Huws Gray Limited v Daniel Gentleman [2026] EWHC 1309 (Comm)

[2026] EWHC 1309 (Comm)Case No CC-2026-BRS-000004IN THE HIGH COURT OF JUSTICEVenue BRISTOL BUSINESS & PROPERTY COURTSCIRCUIT COMMERCIAL COURTVenue Bristol Civil & Family Justice Centre2 Redcliff StreetVenue Bristol BS1 6GRDate Wednesday 17 th June 2026
Before
HHJ RUSSEN KC(sitting as a judge of the High Court)
Between
HUWS GRAY LIMITEDClaimantDANIEL GENTLEMANDefendant
Douglas Leach (instructed by Blake Morgan LLP) for ClaimantDaniel Tatton Brown KC (instructed by Barass Whiting LLP) for DefendantHearing Hearing dates: 13 th, 14 th and 15 th May 2026Draft judgment circulated to the parties on 1 st June 2026
APPROVED JUDGMENTThis judgment was handed down remotely at 10.00am on Wednesday 17 th June 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

HHJ RUSSEN KC:

[1]This is my judgment following the expedited trial of the claim by which the Claimant (“HGL”) seeks to restrain the Defendant (“DG”) from breaching a 6 month post-termination covenant against competing (“the Covenant”) contained in DG’s contract of employment with HGL dated 16 October 2023 “(“the Contract”) and from misusing confidential information belonging to HGL.[2]DG’s employment with HGL ended on 23 December 2025. Because he was placed on one month’s garden leave with effect from 27 November 2026, and that was the first of the 6 months, the Covenant was due to expire on 27 May 2026, which was some two weeks after the start of the trial directed by the Order dated 25 February 2026 mentioned below. By the end of the trial it was obvious that no judgment on the continuation of the injunction under the Covenant, for the remaining 12 days of its duration, was likely be given before 27 May 2026 or that this was a case where it would be either wise or fair for me to announce (with the requisite confidence that the thoughts behind it were clearly processed, sound and therefore not at risk of later doubt by me) a decision about its enforceability with a promise of a written judgment to follow. Therefore, no judgment having been given in the meantime (the draft of this judgment was circulated on 1 June) under the language of that Order the injunctive relief under the Covenant continued until 27 May 2026 and then lapsed. This judgment therefore addresses whether HGL was entitled to hold DG to the Covenant and whether it is entitled to the continuation of the injunction restraining him from misusing confidential information which was also granted by the Order of 25 February 2026.[3]HGL carries on the business of a builders merchant. The business is nationwide and HGL has over 250 branches across England, Wales and Scotland. HGL has around 4,300 employees. The Amended Particulars of Claim (“APOC”) allege that HGL is the largest independent builders’ merchant in the UK, though DG’s Defence does not admit that.[4]Between 16 October 2023 and 23 December 2025 DG was employed by HGL as an Area Sales Manager. DG lives in Swindon. By the end of his employment with HGL, DG was responsible for customer relationships at HGL’s Swindon, Newbury (which replaced Malmesbury for which DG had been responsible until April 2025) and Cirencester branches. On 23 November 2025, DG gave HGL the contractual one month’s notice of termination of his employment required by the Contract. He was then placed on garden leave on 27 November.[5]On that date, 27 November 2025, HGL sent a letter to DG, inviting him counter-sign and return a copy, confirming he would comply with his post-termination restrictions in the Contract. That is because DG told Mr Chris Constable, a Regional Sales Manager at HGL and DG’s line manager throughout his employment, that he was leaving to take up employment with MKM Building Supplies Ltd (“MKM”) as an external sales representative of MKM’s Swindon branch.[6]MKM is also a builders merchant and a direct competitor of HGL, though it is smaller with some 3000 employees and has fewer branches than HGL. MKM’s registered office is in Hull where it operates a central office supporting branches across the country.[7]The APOC (dated 27 February 2026) referred to MKM’s existing branches at Wallingford, Gloucester and Cheltenham and HGL’s understanding that MKM would shortly be opening a branch in Swindon.[8]On 6 January 2026 DG started working for MKM. His employment contract with MKM was dated 21 November 2025 and because DG mistakenly thought he was required to give HGL 3 months’ notice not one month (as he explained in evidence) it refers to a commencement date of 23 February 2026. His job description is ‘External Sales Representative of our Swindon branch’. MKM’s Swindon branch opened on 2 March 2026.[9]On 6 and 14 January 2026, Mr Constable became aware (through other employees of HGL) that certain customers of HGL had reported being contacted by DG on behalf of MKM. By his Defence, DG denied he made contact with two such customers, identified in the APOC, in order to solicit custom for MKM.[10]HGL sent DG a letter of claim on 28 January 2026. That was followed by chasing emails from HGL to DG and MKM on 9 February and 16 February 2026. The latter sought undertakings by DG by 2pm on 18 February 2026.[11]MKM did respond by email at 12:48 on 18 February 2026, expressly without instructions from DG. HGL did not regard MKM’s proposals as satisfactory and issued an application for injunctive relief against DG on 18 February 2026. The application was heard by HHJ Matthews, sitting as a High Court judge, on 25 February 2026 who by his Order of that date granted an interim injunction and directed an expedited trial.[12]HHJ Matthews found there was a triable issue as to the enforceability of the Covenant and that the balance of convenience favoured making an interim order. The judge recognised the decision of Staughton LJ in Lansing Linde Ltd v Kerr [1991] 1 WLR 251, at p 258B–C; [1991] IRLR 80, at p 83, operated to modify the American Cyanamid principles in cases where the effect of granting interim relief would be to give a substantial part of any relief to which the claimant would be entitled at trial. In such a case, the court may assess the claimant’s likely prospects of success at trial. HHJ Matthews addressed that point by noting that the evidence MKM’s Swindon branch was not yet in operation, and would open the following month, and that a speedy trial could be listed for end of April. I was told that the reason for the trial in the event taking place some two weeks later was to accommodate DG’s counsel’s availability. On the assumption that a decision resolving the issue could be given by the trial judge at the end of April, one month before the Covenant ceased to bite in any event, the judge found there was “a substantial point to the litigation”. He therefore returned to the American Cyanamid test in concluding there was a triable issue as to its enforceability.[13]At the trial, HGL sought final injunctions against DG. It did not pursue its damages claim in respect of what the APOC said was anticipated loss by way of business being diverted to MKM, which might never be capable of proof, and the ongoing nature of which the suggested injunctive relief was aimed at curtailing.

HGL’s CASE

[14]HGL contends that D has breached the terms of the Contract by immediately taking up new employment with MKM, a direct competitor, in breach of post-termination restrictions contained in the Contract and by approaching key customers of HGL in early 2026. HGL says those approaches must have involved using HGL’s confidential information (whether remembered by him or not) and evinces a clear intention to commit further post-termination breaches of the Contract.[15]HGL also points to a message on DG’s LinkedIn account of 11 February 2026 by which he directed Jenine Connelly, a construction buyer at the firm EW Beard and one of his customers at HGL, to send requests for quotes to the email address to Damien Lockey of MKM while his own email address was being set up. HGL says DG should have complied with pre-action requests to delete the contact details of ‘Business Contacts’ (as defined) in accordance with clause 35 of the Contract but failed to do so.[16]HGL relies upon: i) the “non-compete” restriction in clause 33 of the Contract (the Covenant); ii) the “Confidentiality Obligation” at clause 19 of the Contract and/or implied contractual and/or equitable obligations; and iii) the “Contact Details” clause at clause 35 of the Contract.[17]In relation to the Covenant, HGL accepts that the 6-month restriction was reduced by the amount of time DG was on garden leave under clause 29 of the Contract. The period of the non-compete restriction is 6 months from 27 November 2025. At the trial, which took place on 13th to 15th May 2026, HGL sought to vindicate its claim to the injunctive relief based on the Covenant which was shortly to expire in any event. HGL also sought injunctive relief preventing DG’s use and disclosure of what HGL claimed to be confidential information for a period of 12 months.[18]In the APOC (and in Mr Leach’s skeleton argument) HGL set out the Covenant with some ‘blue pencilling’ suggested by HGL:
“ … Non-compete You undertake that during the period of your employment with the Company and for six (6) months from the termination of your employment with the Company (however that comes about) you will not without the prior written consent of the Company, engage or be concerned or interested, whether directly or indirectly, and whether as principal, partner, employee, adviser, agent, consultant or otherwise, in any trade or business that competes or is preparing to compete with any business carried on by the Company or any Group Company, including (but not limited to) builders merchants supplies or such other future projects or activities of the Company as the Company, acting reasonably, considers from time to time to be a material part of the Company’s or any Group Company’s business (“Competing Business”) where such Competing Business is located within 20 miles of the Company’s branch or branches for which you had responsibility in the six (6) months prior to the termination of your employment. You shall be free to engage in any business so far as your duties and work shall relate exclusively to work of a kind which is not related to any area in which the Company has developed Confidential Information, and in which you have not been involved during your employment by the Company.”

Non-compete

[19]The phrase “or interested” was blue pencilled by HGL by reference to the Supreme Court’s decision in Tillman v Egon Zehnder Ltd [2019] UKSC 32; [2020] AC 154. That case also concerned the phrase “be concerned or interested in” a competing business in the non-compete provision of the appellant’s contract of employment. The Supreme Court held that restriction (with the phrase “be interested in”) which would have prevented her from holding even a minority shareholding interest in a competitor, in unreasonable restraint of trade, could be severed and removed provided the employer could show that doing so will not generate any major change in the overall effect of the post-employment restraints.[20]The phrase “including … business” is blue pencilled by HGL as superfluous and uncertain.[21]The second paragraph of the Covenant has been labelled “the Carve-Out” for the purposes of these proceedings.[22]By its Reply (engaging with DG’s Defence that no positive case had been advanced in support of the enforceability of the Covenant) HGL said the Covenant constituted a reasonable restraint of DG which protected HGL’s legitimate business interests of confidential information and customer/trade connections. The territorial restriction over a 20-mile radius around each relevant branch is reasonably necessary to minimise the danger of DG winning over customers of HGL using those branches to MKM. The Reply said HGL’s customers using the three branches for which DG was responsible tended to be located within a radius of 20 miles away from the relevant branch; and noted that, until 15 March 2026, MKM’s website referred to MKM typically offering free “local delivery” within a 20-mile radius from one of its branches (this was changed to 10 miles on 16 or 17 March).

DG’s CASE

[23]DG’s Defence said the Covenant was in restraint of trade, and therefore unenforceable, and that HGL had made no attempt in the APOC to plead facts to establish otherwise. The Defence averred that HGL’s Branch Managers and Assistant Branch Managers had access to the same sales information as DG and would build as strong or even stronger customer relationships than an Area Sales Manager like DG. Shortly before the start of the trial a supplemental bundle was filed which showed, in relation to the terms of employment of other employees of HGL (all bar one pre-dating the Contract), that an Assistant Branch Manager was not subject to any post-termination, non-compete restriction and that the duration of other such restrictions for three Branch Managers, three Sales Development Managers, a Key Accounts Manager, four Regional Sales Managers and a Sales Director was in each case 3 months.[24]Mr Tatton Brown KC on behalf of DG submitted that the meaning and effect of the Covenant is such that it is plainly unenforceable. He identified the following issues of construction: i) What is meant by “business” in the two phrases “in any trade or business that competes” and “with any business carried on by the Company…”? And what is the meaning of the word in the Carve-Out? ii) What is the meaning of the Carve-Out itself? In particular: a) Does “and” mean “and” or does it mean “or”? b) What is meant by “work of a kind which is not related to any area…” ?[25]DG accepted that clause 19 of the Contract (expressly imposing a duty of confidence) is enforceable save insofar as it prevents him from using his skill, knowledge and/or experience. He also accepted that he owed HGL an equitable duty of confidence (though not an implied contractual duty in the light of clause 19). However, DG denied that he has misused any confidential information belonging to HGL or (it not being committed to memory or taken away by him) that he was in a position to do so.[26]DG denies contacting some of his former customers at HGL in early 2026.

THE ISSUES

[27]The headline issues for determination are: i) What is proper construction of the Covenant? ii) Is the Covenant reasonable and no wider than is reasonably necessary to protect HGL’s business interests of confidential information and customer connection? iii) If any part of the Covenant is unreasonable, can any offending provision be severed in accordance with the decision in Tillman v Egon Zehnder? iv) In relation to the alleged retention and use of confidential information, has DG retained or misused or evinced an intention to misuse (in particular by his alleged approach to some of his former customers at HGL) confidential information of HGL? v) Is HGL entitled to any of the injunctive relief sought?

LEGAL PRINCIPLES

[28]Before turning to a summary of the applicable legal principles it is relevant to note at this stage that the Contract does contain a provision which (if only it was enforceable) Mr Tatton Brown KC said would have been far more appropriate than the wide-ranging (and, he submitted, unenforceable) Covenant to protect HGL’s business interests from DG’s post-termination activities on behalf of a new employer with a competing business.[29]In addition to the Covenant, and other provisions, Clause 33 of the Contract also includes the following:
“………… Non-solicitation and non-dealing with customers During your employment by the Company and for six (6) months from the termination of your employment with the Company (however that comes about), you will not (without the prior written consent of the Company): • attempt to solicit or entice away from the Company a Restricted Customer and/or a Restricted Potential Customer; or • do any business with, accept orders from, or have any business dealings with, or entice to cease dealing with the Company or any Group Company, any Restricted Customer and/or a Restricted Potential Customer; This restriction shall not apply, after termination of your employment, in relation to commercial activity that is not for the benefit of or in connection with a Competing Business.”

