Tom James UK Limited v Max Potter [2025] EWHC 2873 (KB)

[2025] EWHC 2873 (KB)Case No KB-2025-002340
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Venue THE ROYAL COURTS OF JUSTICEDate 4 th November 2025
Before
MR JUSTICE RITCHIE
Between
TOM JAMES UK LIMITEDClaimant- and –
Between
MAX POTTERDefendantAlice Mayhew KC (instructed by Baker McKenzie LLP) for Claimant.Stefan Brochwicz-Lewinski (instructed by Constantine Law) for Defendant.Hearing Hearing dates: 15, 16, 17, 20, 21 October 2025
APPROVED JUDGMENTJudgment approved by the Court for handing down. This judgment will be handed down by the Judge remotely by circulation to the parties' representatives by email and released to The National Archives. The date and time for hand-down is deemed to be at 10:00 am on

Tuesday 4th November 2025

[1]The Defendant is a young man who lives in London and worked for the Claimant as a salesperson. The Claimant is a company registered in England and a subsidiary of a USA company which sells made to measure suits and shirts manufactured in the USA.

Bundles

[2]For the hearing I was provided with a core bundle and six lever arch files: the hearing bundle, together with skeleton arguments from both parties in opening and in closing. A few additional witness statements and calculations were produced during the hearing which were inserted into the core bundle and paginated. Summary[3]The Defendant worked as a salesman for the Claimant in London between August 2017 and June 2025. He handed in his resignation notice in May 2025. The Claimant suspects that the Defendant intended to set up in competition and to solicit their customers and seeks to enforce various restrictive covenants in the Defendant’s contract of employment. At an interim relief hearing in July 2025 the Defendant gave undertakings not to solicit or deal with the Claimant’s existing “Restricted Customers” (more below on that term) and not to approach the Claimant’s staff, to poach them, all for a period of 12 months from the end of his notice. The issues between the parties arose mainly from the restrictive covenant preventing the Defendant from working in competition with the Claimant for 12 months. The terms, scope and enforceability of that covenant were in issue. At the end of the five day-hearing I decided to dismiss the claim, having heard the evidence and the submissions, declared that the Defendant had not breached the terms of his contract and decided that the restrictive covenant relating to non-competition was unenforceable. I announced that decision so that the Defendant could get back to work pending the handing down of the reasons for those decisions.

The main issues

[4]There were two main issues of mixed fact and law:(1) did the Defendant breach the terms of his contract relating to good faith, fidelity and confidentiality?(2) is clause 19, bullet point 3, of the employment contract, which is the restrictive covenant against competition (RCC), enforceable? Within that second issue the parties agreed that the Court should decide on: (a) the proper construction of the RCC; (b) the legitimate business interests covered by the RCC; (c) whether the RCC goes further than is reasonably necessary to protect the Claimant’s legitimate business interests and is unenforceable; (d) whether the offending words (if any) can be severed to save the validity of the RCC.

The applications

[5]Cross applications were made at the start of the hearing for specific disclosure. I dismissed both for the reasons given in an extempore judgment.

