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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Tillman v Egon Zehnder Ltd [2019] UKSC 32 (3 July 2019) URL: https://www.bailii.org/uk/cases/UKSC/2019/32.html Cite as: [2019] 3 WLR 245, [2019] IRLR 838, [2019] FSR 39, [2020] 1 All ER 477, [2019] WLR(D) 395, [2020] AC 154, [2019] 2 BCLC 143, [2019] ICR 1223, [2019] UKSC 32 |
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[2019] UKSC 32
On appeal from: [2017] EWCA Civ 1054
JUDGMENT
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before
Lady Hale, President Lord Kerr Lord Wilson Lord Briggs Lady Arden
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JUDGMENT GIVEN ON |
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3 July 2019 |
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Heard on 21 and 22 January 2019 |
Appellant |
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Respondent |
James Laddie QC |
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Daniel Oudkerk QC |
Adam Solomon QC |
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Amy Rogers |
(Instructed by Reynolds Porter Chamberlain LLP (London)) |
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(Instructed by Simmons & Simmons LLP) |
LORD WILSON: (with whom Lady Hale, Lord Kerr, Lord Briggs and Lady Arden agree)
Introduction
2. Each of the company’s contentions raises an issue with a different hypothesis, as follows:
(A) The hypothesis in Issue (A) is that the employee’s construction of the part of the covenant alleged to be in unreasonable restraint of trade is correct. Here the company contends that the impugned part falls outside the doctrine against restraint of trade (“the doctrine”) and that it is therefore irrelevant that, had it fallen within the doctrine, it would have been in unreasonable restraint of it.
(B) The hypothesis in Issue (B) is that the employee’s construction of the impugned part is incorrect. Here the company contends that, upon a correct construction of it, it is not in unreasonable restraint of trade.
(C) The hypothesis in Issue (C) is that, as in Issue (A), the employee’s construction of the impugned part is correct; but that, contrary to the company’s contention in Issue (A), it does fall within the doctrine. Here the company contends that, although it is in unreasonable restraint of trade, the impugned part should be severed and removed from the remainder of the covenant, which would therefore survive so as to prohibit the employee’s entry into the proposed employment.
One can argue that Issue (B) is logically anterior to Issue (A). But, since Issue (A) purports to test the very boundaries of the doctrine, a balance of convenience favours consideration of it first.
The Facts
5.
Ms Tillman,
the respondent, had previously been employed by J P Morgan
as European Managing Director. The company considered that she would be ideally
placed in the financial services practice area of its business. It employed her
as a consultant, with effect from 5 January 2004, pursuant to the terms of an
employment agreement dated 10 December 2003. It agreed to pay her a salary of
£120,000 pa and, at the end of the first year, a bonus of £100,000 provided
that she then remained in its employment. Mann J, at first instance, observed
that the company regarded Ms
Tillman
as “a bit special” and that it expected to
promote her. It duly promoted her to be a principal in 2006 and to be a partner
in 2009. A condition of her becoming a partner was that she should hold shares
in the Swiss holding company; and she began to do so. In 2012 she became joint
global head of the company’s financial services practice area. The agreement
made in 2003 was never replaced in order to reflect her promotions although no
doubt a few of its terms, in particular relating to her remuneration, then
changed. In any event, however, resolution of the issues raised by the appeal
requires the court to address the terms of the original agreement.
6.
Clause 13 of the agreement was entitled “COVENANTS” and it provided for
five restraints upon the activities of Ms Tillman
following the end of her
employment, all limited to the six months which would immediately follow it. By
the first, in clause 13.1, she covenanted not to endeavour to entice away from
the company any of its employees in specified senior positions.
“You [Ms Tillman]
shall not
without the prior written consent of the company directly or indirectly, either
alone or jointly with or on behalf of any third party and whether as principal,
manager, employee, contractor, consultant, agent or otherwise howsoever …”
By the first of the other four restraints, set out in
clause 13.2.1, Ms Tillman
covenanted not to solicit the custom of, nor to deal
with, specified suppliers of services to the company. By the second, set out in
clause 13.2.2, she covenanted not to seek to interfere with supplies to the
company. By the fourth, set out in clause 13.2.4, she covenanted not to use any
name likely to be confused with any name recently used by the company.
8.
The third of the restraints in clause 13.2, set out in clause 13.2.3, is
central to all the issues in the appeal. There Ms Tillman
covenanted that she
would not
“directly or indirectly engage or be concerned or interested in any business carried on in competition with any of the businesses of the Company or any Group Company which were carried on at the Termination Date or during the period of 12 months prior to that date and with which you were materially concerned during such period.”
I will refer to this as “the non-competition covenant”.
9.
By clause 13.3, Ms Tillman
acknowledged that the provisions of clause 13
were fair, reasonable and necessary to protect the goodwill and interests of
the company. Clause 13.4 provided:
“If any of the restrictions or obligations contained in this clause 13 is held not to be valid as going beyond what is reasonable for the protection of the goodwill and interest of the Company … but would be valid if part of the wording were deleted, then such restriction or obligation shall apply with such modifications as may be necessary to make it enforceable.”
10.