Non-solicitation and non-dealing with customers

[30]Non-solicitation clauses are looked upon more favourably by the courts that non-compete clauses: see, e.g., Coppage v Safety Net Security Limited [2013] EWCA Civ 1176; [2013] IRLR 970, at [9].[31]In letters dated 28 January and 30 January 2026 to DG and MKM, respectively, Blake Morgan LLP asserted that DG had acted in breach of the non-solicitation and non-dealing covenant. It had also been mentioned in the letter which HGL had sent to DG on 27 November 2025 and an earlier letter to MKM of that date. However, the provision was not relied upon by HGL in its claim for the simple reason that the terms ‘Restricted Customer’ and ‘Restricted Potential Customer’ were not defined in the Contract, so it is meaningless.[32]The terms of this (ineffective) part of clause 33 are not in my judgment relevant to the textual aspect of the court’s approach to contractual interpretation as explained in the Supreme Court authorities mentioned below. Interpretation of the Covenant does not require the court to look at any particular language used in the non-solicitation and non-dealing covenant for the purpose of discerning the meaning of the Covenant. On my understanding of the principles, it is where there is a degree of commonality, cross-over or, perhaps, conflict between the contractual provision under scrutiny and some other clause in the contract that the other provision may be relevant for that purpose.[33]Nevertheless, there is a contextual as well as textual element to the court’s interpretation of contracts and I asked counsel whether the mere fact of inclusion of the non-solicitation and non-compete covenant could be relevant to discerning the meaning of the Covenant when that inclusion was obviously known to the parties at the time and could be said to be relevant to applying commercial common sense as to what the Covenant itself means. I think it is fair to say that Mr Tatton Brown KC did not show great enthusiasm for this line of thought and Mr Leach resisted it. On reflection, and as I then indicated in my exchanges with Mr Leach, the inclusion of this ineffective provision is not in my judgment relevant to the interpretation of the Covenant.[34]The Covenant therefore falls to be interpreted in its own right and its meaning should be the same whether or not it was followed by that other provision. As the latter is not relevant to any textual analysis of the Covenant, the Covenant should be treated as (and was considered by the parties to be) a stand-alone provision. This conclusion is also consistent with the decision of the Court of Appeal in Planon Ltd v Gilligan [2022] EWCA Civ 642, [2022] IRLR 684, at [61], where Elisabeth Laing LJ noted that the authorities recognise that the difficulty of proving a breach of an enforceable non-solicitation or a non-dealing covenant may justify the use of a non-compete provision.[35]That said, the inclusion of the ineffective non-solicitation and non-compete covenant is in my judgment relevant to considering the reasonableness or otherwise of the Covenant once its meaning has been established. The fact that HGL contemplated protecting itself under the Contract through a 6-month, non-solicitation and non-dealing covenant means that it is poorly placed to challenge Mr Tatton Brown KC’s observation that the fact that the provision is inadequately drafted does not mean that an appropriate non-dealing covenant would not have provided HGL with targeted, adequate and appropriate protection against DG leaving employment to work for a competitor. That is the language used by Calver J in the Quilter case (at [170(10)], addressed below, when contemplating that adequate protection might take “another form”.[36]Mr Tatton Brown KC made that observation in support of his submission that, by contrast, the Covenant is a crude measure which, in addition to seeking to prevent DG from targeting “his” former customers, would to a significant extent prevent competition per se.[37]I agree that the inclusion of another clause which, if properly drafted, would have operated to legitimately protect HGL’s customers from contact with DG over the 6-month period might well provide an indication that another provision preventing competition in a prescribed area over the same period is unenforceable. In Office Angels Limited v Rainer Thomas & O'Connor [1991] IRLR 214, at [50], Sir Christopher Slade said: “The Court cannot say that a covenant in one form affords no more than adequate protection to a covenantee's relevant legitimate interests if the evidence shows that a covenant in another form, much less far reaching and less potentially prejudicial to the covenantor, would have afforded adequate protection".[38]Turning to the Covenant itself, the principles which govern the court’s approach in determining whether a restrictive covenant in an employment contract constitutes a void and unenforceable restriction upon competition, as such, or is instead no wider than is reasonably necessary for the protection of the former employer’s business interests were set out by Cox J in TFS Derivatives Ltd v Morgan [2004] EWHC 3181 (QB); [2005] IRLR 246, at [35]-[40]. The passage has been cited often in subsequent cases and her helpful summary of the principles by reference to which that question is to be determined (beginning with her own quotation from the Office Angels case) bears quoting in full:
“35. There is no dispute between the parties that the relevant legal principles to be applied in order to answer that question were set by the Court of Appeal in the case of Office Angels Limited v Rainer Thomas & O'Connor [1991] IRLR 214, in the judgment of Sir Christopher Slade, with whom the other members of the court agreed. At paragraphs 21 to 25 he summarised the relevant principles as follows: "(1) If the Court is to uphold the validity of any covenant in restraint of trade, the covenantee must show that the covenant is both reasonable in the interests of the contracting parties and reasonable in the interests of the public: (see for example Herbert Morris Ltd v Saxelby [1916] AC 688 at p.707 per Lord Parker of Waddington). (2) A distinction is, however, to be drawn between (a) a covenant against competition entered into by a vendor with the purchaser of the goodwill of a business, which will be upheld as necessary to protect the subject-matter of the sale, provided that it is confined to the area within which competition on the part of the vendor would be likely to injure the purchaser in the enjoyment of the goodwill he has brought, and (b) a covenant between master and servant designed to prevent competition by the servant with the master after the termination of his contract of service: (see for example Kores Manufacturing Co Ltd v Kolok Manufacturing Ltd [1959] Ch 109 at p 118 per Jenkins LJ). (3) In the case of contracts between master and servant, covenants against competition are never as such upheld by the court. As Lord Parker put it in Herbert Morris Ltd v Saxelby (supra) at p 709: “I cannot find any case in which a covenant against competition by a servant or apprentice has, as such, ever been upheld by the Court. Wherever such covenants have been upheld it has been on the ground, not that the servant or apprentice would, by reason of his employment or training, obtain the skill and knowledge necessary to equip him as a possible competitor in the trade, but that he might obtain such personal knowledge of and influence over the customers of his employer, or such an acquaintance with his employer's trade secrets as would enable him, if competition were allowed, to take advantage of his employer's trade connection or utilize information confidentially obtained.”
On this appeal we are not concerned with trade secrets. The plaintiff's staff handbook contained special provisions (in clause 4.3) dealing with confidentiality, but no issue concerning confidentiality has been raised in this court. (4) The subject-matter in respect of which an employer may legitimately claim protection from an employee by a covenant in restraint of trade was further identified by Lord Wilberforce in Stenhouse Ltd v Phillips [1974] AC 391 (at p.400) as follows:
“The employer's claim for protection must be based upon the identification of some advantage or asset inherent in the business which can properly be regarded as, in a general sense, his property, and which it would be unjust to allow the employee to appropriate for his own purposes, even though he, the employee, may have contributed to its creation.” (5) If, however the Court is to uphold restrictions which a covenant imposes upon the freedom of action of the servant after he has left the service of the master, the master must satisfy the Court that the restrictions are no greater than are reasonably necessary for the protection of the master in his business: (see Mason v Provident Clothing & Supply Co Ltd [1913] AC 724 at p.742 per Lord Moulton). As Lord Parker stressed in Herbert Morris Ltd v Saxelby (supra) at p.707, for any covenant in restraint of trade to be treated as reasonable in the interests of the parties 'it must afford no more than adequate protection to the benefit of the party in whose favour it is imposed' [Lord Parker's emphasis]." 36. Thus, clause 12.1(a) will be unlawful unless it is justified by [the Claimant] as being reasonable, in the interests both of the parties and of the public. In assessing reasonableness, there is essentially a three-stage process to be undertaken. 37. Firstly, the court must decide what the covenant means when properly construed. Secondly, the court will consider whether the former employers have shown on the evidence that they have legitimate business interests requiring protection in relation to the employee's employment. …. 38. Thirdly, once the existence of legitimate protectable interests has been established, the covenant must be shown to be no wider than is reasonably necessary for the protection of those interests. Reasonable necessity is to be assessed from the perspective of reasonable persons in the position of the parties as at the date of the contract, having regard to the contractual provisions as a whole and to the factual matrix to which the contract would then realistically have been expected to apply. 39. Even if the covenant is held to be reasonable, the court will then finally decide whether, as a matter of discretion, the injunctive relief sought should in all the circumstances be granted, having regard, amongst other things, to its reasonableness as at the time of trial. 40. If a restrictive covenant applying after employment has terminated is held to be unreasonable, then it is void and unenforceable. The court cannot read down such a clause in an effort to render it reasonable and enforceable. In certain circumstances, however, if only a discrete phrase within a particular covenant is held to be unreasonable, individual words or phrases may be ‘bluepencilled’ or severed, provided that what is left makes independent sense without the need to modify the wording and that the sense of the contract is not changed. ……..” "(1) If the Court is to uphold the validity of any covenant in restraint of trade, the covenantee must show that the covenant is both reasonable in the interests of the contracting parties and reasonable in the interests of the public: (see for example Herbert Morris Ltd v Saxelby [1916] AC 688 at p.707 per Lord Parker of Waddington). (2) A distinction is, however, to be drawn between (a) a covenant against competition entered into by a vendor with the purchaser of the goodwill of a business, which will be upheld as necessary to protect the subject-matter of the sale, provided that it is confined to the area within which competition on the part of the vendor would be likely to injure the purchaser in the enjoyment of the goodwill he has brought, and (b) a covenant between master and servant designed to prevent competition by the servant with the master after the termination of his contract of service: (see for example Kores Manufacturing Co Ltd v Kolok Manufacturing Ltd [1959] Ch 109 at p 118 per Jenkins LJ). (3) In the case of contracts between master and servant, covenants against competition are never as such upheld by the court. As Lord Parker put it in Herbert Morris Ltd v Saxelby (supra) at p 709: “I cannot find any case in which a covenant against competition by a servant or apprentice has, as such, ever been upheld by the Court. Wherever such covenants have been upheld it has been on the ground, not that the servant or apprentice would, by reason of his employment or training, obtain the skill and knowledge necessary to equip him as a possible competitor in the trade, but that he might obtain such personal knowledge of and influence over the customers of his employer, or such an acquaintance with his employer's trade secrets as would enable him, if competition were allowed, to take advantage of his employer's trade connection or utilize information confidentially obtained.”
On this appeal we are not concerned with trade secrets. The plaintiff's staff handbook contained special provisions (in clause 4.3) dealing with confidentiality, but no issue concerning confidentiality has been raised in this court. (4) The subject-matter in respect of which an employer may legitimately claim protection from an employee by a covenant in restraint of trade was further identified by Lord Wilberforce in Stenhouse Ltd v Phillips [1974] AC 391 (at p.400) as follows: “The employer's claim for protection must be based upon the identification of some advantage or asset inherent in the business which can properly be regarded as, in a general sense, his property, and which it would be unjust to allow the employee to appropriate for his own purposes, even though he, the employee, may have contributed to its creation.” (5) If, however the Court is to uphold restrictions which a covenant imposes upon the freedom of action of the servant after he has left the service of the master, the master must satisfy the Court that the restrictions are no greater than are reasonably necessary for the protection of the master in his business: (see Mason v Provident Clothing & Supply Co Ltd [1913] AC 724 at p.742 per Lord Moulton). As Lord Parker stressed in Herbert Morris Ltd v Saxelby (supra) at p.707, for any covenant in restraint of trade to be treated as reasonable in the interests of the parties 'it must afford no more than adequate protection to the benefit of the party in whose favour it is imposed' [Lord Parker's emphasis]."[39]Cox J continued her judgment by addressing the first stage of contractual interpretation by reference to earlier authority on the proper approach to that exercise. The principles have arguably moved on a bit, and have been clarified and confirmed at the highest appellate level, in the couple of decades since TFS v Morgan was decided. The modern authority includes the decision of the Supreme Court in Arnold v Britton [2015] UKSC 36; [2015] AC 1619 and Lambeth London BC v Secretary of State for Housing, Communities and Local Government[2019] UKSC 33; [2019] 1 WLR 4317. As Lord Neuberger explained in his judgment in Arnold v Britton, through the propositions identified at [14]-[22], the court is concerned with an objective interpretation of the contract which involves asking what a reasonable person with all the background knowledge available to the parties at the time they made it (i.e. the documentary, factual and commercial context) would have understood the language of the contract to mean. The objective meaning is assessed in the light of(i) their natural and ordinary meaning;(ii) any other relevant provisions of the contract,(iii) the overall purpose of the contract;(iv) the facts and circumstances known or assumed by the parties at the time it was made; and(v) commercial common sense. Commercial common sense cannot be invoked retrospectively. The party’s subjective intentions of the parties are of course to be disregarded in this process of interpretation.[40]The approach to the construction of post-termination restrictions such as the Covenant was summarised by Bean LJ in Boydell v NZP Ltd & Anor [2023] EWCA Civ 373[ [2023] IRLR 572, at [22]-[27]. In applying the principles, it is important to bear in mind that every case is fact-specific: see Tradition Financial Services v Gamberoni & Ors [2017] EWHC 768 (QB); [2017] IRLR 698, at [24].[41]The first stage (per Boydell v NZP) involves applying the test, repeated in Lambeth LBC v Secretary of State, which reaches for the natural and ordinary meaning of the contractual wording (as illuminated, to the extent necessary, by considerations of what is commercial common sense). As Lord Carnwath said in the earlier case, that is “the starting point, and usually the end point”.[42]The next stage is to consider whether a clause is valid notwithstanding that it might give rise to “extravagant”, “fantastical”, “unlikely or improbable” meanings “entirely outside the contemplation of the parties”. Such interpretations will not render it invalid. There, Bean LJ was adopting the language of Salmon LJ in Home Counties Dairies Ltd v Skilton [1970] 1 WLR 526 (a restrictive covenant case) which is not materially different from what modern Supreme Court authority says about the need of the court to focus upon what a reasonable person would have understood the clause to mean and to apply some commercial common sense. It is clear from the modern authorities that hypothetical examples illustrating the potential reach of a clause are unlikely to assist in discerning its true meaning if they are highly improbable and/or lie well beyond the scope of the parties’ contemplation when they signed up to it.