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This question was recently considered by the Court of Appeal (CA). The case involved Prophet Plc who develop computer software. Mr Huggett was employed as UK sales manager. His contract contained various post-termination restrictions, including a 12 month non-compete clause. Mr Huggett left and started work at a competitor, following which Prophet sought an injunction.
However, the non-compete clause was defective because it only prevented Mr Huggett from selling Prophet's products so the High Court Judge added the words “or similar thereto” to the end of the covenant because he found that the original clause in the Contract did not reflect the intention of the parties. The Judge then found that with the additional words the covenant was enforceable and the Judge granted Prophet an injunction.
Mr Huggett appealed. The CA agreed that the original meaning of the clause gave Prophet no protection but held that the clause was not ambiguous; it was merely badly drafted, with a failure to consider if the restriction would achieve any practical benefit. In those circumstances, the CA held that the Judge was not entitled to re-write the clause and discharged the injunction.
Restrictive covenants are notoriously difficult to enforce and must be carefully thought through, with consideration given to the underlying intention and drafting of the clause to ensure that a Court will enforce them against an employee if it becomes necessary, and at the very least deter an employee from breaching them.
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Case update: Can a court re-write restrictive covenants