representation by STI giving rise to a waiver or estoppel on the part of STI.

Moreover, the Platform itself will not be decommissioned until the end of August. That is a further 9-10 weeks away. BLL could still issue a Notice of Arbitration (or could have done so on a protective basis at any time since it knew STI’s position on this application). If it did so now, it is likely that an arbitrator could still be in place to determine questions of his or her own jurisdiction, if a jurisdictional point is taken, together with any interim urgent relief including the preservation of assets pursuant to section 38 of the Arbitration Act 1996.

In short, BLL cannot rely on urgency where the situation (even if it could presently be described as urgent) is self-created and could have been addressed by timely recourse to arbitration. Even if this failure is not taken as depriving the Court of jurisdiction, it is a matter which in the discretion of the Court weighs against granting relief under section 44.

Merits

STI denies that its contractual relationship with BLL is governed by the Development Agreement. It contends, instead, that there is a simple contract in place for hosting and support, terminable upon 3 months’ notice. Mr Milner KC contended that, even if the Development Agreement was the governing contract, it was capable of termination by STI on 3 months’ notice.

Until oral submissions, it was BLL’s case that not only was the Development Agreement the contractual basis of the ongoing relationship (which remains its case), but that the Development Agreement was not unilaterally terminable, whether on notice or otherwise, by STI save in circumstances of insolvency or BLL’s material breach. However, in oral submissions, Ms Wright conceded that STI does have the right to terminate the Development Agreement upon notice. She contended that the relevant notice period is 12 months. This is a significant concession: it is an acceptance that it is inevitable that BLL will need to migrate its website to a new technology provider, a process that Mr G has effectively resisted as a necessary one since notice was given in at the end of March 2026.

There is plainly a serious issue to be tried on both issues (i.e. what is the nature of the governing contract and what is the contractual period of notice) capable of surmounting the ordinary American Cyanamid test. However, it is not possible to conclude, as Ms Wright argues, that the Court can have a high degree of assurance that BLL is correct on either point.

As to whether the relationship is governed by the Development Agreement, there is no suggestion that the contract was expressly novated to STI. Mr Milner KC argues that a novation will only be inferred from conduct if that inference is required to give business efficacy to what happened. He relies upon Musst Holdings Ltd v Astra Asset Management UK Limited [2023] EWCA Civ 128, in which the Court of Appeal approved the explanation given by Lightman J in Evans v SMG Television Ltd [2003] EWHC 1423 (Ch) at [181] that:

“The proper approach to deciding whether a novation should be inferred is to decide whether that inference is necessary to give business efficacy to what actually happened (compare Miles v Clarke [1953] 1 WLR 537 at 540). The inference is necessary for this purpose if the implication is required to provide a lawful explanation or basis for the parties’ conduct.”

Both parties accept that ‘Completion’ for the purposes of the Development Agreement occurred in 2017. It is plain that a great many obligations within, and the principal purpose of, the Development Agreement was, as the name and the Recitals suggest, the development of the Platform. However, DT did go on to host and provide support. It is certainly arguable, as Ms Wright contends, that the hosting and support that was in fact supplied was supplied pursuant to the Development Agreement as evidenced by conduct. However, when STI took over in 2023, it is equally arguable that the Development Agreement was not impliedly novated to them, in circumstances where virtually the entirety of the agreement was long obsolete.

As the judgment of Falk LJ goes on to point out in Musst, (relying on Chitty on Contracts at 22-096 and 22-097), a novation need not be of an entire contract. Some obligations may be novated and others may remain. Mr Milner KC’s and Ms Wright’s positions were binary: the Development Agreement was either novated or it was not. One possible answer is that only those obligations relating to ongoing hosting and support were novated. I plainly make no finding in that regard, but it might be where the correct answer lies. If it does, the central question becomes which obligations were, and which were not, novated.