[43]The third stage involves consideration of the ‘validity principle’ as described by the Supreme Court in the decision in Tillman v Egon Zehnder mentioned above in connection with HGL’s suggested blue pencilling of the phrase “or interested” in the Covenant. That principle means that where there are two alternative realistic constructions of a clause the parties are deemed to have meant to enter into a valid agreement rather than an invalid one; and so that construction is to be preferred.[44]Finally, the decision in Boydell v NZP, at [27], noted the proposition (stated in TFS v Morgan and confirmed by the Supreme Court in Tillman v Egon Zehnder) that the court may consider severance of certain words by applying the ‘blue pencil test’. The test requires that any unenforceable provision is capable of being removed without the necessity of adding to or modifying the words of what remains.[45]It is therefore clear that, unsurprisingly, the Covenant is to be construed in accordance with the conventional principles of contractual interpretation. Importantly for the present case, this includes consideration of the ‘validity principle’ (the modern-day label for the Latin maxim ‘verba ita sunt intelligenda ut res magis valeat quam pereat’ with which lawyers faced with arguably unintelligible wording have long been familiar) and potential use of the blue pencil (so long as it reflects a legitimate exercise of contractual interpretation rather than rectification).[46]That said, when it comes to the four-stage test outlined by Cox J in TFS v Morgan, at [37]-[40], beginning with the need to extract a meaningful interpretation from any unclear contractual wording, with or without use of the blue pencil, the burden of proof is upon HGL. As the judge recognised, at [35], it is for the employer to show a covenant in restraint of trade is reasonable both in the interests of the contracting parties - the focus being upon what is reasonably necessary to protect the employer’s “legitimate” (i.e. legitimately protectable) interests – and the interests of the public. As Sir Bernard Rix said in Coppage v Safety Net, at [9], “[I]t is for the employer to show that a restraint is reasonable in the interests of the parties and in particular that it is designed for the protection of some proprietary interest of the employer for which the restraint is reasonably necessary.”[47]If and to the extent it is justified and does not fall foul of the proviso summarised in Boydell v NZP, at [27], the blue pencilling of the Covenant suggested by HGL (and set out in paragraph 18 above) is therefore to be treated as part-and-parcel of the process of contractual interpretation. Subject to that proviso, the exercise of blue pencilling (or any part of it) cannot in and of itself be relied upon to say that the Covenant is wider than reasonably necessary for the legitimate protection of HGL’s interests. Instead, Mr Tatton Brown’s submission was that, even read with HGL’s blue pencilling set out, the Covenant is still far too wide in its scope and apparent effect and is therefore unenforceable. He said the same of the further blue pencilling suggested by Mr Leach in his closing submissions, which I explain in paragraph 106 below.[48]In support of that submission, Mr Tatton Brown KC relied upon three further authorities which he said were relevant assessing the lawfulness of the Covenant.[49]The first is Guest Services Worldwide Ltd v Shelmerdine [2020] EWCA Civ 85; [2020] IRLR 392, at [41] where Asplin LJ referred to employee covenants being subject to “very rigorous and careful scrutiny” when it comes to assessing their reasonableness. She made that observation in accepting a submission that the court is less vigilant where the covenant is contained in a shareholders’ agreement, or an agreement of the akin to one, of the kind with which the court was concerned in that case. As Mr Tatton Brown KC noted, the reason for such scrutiny is because of what in many cases is likely inequality of bargaining power between employer and employee which, where such inequality exists, may mean the employee has little choice in the matter: see M & S Drapers v Reynolds [1957] 1 WLR 9, at 18, per Denning LJ. Mr Leach did not challenge the contention that this was a case where there was such inequality of bargaining power between HGL and DG at the time of the Contract.[50]Mr Tatton Brown’s second authority was relied upon by him in support of what was referred to at the hearing as ‘the Quilter point’: Quilter Private Client Advisers Limited v Falconer [2020] EWHC 3294 (QB); [2022] IRLR 227. In Quilter, the defendant employee was a financial planner who gave notice of her resignation to Quilter (who like the other defendant, her new employer, carried on the business of financial advisers) 6 months after starting her employment and within her probationary period. By that time, she had met some 40 of the high-net-worth clients of a Quilter employee who was about to retire and 120 of 181 had been transferred over to her. Quilter’s claim for injunctive relief succeeded in part but a 9-month non-competition covenant was found to be unenforceable.[51]Addressing the question as to whether Quilter had shown the covenant to be no wider than is reasonably necessary for the protection of its legitimate business interests, Calver J said, at [175]: “…….. (2) The length of the period of notice can be an indication of the unreasonableness regarding the duration of the restraint. Here, the restrictions apply irrespective of the length of time that EF had in fact been employed by Quilter. She was subject to a period of probation during which Quilter could terminate her employment with a mere 2 weeks’ notice. (After she passed her probation she was required to give 3 months’ notice, and entitled to receive 2 months’ notice). It is unreasonable for her to be prevented from being employed by a competitor for 9 months when she might be in employment with Quilter for just 2 weeks, see Mason v Provident Clothing and Supply Co Ltd [1913] AC 724 (at 732 and 741), [1911–13] All ER Rep 400 (at 404 and 409) (employment could be terminated on 2 weeks’ notice and a 3 year non-competition clause within 25 miles of London, where the former employer was based). In Gledhow Autoparts Ltd v Delaney [1965] 1 WLR 1366 (at 1377), [1965] 3 All ER 288 (at 295) Diplock LJ (as he was) said this: ‘The defendant … was in fact employed for over six years by the plaintiffs and no doubt became a valuable servant and acquired considerable knowledge of and personal relation with the [plaintiffs’] customers. It is natural in those circumstances to tend to look at what in fact happened under the agreement; but the question of the validity of a covenant in restraint of trade has to be determined at the date at which the agreement was entered into and has to be determined in the light of what may happen under the agreement, although what may happen may cover many possibilities which in the result did not happen. A covenant of this kind is invalid ab initio or valid ab initio. There cannot come a moment at which it passes from the class of invalid into that of valid covenants. If this covenant is examined as at the date at which the contract was entered into, it is to be observed that the covenant is expressed to restrain the defendant for a period of three years from seeking to obtain orders within the districts in which he has operated during the course of this agreement or during any period of employment with the plaintiffs. Clause 5 makes the agreement terminable on one week’s notice. It therefore follows that if the defendant had proved perhaps an unsatisfactory traveller and his employment had been determined, as it could have been, within two weeks of having entered into the agreement, he would nevertheless have been restrained from seeking any orders in similar goods in any district in which he had operated, despite the fact that in those circumstances it is obvious that he could have called upon only very few of the potential customers in that district.’ (3) Furthermore, the fact that EF’s employment is subject to a 6-month period of probation made it foreseeable that her employment might be terminated during the probation period after having been employed for only a short period of time and yet she would still be subject to a 9-month non-competition restriction, despite the fact that she would only have had time to build a very short-term relationship with any clients in that period. Indeed, Mr Rhodes, Quilter’s Senior HR Business Partner, accepted in cross-examination that the 6-month probation period gave EF ‘little time to build a relationship’ with clients. (4) Moreover. the shorter the period of notice the less important to the company the employee’s services would appear to be and the more lowly his or her position is likely to be. It follows that the perceived need for protection is diminished: see Restrictive Covenants under Common and Competition law (6th edn), Kamerling and Goodwill, para 8.5.5.3. (5) It is true that it was envisaged at the outset that EF would assume Carrie Payne’s book of clients which Quilter had built up over a significant period of time. It might therefore be said (as Mr Sethi QC submitted) that a 9-month non-competition clause was reasonably considered to be necessary even if EF left Quilter’s employment after a matter of weeks. However, it is the establishing of the relationship between the client and the adviser which, as Mr Burden put it in his evidence, is the ‘jewel in the crown’ of a company such as Quilter. Those relationships take time to build: indeed, Mr Burden’s evidence was that it takes 12 months or more to become a trusted adviser of a client, and to build that personal relationship with a customer. In those circumstances, the mere fact that Ms Payne’s book of clients was to be gradually transferred over to EF, or that EF had access to the documentation relating to those clients, cannot of itself justify the imposition of a 9-month non-competition clause. The threat of a departing employee requires less protection if she has had less of an opportunity to build such a relationship with the clients. Having access to client-related documentation does not of itself build a strong client relationship. (6) Indeed, since it was Quilter’s case that it typically takes 12 months or more to establish enduring personal relationships with clients, it needs to provide a justification for requiring 9 months protection against an employee who may have been in post only for a matter of weeks before his/her employment is terminated. ……….” ‘The defendant … was in fact employed for over six years by the plaintiffs and no doubt became a valuable servant and acquired considerable knowledge of and personal relation with the [plaintiffs’] customers. It is natural in those circumstances to tend to look at what in fact happened under the agreement; but the question of the validity of a covenant in restraint of trade has to be determined at the date at which the agreement was entered into and has to be determined in the light of what may happen under the agreement, although what may happen may cover many possibilities which in the result did not happen. A covenant of this kind is invalid ab initio or valid ab initio. There cannot come a moment at which it passes from the class of invalid into that of valid covenants. If this covenant is examined as at the date at which the contract was entered into, it is to be observed that the covenant is expressed to restrain the defendant for a period of three years from seeking to obtain orders within the districts in which he has operated during the course of this agreement or during any period of employment with the plaintiffs. Clause 5 makes the agreement terminable on one week’s notice. It therefore follows that if the defendant had proved perhaps an unsatisfactory traveller and his employment had been determined, as it could have been, within two weeks of having entered into the agreement, he would nevertheless have been restrained from seeking any orders in similar goods in any district in which he had operated, despite the fact that in those circumstances it is obvious that he could have called upon only very few of the potential customers in that district.’[52]Mr Tatton Brown KC pointed to the fact that, under the Contract, DG was immediately subject to the Covenant (with its 6-month period of restriction) even though he was subject to only one week’s notice during his 6-month (or possibly) longer period of probation. He emphasised that the reasoning of Calver J was based upon the Court of Appeal’s decision in Gledhow Autoparts v Delaney.[53]I raised with counsel the question as to why the Quilter point would not be a good one for the defendant to take in almost all cases where the terms of the employment contract meant it was reasonably foreseeable at the time it was entered into that he might not survive his probation period or be given an early notice of termination. If so, I wondered whether the only way in which the employer might meet the point would be through a contractual restriction of variable duration according to the length of time actually served by date of termination. Mr Tatton Brown KC observed that it was not unknown for a contract to provide that a non-compete provision should only apply after a certain period of service or for there to be a shorter period of restraint in respect of an employee who did not survive the probationary period. Although the decision did not concern a challenge to the duration of the covenant based on Gledhow Autoparts v Delaney, he also referred to the Court of Appeal authority of Thomas v Farr plc [2007] EWCA Civ 118; [2007] ICR 932 to illustrate the kind of case where the Quilter point is unlikely to run because of the seniority of the employee’s position and the access to the employer’s confidential information that came with it.[54]Mr Leach said the Quilter point was misplaced. He said Quilter was very much a decision on its own facts and had no application to the present case where DG had access to HGL’s confidential information from the day he started. He contrasted the facts of Quilter where the regulatory aspects of the claimant’s financial services business meant that its clients could not easily move to another provider in the way that, absent the Covenant, a customer might move its business from HGL to MKM. DG’s access to confidential information from day one meant that he was in a position to encourage such moves in the event of him leaving HGL soon after.[55]Mr Leach also referred to the decision in TFS v Morgan where, at [76]-[84], Cox J addressed the “interesting proposition” that an answer to this point which later arose in Quilter would be to provide for longer notice period with garden leave. She made the point that longer notice on garden leave is more onerous than a non-compete provision (when the effect would be to keep the employee out of alternative employment completely and risk an atrophying of his employment skills) and unsuited to cases where the employee is dismissed with no notice at all (e.g. for gross misconduct) or resigns without notice. He also relied upon the decision in United Kapital Ltd v Bolaji and anor [2025] EWHC 1726 (KB), where an interim injunction pending a speedy trial was granted in respect of a 6-month non-compete restriction against the backdrop of a notice period of only one day. That said, it is clear that the judge in that case had the Quilter point in mind in refusing another element of the injunctive relief sought when the covenant relied upon in support “is to operate for as long as nine months yet could apply after a very short period of employment with the claimant” and her view was that “as matters stand, it is unlikely to establish that[it] is enforceable”: see the judgment at [93] and [128]-[136].[56]Mr Tatton Brown KC’s reference to a third authority was prompted by me asking Mr Leach in closing submissions about the correct approach to be adopted in judging the reasonableness of a particular territorial restriction. The point arose in the context of considering the evidence of Mr Lamond (addressed next) and one of the spreadsheets exhibited to his witness statement showing the distance between HGL’s relevant branch to a delivery site of customers who were supported by DG. The spreadsheet indicated that 19 out of 216 sites were over 20 miles from the relevant branch, a further 10 between 15 and 20 miles, 25 were between 10 and 15 miles, and the remaining 159 were under 10 miles distant. When there were some deliveries that could be said to justify a 20-mile radius but they were less than 10% of the total, and some 74% were less than 10 miles, I wondered whether it was legitimate for the court to engage with a notional scaling down of the restricted area to support a conclusion that a 20 mile radius was excessive but, say, a 15 mile one would not be.[57]Mr Tatton Brown KC then drew my attention to the decision of Haddon-Cave J in QBE Management Services (UK) Ltd v Dymoke [2012] EWHC 80 (QB); [2012] IRLR 458. The judge in that case referred to the passage in the judgment in OfficeAngels v Rainer Thomas, at [50], which I have mentioned above in contrasting the protection that might have been provided to HGL through a meaningful non-solicitation and non-dealing clause. Relying upon that passage, and addressing the approach to any notional scaling down of a covenant’s duration as opposed to territorial scope, Haddon-Cave J said, at [215]:
“It will be seen it is only if the Court finds that a “much less far-reaching” covenant would have afforded adequate protection is it likely to regard the existing restriction as unreasonable. The exercise is not a marginal one, otherwise Courts would be faced with a paralysing debate in every case about whether a covenant with x days shaved off would still provide adequate protection.”