Pleadings and chronology of the action

[6]In the particulars of claim, dated 2.7.2025, the Claimant asserted that the Defendant was responsible for 461 customers and had access to the Claimant’s confidential customer lists, sales methods, pricing and product development information. He was under a contract dated 22.9.2022 which included specifically clauses: 1, 14 and 19 relating to restrictive covenants. The Claimant submitted that the covenants were reasonable, enforceable and necessary to protect its legitimate business interests. The Claimant pleaded the parties envisaged the buying patterns of clients had 12 month cycles and seasonal cycles and that it was difficult for the Claimant to prove breach against the Defendant after his departure, so that the Defendant would give competitors an advantage and undermine the Claimant’s business, if he competed. The Claimant pleaded it was entitled to enable other sales staff to build a relationship with its customers in a 12 month cycle. The Claimant also relied on the express and implied duty of confidentiality and the implied duty of fidelity. The Claimant pleaded unlawful activities by the Defendant including: that he told Mr Adams on the 12th of March 2025 that he intended to leave and go to a competitor; that he approached Mr Morrison in Boston and invited him to leave and set up in competition; that he delayed sales for the company between March and May 2025 and failed to invite customers to a trunk show in London in June 2025; that he failed to return company documents on the 27th of May 2025 as remanded; that he failed to provide client summaries for handovers and that, although he produced sick notes, he had no intention of effecting client handovers. In addition, the Claimant pleaded that the Defendant solicited a customer whilst he was employed and that he failed to return confidential information until the last day of his notice, which he then did on a USB drive. Even that did not include his WhatsApp messages to customers and therefore he was in breach of his duties of good faith and fidelity. The Claimant pleaded that the Defendant has a financial interest in another business and that he approached a restricted customer and a restricted person (staff member) and intended to continue to do so. No damages were claimed, merely a declaration of breach and enforcement of the RCC.[7]On the same day the Claimant applied for interim relief and, at a hearing on 10.7.2025, David Pittaway KC accepted undertakings from the Defendant not to solicit Restricted Customers; not to solicit Restricted Persons (defined below) and not to provide goods and services to Restricted Customers whilst working in a competing business. What the Defendant refused to agree to, but the judge ordered, was that he could not work in competition until the trial or the expiry of 12 months from the termination of his employment. Directions were made for a speedy trial on the 1st open date after the 1st of October 2025.[8]During the trial, some time was spent by the Claimant asserting that the Defendant had colluded with another salesperson in the London office, Mr Powell, to start up a competing business in London. The Claimant flagged up that it might wish to amend to add this assertion to the pleadings. That never occurred, so no such issue arose for me to decide.[9]In his defence, dated 30.7.2025, the Defendant pleaded that his role was entirely in sales, mainly of suits, at 1 to 1 appointments in the homes and offices of customers. The Claimant makes garments in-house in the United States and the Defendant had no involvement in manufacturing, design, creation, management, leadership, strategy or business development. His role was customer development and sales. He pleaded that the confidential information he had was limited to sales and customer information recorded on the Claimant's computer system (CRM). The reason he resigned was that he had experienced significant relationship difficulties with the Claimant company between January and May 2025. He was suspended on the 10th of January following a misconduct allegation at a USA conference. No disciplinary process was followed but instead, on the 16.1.2025 Mr Adams gave him an ultimatum choice between(1) termination and(2) a performance Addendum, with conditions, involving: engaging with Alcoholics Anonymous; having no leadership roles; getting weekly counselling with a Pastor called “Father Bob”, who would report back to leadership; exclusion from all sales conferences, an awards trip to Aruba; and providing a letter of apology to the London office. He signed the Addendum but felt he had no choice. Counselling started and continued until his resignation. He pleaded that the Claimant's actions were hypocritical because they had a permissive culture at sales conferences and senior sales professionals encouraged the Defendant to drink excessively, and the London management team members behaved similarly, but no disciplinary action was taken against them. On the 12th of March 2025 the Defendant met Mr Adams and told him that he was profoundly disaffected by all of this and angry about ongoing product issues. In April he raised these issues with Mr Raynes, the leader in London, explaining the product defects: some faulty collar fusing, incorrect measurement and customer remakes, but Mr Raynes was dismissive and provided no support. On the 23rd of May 2025 the Defendant raised these product details at a meeting with Mr Adams and Mr Raynes, who again were entirely dismissive, so later in the day he resigned. He pleaded that the 2022 contract changes related to a pay increase and he was not told about the changed RCC terms. He pleaded no consideration was provided for employment terms changes in 2022 which were changed from the terms he signed up to when he started in 2017. He pleaded that the restrictive covenants were void. He pleaded that, although he signed the new contract, there was no discussion about the restrictive covenant changes. He denied that the contract granted more benefits but accepted there was a slightly raised salary of an extra £4,000 pa. He pleaded this base salary was raised to enfranchise mortgage applications by salespersons, the restrictive covenants were expanded and elongated. He denied that he had 461 customers. Many of those were inactive, old or dead. He denied he had 372 active customers, many were not. He admitted that he sold to 81 customers in the 12 months before he terminated the contract but he did not maintain active relationships with inactive customers. As for training, he accepted