The Case

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.