THE EVIDENCE

[58]Evidence at the trial was given by Mr James Lamond and Mr Chris Constable on behalf of HGL and DG on behalf of himself.[59]HGL had also served a hearsay notice in relation to the parts of Mr Constable’s witness statement where he referred to what his work colleagues Martin Hills and Simon Weeks-Smith had told him in January 2026 about what they in turn had been told about DG having been in contact with “a number of customers” of HGL. The individuals who spoke to those colleagues were not identified but two of the customers mentioned in the witness statement were the businesses KMS Groundworks and RAM. The hearsay notice said that the customers with whom Mr Constable’s colleagues had conversations did not want to be involved in the proceedings and that there was limited value in calling those colleagues to give evidence. Mr Lamond[60]Mr Lamond is a qualified solicitor currently employed at Blake Morgan LLP as a Senior Paralegal. His witness statement exhibited a number of spreadsheets summarising the range (in terms of distance) of what were described as “610 customer deliveries from [HGL’s] Swindon, Newbury and Cirencester branches”. The deliveries were made in the 12 months prior to 24 March 2026. In his witness statement Mr Lamond explained how he had calculated the ‘as the crow flies’ distance from the relevant branch to the delivery address. In brief testimony, Mr Lamond said that the underlying information provided to him by Mr Constable, in its native format, had not been provided to DG’s lawyers and that he had not been responsible for the selection of what his witness statement referred to as “specific customers” during that period.[61]The broad effect of the spreadsheets was to show that (as Mr Constable said in one of his witness statements) that about 33% of the 610 deliveries were to sites more than 10 miles from the branch and around 12% were to sites more than 20 miles away.[62]Mr Lamond’s spreadsheets were the subject of comment in further witness statements made by DG and Mr Constable shortly before trial. DG had questioned whether the number of deliveries made by the three branches could have been as low as 610 in a 12-month period. This further evidence established that the 610 referred to 610 distinct delivery sites (to some of which there might well be a number of deliveries and, if a larger building project, sometimes a significant number). Mr Constable[63]Mr Constable is HGL’s Regional Sales Manager, responsible for managing teams of Areas Sales Managers across HGL’s ‘West and South Central’ area, and he was DG’s immediate line manager throughout DG’s employment.[64]My assessment of Mr Constable’s testimony is that he was generally candid in the answers he gave but had a tendency to “toe the line” on behalf of HGL (as Mr Tatton Brown KC put it) in some of his evidence. This was revealed most clearly by his evidence about standard industry practice in relation to the imposition of restrictive covenants (which I touch upon in my findings below) and him saying that, whilst it would present “less of a risk” to HGL, he would have some concern about DG leaving HGL’s employment to work at a B&Q store within the restricted area or to work for an on-line retailer supplying some building materials.[65]Mr Constable’s first witness statement, made in support of the application for the interim injunction, said that HGL and MKM operate in a “relationship driven industry” and “[w]hilst price and service are important, it is ultimately the individuals and relationships formed” – i.e. between Area Sales Managers such as DG and the customer – “that are the key to long term success.” He stated HGL’s concern that its customers would follow DG who would have “detailed knowledge of ongoing and upcoming customer projects.” In relation to HGL’s confidential information, that witness statement referred to HGL’s customer database (supported by the Microsoft Power BI system) and HGL’s variable pricing model which would include product cost prices, acceptable margins, volume rebates and negotiated discounts with key customer accounts.[66]Mr Constable’s second witness statement for the trial referred to those and two other software systems in much greater detail. In summary: i) Microsoft Power BI was updated daily and could be used to access information about customers and to generate reports about sales and margins, including comparisons against budget and previous years and which customers are trading up or down. Mr Constable uses it to generate reports to send out to Area Sales Managers. As an Area Sales Manager, DG had access to this in relation to his own customers – i.e. the 103 customers for which DG was responsible by the end of his employment and those on what was referred to at trial as ‘DG’s Ledger’ – rather than all the customers of a branch. ii) CounterAct is the system showing HGL’s variable pricing, amongst other things. It also includes details of HGL’s customer base and DG would have access to the data for the customers at his three branches. CounterAct is the operational system where sales are booked out, quotes are raised and details of terms can be located. It can be used to generate a myriad of reports. CounterAct records in relation to each customer the contact names and telephone numbers, credit limits, previous quotes, spend and margin information, terms and payment history. Mr Constable uses CounterAct to send out to Area Sales Managers a weekly report of new customers. The trial bundle contained a redacted printout of a screenshot from CounterAct recording the ‘Book cost’ (redacted), the ‘Standard Price’ (£13.21) and a ‘Quoted Price’ (£10.10, reflecting the price at which the customer had previously purchased the product). iii) ACT is HGL’s customer relationship management system to which the Area Sales Managers and HGL’s sales management team have access. It is intended to be used by Area Sales Managers to log customer visits and make notes about ongoing building projects, upcoming ones and any other information about the customer (such as hobbies and interests) that might assist in developing customer relationships. The system was introduced at the end of 2024, replacing an earlier spreadsheet-based system. Mr Constable accepted that DG was not keen on using it and needed chasing to do so. A printout of page in ACT completed by DG and recording 12 one-line entries made between 30 March and 24 October 2025 contains comments in relation to particular customers (name and account number redacted) such as “job in Chippenham starting imminently”, “wants to set up a credit account form dropped off” and “large quote done”. iv) The Portal is HGL’s intranet. HGL and supplier contact details are located on it and Mr Constable said it can be used to set customer terms and to request increases in credit limits. Mr Constable accepted that there was no record of DG having logged on to The Portal.[67]Mr Constable referred to Area Sales Managers agreeing prices and setting trading terms with customers on a daily basis. He said that Area Sales Managers were able to offer discounts and had greater ability to do so than an Assistant Branch Manager, though he understood their authority in this respect was the same as a Branch Manager’s.[68]It emerged from Mr Constable’s evidence that the price charged by HGL for a particular product is variable, and the variation in price can be significant, and that the bespoke pricing structure referred to is customer specific. Each customer of HGL (“well, anyone that trades in a meaningful way”) has a bespoke pricing structure. The price of a product can also vary across branches.[69]Mr Constable explained that, as a Regional Sales Manager, he had access to a net pricing sheet in Excel format, which supported HGL’s policy in relation to what was described at the trial as ‘the AD Cut-Off’. The AD Cut-Off marks the lowest price for a product which Mr Constable is able to authorise without requiring his Area Director’s approval. It is not therefore the absolute lowest price that might be approved by the Area Director.[70]In relation to the redacted printout from CounterAct in the trial bundle, it was explained that the Standard Price was what would be charged by the branch to a customer who did not request a better one, and that (in that particular case) the Quoted Price was the one that staff at the branch would be able to offer the customer. They had a discretion to sell at a price between the Standard Price and the Quoted Price (in his evidence DG said Branch Managers had a feel for fixing a competitive price between the two) but anything lower than the latter would need to be referred to Mr Constable who had greater discretion. Whether or not he needed to seek Area Director approval would be revealed by the information in the net pricing sheet about the AD Cut-Off.[71]It was part of the policy in relation to the AD Cut-Off that Area Sales Managers such as DG should not have access to that net pricing sheet. HGL does not like to give front line employees an exact idea of its profit margins. Mr Constable referred to constant tension between the business and front line sales staff. Staff always trying to find out more information about the prices HGL can trade at. He said it was quite a complicated pricing structure and difficult to get a true picture of commodity products.[72]However, Mr Constable said that his daily conversations with DG would have enabled DG to build up a picture of pricing thresholds on key products, including the AD Cut-Off. He said “I always give my Area Sales Managers the AD Cut-Off point and go up from there”. He said information about the AD Cut-Off would be valuable for about 12 months after which changes in raw material values would mean knowledge of an older cut-off was no longer useful. Although Mr Constable said in his witness statement that the software systems gave DG access to “margin structures” he confirmed in cross-examination that the senior management of HGL would not give anyone in a sales position, including himself, “the true margin”.[73]Mr Constable explained that if an Area Sales Manager sought to sell a product cheaper than that offered by the branch then a window would appear in CounterAct requiring an authorisation code from the Branch Manager or Assistant Branch Manager. He said his experience was that the Area Sales Manager would call him first then take the price to the Branch Manager. He said the Branch Manager has to approve the sale at that price as he has the overall say about his branch.[74]At the core of Mr Constable’s evidence were the points that, by the end of his employment, DG would have built up strong customer relationships with the higher-spending 103 customers who by that point were on DG’s Ledger and would have built up knowledge of the AD Cut-Off for key products. Although there were thousands of AD Cut-Offs, there were about 50 industry-standard commodity products (such as cement and bricks) for which DG would have such knowledge. Mr Constable said he and DG had regular conversations about them. He said some Area Sales Managers would keep a note of them in a book though he did not know whether DG did. The emphasis upon knowledge of the AD Cut-Off for key products was consistent with Mr Constable saying that an Area Sales Manager would rarely use HGL’s CounterAct system as a guide on pricing. CounterAct was more for branch use and the branch responding to customer price requests. He also referred to DG having knowledge of “bespoke, customer-specific pricing” for those on DG’s Ledger.[75]Mr Constable explained that, although the number would vary from branch to branch, each of HGL’s branches would have several hundred actively trading customers (out of a large number, say more than a thousand, which would include those who had not made orders in the past year). A particular customer cannot be allocated to more than one branch. DG was responsible for servicing the higher value accounts.[76]Mr Constable’s understanding of the territorial scope of the Covenant was that if it operated to prevent DG for working for MKM’s branch in Gloucester (which is within a 20-mile radius of Cirencester) then that would mean that DG would not be able to deal with customers of that branch based the other side of Gloucester (i.e. outside the radius). Against that, Mr Constable’s understanding of the Covenant, which he accepted might be wrong, was that if DG worked for MKM’s branch at Kidlington, which is outside the territory marked by each of the three 20-mile radii, then he would be able to target customers within it, though “not to exploit his relationships with HGL’s customers” or “by using his knowledge of HGL’s pricing”.[77]In an answer relevant to the duration of the Covenant, Mr Constable said the exercise to recruit a replacement for DG took 3 months and a similar exercise for another Area Sales Manager role took 2 months. The new Area Sales Manager then undertakes a 3-week induction programme and the remainder of what is left of the 6-month period is in fact insufficient to build up the number of customer relationships indicated by DG’s Ledger.[78]In cross-examination (and in an answer relevant to the language of the Carve-Out) Mr Constable confirmed that in each of three core areas of HGL’s business – illustrated by the Swindon branch operating as a builders merchant, a tool and plant hire centre and a kitchen and bathroom showroom – HGL would have developed confidential information.[79]When taken to the Performance and Development Review Form completed by him in relation to DG’s performance for 2024, Mr Constable confirmed that DG’s skill lay in him being “an exceptional salesman” with less emphasis upon his knowledge of pricing. He acknowledged the form recorded DG’s need for help with pricing and easier setting of terms, though he said the reference to “rebates” was probably to supplier rebates rather than rebates offered to customers.[80]In addressing his hearsay evidence about what he had been told about DG having approached KMS Goundworks and RAM in January 2026, Mr Constable accepted that, if DG did, HGL had no evidence to suggest that he had misused HGL’s confidential information in doing so. DG[81]I found DG to be an honest and straightforward witness.[82]DG has worked in the building supplies sector for approximately 15 years. He started working for Wickes in 2017 and then moved to Jewson in 2017. In my view he rightly showed some indignation when it was suggested to him in cross-examination that the Covenant would not stop him working in sales in an entirely different industry sector.[83]DG said that KMS Groundworks and RAM were probably the largest customers he dealt with at HGL. Mr Leach suggested that DG was evasive when the allegation was put to him that he had contacted KMS Groundworks and RAM within two months of leaving HGL and that he appeared to be caught off guard when he was asked about how he had spent his time before MKM’s new Swindon branch was opened. I did not form that impression.[84]DG denied contacting KMS Groundworks on behalf of MKM and pointed out that the Branch Director of MKM’s new Swindon branch is a brother of one of the directors of MKM. DG accepted that he had met a representative of RAM at MKM’s Cheltenham branch when he was there as part of his training with MKM. He said the personal contact could not be avoided. DG made the point that RAM is based in Cheltenham and is a customer of MKM’s Cheltenham branch and that it would be odd thing for him (as the incoming External Sales Representative of MKM’s new branch in Swindon) to attempt to lure their custom away from the company’s other branch.[85]One of the sources of the double hearsay in Mr Constable’s witness statement about DG contacting customers is Martin Hills, HGL’s Branch Manager at Swindon. Unlike Mr Constable’s other sources (Simon Weeks-Smith and Gary Price who are the Managers of HGL’s hire departments at Swindon and Bristol respectively, and who referred to RAM or KMS Groundworks) the customers mentioned by Mr Hills have not, at their request, been identified. In cross-examination, DG said that he has known Mr Hills since he was 18, he is DG’s best friend and they were each the other’s best man at his wedding. DG said he was therefore surprised to see Mr Hills being named in evidence and therefore spoke to him about it. DG says that Mr Hills told him that he simply observed to Mr Constable that he would have expected DG to have spoken to some customers after leaving HGL.[86]Like the letter in the trial bundle written by on behalf of KMS Groundworks (by someone other than Richard Fagin who the APOC and Mr Constable identified as having spoken to Simon Weeks-Smith) this hearsay evidence by or on behalf of DG also carries little if any weight. However, the burden is on HGL to prove its case. The above summary simply highlights the difficulty in relying upon hearsay evidence when only one of those (DG) said to have been a party to an alleged conversation or meeting gives evidence about it, is cross-examined about it and makes relevant denials that which (putting it at its lowest) the court feels unable to disbelieve.[87]In addressing his message to Ms Connelly of 11 February 2026, DG said the firm of EW Beard was a customer on DG’s Ledger and that his message would have been in response to him announcing his change of job on LinkedIn. He said that EW Beard were known to MKM and had built the company’s new Swindon branch. DG also explained that WhatsApp messages on his personal phone involving the Branch Manager at Swindon were at a time in 2024 when HGL did not allow the use of WhatsApp on work phones. The messages disclosed by DG showed that particular policy changed and (as appears from the conclusion of the conversation on the personal phone) DG’s work phone was added instead.[88]DG said that, before MKM’s Swindon branch was opened, he spent 2 months training with MKM. He said this involved a lot of meetings in hotels and some visits to MKM’s Cheltenham branch but they were not 8 hour days and there was a bit of “dossing about” as he put it. He said that, during the period of the interim injunction and even though he was being paid, MKM had been content not to deploy him to a branch outside the restricted area.[89]So far as his employment with HGL is concerned, DG said his usual daily routine involved him going to the branch first thing before setting off to visit customers. He said the relationship with the branch was the only way he could do his job when the branch “has to have the stock and they have to agree the price.” He accepted that he did not act on the instructions of the Branch Managers, in contrast to the requests that might be made of him by Mr Constable. He regarded his role being one of supporting the Branch’s customers and looking for further potential custom, including winning more orders from customers who were already spending with HGL but also with competitors. He said his time was split approximately 70/30 in favour of going out to find customers himself and following up on potential customers that the Branch Managers had told him about.[90]DG accepted that at the start of his employment Mr Constable sent him in Excel format relevant Branch and Ledger Spend Reports (redacted copies were in the trial bundle) but he said the first was a very long list and included customers of branches for which he was not responsible. He accepted that the second was a filtered list for what were his then three branches (including Malmesbury) but noted that not all the customer names on it were accompanied by contact names and phone numbers.[91]DG said he did not like using the Microsoft Power BI system and avoided using it if he could. He said ACT was really for the purpose of recording his activity, including visits to customers, so that Mr Constable and others in sales management could see what work he had been doing. As Mr Constable also observed, DG recognised that he was not always diligent in doing this “admin” and he sometimes had to be chased to complete his records. DG said he accessed the Microsoft Power BI system about six times during his employment and The Portal a handful of times.[92]DG said he would not have remembered the addresses and contact details of HGL customers, recorded in its computer systems, when he left his employment. He said “I assume they are not difficult to find out”. He observed that knowing the identity of HGL’s customers, held by both the Microsoft Power BI and ACT systems, was of no value to a competitor when most customers have an account with a number of builders merchants. He accepted that, when he left, he would have known about certain customer projects in the pipeline, some details of which were noted by him on the ACT system in the most basic terms.[93]He said he was always aware that, for each customer, HGL was in a list of builders merchants ranked by the customer in order of preference and his job was to move HGL to the top of the list. He said that those in equivalent roles at Jewson, Travis Perkins, Kellaway, Bence and Grant and Stone would be targeting the same customers as were on DG’s Ledger, or many of them. He said it is incredibly easy to find out who a competitor’s customers are. Even if the customer does not reveal it by relying upon a rival quote (see below) it is possible to park outside the rival merchant’s yard and wait for the builders’ vehicles, with the names on them, to roll in.[94]DG said of the pricing information on the CounterAct system is effectively “fake information” when the screen price was an artificial price which did not reflect the real price at which it could be sold. That was so whether or not the value of the particular customer’s business with HGL might entitle it to a rebate. DG also said that the cost price shown on CounterAct was not a reliable indicator of what might be the actual sale price, as it was not uncommon to sell products at what would appear to be a loss when compared with the apparent cost price. HGL was not actually making a loss because that was obviously not the true cost price. DG said even though the inaccuracy of the apparent cost price gave DG some authority under the CounterAct system to offer a lower price than the Standard Price which, on the face it, appeared to be loss-making, he would call Mr Constable on an almost daily basis to see whether HGL could offer a more competitive price.[95]As Mr Constable confirmed, DG did not have access to the information – the net pricing sheet or any other information– upon which Mr Constable would have relied in giving an answer. His evidence was to the same effect as Mr Constable that the Branch Manager has the final say.[96]DG accepted that there were occasions when Mr Constable would tell him what the AD Cut-Off was. However, he made the telling point that he did not need to know the lowest price that HGL might agree when all he needed to know was whether a competitive quote, compared with a rival quote, could be given. As he said:
“Why would I need to know the AD Cut-Off was £5 if all I am asking is whether I can sell at £7.30”
. It was not his job to aim for the lowest possible price but to make as much profit for HGL as he could. He said it was for the Branch Manager ultimately to approve the sale and, in that example, the price of £7.30 might be one that the Branch Manager could sanction.[97]DG did recognise the value in knowing a competitor’s lowest prices if HGL had the opportunity to win new business. He referred to occasions when HGL would have “one shot” at an opportunity to quote for a really big customer in an attempt to secure its business. However, he did not accept that in his new employment he could be using knowledge of HGL’s AD Cut-Off to get MKM’s new Swindon branch on a loss leader basis. He said every competitor of HGL will have their own equivalent of an AD Cut-Off but they are out to make as much profit as they can.[98]DG agreed with Mr Constable that there were around 50 key product types. However, he explained that there can be different lines of product within each type. He referred to two suppliers of insulation materials to HGL, together supplying 10 different products, and to there being about 30 different types of plasterboard. He said there would probably be a different AD-Cut Off for each supplier. He disagreed with Mr Constable that the AD Cut-Off for a product would be stable for a 12-month period. He said prices would generally be fixed in the January of each year but were subject to market forces including those driven by global events. He said the reason why they are the key products is because their prices fluctuate the most.[99]He denied that, to the extent that Mr Constable had told him about a particular AD Cut-Off in their conversations, he would have remembered them at the time he left HGL. In any event, the fluctuations in the price of supplies to HGL would have meant such knowledge was of limited value.[100]DG explained that in his experience customers will often get a price for a product from one merchant and then take it to three or four other merchants to see who can give them the best price. He said that customers sharing pricing and related information was normal and that many of the small and medium-sized builders that were HGL’s customer base would often volunteer competitors’ prices and other information (such as credit limits) to see if they could get a better deal with HGL.[101]DG referred to one occasion when RAM told him that MKM were offering some fantastic rebates and pricing deals and he was asked if HGL could match them. He took the request to Mr Constable but HGL could not match. Mr Constable had wanted to see a copy of the rebate agreement that RAM had with MKM as he wanted to see their pricing structure even though, as DG put it, “we had all the information we needed to see if we could match the deals offered.” He therefore did not ask for it as he also felt embarrassed to ask for it but said the customer was happy to share the information with a view to getting a better deal with HGL.[102]DG said he had no direct access to the information about the rebates offered by suppliers to HGL or by HGL to customers, in respect of volume business, that might feed into the most competitive price HGL could offer on a particular product to a particular customer.[103]In relation to his involvement in non-sales work on behalf of HGL, DG said that, although not formally required to do so, he had on occasion been engaged in working in the builders yard (the loading of vehicles) and generating leads for the hire and kitchen/bathroom departments. ANALYSIS AND FINDINGS The Covenant