there was training in the USA on knowledge of textiles and patterns but not on tailoring. As to his role: he visited customers, took measurements and orders. He only looked at his customers’ details on the CRM system. He knew nothing of sales methodologies and had no access to pricing strategies. He had no discretion to discount prices and was not aware of base costs or profit margins. As for product line development, the Defendant denied he had access to that allegedly confidential information or to proprietary planning. He accepted he had access to his regular customers. The Claimant had provided him with an iPad but it was not sufficient, so he used his bigger computer and later was given a new Chromebook by the Claimant. After that, he bought his own MacBook for work and used it. The Defendant returned all the company information from his devices on the 23.6.2025. He used his own phone for WhatsApp messages, as did all salespersons. His days were structured by the Claimant. He admitted his duty of good faith. He put his customer information on “Notability”, an app on his computer and then stored those notes on the CRM system. There were 24 suit measurements, 11 shirt measurements and personal information in those notes and he provided all of those on the first USB stick which he returned to the Claimant. He asserted the Claimant had never sought to obtain WhatsApp messages from previous salespersons who had left and so he did not think that he had to provide them. He pleaded that the RCC was unenforceable in light of the undertakings he had given and the covenants covering non-solicitation, non-dealing and non-poaching. As to the Claimant’s legitimate business interests, he admitted that goodwill, reputation, customer relationships and confidential information were legitimate business interests. As to the necessity for an RCC, he pleaded that clause 19, bullet 3 was not necessary to protect the Claimant’s legitimate business interests because those were already protected by the other covenants. The Defendant was not senior, he was junior, he made sales to his customers and his confidential information only related to his customers. The contractual notice period was only one month, so a 12 month RCC was out of proportion to the notice period. He pleaded that the temporal period of 12 months was far too long and that the Claimant had produced no good reason for reaching that duration. He pleaded there was no change in his role in 2022 and he denied that 12 months was the buying cycle of customers. He pleaded that customers had different buying cycles, only some purchased every two years and there was a lack of consistency. He denied that customers bought when they received their annual bonuses, in particular. The average price of a Tom James suit was £2,500 and the majority of customers were very wealthy so did not need to rely on their bonuses. He denied that their purchases were seasonal either. In relation to his handover, the Claimant had all the information they needed on their CRM system. He denied that proof of breach of his other covenants (non-solicit, non-deal, non-poach) was difficult to obtain or police. He asserted that it would be obvious if repeat customers ceased to order after a salesperson had left and the CRM system could easily identify this. As for the geographic scope of the restrictive covenant, the Defendant pleaded it was worldwide and hence far too wide. He had customers in Germany and Switzerland. The Defendant asserted his work was in London and that the Claimant had no legitimate business interest in restraining him from working worldwide. He pleaded the covenant was too wide in relation to the competing businesses with whom he might work because it included businesses that “intended to be” in competition with the Claimant. As for confidential information, he denied access to any significant confidential information other than customer information. He could not recall the detailed pricing of the huge range of the Claimant’s garments, which changed in any event every 6 to 12 months or more frequently. He denied unlawful activity. The Defendant denied telling Mr Adams on the 12.3.2025 that he was going to work in a competing business. He told Mr Adams he had been offered a job with “Trunk” Australia, a storefront tailor shop. He also later told Mr Raynes that he had a job offer but that he had refused. He denied that Trunk would really be a competing business, because it was not visiting tailoring. In relation to Mr Morrison, the Defendant pleaded they had been out for a beer and Mr Morrison had been given a last chance Addendum and the Defendant consoled him, stating that, with their skills, they would be fine on their own and would probably earn more money. He denied that was a breach of his duties. As for the assertion that he had intentionally reduced his sales, he accepted there was a 34% drop, between January to April, when comparing 2025 with 2024, but he had been suspended for the most part of January 2025, he was on holiday for 9 days, sick for 2 days and so had only worked 58% of the available days in 2025. He was never criticised for his sales performance before he left and he denied that he had delayed sales. He did not invite customers to the June trunk show because he resigned in May. As for handovers, the Defendant denied that the Claimant demanded he do a handover initially in their communication of 24.5.2025. In any event the Claimant had removed his access to CRM and his Outlook app immediately. This disconnected him from customer information and communications. He denied breach of his obligations of good faith and fidelity. He returned all of the relevant work documents, but not within a few days as demanded by the Claimant, because he had stress and was certified off work by his GP. Instead, he returned them on the 23.6.2025. However, on the 27.5.2025 he did hand over physical property to Joanna Colby and he sent a medical certificate on the 4.6.2025 so he could not assist with handover because he was certified off work with stress thereafter. He denied soliciting customers, in particular Mr Kwak, but accepted he had a discussion with Mr Kwak about how he was disaffected and might move, but that was not an enticement to buy clothes from him. In relation to the WhatsApp messages, he did not at first realise they might contain confidential information. Eventually, he put them onto a USB stick and delivered that on the 9th of July 2025. He denied any direct competition at work and stated he did not intend to approach the Claimant’s customers.