Ms Wright relies upon 3 clauses in particular to found the obligations which are said to underpin the right to the relief sought: Clause 2.2.8 relates to the provision of advice and assistance in relation to the operation of the System; Clause 2.7 relates to the delivery of ‘all Project Materials’ at BLL’s request including upon termination; and Clause 2.8, relating to a suitable escrow agent of the source code for all software (other than ‘the Software’ as defined).

There are good arguments why it may be said, in each case, that these obligations were not the subject of implied novation or, even if novated, do not correlate to the breadth of relief sought. As to 2.2.8, there is a reasonable argument (given its location within the agreement) that this related to the provision of assistance pre-Completion for the purposes of developing the Platform (in circumstances where an equivalent obligation does not exist in that part of the Appendix relating to post-deployment services). Clause 2.7 relates to ‘Project Materials’ and these are defined as documents coming into existence during the ‘Project’. There is a reasonable argument that ‘the Project’ was the development of the Platform, not its ongoing hosting. Clause 2.8 specifically states that the obligation arises ‘on Completion’. There is a reasonable argument that such an obligation, which arose nearly a decade ago and pursuant to which BLL made no request, did not novate. It is not for this Court to determine whether such arguments would succeed, not just because this is an application for interim relief, but importantly because these are matters which (if the Development Agreement was novated at least in part) these arguments are for an arbitrator to decide. The Court would usurp the arbitral function were it to determine them. However, it is clear that STI’s arguments are of sufficient strength that the Court is a long way from having the ‘high degree of assurance’ about BLL’s case generally required for the granting of a mandatory injunction. It certainly cannot be said that BLL’s position is ‘unusually strong and clear’.

Similarly, the Court is not in a position to conclude that it has ‘a high degree of assurance’ that the notice period upon termination is 12 months, rather than 3 months or some other period in between. Again, assuming the Development Agreement to have been novated or novated in part, the resolution of that question is for an arbitrator and the Court must be cautious before determining the question de facto by granting relief which assumes a particular answer. Before oral submissions, BLL’s case was that there was no notice period at all, because the agreement was not terminable by STI. Ms Wright then developed the case that a reasonable notice period was 12 months based solely on the fact that the software development period was around 12 months. BLL has submitted no evidence from an expert or third party provider evidencing why this period would be required. On the face of it, one might reasonably assume that the time required to migrate an existing website would not be as long as developing one from scratch. Whilst their position raises a serious issue to be tried, there are potentially forceful arguments why the original development period should not be taken as a proxy for the period of time reasonably required to migrate the system once developed to a different hosting platform. STI’s evidence is that 14 of the 15 clients to whom notice was provided at the end of March have, or will have, successfully migrated within a 3 month period. Whilst BLL is correct that the Court has no insight into the complexity of the 14 other websites in comparison to BLL, it is nevertheless prima facie evidence that a reasonable notice period may be considerably shorter than the 12 months lately advanced by BLL. As pointed out by Mr Milner KC, a three month notice period for the supplier to terminate would also be symmetrical to the period allowed to the client in DT’s original Proposal.

In circumstances where the Court is far from persuaded of the merits of BLL’s claim both as to the applicability of the Development Agreement, or of those particular obligations upon which it relies to underpin its case on breach, the Court should be extremely circumspect about granting the mandatory injunctive relief sought. That this is the appropriate conclusion is fortified in circumstances where relief sought under section 44 of the Arbitration Act 1996 should only be granted sparingly, and in circumstances where BLL has taken no steps to commence an arbitration, and still has time to do so before the (present) date upon which the Platform will cease operation. I do not consider that the merits of BLL’s case are sufficiently strong to justify, particularly in the context of an application under section 44, the imposition of wide-ranging mandatory injunctive relief.