As I will explain, the question raised in Issue (B) relates to whether
the word “interested” in clause 13.2.3 purports to prohibit Ms Tillman
from
holding any shares in a company conducting business in competition with such
businesses there specified as were conducted within the company’s group. To
that question an earlier clause of the agreement, casting a restraint upon her
during the period of her employment, is arguably relevant:
“4.5. You shall not, during the course of your employment, directly or indirectly, hold or have any interest in, any shares or other securities in any company whose business is carried on in competition with any business of the Company …, except that you may hold or have an interest in, for investment only, shares or other securities in a publicly quoted company of up to a maximum of 5% of the total equity in issue of that company.”
11.
On 30 January 2017 Ms Tillman’s
employment by the company came to an
end. Shortly thereafter she informed it that she intended to start work, on (as
she later added) 1 May 2017, as an employee of a firm which was in competition
with the company. She made clear that she intended fully to comply with all her
covenants in the agreement apart from that in clause 13.2.3. She conceded that,
by its terms, this last clause prevented her entry into the proposed employment
but alleged that it was in unreasonable restraint of trade and therefore void.
12.
On 10 April 2017 the company issued proceedings in which it applied for
an interim injunction to restrain Ms Tillman’s
entry into the proposed
employment. On the undertaking of the company to compensate her in damages if
the court were later to hold it not to be entitled to the injunction, she
undertook not to enter into the proposed employment until the court had
determined the application.
13.
The lower courts were impressively accommodating to the fact that the
issue related to a covenant which on any view had no effect beyond 30 July
2017. On 15 and 16 May 2017 Mann J heard the company’s application and on 23
May he delivered a substantial judgment in which he granted the injunction:
[2017] EWHC 1278 (Ch), [2017] IRLR 828. On 11 July the Court of Appeal heard Ms
Tillman’s
expedited appeal and on 21 July, by a judgment delivered by Longmore
LJ with which Patten and Sales LJJ agreed, it upheld it, set aside the
injunction and dismissed the company’s claim: [2017] EWCA Civ 1054, [2018] ICR 574. It is against the Court of Appeal’s order that the company brings the
present appeal.
15.
By her Defence, Ms Tillman
alleged that the non-competition covenant
exceeded the company’s need to protect its legitimate interests, and was
therefore void, for no less than five different reasons. But, by the time of
the hearing before Mann J, the substantial focus was on one argument alone. It
was that the effect of the part of the non-competition covenant not to be
“interested” in any of the competing businesses there specified was
unreasonably to prohibit her from holding even a minority shareholding in such
a business. She did not allege that she aspired to hold any shares in the
business which proposed to employ her or in any other of the competing
businesses there specified; but such was agreed to be irrelevant. The company’s
response to her argument was
(a) to dispute that, on its proper construction, the covenant prohibited her from holding even a minority shareholding in any of the competing businesses there specified; and
(b) to concede that, if, contrary to (a), the covenant did prohibit her from doing so, the whole of it was in unreasonable restraint of trade but to contend that a word or words (which the judge took to be the words “or interested”) should be severed and removed from the remainder of the clause, with the result that she would remain prohibited from entering into the proposed employment.
16.
Mann J upheld the company’s response at (a) above. He so construed the
word “interested” in the non-competition covenant as not to prohibit Ms Tillman
from holding shares in any of the competing businesses there specified. He
therefore had no need to address what he took to be the company’s alternative
contention that, together of course with the word “or”, the word should be
severed and removed from the remainder of the clause; he added however that,
although it had not been developed at any length, he did not find that
contention appealing.
17.
In upholding Ms Tillman’s
appeal, the Court of Appeal rejected the
construction placed by Mann J upon the word “interested” in the non-competition
covenant. It held that its effect would be to prohibit Ms
Tillman
from holding
even a minority shareholding in any of the competing businesses there specified
and that, as such, the covenant was in unreasonable restraint of trade; and it
refused to sever the word from the remainder of the clause so as to save the
remainder of the prohibition.
Issue (A): The Doctrine
18.
The hypothesis here is that Ms Tillman
is correct to construe the word
“interested” in the non-competition covenant as purporting to prohibit her from
holding any shares, however small a proportion of those issued, in a company
conducting business in competition with such of the businesses of the group as
are there specified. On that hypothesis the company concedes that, if the
doctrine applied to it, the prohibition reflected in that word, in particular
by excluding the sort of minor shareholding which was permitted to Ms
Tillman
during her employment, would exceed any necessary protection of its interests;
that it would therefore be in unreasonable restraint of trade; and that the
word would accordingly need to be severed and removed from the remainder in
order to justify the injunction sought. But the company contends that the
doctrine does not apply at all to a prohibition against holding shares. Not
every post-employment restriction agreed in a contract of employment will, says
the company, restrain trade. It seeks to make its point by reference to an extreme
example: what if (it asks) Ms
Tillman
had there agreed not to play mah-jong for
six months following the end of her employment?
19. The company did not raise Issue (A) in either of the courts below. Wrongly, as I will suggest, it considered that the doctrine of precedent would have obliged both of them to reject its contention which the issue reflects. The company seems to have had in mind in particular the decision of the Court of Appeal in Scully UK Ltd v Lee [1998] IRLR 259. An employee had covenanted that throughout the year following termination he would not engage in or be “otherwise interested in, whether as a shareholder … employee or … in any other capacity” any business, which was defined in terms not limited to the employer’s competitors. The trial judge held that the prohibition against shareholding on the part of the employee was too wide because it would catch even a small holding but that it should be severed and removed and that the remainder should be enforced against him. The Court of Appeal took no issue with the judge’s objection to the prohibition against shareholding but upheld the employee’s appeal on the basis that there were other unreasonable features of the covenant incapable of severance.