Factual issues

[10]The main factual issues on breach of duty arising from the pleadings were as follows:10.1 Did the Defendant’s actions: in talking to Trunk Australia, Mr Kwak and Mr Morrison, amount to a breach of his express and implied duties to the Claimant?10.2 Did the Defendant’s actions in delaying returning the two USB sticks, which contained the Claimant’s information about customers, and in failing to assist with handovers in the 1 month notice period, amount to breaches of the Defendant’s contractual duties to the Claimant?10.3 Why the Defendant left the Claimant’s employment and whether he ran down sales intentionally with a view to competing.10.4 Whether failing to invite customers to the Claimant’s June 2025 trunk sale in London was a breach of duty.10.5 Whether the Defendant was actually unwell when his GP certified him as unwell.[11]The main factual issues relating to the RCC arising from the pleadings were as follows:11.1 Whether the Defendant had confidential information about the Claimant’s business over and above the information about the customers which he dealt with.11.2 What the mean or the average customer sales cycles were at various times with various customers and whether they were relevant to the length of the RCC.11.3 How much time it took or would generally take to rebuild a worthwhile relationship between a replacement salesperson and the Defendant’s old customers.11.4 Whether the was any proper consideration of the relevant employer/employee interests and discussion thereof when the Claimant increased the length of the RCC in 2022 and increased the scope of the RCC from that set out in the 2017 contract.