During argument, the Court raised the question of what the position would be if the Development Agreement had not been novated, and there existed the simple contract as contended for by STI. In these circumstances, there would be no arbitration agreement and an application for injunctive relief would not be required pursuant to section 44 of the Arbitration Act 1996. Although Ms Wright sought to maintain the substance of her application in this alternative scenario, under the general powers of Court, Mr Milner KC was right that this alternative scenario raised a series of other questions, not least the jurisdiction of the Court where STI is a Canadian company. Those questions could not be resolved without argument, on the hoof. Even setting jurisdictional issues to one side, BLL would be in the same position in that it would be relying upon clauses which it would have to imply into the simple contract. Whilst no doubt arguable for the purposes of a ‘serious issue’ test, the Court would, again, not have anything approaching the high degree of assurance that such terms would be implied generally required before the imposition of broadly drawn mandatory injunctive relief.

I do not accept, as contended for by Ms Wright, that any failure to provide continuity of the Platform beyond the end of June or August, and/or to provide support and/or renew licences beyond the end of June is incapable of adequate compensation by way of damages. Loss of the Platform at a point before BLL has been able to migrate to a new provider (which it must inevitably do) will undoubtedly cause short term financial losses, but there is no evidence beyond Mr G’s assertion (which is incorrectly predicated on the loss of a right to the platform in perpetuity) that a temporary loss of service would cause an existential collapse of the business. The situation, were breach established, would be no different in practice to the business interruption claims regularly determined by the Courts in circumstances where, for example, a shop or factory burns to the ground, rendering it impossible for a business to operate for a defined period of time. That it is a web-based business does not alter the principle that if, by reason of a breach by STI (assumed for these purposes), BLL cannot operate for a number of months, its loss can be compensable in damages. Permanent loss of relevant data may be something which could not properly be compensable, but for the reasons set out further below in the context of the third order sought, I do not consider there to be a material risk of loss of data in light of STI’s clear offer to preserve and/or provide all such data pertaining to BLL’s website (and, effectively, the ‘Bespoke Software’).

Even if, therefore, the Court otherwise considered the case sufficiently strong to merit mandatory injunctive relief pursuant to section 44 of the Arbitration Act 1996, it would not do so in circumstances where, as here, damages are an adequate remedy.

To the extent relevant, I reject the suggestion that damages would not also be an adequate remedy for STI, at least in relation to the maintenance and operation of the system. Given that, taking BLL’s case at its highest, those costs could be incurred for around 7 months (September 2026 to March 2027), it is unlikely that in aggregate, assuming the figures set out in paragraph 59 of Mr M’s statement, would come close to exceeding the value of the assets (around £1m) which sit behind BLL’s undertaking.

Consideration of the Specific Orders Sought

Whilst it may not be necessary to do so in light of the foregoing, I consider each of the orders sought in turn. I accept the submissions of Mr Milner KC, based upon the evidence of Mr M and in light of the extraordinary breadth of the orders sought, that, aside from the question of merit and adequacy of damages, much of the injunctive relief sought is impossible or impractical for STI to comply with, to the extent it has not already substantively offered to provide what BLL has sought.

The first order sought is that ‘The Defendant will not suspend, terminate, restrict, or otherwise interfere with the Claimant’s access to, or use of, the Platform pending final resolution of this dispute or further order of the Court.’

STI has offered to keep the Platform live upon payment of its costs for doing so until the end of August 2026. It is not suggested that it would not be possible for this to continue, subject to the question of third party supplier licences. There is no reason why the licences could not be purchased and/or paid for by BLL to ensure continuity of service, given that the relevant service providers in respect of licences which may expire have, as Mr Milner KC confirmed explicitly on instructions, been identified. On any view, BLL now accepts it has no entitlement to maintenance of the platform beyond March 2027. Whether STI should be ordered to maintain the Platform (including the renewal of any relevant licences) between the end of August 2026 and March 2027 pending final resolution of the dispute is (on BLL’s case as to the applicability of the Development Agreement) a matter for an arbitrator, and it is not an order which I am persuaded this Court ought make.