24. But in the 17th century the absolute nature of the right of the ex-employee or vendor of a business to work or trade elsewhere irrespective of his covenant began to be tempered. For paradoxically the doctrine against restraint of trade was positively inhibiting trade. In Nordenfelt v The Maxim Nordenfelt Guns and Ammunition Co Ltd [1894] AC 535, 564, Lord Macnaghten explained:
“… it was found that a rule so rigid and far-reaching must seriously interfere with transactions of every-day occurrence. Traders could hardly venture to let their shops out of their own hands; the purchaser of a business was at the mercy of the seller; every apprentice was a possible rival. So the rule was relaxed.”
The law came to recognise that the employer or the purchaser of a business had legitimate interests which might justify his placing limited restrictions on his employee or vendor.
(a) at p 192 that all restraints of trade were presumed to be bad but that the presumption was rebuttable;
(b) at p 193 that Judge Hull’s vehemence towards them had been excusable but not his manner of expressing it;
(c) at p 191 that a restraint of trade throughout England would always be bad (“for what does it signify to a tradesman in London what another does at Newcastle?”); but
(d) at p 197 that this baker’s bond, limited to Holborn and to the five years of the assignment, was reasonable and should be enforced.
Thus was the concept of reasonableness authoritatively grafted on to the doctrine by way of modification of it.
29. The outer reaches of the doctrine were, however, more fully explored, albeit with obvious difficulty, by the appellate committee in Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd [1968] AC 269. The garage company had entered into “solus” agreements with Esso to sell petrol bought only from Esso at two of its filling-stations and to do so at one of them for in effect five years and at the other for 21 years. The committee held that, on balance, both contracts fell within the doctrine and that, while the agreement for the shorter period was reasonable and enforceable against the garage, the other was unreasonable and unenforceable. Lord Reid noted at p 294 that a contract under which a person agreed to work exclusively for another fell outside the doctrine although it detracted from his freedom to work as he pleased; and at p 298 that a restrictive covenant upon land which prohibited its use for trading fell outside the doctrine because the purchaser of the land who became subject to it was not surrendering any freedom to trade there which he had previously enjoyed. Lord Pearce observed at p 325 that, for the same reason, a contract under which a publican took a lease from a brewer of a tied public house fell outside the doctrine; but that the garage company, by contrast, already ran the filling-stations when it accepted Esso’s restrictions. He added at p 328 that it was “the sterilising of a man’s capacity for work and not its absorption that underlay the objection to restraint of trade”; and he cited Warner Brothers Pictures, Inc v Nelson [1937] 1 KB 209, in which the contract by which Miss Bette Davis had agreed not to work otherwise than for the claimant for one year was enforced against her. Lord Wilberforce, at pp 333 to 335, favoured a pragmatic analysis under which restrictive covenants on land and tied public houses, having long been accepted to fall outside the doctrine, must for that reason be taken to have satisfied the demands of public policy on which the doctrine rested.
30. In my view the resolution of Issue (A) does not require any closer study of the boundaries of the doctrine. For the contract in the present case is of the classic type between employer and employee and, as is agreed, it does provide for a restraint of trade which falls within the doctrine and which is therefore void unless reasonable. The only question under Issue (A) is whether an assumed prohibition against holding shares forms part of the restraint. In this regard assistance is to be derived from the decision of the Court of Appeal in Proactive Sports Management Ltd v Rooney [2011] EWCA Civ 1444, [2012] IRLR 241. Wayne Rooney set up a company to which he assigned his image rights, in other words his rights to exploit his image by, for example, his indorsement of sports products and by other forms of promotion and sponsorship. His company contracted with the claimant to act as its agent in negotiating contracts for the exploitation of his image. His company breached the contract and, when sued by the claimant, it contended that the contract fell within the doctrine. The claimant disputed that it did so but accepted the trial judge’s conclusion that, if it did so, its terms were in unreasonable restraint of trade and unenforceable, albeit that it was entitled to a restitutionary remedy. At para 67 my lady, then Arden LJ, recorded the claimant’s submission that Wayne Rooney’s “trade” was as a footballer and that exploitation of his image rights formed no part of it. She held however at paras 92 and 93 that, although his business of exploiting his image rights was ancillary to, and indeed dependent on, his primary occupation of playing football, it fell within the doctrine. The other members of the court agreed. Gross LJ added at para 153 that Wayne Rooney’s activities on-field and, in exploiting his image rights, off-field were both part of a single trade; and at para 155 that the court should adopt a “broad, practical, rule of reason approach” to determining the applicability of the doctrine. It is an approach which this court should also adopt.
31.
In Issue (A) the company contends that the word “interested” in the
non-competition covenant falls outside the doctrine but concedes that the
remainder of the covenant falls within it. It is a curious proposition, namely
that the restraints provided in the rest of the covenant are valid only if
reasonable but that the restraint provided by that word is valid although
unreasonable. The company cites no authority in which a particular word in a
covenant which substantially falls within the doctrine has been held to fall
outside it. The covenant was cast in terms which, no doubt on advice, the
company considered that it could justify as reasonable for the purposes of the
doctrine; and among these terms was one which, for the purposes of Issue (A),
we are to construe as prohibiting Ms Tillman
from holding any shares in the
specified businesses.