The lay witness evidence

[12]I heard evidence from the following witnesses: Claimant:12.1 Mr Adams.12.2 Mr Raynes.12.3 Ms Colby.12.4 Mr Hitt.12.5 Mr Copp. Defendant:12.6 Mr Potter.12.7 Mr Johnson.12.8 Mr Duncan.12.9 Mr Kwak. I decided not to read the witness statement from Mr Phillips who did not attend, despite being asked to give evidence.[13]I have read the key documents in the trial bundle to which my attention was directed by counsel (many others were source customer purchasing records, some of which I have not read) and I have read the witness statements.[14]Mr Adams. This witness is the division president of the USA holding company. He gave evidence that Tom James (US) has 100 offices worldwide and their customers were described as busy business executives, who wish custom made clothing, provided to them by salespersons coming to their homes and offices. The holding company’s headquarters are in Tennessee, USA. Mr Adams says they are the biggest made to measure garment manufacturer in the world. Their salespersons build up relationships with customers, know their wardrobes and lifestyles. A subsidiary called Holland and Sherry have a shop in Saville Row, London. Mr Adams asserted that the Defendant had strong leadership potential and sales performance, with a trajectory which was generally upwards. Leadership did not result. He said the company ethos was “we build people and people build the business”. In relation to salespersons departing the business, he stated that the Defendant inherited many clients from Paul Copp, who retired in June 2024, and spent about a year introducing the Defendant to his clients. He asserted the Defendant’s pay rose to over £78,000 by 2024 and he was aiming for over £81,000 in 2025. Mr Adams went on to describe the Defendant’s initial contract in 2017 and the new contract in 2022. He described clause 14 of the new contract and the stated Confidential Information which included the company's training programme and client list, business and sales strategies, pricing promotions, discounts and trunk shows, pitching, client dialogues and financial performance. He gave evidence about buying cycles. Mr Adams asserted there was a real threat if the old salesperson competed. In relation to the restrictive covenants in clause 19 and the RCC, he stated that the Defendant’s basic pay was increased by £7,000 per annum in the new contract. He asserted the RCC was altered in duration to 12 months but was otherwise the same and was to prevent ex-salespersons working in competing businesses. He stated in the USA the normal length was 24 months. There was an expanded definition of Restricted Clients. He asserted that previously salespeople had different lengths of covenant and the company wanted to align employees in the UK, even though senior salespersons, in leadership roles, had access to more information. He stated the two main reasons for the increased duration of the restrictive covenants were to protect the Claimant’s legitimate business interests and highly confidential information. He asserted that the company's client lists would be used by competitors to solicit clients and their price lists would be undercut and he wanted to prevent that. The Claimant also arranged 2 trunk shows per annum (face to face sales in the London office). He asserted that clients had summer and winter wardrobes and some purchases were related to bonuses. He asserted the 12 month RCC duration was needed because clients had busy schedules and it usually took 85 calls to book 5 appointments with different clients. He relied on the Defendant’s sales data. John Hitt had done a review some years ago. The Claimant had analysed 300 of the Defendant’s clients and Mr Adams asserted that this showed an average buying cycle of just under 12 months. He also relied on bundle pages 2098-2146. He said 80% of sales come from existing customers, typically buying every two years. Mr Adams asserted the weekly sales reports of the Defendant were not properly filled in during the weeks before he resigned. He asserted the Defendant deprived the company of this because he refused to engage and help build up the relationship with the new salespersons. He asserted that it was difficult to discover if a departed salesman was breaching the other restrictive covenants and that contacting customers to ask them was difficult. He described the Defendant’s role as selling and measuring and he described the recruitment and training process. He asserted that the training included shadowing for six months and two weeks in a classroom. The company’s intranet site had training packs on it. An Advanced Sales School in the USA was held twice per annum. He asserted the Defendant had 461 allocated customers. In the last 12 months the Defendant had sold to 81 customers. On the Defendant’s resignation, his access to the CRM system was terminated. The company did not provide mobile phones to salespersons and he asserted that some departed salespersons could retain the customer information on their personal phones and he had concerns that the Defendant had done so. Mr Adams asserted that the Defendant had failed to provide a detailed handover to new salespersons despite other departing salespersons having done so. He asserted that the Defendant failed to write up his notes, so information was lost. Mr Adams asserted that the Claimant had only resold to 15% of the Defendant’s customers since the Defendant’s departure. As to the geographic scope of the RCC, Mr Adams stated virtually all of the Defendant's clients were in the UK and all his material work was in the UK.[15]As to the Defendant’s conduct, Mr Adams stated that he was accused of sexual misconduct at work and of damaging office property. Then later, due to his conduct in January 2025 in Orlando, the Defendant was suspended and asked to sign an Addendum “final chance” agreement. This required him to take remedial steps including: coaching in London by Susan Klein and counselling by Father Robert Sims. Mr Adams was concerned the Defendant had breached his contract. He asserted the Defendant was in negotiations with “Trunk”. He asserted that after the Defendant's resignation the company required him to help in handovers and reminded him of his restrictive covenants and to return property by the 27.5.2025. The Defendant did hand over his keys and but had previously delivered his company ipad to a tailor. Analysis of the CRM system showed that the Defendant’s sales activity was down 131% year on year, selling 156 units in February; 66 in March; 9 in April and none in May 2025. Mr Adams was concerned that the Defendant was deliberately running down his sales to capitalise on his customers by competing later. He asserted the Defendant recorded no client contacts between February and the end of April 2025 and there should have been 20 per week. When the Defendant left, replacement salespersons had contacted his customers. Mr Adams asserted that on 10.6.2025 a customer called Mr Kwak had told the replacement salesperson (Tom Ashton) that the Defendant had said he intended to compete for the Claimant’s customers and solicited Mr Kwak. He also asserted that Connor Morrison, a salesperson, told him on 11.6.2025 that he had spoken to the Defendant about setting up their own business in competition. As for the correspondence from the company's solicitors, Baker McKenzie, this led to the Defendant returning a USB drive on 23.6.2025 but that drive was missing his WhatsApp messages from his personal phone. Those were delivered on a second USB drive on the 9.7.2025. In conclusion, Mr Adams stated that the trust by the Claimant in the Defendant had gone and the Claimant did not believe that the Defendant would comply with his undertakings. He complained that the Defendant was using lawyers whilst pretending to be a litigant in person and his lawyers were the same as another salesperson, who had resigned 10 days after the Defendant. Mr Adams suspected collusion between the two and that they were in business together, but he accepted there was no clear evidence of that. Mr Adams complained of a cartoon which the Defendant had put on social media. Mr Adams asserted the Defendant intended to compete and asserted the Claimant needed to protect its client connections and did not consider the other restrictive covenants were enough because they were impossible to police.