ANALYSIS AND FINDINGS

[104]The Covenant with the blue pencilling suggested by HGL is set out in paragraph 18 above.[105]By his closing submissions, Mr Leach suggested some further blue pencilling in relation to the Carve-Out. This was a late suggestion of further blue pencilling that Mr Tatton Brown KC said at the start of the trial he should have fair notice of so that he could respond on behalf of DG.[106]Mr Leach made the suggestion in response to DG’s case, supported by the testimony of Mr Constable, that there was no part of HGL’s business where the company had not developed confidential information (nor, I would add, no part of it therefore which could not be said to be “related to” another part in which such confidential information had been developed). Mr Leach said, if that was so, then that would have been known about at the time the parties entered into the Contract. On that basis, there was no need to include the reference to work in an area which is unrelated to one in which there was such confidential information of HGL, since it performs no function. Mr Leach suggested the Carve-Out can be read as follows:
“You shall be free to engage in any business so far as your duties and work shall relate exclusively to work of a kind which is not related to any area in which the Company has developed Confidential Information, andin which you have not been involved during your employment by the Company.”
[107]As I indicated during counsel’s closing submissions, it is one thing to blue pencil part of a contractual restraint, so that what remains is valid and enforceable but here HGL are seeking to take the blue pencil to a relaxation of the restraint (a liberty, which begins with the words “You shall be free to engage …”). At first sight, therefore, the exercise could be said to involve a cutting down of DG’s post-termination freedom of employment. The doubt expressed by HGL over this aspect of DG’s case (Mr Leach questioned whether building yard work was an area in which HGL had developed confidential information and whether DG had really been “involved” in yard work for HGL) illustrates the point.[108]Even if that thought may be too syntactically fastidious (the Carve-Out is after all part-and-parcel of the Covenant) I nevertheless agree with Mr Tatton Brown KC’s observation that this further suggested blue pencilling falls foul of the principle recognised in Tillman v Egon Zehnder for two reasons. First, it does not reflect a process of contractual interpretation but instead appears to be akin to a claim to rectification based upon the parties’ common mistake (if it was one) in assuming there might be areas of HGL had not developed confidential information. Secondly, and again as revealed by the doubt expressed by HGL over whether they were in fact wrong to assume that was the case, it has the potential to modify the effect of the Covenant quite significantly. In that regard, Mr Leach observed that this further blue pencilling would have the effect of dispensing with the need to resolve the “and versus or” issue addressed below.[109]With the point made in Guest Services v Shelmerdine particularly in mind, I therefore reject HGL’s further blue pencilling of the Carve-Out. It is therefore necessary to address the question posed by the parties at the outset of the trial as to what the Carve-Out (in its entirety) means.[110]The further, unpersuasive blue pencilling having taken me to the point, I consider it sensible to address the meaning of the Carve-Out first. I recognise that it is an exception to the preceding words of restraint, which must be separately construed for the purpose of testing their meaning and effect, but the need to consider the Covenant as a whole means it is sensible to consider first whether and how the Carve-Out impacts upon the exercise of determining the reasonableness or otherwise of that restraint. The Carve-Out[111]At the interim hearing, HHJ Matthews gave a judgment having reflected for a short while upon counsel’s rival submissions. Mr Tatton Brown KC made his submissions first in the light of the judge providing his initial view that, despite DG’s attack upon the Covenant, there appeared to him to be a serious issue to be tried for the purposes of the American Cyanamid test.[112]The transcript of the judgment of HHJ Matthews shows that he considered Mr Tatton Brown KC’s challenge to the Carve-Out, on the basis that it was ineffective in providing any meaningful relaxation of the restriction preceding it, as the greater of the problems faced by HGL in relying upon the Covenant. The judge posed the question as to whether the Carve-Out conferred two freedoms for DG to engage in business or only one. He had in mind the validity principle, referring to the judgment of Calver J in Quilter, at [170], when observing (and here I summarise) that, although the Carve-Out could have been better drafted and was ambiguous, there was an arguable case that the “and” in the final clause of the Carve-Out can be read as “or”. Although Mr Leach had not advanced a case for saying “and” meant “or”, HHJ Matthews said this possible interpretation was raised by the judge during exchanges with counsel. However, Mr Tatton Brown KC said there was no opportunity to address the court on the case of Chichester Diocesan Fund and Board of Finance v Simpson [1944] 2 ALL ER 60 to which HHJ Matthews then referred in his judgment. The judge referred to the Chichester Diocesan case to illustrate his point that in a number of cases where the court has had to address an “and versus or” issue.[113]Although the “and versus or” point goes to HGL’s alternative case on the meaning of the Carve-Out, I address it before turning to its primary case.[114]In his submissions to me, Mr Tatton Brown KC said the Chichester Diocesan case does not support the proposition that “and” can mean “or”, still less that that is its meaning in the context of the Covenant. He said it is not an authority about contractual interpretation at all and is not cited in Chitty on Contracts (36th ed) or Lewison’s ‘The Interpretation of Contracts’ (8th ed). The case concerned the meaning of a will, through the use of the phrase “charitable or benevolent”, and in any event the House of Lords held that “or” meant what it said: the word was disjunctive. He submitted that, if anything, therefore, the case is authority to support the proposition that the natural meaning of words should be adopted (the starting point and the end point per Lambeth LBC v Secretary of State) even if that has unfortunate consequences. In that case it rendered the disposition in the will invalid and in this case the Covenant invalid.[115]I would add that the Chichester Diocesan case concerned the question of whether a purported charitable bequest by a public-spirited testator was void for uncertainty. When the question of construction in this case arises in the context of the Covenant which potentially constitutes an unlawful restraint of trade, the approach required by the decision in Guest Services v Shelmerdine leaves no scope for the “sympathy” that Viscount Simon LC had for the arguments advanced in an attempt to save the bequest, or for his corresponding “regret” that they were unsuccessful.[116]HGL’s alternative case on the Carve-Out, adopting the view of HHJ Judge Matthews that it might be read as permitting two freedoms rather than just one, is that the word “and” is to be read as “or”, or “and/or” so that DG is free to work for a competing business within the restricted area so long as it is exclusively work of a kind(1) which is not related to any area in which HGL has developed Confidential Information or(2) in which DG has not been involved during his employment by HGL (or where both (1) and (2) are satisfied).[117]Mr Leach did not rely upon the Chichester Diocesan case at the trial. However, he referred to other authority in support of the contention that reading “and” to mean “or” or “and/or”, or vice versa, is a perfectly legitimate means of construing a provision so as to give effect to the objective intention of the parties and to ensure that it makes sense. Mr Leach referred to Federal Steam Navigation Co Ltd v Department of Trade and Industry [1974] 1 WLR 505 (HL) at 522B-E (per Lord Wilberforce) and 523E-H (per Lord Salmon). Federal Steam concerned the language of a statute imposing criminal liability upon the “owner or master” of a vessel.[118]The speeches of Lords Wilberforce and Salmon were relied upon by the Court of Appeal in Grimes v The Trustees of the Essex Farmers and Union Hunt [2017] EWCA Civ 36. Grimes concerned the construction of a notice provision in a lease (to be read together with the Agricultural Tenancies Act 1995). The question was whether “or” should be read as “and” or “and/or” given the context and the objective intention of the parties. Applying Arnold v Britton and Wood v CapitaInsurance Services Ltd [2017] UKSC 24; [2017] 2 WLR 1095, on the facts “or” was intended to mean one “or (instead)” the other of two addresses for service, being the more recent address after the tenant had moved from the original one.[119]I am not persuaded by Mr Leach’s argument relying upon these authorities in support of HGL’s alternative case on the Carve-Out.[120]Although my first observation rests upon a conclusion that the restraint (addressed below) is not valid and enforceable, I note that HGL’s alternative case resting upon “and” meaning “or” (or “and/or”) can only be supported by the validity principle (per Tillman v Zehnder) if it that is a realistic interpretation which renders the Covenant valid.[121]In Law by Design Ltd v Ali [2022] EWHC 426 (QB); [2022] IRLR 610, at [51], Mr Jason Beer QC, sitting as a deputy High Court judge, said:
“It is not the function of the court either to give a restrictive covenant a meaning it cannot reasonably bear in order to improve it so as to make it a restraint that would be of some use in practice (see, for example, Prophet v Huggett [2014] EWCA Civ 1013, at [35]). But where there are two possible constructions available, the court is entitled to prefer the construction that is consistent with business common sense and to reject the other: Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900 at [21].”
[122]If the restrictive part of the Covenant is not valid, even when the Carve-Out is read in this alternative way, then the validity principle has no part to play. For example, if the territory of the non-compete restriction is too wide, even if DG enjoys two freedoms within it, then this process of interpretation cannot be supported.[123]Secondly, I do not consider HGL’s alternative case to be based upon a realistic interpretation of the Carve-Out. Instead, reading the “and” to mean “or” or “and/or” gives the Carve-Out a meaning that cannot be supported without the court intervening between Lord Carnwath’s starting point and end point. I see no basis for doing so, especially when the effect of Guest Services v Shelmerdine is that DG should be given the benefit of the doubt on the issue.[124]Mr Tatton Brown KC told me that, after the hearing in February 2026, his client had expressed surprise that “and” might mean “or” when, if he had been asked by his wife to buy and black-and-white T-shirt, it would have been acceptable to return with one that was either black or white but not both. With the usual hesitancy over asserting such a negative, counsel said he had not been able to find a case where “and” had been interpreted as meaning “or” in a key contractual provision and he assumed the same was true of HGL’s legal team. A recent decision of mine is consistent with his observation: see Learning Curve (NE) Group Ltd v Lewis [2025] EWHC 1889 (Comm), at [319], [345]-[351] and [428]. In that case, counsel’s successful submission against the “constructional rectification” urged by his opponents involved him saying that a recipe requiring salt and pepper is not kept to if only one of those seasonings is used.[125]In this case, it cannot in my judgment be said that giving “and” its plain meaning leads to a nonsensical or irrational result which offends commercial common sense. The Carve-Out could have been confined to its second limb (where HGL’s suggested blue pencilling of it would have led towards, if not quite matched, what the Court of Appeal described in Planon v Gilligan as the “quite standard wording” of the carve-out in that case) but, by use of the conjunctive “and”, HGL must be taken to have intended to protect all areas of its business in which it has confidential information whether or not DG had any material and/or recent involvement in that area before his employment ceased.[126]That leaves HGL’s primary case on the Carve-Out which proceeds on the basis that limbs (1) and (2) in paragraph 116 above are indeed cumulative requirements if DG is to be free to work in the restricted area.[127]On that primary case, HGL says the Carve-Out is to be read as follows: “[DG] shall be free to engage in any business so far as [his] duties and work shall relate exclusively to work of a kind which is not:(1) related to any area in which [HGL] has developed Confidential Information, and in which [DG has] not(2) been involved during [his] employment by [HGL].”

