||All England Reporter
|| All ER (D) 375 (Jun)
|| EWCA Civ 613
||Court of Appeal, Civil Division
Sir Anthony Clarke MR, Carnwath, and Maurice Kay LJJ
||Christopher Lundie (instructed by HBJ Gareley Waring LLP) for the claimants.
||Peter Oldham (instructed by Bradshaw Hollingsworth) for the defendants.
||28 June 2007
Restraint of trade by agreement - Employer and employee - Post-termination clause - Non-dealing clause - First and second defendants leaving claimants and setting up new business - Whether breach of duty on part of defendants - Whether breach of non-dealing clause - Whether clause enforceable - Whether unenforceable part of clause could be severed from enforceable part.
Restraint of trade by agreement Employer and employee. Where the claimants brought proceedings against the defendants, their ex-employees for breach of a post-termination non-dealing covenant, the judge had adopted a too narrow construction in holding that it only provided to services provided by the employer, when in fact all the services had been provided by the employer's subsidiary, the second claimant, and the defendants, although strictly employed by the first claimant, had been based at the office of the second claimant. A contract which contained an unenforceable provision nevertheless remained effective after the removal or severance of that provision if the following conditions were satisfied: (a) the unenforceable provision was capable of being removed without the necessity of adding to or modifying the wording of what remained; (b) the remaining terms continued to be supported by adequate consideration; and (c) the removal of the unenforceable provision did not so change the character of the contract that it became not the sort of contract that the parties entered into at all.
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