[16]In cross examination, Mr Adams accepted that the Defendant sold off the peg clothes including jeans, shoes, belts, and garments from: Crockett and Jones, Allen Edmonds and others alongside made to measure. He accepted that any business which sold such items would be in competition with the Claimant. However, he asserted the Claimant did not sell much of these items. Mr Adams accepted that the Defendant was not in a leadership role. He restated that the sales training provided was confidential information and asserted that the measuring devices they provided were confidential. When pressed on why sales techniques or measuring devices were confidential, he was unable to explain. As to the words to be used when selling, he accepted this was part of the skill base of the salesmen which was being improved by training. He accepted that taking detailed measurements was also done by competitors and was part of the skill of the salesperson's trade. He also accepted that the Defendant had not taken any measuring devices with him. He accepted, in relation to sales techniques, that every sales organisation provided some training. He accepted that the few examples of the sales wording given to salespersons set out in the Trial Bundle were little more than standard sales patter. Eventually, when pressed, he accepted that the sales training was not confidential and in any event was passed on to customers. The information provided to the Defendant at conferences would be passed on to customers as well. Likewise, the information in the training sessions and daily newsletter. These set out the company's products and how to sell them. All customers would know of the prices because salespersons would pass them on. He asserted he “believed” this information was proprietary. He complained that training cost a lot of money and so it must be confidential, but accepted that training improved the salesperson's skill. As for made to measure products which were bespoke, for instance from their Oxxford factory, he did not accept that the “cut” and the training about the material was not confidential. In relation to information about company stock, Mr Adams accepted that that was given to the Defendant in his capacity as a stockholder, not as an employee.[17]After lunch on the first day of his evidence Mr Adams sought to row back on his evidence about competition given before lunch. He asserted that any shops selling the same goods as the Claimant (off the peg jackets and shirts, shoes, belts, ties, luggage etc) would not be competing with the Claimant, because the Claimant mainly sought to sell made to measure garments. However, he accepted that the Claimant did carry out price comparisons when pricing their off the peg shirts and accessary items ties, shoes and other garments. He went so far as to suggest that these were sold “at a loss”. Mr Adams accepted that the Defendant was not told of margins, which were confidential at a higher level within the US company. As for the measurements of customers and their personal information, Mr Adams accepted that for all of them this information had been returned and the Defendant would not be able to recall the measurements of the thousands of customers. He accepted that was not information that needed to be protected by a non-compete clause. As for prices and price variations for the thousands of made to measure garments, Mr Adams accepted the Defendant could not keep that information in his head and therefore a non-compete clause was not needed. As for the company's customer information, Mr Adams accepted the Defendant had returned it in the two USB sticks and accepted that he did not need a non-compete clause for that. Mr Adams accepted that, once the company had cut the Defendant off from Outlook, the CRM system and the Internet, which they did the day after his resignation, he had no access to any of the customers’ confidential information. When asked what confidential information was left to be protected, Mr Adams could only come up with the assertion that the Defendant would be able to recall his customers names and where they worked. He accepted that, so long as the non-solicitation and non-dealing restrictions were complied with a non-compete would not be needed. However, he then asserted that the Defendant might bump into customers unintentionally. When asked why the company needed a blanket non-compete covenant his response was: the Defendant had signed it. When asked further, what legitimate business interest was being protected by the RCC, Mr Adams said that customer relationships were paramount. He complained that the Defendant did not provide a detailed handover and the new sales representatives did not know what was going on, so that adversely affected the build up of the relationships. When asked why the Claimant was trying to stop the Defendant working with people who were not customers of the Claimant, he replied: we’re not telling him he cannot go into retail. When asked again why he should not sell bespoke tailoring to people who were not the Claimant’s customers, Mr Adams stated he did not wish his clients to know that the Defendant was offering bespoke tailoring to others. Mr Adams asserted that it was difficult to police non-solicit and non-deal covenants. It was put to him that the company could work out that the customer was being solicited by the fact that the customer stopped communicating with the Claimant altogether. He denied that. He asserted that having no response does not mean anything. He accepted the Defendant only sold in the City of London, Mayfair, Canary Wharf and Westminster. It was a limited area and therefore what was going on with the Defendant’s customers should have been easier to know. He was asked about the RCCs in the 2022 contract. He did not know whether the changes to the RCC were deliberate and had no insight into that. He stated that, in the US, the non-compete covenants lasted 24 months and he thought 12 months was too low. They were changed so that they were all the same duration. His witness statement said that the RCC's were “otherwise the same” and it was put to him that this assertion was wrong. He said he did not believe they had changed. He was challenged on the changes between the 2017 contract and the 2022 contract and the definition of Restricted Business. He did not accept that the scope of the RCC was widened. When cross examined on the detail, he had to contradict himself and accept that the RCC had been widened. He was unsure about the detail of Restricted Businesses and the definition of it. He accepted the definition was widened to other geographical areas. Widened from just where the Defendant worked to other geographical areas and the scope was widened to include areas of business to which he had “access to information”. He accepted that the Defendant's job as a salesman had not changed when the contract was changed. He could not answer the question of why it was reasonable in 2017 to