32.
By clause 13.3 Ms Tillman
acknowledged “that the provisions of this
clause 13 are fair and reasonable”. The acknowledgement is hard to explain
unless the law required them - all of them - to be fair and reasonable. A
similar conclusion is to be derived, even more clearly, from clause 13.4, set
out in para 9 above. It provided that, were any restriction in clause 13 to be
held invalid as exceeding what was reasonable for the protection of the
company’s interest, it should be severed and the balance of the restriction
should remain enforceable. Subclause (4) represents a clear acknowledgement
that all the restraints in subclauses (1) and (2) fall within the doctrine.
33.
Nor is it in any way surprising that, in seeking to protect itself
against competing activity on the part of Ms Tillman
in the immediate aftermath
of her employment, the company should have aspired to prohibit her from holding
shares in the potentially competitive businesses specified in the non-competition
covenant. Any controlling shareholding on her part would, by definition, enable
her to direct the competitor’s operations. But even a minority shareholding,
say a 25% shareholding in a company started up with three others, would enable
her to influence its operations. And, even more obviously, the employment of a
top executive such as Ms
Tillman
is frequently subject to conditions that she
should hold shares in her employer or be remunerated partly in its shares or in
options to purchase them. Indeed, as explained in para 5 above, it was a
condition of her becoming a partner in the company in 2009 that she should hold
shares in the holding company. In substance as well as in form the restraint on
shareholding is part of the restraint on Ms
Tillman’s
ability to work in the
immediate aftermath of her employment.
34.
The proper determination of Issue (A) is that, on the assumption that
the word “interested” purports to restrain Ms Tillman
from holding shares in
the specified businesses, it falls within the doctrine.
Issue (B): Construction
35.
The company’s argument here is that, when properly construed, the word
“interested” in the non-competition covenant does not prohibit Ms Tillman
from
holding shares in the businesses there specified; and that accordingly in this
respect Mann J was right and the Court of Appeal was wrong.
36.
The company concedes that in some contexts a person holding shares in a
company will properly be described as being “interested” in it. But it
contends, uncontroversially, that the meaning of the word is informed by its
context in the agreement as a whole: Wood v Capita Insurance Services Ltd
[2017] UKSC 24, [2017] AC 1173, para 10. It argues that the word “interested”,
when considered in the context of its agreement with Ms Tillman
as a whole,
does not cover a shareholding; and that in particular it fails to cover a
shareholding once the validity principle, as explained below, has been applied
so as to identify its meaning.
37.
One might expect the company to have aspired, and reasonably to have
aspired, to prohibit Ms Tillman
from, for example, having a controlling
interest as a shareholder in a competing company even if she was not working in
it. But, in relation to this issue, the company cannot have it both ways: it cannot
sensibly argue that the word “interested” covers a large shareholding but not a
small shareholding. It is all or nothing. The company contends for nothing.
“… the court is at liberty, if the considerations on both sides seem evenly balanced, to lean towards that which may effectuate rather than frustrate the settlor’s intentions … I by no means hold that the court may take this course by flying in the teeth of the provisions of the deed, so that the weaker view may prevail because it is likely to have an effectual result, but where the terms of the deed produced a balance so even as the present I am of opinion that the doctrine may be called in aid.” (italics supplied)
“Where two interpretations of an instrument are equally plausible, upon one of which the instrument is valid, and upon the other of which it is invalid, the court should lean towards that interpretation which validates the instrument.” (italics supplied)
41. Others, however, have taken a wider view of the circumstances in which the principle is engaged. In the text of section 16 Sir Kim quotes an observation made by my Lady, then Arden LJ, in Anglo Continental Educational Group (GB) Ltd v Capital Homes (Southern) Ltd [2009] EWCA Civ 218, [2009] CP Rep 30, para 13, that “if the agreement is susceptible of an interpretation which will make it enforceable and effective, the court will prefer that interpretation to any interpretation which would result in its being void” (italics supplied). And in TFS Derivatives Ltd v Morgan [2004] EWHC 3181 (QB), [2005] IRLR 246, Cox J suggested at para 43 that the principle applied if there was an element of ambiguity about the meaning of a covenant. It was her approach which, in the present case, Mann J adopted at paras 32 and 43.
“It is possible that the same approach might be adopted where the scales are tilted only slightly to one side or the other; but plainly it cannot apply where, apart from the effect of the rule against perpetuities or some other sources of invalidity, the court reaches the conclusion that one construction is clearly preferable to the other … the right view may well be that, before the doctrine can apply, the court must be left in a state of real and persistent uncertainty of mind.”
In Great Estates Group Ltd v Digby [2011] EWCA Civ 1120, [2012] 2 All ER (Comm) 361, Toulson LJ explained that, if the contract was “capable” of being read in two ways, the meaning which would result in validity might be upheld “even if it is the less natural construction”. And in Tindall Cobham 1 Ltd v Adda Hotels [2014] EWCA Civ 1215, [2015] 1 P & CR 5, Patten LJ, with whom the other members of the court agreed, observed at para 32 that the search was for a “realistic” alternative construction which might engage the principle. In my view Megarry J, Toulson LJ and Patten LJ were identifying the point at which the principle is engaged in much the same place. Let us work with Patten LJ’s adjective: let us require the alternative construction to be realistic.
44.