and in which [DG has] not

[128]Mr Leach said this meant that what DG cannot do is work for a competing business within the restricted zone where both limbs (1) and (2) are present. He can do work where limb (1) is present, if he was not involved in that area of work during his employment with HGL. He can do work where limb (2) is present, if it is not an area where HGL has developed Confidential Information. He can of course also work where neither is present.[129]For these purposes, HGL says the word “area” means an area of business (i.e. a business activity of HGL) rather than a territorial area of the kind delineated by the restraint itself. I accept that is the natural and ordinary meaning of the word when read in its context. Even though DG was an Area Sales Manager, equating the term “area” with a type of business activity is consistent with an inquiry into whether he was “involved” in it and whether his new “work and duties” are exclusively of a “kind” that is unrelated to it. Moreover, the Carve-Out of course purports to relax a restriction upon DG being engaged or concerned with a competing “trade or business” (the ‘Competing Business’, as defined).[130]The meaning advanced better suits the application of commercial common sense when compared with an interpretation that would require the court to identify a particular place or places where Confidential Information of HGL has been “developed”. As I note below, ‘Confidential Information’ is not defined by the Contract but what Mr Tatton Brown KC recognised to be the implicit definition of the term in clause 19 means it extends to such matters as HGL’s plans for product and service development, arrangements with professional advisors, records of internal meetings and management information and accounts. It seems to me to be quite likely that at least some of the listed confidential information would be held (and might be said to have been developed) at HGL’s registered office which is on Anglesey. Any attempt to identify a geographical area (not delineated and certain as it is in the restraint) as the anchor for the Carve-Out seems to me to be unrealistic and unworkable.[131]Mr Tatton Brown KC nevertheless countered Mr Leach’s interpretation of the Carve-Out as a whole by saying it does not work as in practice it does not permit any business activity by DG within the territory of the restraint. The cumulative requirements of the Carve-Out are such that, whatever the second limb means in terms of DG’s “non-involvement” whilst at HGL, the breadth of the Confidential Information requirement is such as to rule out any potentially permitted activity. That is because the phrase “any area in which [HGL] has developed Confidential Information” will encompass the entirety of HGL’s business (not least because of the wide-ranging description of such confidential information in clause 19). The Carve-Out is not linked, as it might have been, to Confidential Information of which DG had knowledge through his involvement as an employee of HGL.[132]Mr Tatton Brown KC also said the second limb of the Carve-Out also failed to admit of any sensible exception to the restraint upon DG. Other work would be permitted only if it related exclusively to work of a kind in which he had not been involved at HGL. The provision is not limited to work of a kind with which he was materially involved or to such work with which he was recently involved (say, in the last 12 months of his employment). Thus, if the DG had fleetingly worked behind the counter at one of his three branches, undertook stock takes or even referred potential customers to his work colleagues in HGL’s plant hire or kitchen and bathroom business, that would be “involvement” which would prevent him relying on the Carve-Out.[133]Mr Tatton Brown KC also said that HGL’s interpretation of the Carve-Out also suffered from what he described as the double-negative problem arising out of the second “not” in the Carve-Out. He submitted that the effect of that second “not” is that, instead of DG being permitted to undertake work of a kind which is entirely (or “exclusively”) unrelated (or “not related”) to his former Area Sales Manager role, he would in fact be able to work for MKM within the restricted area in a sales role. That is because that sales role is not related to an area of work in which DG had not been involved during his employment by HGL. On that basis, the sales role with MKM is a permitted one.[134]That last point (which falls to be considered in the light of the previous one about the breadth of DG’s “involvement” in HGL’s business) does appear to produce an absurd result when the Covenant is headed ‘Non-compete’ and the restriction upon DG is by reference to 20 mile radii centred upon HGL’s branches for which he was Area Sales Manager. It appears to make no commercial sense for the restriction to be imposed and then undermined in the way suggested by Mr Tatton Brown KC’s reliance upon the precise syntax of the Carve-Out.[135]On behalf of DG, he said there was no basis for ignoring the second “not” and no authority had been relied upon by HGL for doing so. Although Mr Leach did not rely upon it, the decision of the House of Lords in Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38; [2009] 1 AC 1101, establishes that the court may correct the language of a contract, through the exercise of interpreting it, when it is clear something has gone wrong with it and the result is grammatical ambiguity. I say that recognising (as I did in the Learning Curve case by reference to Chartbrook and also the decision of Nugee LJ in Monsolar IQ Ltd v Woden Park Ltd [2021] EWCA Civ 961; [2022] 2 P&CR 10, at [31]-[33]) that the test for correcting the words of a contract through the process of interpretation is quite a high one. Its reference point is one of identifying “irrational, arbitrary, nonsensical or absurd results” that are produced by the actual language used when it is no part of the court’s role to relieve one party of a commercially unattractive consequence or from a bad bargain.[136]I confess to having read and re-read the Carve-Out a number of times (as I imagine some others reading it might do so) to check that, as a matter of strict language, it can support the point made above by Mr Tatton Brown KC relying upon the double-negative. Having done so, it seems to me that, reading the Covenant as a whole, the potential consequence of the second “not” evidently cannot be said to reflect the parties’ intentions at the time they entered into the Contract. It is important to bear in mind that DG would need to know whether or the Covenant either did or did not all impinge upon his freedom to take up a sales role with a competitor of HGL. In my judgment, a reasonable person would have understood what it was the parties meant in that regard. Once he had got his head around the language of the Carve-Out, that person would have realised that the second “not” was therefore a grammatical mistake when it made no sense for the parties to be addressing a freedom to work in an area upon which DG’s employment (or “involvement”) by HSG had no bearing.[137]I therefore take the Carve-Out to have the effect suggested by Mr Leach in identifying his limb (2) above.[138]Nevertheless, even reading that way, I have concluded that the Carve-Out is of no value to HGL in promoting the reasonableness of the Covenant. It does not operate to limit the foregoing restriction in the Covenant.[139]Counsel recognised that the wording of the Carve-Out is “less straightforward” (Mr Leach) or “odd” (Mr Tatton Brown KC). The problem with it is that (the “and” meaning just that) the need for DG also to satisfy limb (1) means that it lacks any effect. The evidence of Mr Constable confirms the extraordinary width of the Carve-Out in indicating there is no area of HGL’s which has not involved the development of confidential business. The evidence certainly does not enable me to identify a business/employment activity which, in derogation of the non-compete restriction, might be undertaken by DG because it is “exclusively” of a type that is “not related” to an area in which HGL has developed confidential information. Any work that he might perform for a competitor would involve work of a kind related to an area in which HGL has developed such information, so it is not permitted by the Carve Out.[140]It may be that the unhappy wording of the Carve-Out masks an attempt by the draftsman (consciously and deliberately using the word “and”) to create an exception for work outside an area in which HGL developed confidential information of which DG had personal and involvement (in the sense of knowledge). The preamble to clause 33 generally refers to the importance of HGL’s confidential information and the time and effort spent in building up customer and supplier connections. However, the problem is that reading the Carve-Out that way probably involves going well beyond what is permitted under the principle in Chartbrook and, no doubt for that reason, that point has not been advanced by HGL.[141]Even if it had been advanced, HGL would still have to have engaged with the “exclusively …. not related” language. This brings me to the second fundamental problem with the Carve-Out and the meaning which has been given to it by HGL.[142]On what I consider to be the proper interpretation of the Carve-Out, applying the Chartbrook principle, in order to satisfy the second, cumulative limb (2) the otherwise competing work undertaken by DG would have to be wholly unrelated to the kind of work in which he was “involved” while employed by HGL.[143]Clause 3 of the Contract (under the heading ‘Duties’) stated that DG’s job title was Area Sales Manager but that, outside his “normal responsibilities”, he could be required to “perform such other or additional duties” as HGL might reasonably determine. The clause said the job title did not limit his duties and that he might be required to do “any work” within his capacity. In his evidence, Mr Constable said that Area Sales Managers are expected to spend time at a branch by, for example, working behind the counter.[144]The evidence of DG shows that, whether or not instructed or formally required to do so, he was “involved” in the following aspects of HGL’s business: liaising with customers helping behind the counter at a branch, delivering products (by his car) to a customer’s site; helping in the builders merchant’s yard at the branch; passing leads for potential business to his colleagues in HGL’s kitchen and bathroom business; and passing leads for such business to his colleagues in HGL’s plant and hire business.[145]The reach of limb (2) is such that all these kinds of work, together with other kinds that can properly be said to be related to them, fall outside the Carve-Out and remain proscribed by the Covenant. The point is illustrated by Mr Constable saying in cross-examination that he would regard it as problematic for DG to work as a salesman at a DIY outlet such as B&Q or as showroom manager for Howdens (who sell kitchens and bathrooms) within a relevant 20-mile radius. Similarly, Mr Leach’s cross-examination on this aspect of the case involved him putting to DG that he was free to use his sales skill in a business outside the building materials sector (such as car sales) or to be employed within a non-competitive role within that sector such as working for a buyer on the customer side or for a supplier to businesses such as HGL.[146]Even without the difficulty presented by the need to also satisfy limb (1), those illustrations as to what it would take to satisfy limb (2), by avoiding any kind of sales role which related to his work at HGL, show that the provision in fact carves out nothing from a restriction upon being engaged in a ‘Competing Business’. The Carve-Out is really nothing of the sort.[147]It follows in my judgment that the reasonableness and the validity of the restriction must be considered independently and regardless of the Carve-Out. I note here that, on the assumption that it reflected a legitimate exercise in blue pencilling, Mr Leach’s skeleton argument contemplated that his client’s case about the restriction going no further than is reasonably necessary to protect its business interests would be true even if the Carve-Out is found to be unworkable and ignored entirely. The Restraint[148]HGL contends that the 6 months restraint upon DG competing under the Covenant (as blue pencilled in paragraph 18 above) is a reasonable and valid one.[149]In his oral closing submissions, Mr Leach raised an additional point in support of that case by reference to the restriction upon DG’s activity being subject to HGL not giving him written consent to the contrary. In response, I questioned whether the language of the Covenant, contemplating that such consent might be given, really operated to qualify the restriction for the purpose of testing its reasonableness when the giving or withholding of such consent (to a complete or partial relaxation of the non-compete provision) appeared to be entirely at the whim of HGL. The reference in the Covenant to the possibility of such consent was not accompanied by the words “not to be unreasonably withheld”, or the like, and I remarked upon the different language of HGL “acting reasonably” in the blue pencilled part of the Covenant relating to what the HGL might from time to time consider to be a material part of its or its group’s business. My instinctive view that the “not without the prior written consent” language might therefore have no impact upon the question of reasonableness appeared to have some support from Bloch & Brierley on Employment Covenant and Confidential Information: Law Practice and Technique (4th ed), at para. 12-34, which Mr Tatton Brown KC read out in his submissions in reply on this new point. The textbook passage was to the effect that such language probably had no legal significance and was probably best left out of the drafting of a restrictive covenant.[150]However, Mr Leach said there was more to it than that in suggesting the proviso about written consent was subject to a Braganza limitation. He had in mind the limit on the exercise of a contractual power or discretion under a contract which affects both parties, as recognised by Rix LJ in Socimer International Bank v Standard Bank [2008] EWCA Civ 116; [2008] Bus LR 1304, at [60]-[66], and the Supreme Court in Braganza v BP Shipping [2015] UKSC 17; [2015] 1 WLR 1661.[151]I am not persuaded that those authorities relating to the limitations upon the exercise of a contractual discretion or power assist HGL’s case. The decisions in Socimer and Braganza concern the exercise of a contractual right in one party upon the occurrence of a certain event contemplated by the contract. The right involves the party forming an opinion and/or making an assessment or determination which affects both parties. In Socimer, the discretion related to the defendant bank’s valuation of a portfolio of securities immediately upon (and as at the date of) the claimant bank’s default and, in Braganza, the employer’s power to determine the facts surrounding an employee’s death which was of significance to any death-in-service benefits payable to his widow. Public law notions of Wednesbury rationality and the need to recognise a potential conflict of interest on the part of the decision-maker mean that, in the private law context of a contract, the exercise of such a discretion or power is necessarily subject to concepts of honesty, good faith and genuineness; and the need for the party exercising it to avoid acting with arbitrariness, capriciousness, perversity and irrationality.[152]It is difficult to analyse the provision in the Covenant in the same way. Although I can accept the relevant words could be said to contemplate the exercise of a discretion by HGL upon DG asking for a relaxation of the non-compete restriction (on the basis that prior written consents given by one party are invariably requested by the other) the decision whether or not to exercise it is instead a simple one of yes or no for HGL.[153]In other words, HGL’s right to say yes or no is an absolute one. As the decision in Socimer makes clear, the suggested implication of a term that a contractual discretion should be exercised reasonably is where (per Rix LJ at [106]) matters become much less certain because that involves going beyond the implications of good faith and rationality that are the very essence of a business relationship. I cannot in this case see any scope even for resorting to the contractually less demanding concepts of honesty, good faith and genuineness as a fetter upon HGL’s right to say no if the default position (i.e. the absence of a yes) is that DG is bound by the restriction because it is valid. If that is the case then there is nothing arbitrary, capricious, perverse or irrational in HGL saying no. A landowner’s ‘no trespassing’ sign is not undermined by him choosing to give ad hoc permission for someone to come on to his land. If it is not the case, the fact that HGL might have consented to waiving a restriction which is in any event unenforceable is of no consequence. In that situation the provision contemplating such consent has no contractual value just as a ‘no trespassing’ sign has no basis if the person coming on to the land is exercising a public right of way. What seems clear is that, either way, the provision is a neutral one. In my judgment, the reference to the possibility of HGL relaxing the Covenant carries no weight in the determination as to its enforceability.[154]On that determination, the key inquiries are whether HGL has established it has legitimate business interests requiring protection in relation to DG’s new employment and, if so, that the Covenant is no wider than is reasonably necessary for the protection of its interests. Those are questions to be addressed in the light of the evidence and the burden is upon HGL. However, the first step, applying TFS v Morgan, is to establish what the restrictive part of the Covenant means.[155]In solicitors’ correspondence before the hearing of the application for interim relief Barass Whiting LLP on behalf of DG sought to clarify HGL’s understanding of the meaning of the Covenant. By an email dated 18 February 2026 (the day the Claim was issued) and addressing the order sought by HGL on the interim application , they said (with the emphasis in the original):
“If there are roles at MKM you feel Mr Gentleman can do in compliance with this clause, please specify them and explain why they are not caught by this clause.”