have 6 months, but that in 2022 it was changed to 12 months. Eventually he accepted that both the 12 month duration and the scope of the RCC were changed. He agreed the RCC also applied to team leaders in London who had access to a broader range of confidential information so it was one size fits all. When shown the relief provisions from the restrictive covenants in the 2017 agreement, which had been deleted in the 2022 agreement, he simply said he was not involved in the changes. It was put to Mr Adams that the increased RCC scope was unnecessary on his own evidence and he responded that he did not know, but he thought Mr Hitt reviewed all RCCs in the 2017 review. When asked about the removal of the second relief from the agreement in relation to capacity and function, he agreed it was not necessary to restrict the Defendant from working in a different capacity or a different function. He was then taken through the various analyses of the Defendant’s sales and agreed that Claimant’s replacement salespersons had made very substantial efforts to contact the Defendant’s customers. A list drawn up by the Defendant showed similar sales after he left (up to 9th July 2025) to the same period the year before. He accepted that if the Claimant had provided the Court with more information showing the contacts made between new salespersons and the Defendant’s old customers then more accurate information about the build-up of relationships would have been available to the Court. Mr Adams accepted that the Claimant’s new salespersons had contacted customers. When asked about buying cycles he abandoned his assertion that bonuses were relevant and did not know when they were paid in the UK anyway. He was challenged with sheets of figures provided on disclosure showing sales to 18% of customers in the 3 month period since the Defendant resigned. Mr Adams stated that did not match his analysis, but he had not provided any analysis himself. He accepted that rebuilding a relationship with an old client could be effected by different salespersons with customers either: slowly, at medium speed or fast. The speed of sales sheets showed some of the Claimant’s successful sales to the Defendant’s customers were made very quickly after he resigned. Mr Adams was challenged with a list of sales made three months since the Defendant’s resignation, compared with the same three months the year before. During both periods, 32 sales were made. He refused to agree that there had been a “very effective” transfer of relationships, based on those figures. He refused to accept that this showed quick sales within three months (I was particularly unimpressed with that answer). Mr Adams accepted that the word “intent” in the RCC was incredibly vague. When challenged on his assertion that there had been “lengthy consultations” on the restrictive covenants his answers were likewise unimpressive. He accepted the Defendant had told Mr Raynes he was not taking the “Trunk offer”. When questioned on paragraph 86 of his witness statement relating to the conversation on, 12.3.2025, he accepted the Defendant told him of the job offer and he knew nothing of the business of Trunk or whether they were a competitor, so his assertion at paragraph 86 rather fell apart. He also accepted that it was not a breach of duty for the Defendant to discuss an offer of working in an estate agency with his brother-in-law. In relation to confidential information, he did not know what access the Defendant had through the Claimant’s intranet service. As for Mr Powell, he accepted he had no recollection of any discussion of changes to the restrictive covenants with him. As for the reason why the Defendant left, Mr Adams persisted in stating he did not know that the Defendant was disillusioned or frustrated with the Claimant; was unhappy about the counselling by Father Bob, his suspension from leadership and well-earned Aruba trip. When challenged over the conversation which the Defendant had with Mr Kwak, he accepted what Mr Kwak had written in his witness statement was probably the truth. He admitted that Mr Ashton was not being called to deny what Mr Kwak said. In relation to the conversation with Mr Morrison, Mr Adams accepted that, if the Defendant was giving reassurance, that would not be a breach of contract. When the effects of the Defendant being unable to work in a position for which he has good skills or any similar position for any competitor to the business of the Claimant or the holding company or group companies, for a year, Mr Adams accepted that might be stressful but quipped that giving evidence was stressful. He agreed that, for the term to be reasonable, the company would need to weigh up the interests of the company and the employee to arrive at a fair balance. He could not say who had carried out that exercise.[18]I did not find Mr Adam’s evidence impressive or credible on many key issues. Through carefully prepared and professional cross examination, Mr Lewinski exposed the allegations made by Mr Adams against Mr Potter as hearsay, flimsy, unsupported supposition and suffused with arrogant self-interest. Many were withdrawn by Mr Adams in his evidence. None of the first-hand witnesses available to the Claimant were called by the Claimant to support the allegations of breach. The allegation of trying to turn Mr Kwak away from the Claimant company was contradicted by Mr Kwak himself. Mr Adams accepted Mr Kwak’s witness statement before he gave live evidence. Yet, despite his served statement, he was still called to give evidence. No questions were asked of him to challenge his account of his wholly innocent conversation with the Defendant. The questions were more general. Mr Stohner was not called to give evidence about the changes he appears to have made to the restrictive covenants. In his evidence and criticisms of the Defendant, Mr Adams led the charge but faltered at all the key jumps.[19]Mr Hitt. Mr Hitt is the Chief Financial Officer of the US holding company. He gave evidence of the cost of hiring and training salespersons. He had also analysed buying cycles in 2017 generally and more specifically for the Defendant more recently. He was not involved in the changes to the contract RCC in 2022. He stated that the general consecutive year sales figures for customers were: 40% and, when a salesperson left, the target resale percentage was 20% of customers in 3 months, 30% in 6 months and 40% in a year. He looked at 300 of the Defendant’s “active” customers (BP2098) and worked out an average buying cycle of 11.7 months. This reduced to 8.66 months for those to whom the Defendant had sold in the 12 months before departure. There were many variations in the individual figures. He asserted that this justified the expanded RCC. But all his evidence was ex-post facto justification. In his second witness statement he corrected the base survey number of the Defendant’s customers to 250 active ones and accepted that the Claimant had sold a wide range of ancillary products, not just made to measure garments and stated that the entire US Group only sold around $573,000 of ancillary products in 2024, so it was a small part of their business. He also asserted, by producing one or two partly blanked out sheets, that the Defendant could see the Claimant’s gross profit and wholesale costs and hence margins on each category of garment. He provided a third witness statement during the trial evidencing that the Defendant could access the names and contact details of any of the Claimant’s clients worldwide, if he knew the store location and contact name. He accepted in cross examination that his analysis (Hitt 1) of 250 customers, included