The first is the content of clause 4.5, set out in para 10 above. For
the duration of her employment, it expressly prohibited Ms Tillman
from holding
shares in specified businesses except for a holding of up to 5% of issued
shares in a publicly quoted company. So the company argues that, when in their
agreement it and Ms
Tillman
wanted to address her holding of shares, they did
so expressly; and that it would be anomalous that, having acknowledged her
freedom to hold a limited number and type of shares in specified businesses
during her employment, they should have agreed that she should be prohibited
from doing so in the immediate aftermath of her employment by their use of the
word “interested”, which of course stands unqualified in the non-competition
covenant. This argument found favour with Mann J, who held that it would be
right to adopt a construction which did not give rise to this anomaly.
45.
The second feature relates to the introductory words of clause 13.2, set
out in para 7 above. There the company and Ms Tillman
set out the different
types of status in which she was to be subject to the restraints which
followed, namely “as principal, manager, employee, contractor, consultant,
agent or otherwise howsoever”. Notwithstanding (says the company) the catch-all
words at the end, the significance of the list is that it could so easily have
included the word “shareholder” if the restraint in the non-competition
covenant had been intended to prohibit Ms
Tillman
from holding shares.
47. In relation to the first and third features the company claims to derive valuable support from the decision of Foskett J in Tradition Financial Services Ltd v Gamberoni [2017] EWHC 768 (QB), [2017] IRLR 698. There the post-employment restrictions on the employee were in somewhat similar terms to those in the present case and included a covenant on his part not for six months to “undertake, carry on or be employed, engaged or interested in any capacity in … any business activity” of a specified character. Among the employee’s various contentions that the restrictions were in unreasonable restraint of trade was a contention, identical to that reflected in Issue (B), that the word “interested” disabled him from holding even a small quantity of shares in companies of the specified character.
“it cannot sensibly have been intended that [the employee] should be subject to a more onerous restriction as to shareholdings after his employment had terminated than whilst still an employee, particularly if it is suggested that the more onerous obligation is created by a clause that makes no express reference to shareholdings at all. In other words, whatever ‘interested in any capacity ... in any business activity’ means, it cannot be a reference to a shareholding.”
Indeed, as Foskett J explained in para 128, the employer also relied on the fact that the covenant prohibited the employee from being interested in a “business activity” and it argued that passive investment by way of a minority shareholding was not a “business activity”. The judge explained that he gave less weight to this argument but that, when added to the employer’s primary argument, it supported his conclusion that the word “interested” did not cover a shareholding.
50. In Smith v Hancock [1894] 2 Ch 377 the defendant sold his grocery business near Stoke-on-Trent to the claimant and agreed not for the following ten years to carry on or be “in any wise interested” in any similar business operating within five miles of it. The defendant’s wife set up a grocery within those parameters. In the Court of Appeal Lindley LJ held at p 386 that the word “interested” meant a proprietary or pecuniary interest and that it did not extend to the “indirect interest which every man has in the happiness and welfare of his wife”. He and A L Smith LJ both reluctantly held that, on the judge’s findings, the defendant was not “interested” in his wife’s business. In Gophir Diamond Co v Wood [1902] 1 Ch 950 the ex-employee of a jewellery shop in Regent Street had become a salaried employee of a rival shop in the same street. Swinfen Eady J noted at p 952 that his covenant had only been not to be “interested” in a similar business; and the judge added, intriguingly for present purposes, that in that regard the covenant had materially departed from the common form in the then current edition of Palmer’s Company Precedents that the covenantor should not be “engaged or concerned or interested” in a similar business. He held that, since his remuneration had in no way depended on the profits of the rival shop, the ex-employee was not in breach of his covenant.
51. It does seem that the phrase “engaged or concerned or interested”, adopted in the non-competition covenant in the present case, has been included in standard precedents for the drafting of non-competition covenants throughout the last century. It has popped up frequently in the reported cases, including in CEF Holdings Ltd v Mundey [2012] EWHC 1524 (QB), [2012] IRLR 912. Silber J there held that for various reasons the non-competition covenant was in unreasonable restraint of trade. One of his reasons, set out in para 65(i), was that “[i]ts width is so great that it prevents any employees from having ‘any interest’ in [a competing] company, such as even owning one share in a publicly-quoted company”.
53.
The proper determination of Issue (B) is that the natural construction
of the word “interested”, consistent with long-standing authority, is that it
covers a shareholding; that the three features of the present agreement on
which the company relies are insufficient to require a different construction
to be placed on the word, when found in clause 13.2.3; that the company fails
to establish even a realistic alternative construction of it which would engage
the validation principle; that the word “interested” in the non-competition
covenant in the present case therefore covers a shareholding, whether large or
small, and on that basis is, as is conceded, in unreasonable restraint of
trade; and that, unless it can be severed and removed from the rest of the
clause, the Court of Appeal was right to set aside the injunction granted
against Ms Tillman.
Issue (C): Severance
54. Where part of a contract is unenforceable, the enforceability of the remainder represents an issue which arises far more widely than in contracts of employment. In Carney v Herbert [1985] AC 301 the problem was that the security for payment of the price, for which a contract for the sale of shares had provided, was not only a guarantee but also mortgages which were statutorily illegal. The Privy Council indorsed a decision of the Supreme Court of New South Wales that the provision for mortgages could be severed and removed from the contract, with the result that the guarantee should be enforced. Lord Brightman, who delivered the judgment of the Board, observed at p 309 that tests for determining severability in certain types of case were not always applied satisfactorily in others. But then, with hesitation, he suggested at p 317
“that, as a general rule, where parties enter into a lawful contract … and there is an ancillary provision which is illegal but exists for the exclusive benefit of the plaintiff, the court may and probably will, if the justice of the case so requires, and there is no public policy objection, permit the plaintiff … to enforce the contract without the illegal provision.”
