Marinkovich then made a claim for wrongful dismissal with the Employment Court.

Grey responded by filing with the court an injunction for restraint of trade against Marinkovich to stop him approaching any of their advertising clients or staff, as by now he had started a rival advertising agency called CreativeBankAgency.

Under normal circumstances correspondence marked "without prejudice" can not be later used as evidence in court, on the basis that this encourages parties to negotiate freely into settling a legal dispute without having to go to a costly and time-consuming court hearing.

However, some of the contents of this fax were argued to contain veiled threats of action if the proposed offer was not accepted, such as poaching clients and staff from Grey, which were arguably illegal (depending on whether or not he was legally bound by a valid restraint of trade clause).

Grey's lawyers argued that this letter amounted to extortion (a criminal act), and at the very least placed undue and unfair pressure on Grey to settle this matter, and asked the court for an interlocutory ruling that this letter be admissible in court.