[156]Mr Tatton Brown KC said that HGL’s failure to engage with this request gave the game away that the Covenant is obviously flawed and operates to prevent competition generally, which is impermissible.[157]In his skeleton argument Mr Leach said the following were ways in which DG could be employed without infringing the Covenant:(1) By using his transferrable skills in sales and customer relationships in another retail sector or line of business, in any area;(2) By working in sales in the same line of business, but outside the restricted area;(3) By working for a customer of HGL (perhaps as a buyer) or for a supplier.[158]I have touched upon (1) and (3) above in addressing the Carve-Out. They appear to assume that the sales side of HGL’s as a whole (that “line of business” to use the phrase in (2)) should be protected from DG’s competing employment within the restricted area, without further inquiry about aspects of that business such as customer connections or confidential information that might legitimately justify such protection. Accordingly, those suggested freedoms can be said to reflect an assumption that HGL is entitled to prevent competition per se within the restricted area. As Mr Tatton Brown KC said in his closing submissions, that the Covenant does not prevent the DG from working as a double-glazing salesman or a second-hand car salesman within the restricted area is scarcely going to vindicate the Covenant’s reasonableness.[159]So far as (2) is concerned, a map in the trial bundle showed the extent of the three, interlocking 20-mile radii centred upon HGL’s Cirencester, Swindon and Newbury branches and the parts of the counties of Gloucestershire, Wiltshire, Oxfordshire and Berkshire covered by the restricted area.[160]Mr Leach said the ‘Competing Business’ was “located” within the meaning of the Covenant where a competitor such as MKM had its own equivalent type of branch. In other words, the Covenant was directed to preventing DG from working from a particular location within any of the three radii. He referred to DG’s ability to work from MKM’s branch in Kidlington, Oxfordshire which fell outside the restricted area. However, in his closing submissions Mr Leach accepted that if DG did work from (i.e. out of or on behalf of) MKM’s Kidlington branch then he would be free to deal with customers, including customers of HGL, within the restricted area. That is consistent with HGL’s emphasis upon DG’s job with HGL having been a peripatetic one. Mr Leach said DG was really based at his home in Swindon and it was DG’s choice to start most days with a visit to one of his three branches as he said in evidence.[161]It is also consistent with part of Mr Constable’s understanding as to the effect of the Covenant, so far as DG operating within the restricted area is concerned, though Mr Constable added the important rider that in his view DG should not be able to exploit the connections evidence by DG’s Ledger.[162]The acceptance that DG would be able to target customers within the restricted area, on behalf of MKM branches located outside it, appears to undermine the protection of HGL’s customer relations which is said to be a significant purpose of the Covenant. There is no accompanying (or alternative) protection of HGL through an enforceable non-solicitation and non-dealing covenant of the kind Mr Constable perhaps assumed. It also shows that a restriction which would have the effect of pushing DG to work from a “base” outside the 20-mile limits is an inadequate substitute for a non-solicitation and non-dealing covenant of the kind HGL attempted to agree. And were it not for HGL’s apparent recognition that DG would not need to set out from, say, Kidlington but could begin his peripatetic day from his home in Swindon (and then begin contacting potential customers in the restricted area on behalf of MKM’s Kidlington branch) the Covenant would be significantly more onerous than a covenant which prevented DG from dealing with the 103 customers on DG’s Ledger.[163]In my judgment, however, the even more fundamental problem with HGL’s interpretation of the Covenant is that its language does not support the analysis based on the particular location of branches within the ‘Competing Business’. Instead, as Mr Tatton Brown KC correctly noted, the Covenant does not refer to the location of competitors’ branches or other places out of which they operate their business. Instead, it is a ‘Competing Business’ within the 20-mile radii upon which the Covenant is said to bite. As defined, that means a “trade or business that competes or is preparing to compete” with HGL. Whilst I recognise that the Covenant is intended to protect the business activities of HGL or any Group Company (“any business … including (but not limited to) builders merchants supplies or such other future projects or activities ….. [reasonably considered to be] …. a material part of the ….. business” ) Mr Tatton-Brown KC is also correct to say the ‘Competing Business’ which is identified as posing a threat to those activities is described in a different way.[164]I accept his submission that on the ordinary and natural meaning of the words used a ‘Competing Business’ is assumed to be a business entity rather than a business activity. The core is on DG “engag[ing] or be concerned or interested… in any trade or business that competes or is preparing to compete”. Although the phrase “interested in” has been blue pencilled by HGL, the decision in Tillman v Egon Zehnder, at [49, [51] and [53], confirms that “interested in a business”, encompasses having a shareholding in it. The decision, at [90], also makes clear that the blue pencilling will not alter the construction to be put upon the phrase. There are obviously other ways to be financially interested in a competitor but if the competitor is a company and a shareholding in it would otherwise be caught by the Covenant then that points to the ‘Competing Business’ being an entity. It is not possible to have a shareholding in a business activity. The references in the Covenant to “principal”, “partner”, “employee” and “agent” (though not, I think, “adviser” or “consultant”) also indicate the existence of a competing entity. In relation to employment, Mr Tatton Brown KC drew my attention to clause 18 of the Contract which contains a prohibition that DG “shall not at any time during your employment with the company take steps to set up a Competing Business (as defined in clause 33 below)”. Although more finely balanced, the concept of setting up a business applies more naturally to a competing entity as opposed to activity. Likewise, the reference in the Covenant to competitor “preparing to compete” indicates an entity (corporate or otherwise) with some kind of directing mind and will, rather than an activity which cannot form such intentions or act upon them.[165]Once it is recognised that, on the facts of this case, the Covenant appears to catch MKM as a ‘Competing Business’, on the basis that it is company that competes within the restricted area (including through its own branches but more generally because it draws its own customers from within it) then its extraordinary width becomes apparent. Without a meaningful Carve-Out, it prevents DG from being employed by MKM in any capacity, including at MKM’s Head Office in Hull. The restricted competing employment is not confined to a sales position and can extend to such roles as procuring building supplies, working in the builders’ yard, as branch manager or even a finance or HR role within MKM.[166]Further, the Covenant is for the protection of “any business” of HGL (expressly not confined to “builders merchants supplies”) regardless of whether or not DG had anything or anything much to do with that part of its business. I have referred above to the “involvement” of DG in referring potential customers to his colleagues in HGL’s plant hire and kitchen/bathroom departments in the context of analysing the ineffective Carve-Out. Although that involvement was enough to mean that he would not be able to satisfy the terms of the Carve-Out, it was very limited and did not involve him engaging with the detail of any resulting business. Yet DG would be prevented from working for Howdens at their Swindon branch. Mr Tatton Brown KC observed that on-line retailers such as Amazon and Tesco Marketplace are not builders merchants but they supply DIY goods such as loft insulation to customers within the restricted area. DG could not be employed by them on the basis that those entities are competing with HGL for custom within that area.[167]Although Mr Constable suggested HGL would be concerned about DG working at a branch at B&Q (albeit within the restricted area rather than anywhere) HGL has not attempted justify how the Covenant with such wide-ranging effects is no wider than is reasonable for the legitimate protection of its business interests. The suggested limitation based upon the need for the competitor to not have a branch or location within the restricted area is not sustainable and, as I have observed, in any event does not provide any meaningful protection of HGL’s customer base when DG would be able to target customers within the area for the benefit of the competitor’s branch located outside it.[168]In my judgment, therefore, the Covenant constitutes an unlawful restraint of trade and is void and therefore unenforceable.[169]In the light of that finding it is strictly not necessary for me to address the other matters relied upon by DG to support that conclusion. However, counsel engaged with them in their submissions (and through some of their questions to Mr Constable and DG) and I address them relatively briefly.[170]I begin by saying that DG’s lawyers provided me with a summary of the terms of employment of some other employees of HGL over the period 2014 to 2023. Only one of them related to 2023 (the year HGL and DG entered into the Contract) but I accept Mr Tatton Brown KC’s point that the way in which the builders merchants business operates in relation to sales is unlikely to have changed significantly over the decade. The summary showed, for example, that a Sales Person employed by HGL in 2023 and an Assistant Branch Manager employed in 2022 were not subject to any post-termination, non-compete restriction and that Regional Sales Managers employed in 2018 and 2020 were subject to a 3-month restriction. There was a 3-month restriction for a Sales Development Manager employed in 2018.[171]That summary was produced to engage with Mr Constable’s evidence that his experience was that “the post-termination covenants applied to [DG] are entirely standard within the industry.” Mr Constable referred, for example, to 9-month restriction to which he was subject and the 6-month restriction that applies to HGL’s Swindon Branch Manager who became employed in November 2025. That manager was recruited from Jewson and Mr Constable referred to ‘Grade 3 and 4’ employees of that company (including Sales Managers, Area Sales Managers and Regional Sales Managers) being subject to a 9-month restriction. DG’s employment contract with MKM does not have a non-compete provision though it does make provision for garden leave and restricts use of confidential information after termination.[172]The terms of employment of other employees (still less those of other employers) obviously cannot assist me in the fact-specific exercise of determining what the Covenant means. In Tradition Financial Services v Gamberoni, at [24], Foskett J said:
“It is axiomatic that each case is fact-specific. It is important to emphasise this proposition because I have been much pressed by what has or has not been held acceptable in other cases and what it is said to be current ‘industry practice’ in the IDB field. Whilst it is helpful to have some appreciation of these matters and, as the judgment of Maurice Kay LJ indicates, uncontradicted evidence of ‘industry standard’ may be of relevance as a factor to be considered, they are not determinative of the issue in any specific case.”
[173]In this case there is no uncontradicted evidence, or at least no agreement between the parties as to what, if anything, is standard for someone in DG’s position. In my judgment, there is some relevance to this evidence in the fact there was no non-compete provision for an Assistant Branch Manager who was employed in 2022. The evidence about how HGL operates in relation to offering prices to customers, including sometimes the best possible price that involves employees heeding the AD Cut-Off, reveals that an Assistant Branch Manager has much the same access to HGL’s pricing information as DG had (albeit for his/her particular branch rather than three). If necessary, the Assistant Branch Manager would cover for the Branch Manager in his/her absence. As Mr Tatton Brown KC submitted, the Assistant Branch Manager would also be using HGL’s software systems far more frequently than the DG. He or she would be far closer than DG to the actual best prices the particular branch is prepared to offer when it is the branch which ultimately takes the decision on price. I should have in mind the absence of a restriction for an Assistant Branch Manager when considering HGL’s case that at the end of his employment DG would have been armed with the confidential information of the AD Cut-Off in relation to key building supply products.[174]DG’s access to such information from the outset of his employment is something that feeds into the Quilter point.[175]In relation to the Quilter point, and the duration of the Covenant, I find that HGL has failed to establish that a 6-month restriction is no wider than is reasonably necessary for the protection of its interests. In my judgment, HGL has not satisfactorily engaged with the point made by Calver J when he said:
“The threat of a departing employee requires less protection if she has had less of an opportunity to build such a relationship with the clients. Having access to client-related documentation does not of itself build a strong client relationship.”
[176]The focus of Mr Constable’s second witness statement, for the trial, was upon DG’s early access to confidential information and marked something of a shift away from DG’s ability to develop customer allegiance from the start of his employment.[177]DG accepts that HGL has a legitimate interest in the trade connections it has with customer including the 103 on DG’s Ledger at the end of his employment. However, Mr Tatton-Brown KC correctly observed, with the support of the evidence of Mr Constable on this point, that DG could not have developed customer relationships with all 103 customers during the first few weeks of his probationary period.[178]I am also unpersuaded by HGL’s case based upon DG’s access to confidential information which I consider below in relation to its claim for injunctive relief to prevent DG from using it. For the reasons given below, the evidence has not established that DG, such access as he had and made use of, would lead him to remember it or that, even if he had remembered it, the “shelf life” of the information was such that it could be used by him to HGL’s commercial disadvantage over the 6 month period of the Covenant. HGL has not met the Quilter point by establishing that its legitimate protectable interests were at risk of DG’s misuse of confidential information over that period. It follows that this could have been an additional reason for finding the Covenant to be unenforceable.[179]So far as the territorial scope of the Covenant is concerned, the fact that HGL now recognises that DG would be free to operate on behalf of MKM within the restricted area, by targeting customers for the purpose of generating business for a branch or branches of MKM located, means that the Covenant in this respect would not have operated to protect the legitimate interest of HGL in the form of its customer connections. Therefore, the question as to whether this element of the Covenant is or is not reasonably necessary to protect such interests is in my view misplaced.[180]That said, the APOC allege that DG has breached the Covenant by taking up employment with MKM as “a competing business which is located within 20 miles of the Claimant’s Swindon, Newbury and Cirencester branches” and the terms of the interim injunction mirrored the language of the Covenant. Until HGL clarified its position in closing submissions it could reasonably be assumed that the effect of the Covenant was that DG could not during the 6-month period operate on behalf of MKM as their External Sales Manager within any of the three 20-mile zones during the 6-month period, whether or not the branch or branches he was acting for were outside them. It is clear from his witness statement that DG understood it to mean that.[181]As Mr Leach put in his skeleton argument at the start of the trial, DG could avoid breaching the Covenant “by working in sales in the same line of business but outside the restricted area.” The decision in Thomas v Farr (where the restricted territory meant “any geographic area in which any company in the group conducts the business or part thereof and for which the executive was responsible or to which he rendered services in the 12 months preceding the termination date” and the restriction was upheld) was said in the skeleton argument to be of the same species as the Covenant. Questions were put to DG in cross-examination to the effect that, during the period of the interim injunction, he might have worked for a branch of MKM outside the restricted area.[182]I therefore understood the discussion and argument at trial about the evidential impact of Mr Lamond’s spreadsheets to be based on the assumption that the Covenant had that effect (albeit without the limitation to DG’s customer connections within the last 12 months). I should say it was anything but the kind of paralysing debate that Haddon-Cave J QBE v Dymoke feared might take place.[183]Once it was established that the spreadsheets showed the total number of delivery sites in the 12 month period, Mr Tatton Brown KC was able to make some forceful points about how it would be quite likely (though the lack of complete data meant one could not be certain) that the greater number of deliveries would have been to sites significant closer to the relevant branch than a distance of 20 miles or more. The evidence supports the inference that there are likely to have been a significant number of deliveries from the Swindon branch to a housing association operating locally which was one of its customers Mr Constable confirmed in evidence that HGL did not charge delivery mileage for orders over £150 and business common sense suggests the longer-range deliveries (one involved a trip of 123 miles from Swindon to an Exeter postcode) were one-offs or at least rare. DG said he assumed one delivery from Newbury to Bristol (52 miles) would have been because HGL’s Bristol branch did not have the stock to fulfil the particular order.[184]On the other hand, DG’s peripatetic role and HGL’s position that it was very much his own choice to begin his day with a branch visit when the role of Area Sales Manager required him to be out and about in his car visiting sites, might be said to fully justify the 20-mile zones.[185]However, I have concluded it is just not sensible to make a finding about whether or not a “much less far-reaching” (per Office Angels v Rainer Thomas and QBE v Dymoke) restricted area would have provided HGL with adequate protection. Not only does the validity of the Covenant not turn upon that being decided but as noted above the basis for the question about this discrete element of the Covenant has disappeared. The Covenant would not be reasonable and enforceable if it had the effect of described by Mr Constable (see paragraph 76 above) of preventing DG from targeting custom outside the restricted area on the basis that he was working for a branch within it. His employment with HGL gave him no ties or knowledge with customers beyond the restricted area. But the issue over the extent of the restricted area is no longer the one indicated by Mr Leach’s skeleton argument so far as DG operating as a sales person within the restricted area is concerned.[186]The reason why the question about this aspect of Covenant is no longer relevant is because it is now accepted by HGL that DG would be able to operate on behalf of MKM within the restricted area. That acceptance points away from any question about whether the restricted area within the Covenant should have been far less reaching when he can operate within it (even if MKM’s branch would have to be outside it) whatever its size. It points instead to a more basic question. That is whether targeted, adequate and appropriate protection of HGL’s customer connections should have taken the different form of an effective non-solicitation and non-dealing covenant: see Quilter at [170(10)].[187]For the reasons given above, and unhindered by that ‘non-finding’ in relation to its territorial scope, HGL’s claim on the Covenant therefore fails.