“that if a bond is given, with condition to do several things, and some are agreeable to law, and some against the common law; the bond shall be good as to the doing the things agreeable to law, and only void as to those that are against the law.”
57. This further conclusion was most vividly expressed in unlikely circumstances. In Mason v Provident Clothing and Supply Co Ltd [1913] AC 724 the employee had covenanted not to work for any of the employer’s competitors “within 25 miles of London”. The appellate committee held that the employer had failed to establish that the extension of the restraint to the area thus specified was reasonably necessary for its protection and concluded that it was therefore void. It is hard to see how on any view the offending words could have been severed; and, although the employer apparently argued in the alternative for severance, it must have done so briefly for there is no mention of it in the report of its counsel’s argument. At all events, at the end of his speech, with which no other member of the committee expressed agreement, Lord Moulton, at p 745, added the following:
“It was suggested in the argument that even if the covenant was, as a whole, too wide, the court might enforce restrictions which it might consider reasonable (even though they were not expressed in the covenant), provided they were within its ambit. My Lords, I do not doubt that the court may, and in some cases will, enforce a part of a covenant in restraint of trade, even though taken as a whole the covenant exceeds what is reasonable. But, in my opinion, that ought only to be done in cases where the part so enforceable is clearly severable, and even so only in cases where the excess is of trivial importance, or merely technical, and not a part of the main purport and substance of the clause. It would in my opinion be pessimi exempli if, when an employer had exacted a covenant deliberately framed in unreasonably wide terms, the Courts were to come to his assistance and, by applying their ingenuity and knowledge of the law, carve out of this void covenant the maximum of what he might validly have required. It must be remembered that the real sanction at the back of these covenants is the terror and expense of litigation, in which the servant is usually at a great disadvantage, in view of the longer purse of his master.”
58. These passing observations of Lord Moulton were to have an electric effect on the law.
59. Within six months of their publication Sargant J was seeking to explain part of them away. In SV Nevanas & Co v Walker and Foreman [1914] 1 Ch 413 an employer admitted that the second part of a post-employment covenant was void but contended that the first part was valid and, following severance, should be enforced. Sargant J held that the first part was also void and so dismissed the claim. He was however at pains to say that, had the first part been valid, the second part could have been severed and removed from it. He said at p 422 that he wished to
“clear the ground at once from a suggestion that, in view of certain remarks of Lord Moulton in the recent case of [Mason], this part of the covenant is invalidated, because the succeeding part of the covenant … is, admittedly, too wide. I do not think that those remarks were intended to be applicable to cases where the two parts of a covenant are expressed in such a way as to amount to a clear severance by the parties themselves, and as to be substantially equivalent to two separate covenants. No question of the kind was involved in the case before the House of Lords, and I think that Lord Moulton was not intending to deal with the numerous cases of high authority in which the good part of such a covenant was held to be enforceable, notwithstanding its collocation with a bad part …”
“Again I think that the application of the doctrine of severability of the terms of a contract in restraint of trade has proved mischievous. It seems to me to be in accordance both with principle and justice that if a man seeks to restrain another from exercising his lawful calling to an extent which the law, even as it now stands, deems unreasonable, the contract by which he does so, whether grammatically severable or not, should be held to be void in toto. To hold otherwise seems to me to expose the covenantor to the almost inevitable risk of litigation which in nine cases out of ten he is very ill able to afford …”
(a) stated at p 581 that recent decisions of the House of Lords had wrought a fundamental change in the approach of the law to post-employment restrictions, which were peculiarly susceptible to current views of public policy;
(b) observed there that the principle of freedom of contract still remained operative in contracts between the vendor and purchaser of a business;
(c) suggested at p 593 that severance of a covenant was available only where it was “not really a single covenant but [was] in effect a combination of several distinct covenants”;
(d) held there that the list of prohibited trades was in effect contained in one covenant because (so he reasoned) the claimant himself had only one trade and not several trades;
(e) noted there that, even if he was wrong to regard the list of trades as contained in one covenant, the court should nevertheless decline to sever it;
(f) quoted with approval at pp 594-595 the observations first of Lord Moulton that severance should be confined to the trivial and the technical and then of Neville J in the Goldsoll case that a partly unreasonable restraint should make it entirely void, even if grammatically severable; and
(g) concluded at p 595 that severance should not generally be allowed.
“altogether more satisfactory than the more traditional and question-begging statement of the test: whether there is one obligation or more than one.”
The complicating feature was the second proviso, which identified an alternative route to entitlement to post-employment commission, namely that on termination the agent should have attained the age of 65. This second proviso was not even arguably in restraint of trade but, if the first proviso were alone to be removed, the second would survive to preclude payment of the commission to the claimant. In the event the deputy judge regarded both provisos as linked and removed them both.