The second order is that, ‘The Defendant will continue to provide ongoing support and maintenance including updates and bug fixes to the Platform pending final resolution of this dispute or further order of the Court.’ What is meant by ‘ongoing support and maintenance’ is extremely vague. As Mr Milner KC submitted, whilst the term is drawn from part of the Development Agreement, there is no specification of what it means e.g. service levels, response times, hours, fees etc. It would be inappropriate for such a vague obligation to be underpinned by mandatory injunctive relief. It would be extremely difficult for the Court to police ongoing compliance and, in a case where the merits are not strong and clear, inappropriate for those working for STI to be under the threat of placing STI in contempt of court if sufficient ‘support’ is not provided.

The third order relates to the preservation of materials. This is an order which the Court would most readily order, and the type of order which section 44 might most readily apply to. STI has already agreed to preserve all such relevant materials as it is in possession of. Indeed, STI has already made clear that BLL can not just have preserved, but take, everything STI has which is specific to BLL’s site and the Bespoke Software. This includes an offer to provide BLL with all of the source code specific to its website solution. STI’s position was repeated and relied upon by Mr Milner KC in his submissions. STI’s continuing offer to preserve and/or provide such materials and documentation as are responsive to the third order sought insofar as STI is in possession of that material ought to be explicitly recorded in the Recitals to the order dismissing the Application, relevant as it is to the Court’s conclusion that it is not necessary or appropriate for the Court to order relief which goes no further than that which has already been offered.

The fourth order seeks from STI: ‘a full and accurate written explanation of the system architecture of the Platform’. The contractual basis upon which STI might be obliged to provide such a thing, particularly insofar as it would include DT’s proprietary system, is far from clear. Insofar as STI is in possession of documents created by DT specific to BLL’s site, the preservation and/or provision of those documents is captured by the third order (and existing offer referred to above). Insofar as this goes beyond the provision of existing documentation and amounts to a mandatory injunction to create material, the Court would only in the clearest and strongest cases consider making such an order. This is not such a case, particularly when brought pursuant to section 44 of the Arbitration Act 1996 in the circumstances already described.

The fifth order requires STI to provide to the Claimant a list of all third-party suppliers, third-party licences, inventory providers, APIs, service providers and other external dependencies required for operation of the Platform, including details of termination dates of any licences. The sixth order requires STI to renew and not to terminate any third-party software licences pending final resolution of this dispute or further order of the Court. To the extent necessary, these have been dealt with in consideration of the first order.

The seventh order requires STI to provide BLL with Super Admin and infrastructure level access required for independent investigation, remediation and continuity assessment. The contractual basis for such mandatory injunctive relief is obscure, given that it would seem on its face to go far beyond any express entitlement even taking BLL’s case on the Development Agreement at its highest.

The final order sought requires STI to provide all logs, audit trails, security records, incident investigation materials, authentication records, access logs, firewall records, WAF records, Cloudflare records and other materials relevant to investigation, assessment and remediation of the cyber incident that was identified on 27 February 2026. STI does not contend that it would be impossible or impractical to provide this information; instead Mr M says in terms that it has already provided everything STI has. He explained that STI’s systems do not uniformly generate or retain all the categories of material requested in the draft order, and some categories of data (including firewall, WAF and CDN logs) are only retained for limited periods in accordance with normal operational retention policies, or are not captured in the manner described in the request.

This material should fall, insofar as it exists, within the existing and continuing offer to preserve and/or provide all material such that STI is in possession of specific to BLL’s site, the existence of which offer ought to form part of the recitals to the Order made by the Court.

Conclusion

In circumstances where BLL’s claim fails on urgency (in the context of section 44 of the Arbitration Act 1996), the merits threshold (in the context of mandatory relief), and adequacy of damages, it is not necessary to consider the balance of convenience separately.

The application for injunctive relief fails. The Order drawn should reflect in its Recitals the matters referred to in paragraph 87 above.