Confidential Information

[188]HGL’s draft of the order sought at trial suggested a 12-month restraint upon DG using what it said was its confidential information. With one exception, the list of ‘Confidential Information’ in the draft order replicated the list in clause 19 of the Contract, headed ‘Confidentiality’. That clause referred to DG not divulging trade secrets or confidential information or documents concerning HGL’s business transactions during the period of his employment “and at all times thereafter.” Clause 35 also referred to the contact details of business contacts made by DG during the course of his employment as being the property of HGL.[189]As the terms of the Order dated 25 February 2026 made clear, information is not to be treated (between the parties) as ‘Confidential Information’ if, amongst other matters, it is already in the public domain otherwise than through disclosure by DG or the information forms part of DG’s general skill and expertise.[190]Clause 19 did not use the phrase ‘Confidential Information’ as if it was formally defined. By contrast, the opening words of clause 33 provide:
“The Company’s Confidential Information, staff, customers and suppliers are important assets of the Company. The Company allows its staff full access to information and customers and it has spent many years and spent considerable sums of money in building its customer and supplier connections.”
[191]However, although the phrase appeared with capital letters (though not in bold as was the case with certain other defined terms) ‘Confidential Information’ is not a defined term within Schedule 1 to the Contract.[192]The list in clause 19 (and in the order sought by HGL) went well beyond information relating to customer and supplier connections and pricing information and included such matters as records of competitor information (which on the face of it would appear to encompass information relation to MKM’s own business), arrangements with professional advisers and details about the value and terms of tenure of HGL’s properties.[193]However, even focussing upon those items in the list which bear upon the customer connections developed by DG during his employment, I am not persuaded that an order of the kind sought by HGL should be made.[194]In my judgment, the evidence to support such an injunction, on the basis that DG will otherwise misuse HGL’s confidential information is thin and unpersuasive.[195]In addressing the evidence of DG above I have already explained my reasons for concluding that HGL has not made good its case about DG contacting HGL customers in January 2026. That allegedly wrongful action forms a key (though not indispensable) part of HGL’s claim for final injunctive relief. In my judgment, it is also significant that DG’s employment contract with MKM was to commence on 23 February 2026 because DG thought he had to give HGL three months’ notice. Even though MKM’s Swindon branch would not be open sooner, that points against DG being of a mind to immediately set out about misusing HGL’s confidential information. Mr Constable recognised that, even if DG had contact RAM, KMS Groundworks or other customers of HGL in January 2026, there is no evidence that he misused such confidential information when doing so. That observation brings me to the more fundamental problems with the claim based upon HGL’s confidential information.[196]HGL obviously cannot lay claim to “property” in its customers. That is obvious from the fact that a typical customer will have an account with several builders merchants.[197]Neither is there any confidentiality in the best price that a business such as HGL is prepared to offer its customers. That is obvious both from the fact that HGL does not and cannot sensibly provide a quote to a customer on a confidential basis and the evidence about customers approaching DG at HGL to ask whether HGL can beat a competitor’s price. Customers will also talk amongst themselves about prices available across different builders merchants. DG referred in his evidence to builders getting together in the pub and talking about how much they are paying a certain supplier for a bag of cement. Mr Constable recognised that HGL’s and competitors’ prices were put out in the open by customers who are “trained to negotiate”. The customers are doing for themselves what supermarket chains advertise to the public about beating a competitor’s prices on certain key products.[198]In relation to HGL’s interest in protecting customer connections, there is no allegation that DG downloaded or otherwise took away with him from HGL any customer lists. As the interim injunction made clear, information is not confidential information if it is already in or comes into the public domain (otherwise than through DG’s unauthorised disclosure of it) or if it forms part of DG’s general skill and expertise.[199]The first carve out of what is not confidential information is highly relevant when the evidence shows that MKM and other competitors will already be targeting customers on DG’s Ledger. If DG’s new employer already has, say, the contact details of KMS Groundworks (and DG’s evidence was that there is a family connection between that customer and MKM) those details are necessarily in the public domain. DG is not bringing confidential information to his new employer.[200]The second carve out as to what is not confidential information reflects DG’s entitlement to make use of information about HGL’s customers if it forms part of his skill and knowledge: see Marathon Asset Management LLP v Seddon [2017] EWHC 300 (Comm); [2017] IRLR 503, at [113]-[114]. If DG did not remember the phone number or email address of his contact at KMS Groundworks (and his evidence generally was that he did not have contact details in his memory) then it was nevertheless within his general knowledge that they were a source of potential customer for MKM. DG’s 2024 performance review refers to having finally got KMS Groundworks on side and delivering £60,000 of sales in the fourth quarter. He would be free to look up the publicly available contact details for KMS Groundworks. Even if not already known to and doing business with MKM, those details are publicly available. They are not confidential information.[201]Allowing for those carve outs, the interim injunction prohibited DG from, amongst other things, using ‘Confidential Information’ (as defined and in the main borrowing from clause 19 of the Contract). By way of final relief at the trial, HGL also sought an order that DG should:
“…. delete the contact details of all Business Contacts from his personal social or professional networking accounts, and shall within 7 days of this Order provide [HGL] with a signed statement confirming that he has done so.”
[202]This relief was sought by reference to clause 35 of the Contract which provides that must be done on the termination of DG’s employment. Clause 35 (headed ‘Social Media, and Social and Professional Networking Sites’ begins by providing that other professional networking accounts bearing HGL’s name (the reference is to ‘Company Accounts’) will “be owned by HGL” and are to be approved by its marketing team. Any such contact details on DG’s personal phone’s messages are not covered as WhatsApp is a messaging platform rather than a social media account. HGL does not own DG’s LinkedIn account (it is not a ‘Company Accounts’) but it is a professional networking account containing (no doubt amongst other contacts) details of business contacts made by during the course of his employment as his exchange with Jenine Connelly on 11 February 2026 illustrates. Mr Leach said those details – defined as ‘Business Contacts’ in clause 35 - should be deleted.[203]During counsel’s closing submissions on this aspect of the relief sought I indicated my lack of familiarity with how a LinkedIn account operates and, recognising that there might be nothing of substance in the thought, whether the relief sought by HGL might raise potential issues under the Human Rights Act. Mr Tatton Brown KC said he had never heard of the court making such an order or indeed of an employer seeking one. However, I have not found it necessary to ask the parties for further assistance on these aspects because I am not persuaded that HGL has established the basis for it.[204]Clause 35 states that the Business Contacts are “the property of [HGL]”. However, whatever the Contract might say, they are not HGL’s “property” and, importantly, neither is DG’s LinkedIn account. DG’s ownership of his LinkedIn account (the essence of which is that it reflects his current employment) means that this is not the same type of case as PennWell Publishing (UK) Ltd v Ornstien [2007] EWHC 1570 (QB); [2007] IRLR 700 referred to by Mr Leach. That case concerned the ownership, as between employee of information on a ‘Junior Contacts list’ spreadsheet forming part of a database created by the employee during the course of his employment.[205]The contact details of HGL’s customers are instead their property, in the sense that the details (and business decisions that might lead to them being changed) are under the control of those customers. They are also publicly accessible and DG is free to invite the individual contacts to connect to him via LinkedIn. Mr Leach accepted that, if ordered to delete them, DG would be able to reinvite the relevant contacts to connect with him again via LinkedIn as Mr Tatton Brown KC suggested. That can only be because they are in the public domain. Mr Leach said that exercise would, however, involve some time and effort on DG’s part, rather than something that could be done with a few clicks of a keyboard, which would have a value to HGL akin to springboard relief. However, even if there was a sound legal basis for the deletion order, I am doubtful about that suggested value. The order would be being made some 6 months after DG’s employment had ended and HGL’s real concern is about him making business contact with the customers on DG’s Ledger, which he can do one by one by looking up their details, rather than the completeness of his LinkedIn contact list.[206]Turning to the alleged confidentiality of HGL’s pricing, HGL’s case has come to focus upon HGL being at risk of DG misusing knowledge of the AD Cut-Off. However, as Mr Tatton Brown KC said in his closing submissions, there are a number of basic flaws in that case.[207]The first is that the AD Cut-Off is fixed by reference to information contained in a net pricing schedule that was deliberately kept from DG. It is readily understandable that HGL’s senior management might be concerned that, armed with knowledge of the lowest price that a Regional Sales Manager like Mr Constable could approve, Area Sales Managers like DG might themselves volunteer it to customers (in anticipation of such approval) in the interests of generating sales. It is clear that DG had no real autonomy in fixing prices below the threshold fixed by CounterAct and that signing off on such prices required Mr Constable’s and/or the Branch Manager’s approval and DG’s use of an authorisation code. It is not a promising starting point to say that there is a risk of DG misusing information to which he had no direct access.[208]Secondly, the concept of the AD Cut-Off for a particular product itself being a piece of highly confidential information is flawed. The AD Cut-Off does not equate to the lowest price that HGL might offer (with Area Director approval). It is part of an internal authorisation procedure aimed at protecting HGL’s profit margins by reference to the need for senior management approval. As Mr Tatton Brown KC submitted, it not even of any conceptual value to a competitor. Both Mr Constable and DG recognised that HGL’s competitors would have their own equivalent of the AD Cut-Off. Mr Tatton Brown KC also correctly observed that there is no contemporaneous documentation from HGL referring to the value of AD Cut-Off or even to it as a concept. There is no indication of anxiety about competitors learning of it.[209]Thirdly, I accept DG’s evidence that he did not remember any AD Cut-Offs that Mr Constable told him about in a way that could be utilised to MKM’s advantage. There were numerous AD Cut-Offs for a wide range of products and too many to remember. I also accept his evidence that the AD Cut-Offs were likely to fluctuate and become out of date more frequently than Mr Constable suggested. It is supported by the evidence of both that they had almost daily conversations about them.[210]However, returning to the second point above, even if DG had remembered some of the numerous AD Cut-Offs and they had some enduring relevance, they were of no value to MKM just as they were of no real value to DG when working for HGL. What DG wanted to know (see his £7.30 versus £5 example) was whether a competitor’s price of a particular product for a particular customer could be beaten. The answer to that question did not depend on his knowledge of the AD Cut-Off, especially when the evidence is that prices varied from branch to branch and between different customers. If DG built up knowledge of a “market rate” of a particular key product, such as cement, then that was part of his general skill and knowledge and not because he was referencing an AD Cut-Off. As he said, his aim was to win the business at the most profitable price for HGL and a competitive quote to that end might be one that the Branch Manager could approve without him needing to approach Mr Constable.[211]Similarly, what MKM will want to establish is whether it can beat HGL’s or another competitor’s best price. The evidence indicates that MKM and other competitors such as Travis Perkins have their own equivalent internal price authorisation processes for determining whether they can beat a competitor’s quote. If so, then I think it can be safely assumed that such matters as the company’s operating overheads and the cost of its own supplies will feed into something equivalent to HGL’s net pricing sheet. Whether or not HGL’s competing quote has been approved by the Regional Sales Manager or (because it is a price below the AD Cut-Off) the Area Director is immaterial to MKM. MKM will simply wish to know whether it can beat HGL’s price, applying its own internal authorisation processes as appropriate.[212]The irrelevance of MKM knowing the AD Cut-Off is illustrated by the suggestion to DG in cross-examination that he could use his suggested knowledge of HGL’s AD Cut-Offs to get MKM’s Swindon branch up and running on a loss leader basis. DG denied that MKM would wish to do that, when it is in the business of making a profit, but the suggestion reveals the questionable value to MKM of knowing them. It is certainly difficult to see, in that loss-making scenario, how MKM’s knowledge of how HGL got to its price (triggering the AD Cut-Off) adds anything to the known fact of the price it has to beat.[213]In my judgment, therefore, HGL’s case based upon DG having knowledge of HGL’s AD Cut-Offs over a range of key products is baseless. I accept Mr Tatton Brown KC’s basic point that HGL has attempted to build a case based upon the risk of misuse of confidential information when DG’s role was focussed upon developing a business relationship with the customers on DG’s Ledger and that did not involve any independent deployment of confidential pricing information. As I have observed in relation to the Covenant, the appropriate protection for HGL lay instead in a properly drafted non-solicitation and non-dealing covenant in respect of the customers on DG’s Ledger.[214]For those reasons I dismiss the claim for injunctive relief restraining the use of allegedly confidential information.

DISPOSAL

[215]The interim injunctive relief under the Covenant lapsed on 27 May 2026. Had this judgment been given before that date, I would have discharged the non-compete injunction granted by paragraphs 1 and 2 of the Order dated 25 February 2026. I set aside and discharge the injunction preventing use and disclosure of confidential information granted by paragraph 3 of the Order.[216]This judgment will be handed down remotely and the handing down will be adjourned solely for the purpose of preserving the time for filing any appellant’s notice against the order which reflects it. If an application for permission to appeal is made then I will set a time for filing an appellant’s notice in accordance with CPR 52.12 in the order containing my decision on the application.[217]I invite the parties to agree a minute of order which reflects my decision. I conclude this judgment by expressing my gratitude to counsel and their respective legal teams for the efficiency with which they have conducted the case and the clarity of their arguments.