72. In the Marshall case the Court of Appeal, [1997] 1 WLR 1527, dismissed the company’s appeal against the deputy judge’s decision. Millett LJ observed at p 1531:
“Although the question is described as one of severance it is important to bear in mind that we are not concerned to decide how much of an offending restriction should be struck down. In such a case the question is to what extent can the party who imposed the restriction enforce those parts of it which are not in unreasonable restraint of trade. We are concerned with a very different question, namely, whether the party who has been freed from an invalid restraint of trade can enforce the remainder of the contract without it.”
As Millett LJ observed, it was the employee (or agent) who was seeking severance in the Sadler and Marshall cases; and therefore there was no relevance in the public policy reasons for restricting severance when sought by overbearing employers who had required their employees to subscribe to extravagant restraints.
73. In Beckett Investment Management Group Ltd v Hall [2007] EWCA Civ 613, [2007] ICR 1539, the defendants, who had been employed by the claimant as independent financial advisers, covenanted that, for the year immediately following termination of their employment, they would not deal with any of the claimant’s clients with whom they had dealt in the preceding year; and that, if they had then dealt with agents of its clients, the agents should be deemed to be its clients for this purpose. The Court of Appeal held that the deeming of agents as clients was unreasonable; that the covenant should be severed and the deeming provision removed; and that the remainder of the restraint should be enforced against the defendants. In a judgment with which Sir Anthony Clarke MR and Carnwath LJ agreed, Maurice Kay LJ
(a) observed at para 34 that “[a]t one stage” there had been an assumption in the authorities, such as the Mason case, that courts should be reluctant to sever a covenant in restraint of trade in favour of an employer;
(b) declared at paras 35-37 that the appropriate starting-point was what Lord Sterndale and Younger LJ had said in the Attwood case;
(c) noted at para 38 that in the T Lucas case, cited in para 69 above, the court had authoritatively rejected the second prerequisite of severance which Younger LJ had identified;
(d) addressed at para 40 the three criteria identified in the Sadler case and noted that it had been applied both in the Marshall case and in the TFS Derivatives case cited in para 41 above;
(e) rejected at paras 41 and 42 the suggestion that those three criteria applied only to claims by employees to post-employment commission and likened the third criterion to the reference in the T Lucas case to the availability of severance if achievable “without altering the nature of the contract”;
(f) suggested at para 43 that “the threefold test … is a useful way of approaching these cases and should be adopted”; and
(g) concluded at para 44 that application of those three criteria rendered the deeming provision removable.
75. For example, in East England Schools CIC v Palmer [2013] EWHC 4138 (QB), [2014] IRLR 191, the claimant’s business was that of an agency which sought to find teachers for schools with teaching vacancies. Among the post-employment restraints included in the first defendant’s contract with the claimant was a provision that, whether as shareholder or otherwise, she should not be “concerned with the supply … of Services” to any school or teacher with whom she had had recent dealings. Mr Richard Salter QC, sitting as a deputy judge of the Queen’s Bench Division held at para 77 that this provision, which specifically extended to her status as a shareholder, was unreasonably wide because it would even prevent her from having a minority shareholding in a competing company which supplied such services. But, by reference to the three criteria and the additional criterion, he proceeded to declare that the provision should be severed and removed from the remainder of the restraints, which were enforceable. He had therefore asked himself at para 86 whether severance would change the underlying character of the contract. He had not asked himself whether the unreasonable provision in effect formed a separate covenant.
77. In Freshasia Foods Ltd v Lu [2018] EWHC 3644 (Ch) Mr Daniel Alexander QC, sitting as a deputy judge of the Chancery Division, recently granted an interlocutory injunction by way of enforcement of parts of an employee’s non-solicitation post-employment covenant. Treating the inquiry as purely interlocutory, he made only provisional determinations. These were that three aspects of the covenant were unreasonably wide but that, following severance, they should be removed from the remainder. Prompted in part, so it would seem, by the Court of Appeal’s decision against which this present appeal is brought, he conducted a wide-ranging survey of the law of severance of post-employment restraints in which he made a number of valuable observations.
78. Even more recently, following a full hearing, Arnold J delivered a judgment in the Freshasia Foods case, [2019] EWHC 638 (Ch), in which he ruled at para 144 that the employer had failed to establish legitimate interests which required the protection of the covenant. He therefore declined to continue the injunction; and, apart from adverting to the difficulty of reconciling the decision in the Beckett case with the decision under present appeal, he explained at para 148 that he had no need to address the issues relating to severance. This final disposal of the application does not however detract from the value of the deputy judge’s observations. In particular he
(a) observed that the deeming provision in the Beckett case could not be regarded as a separate covenant but had nevertheless been severed (para 37);
(b) inferred from the Beckett case that the historical reluctance to sever, exemplified in the Mason and Attwood cases, was something of a relic (para 41);
(c) recognised on the one hand that an employer had legitimate interests worthy of protection in the public interest; that they might easily be prejudiced when an important employee left; and that they should not be frustrated by too narrow an approach to severability (para 48);
(d) recognised on the other hand that Lord Moulton’s concerns in the Mason case remained valid; and that the law should not allow an employer first to extract an unreasonably wide restraining covenant, inhibiting the employee from leaving to work elsewhere and even from threatening to do so in order to obtain fairer terms from him, and then, if challenged in court, too easily to secure its removal and the enforcement of the remainder (paras 49 and 50);
(e) questioned whether Lord Moulton’s concerns were best addressed by a rule which denies severance of a term within a single covenant, even if insignificant (paras 51 and 52); and
(f) concluded that it might be preferable to address substance rather than form and thus to permit the removal of relatively minor terms if it would not materially change the nature of the contract (para 53).
80.
Now, at last, it becomes appropriate to address the reasoning of the
Court of Appeal in refusing to sever the words “or interested” from the
remainder of Ms Tillman’s
non-competition covenant. In paras 29 and 30 Longmore
LJ cited the Attwood case for the proposition that parts of a single
covenant could not be severed; and he observed that, in that it prevented Ms
Tillman
from engaging or being concerned or interested in a competing business
in any one of several capacities, the non-competition covenant had to be read
as a whole and could not be severed. In para 33 he rejected the company’s
submission that the three criteria approved in the Beckett case had
replaced the requirement for separate covenants. He explained that:
“The requirement is reflected in the third of the three tests … because it must always be doubtful whether parts of a single covenant can be deleted without the contract becoming ‘not the sort of contract that the parties entered into at all’.”
82.
High-ranking employees can do particular damage to the legitimate
interests of their employers following termination of their employment; and it
may be that, when they enter into their post-employment covenants, they are
able to negotiate with their employers on nearly an equal footing. As Denning
LJ said in M & S Drapers v Reynolds [1957] 1 WLR 9, 19, “A managing
director can look after himself”; and so, arguably, could Ms Tillman.
But then
he added: “A traveller is not so well placed to do so. The law must protect
him”. It is clearly common practice for an employer to present a prospective
employee with a substantial written contract, many terms of which, including
those imposing post-employment restraints, are derived from books of precedent.
It is as valid in 2019 as it was in 1913 to infer that most prospective
employees will not be able, even if minded, to decline to accept such terms,
still less, following the end of their employment, to defend a claim that they
are in breach of them. The courts must continue to adopt a cautious approach to
the severance of post-employment restraints.
“… the courts will sever in a proper case where the severance can be performed by a blue pencil but not otherwise. To give an illustration, a covenant ‘not to carry on business in Birmingham or within 100 miles’ may be severed so as to reduce the area to Birmingham, but a covenant ‘not to carry on business within 100 miles of Birmingham’ will not be severed so as to read ‘will not carry on business in Birmingham’. The distinction seems artificial, but is I think settled.”
The distinction is indeed settled. It is inherent in the word “severance” itself, which means cutting things up and does not extend to adding things in. The “blue pencil” criterion is a significant brake on application of the principle; and, although it can work arbitrarily, it is in my view an appropriate brake on the ability of employers to secure severance of an unreasonable restraint customarily devised by themselves. Were it ever to be thought appropriate to confer on the court a power to rewrite a restraint so as to make it reasonable, it would surely have to be achieved by legislation along the lines of that in New Zealand which has been noticed in para 79 above.
88.
Application of the severance principle to Ms Tillman’s
restraint
covenants now becomes straightforward. First, the words “or interested” are
capable of being removed from the non-competition covenant without the need to
add to or modify the wording of the remainder. And, second, removal of the
prohibition against her being “interested” would not generate any major change
in the overall effect of the restraints. So those words should be severed and
removed.
89.
Another of the Court of Appeal’s objections to removing the words “or
interested” from Ms Tillman’s
non-competition covenant was that removal would
be idle in that the remainder would continue unlawfully to oblige her not to
hold any shares in companies of the character there specified. For the covenant
would then become that she would not “directly or indirectly engage or be
concerned … in any business”; and, so the Court of Appeal considered, any
holding of shares in a company would mean that she was “indirectly … concerned”
in it.
90.
The company expressly accepts, at any rate in this court, that, if
necessary, it would be content for the words “or be concerned” also to be
removed from Ms Tillman’s
covenant; and my view is that, had the Court of
Appeal’s construction of the word “concerned” been correct, it would, by
reference to the criteria identified above, have been appropriate also to
remove them. But are you, as no more than a shareholder in a company,
“concerned” in it? In Ashcourt Rowan Financial Planning Ltd v Hall
[2013] EWHC 1185 (QB), [2013] IRLR 637, the defendant’s non-competition
covenant prohibited him from being “engaged or concerned in any business”. It
did not include the words “or interested”. Andrew Smith J concluded at para 39,
that the word “concerned” denoted working for the business or having some other
active involvement in it and so did not extend to a proprietary interest, such
as a shareholding, in it. But a conclusion which there was clearly borderline
becomes stronger in the present case. For Ms
Tillman covenanted that she would
not “engage or be concerned or interested …”; and there was no specific
reference to her doing so as a shareholder, as there was in the East England
Schools case. Conventional principles of construction require value to be
attributed, if possible, to each word of an agreement. But, were the word
“concerned” to be construed so as to cover passive interest in a business such
as that enjoyed by a shareholder, what value would be left to be attributed to
the word “interested”? Nor is such an exercise in construing the word
“concerned” undermined by the fact that the words “or interested” are to be
severed and removed. The meaning which the words of an agreement carry at its
inception is not changed by later events. In British Reinforced Concrete
Engineering Co Ltd v Schelff [1921] 2 Ch 563, 573, Younger LJ (no less)
said:
“Now the effect of severing by striking out with a blue pencil the obnoxious part of a covenant is not to alter or affect the construction of what is left. That must be construed as if the portion struck out still remained …”
Conclusion