customers who had not bought from the Defendant for up to 3 years. The less active clients therefore skewed the mean figure to 11.17 months. He accepted that average figures did not represent everyone and were not relevant to building up a relationship with a customer. He could not say how long it would take to rebuild a relationship with one of the Defendant’s customers. He had not done that analysis. He also accepted that the key information for the time taken to build up a relationship with the Defendant’s old customers would best be measured by a chart showing, for each, the time between first new contact and first new sale. When shown a chart of those times prepared by others, he accepted there was a considerable measure of success in the first few months. He accepted that a salesperson who inherited customers would focus on the higher volume and value buyers first. Those who had not bought in a long time would be less likely to buy again. It would be best to focus on the top buyers as representative. He generally stuck to his average figure as a guide. He also accepted that he did not know if the Defendant ever saw the gross profit area of the intranet site.[20]I was generally impressed with Mr Hitt’s evidence, but I do not accept his assertions that any of the buying cycle calculations which he did justified the 12 month restrictive covenant against competition imposed in 2022, as I shall explain below.[21]Paul Copp. This witness was a senior salesperson who worked for the Claimant in London for 32 years. He rose to Divisional President with world-wide responsibilities. He was quick witted and admitted in cross examination that he had a huge stock holding in the Claimant company, still to be paid out. On buying patterns, he said they had changed with Covid. He thought the 12 months RCC was justified by buying cycles. On handovers, when he was due to retire he handed over clients by introduction to the new allocated person. His clients helped the Defendant get into the Presidents Club, for higher sellers. The Defendant’s sales rose from 2023 (1132 units) to 2024 (1385 units). Each unit was worth £385. He was “very disappointed” by the Defendant resigning. In cross examination he agreed that there were no fixed buying pattens for customers. It was based on need, desire, moving jobs and many other factors. The key was to stay in touch with them and build a relationship. When a salesperson resigns the key was to get in touch quickly and chat. Customers may say: contact me again in a year, or they may want to buy straight away. The sales gap is not the determinant of the strength of the relationship. They are separate. A three-year gap between sales does not mean it takes 3 years to build a relationship. He asserted that at the end of his employment the Defendant’s sales “dropped off a cliff” but he was not present in 2025. He accepted that to rebuild with a new salesperson, 20% of customers were easy, the rest were not, but that 20% were the key ones and provided most of the sales. It was the 20-80 rule. 20% of customers provide 80% of sales. He said in cross examination that he was involved in a discussion of the length of the RCC in 2022 (an assertion he did not make in his witness statement). He said he discussed it with Mr Raynes, Ms Colby and Mr Adams (contradicting Mr Adams’ evidence and Ms Colby’s, who both said they were not involved). He did not recall it was to harmonise the duration or terms. He accepted that sales gaps did not show how long it took to establish a rebuild relationship. He supported a 12 month RCC because “we lose a lot of people” (in my judgment that is not a good reason for a long RCC). Bizarrely, he refused to accept that the fact that the Claimant made the same number of sales (32) from his customers in the 3 months after the Defendant left, as the Defendant had done in the same 3 months the year before, had any indicative relevance. At the end of his evidence he was asked and admitted that he did not think that the RCC added anything to the cover provided by the non-solicit and the non-deal covenants.[22]Mr Copp was a charming witness, however he was clearly giving evidence to protect the company and his investment in it. I consider that there is a substantial difference between a warm handover by a long-term employee who is retiring, and a disaffected salesman who is resigning due to that disaffection and who is then treated brutally in post resignation correspondence, as I shall set out below.[23]Joanna Colby. This lady was and is the Claimant’s HR manager in London. She has worked for them since 1996. She described how the Claimant company had grown to expand into four cities outside London and then contracted back to London and Birmingham. It also operates and sells in Dubai, Germany, Austria, France, Spain and Netherlands. She described the new benefits in the 2022 contracts. She asserted that George Stohner, Chief of Legal, changed the restrictive covenants, she was not personally involved.[24]Stopping there, I find that evidence very telling. The head of HR had no involvement in the broadening of the restrictions placed on staff. Taking that with Mr Adams and Mr Hitt having no involvement, it means that no involved witness was called by the Claimant to evidence why the covenants were changed, certainly not Mr Stohner.[25]Ms Colby also asserted that she had held briefings for staff in groups and individually and “explained the changes”, but she did not recall “walking through” the changes to the restrictive covenants. It sounded to me very much like Ms Colby was selling the benefits to the staff and ignoring the disadvantages. In cross examination she could not recall what she did with the Defendant. She described the Defendant’s sales performance, noting a strong performance in February 2025, selling 156 units, then a decline. She set out the Defendant’s conduct issues at some length. She asserted that his resignation on Friday 23.5.2025 came with no reasons. She responded on Saturday 24.5.2025 by email terminating all his access; threatening a “thorough investigation”; banning him from the office; banning him from contacting customers; banning him from any alternative work at all in the notice period; requiring the return of all property and requiring all info on his own devices by Tuesday 27.5.2025. That was hardly a warm and friendly approach to his resignation. Far from it. She also required him to assist new salespersons, but did not say how. The very next day, a Sunday, Baker McKenzie, a large legal firm instructed by the Claimant, turned up on the Defendant’s doorstep at his home and hand delivered a letter to his girlfriend. That was no less threatening. It asserted that there was “concerning information and behaviours that our client has become aware of in recent weeks” …” it has reason to believe that you intend shortly to work in or operate a competing business and will use our client’s confidential information and will solicit or deal with our Client’s customers or prospective customers. … As indicated in Ms Colby’s letter … the company intends to investigate its concerns about breaches ...” Ms Colby was named and clearly involved. If some of the assertions also came from Mr Adams, they would be wholly consistent with his approach to the evidence he gave in Court before cross examination. Baker McKenzie then summarised the restrictive covenants in the 2022 agreement. Ms Colby gave evidence that she requested the Defendant to assist with handovers in a letter dated Thursday 29th May. That involved a complete turnaround from her earlier “banning” letter sent the Saturday before. Despite being banned from the office she wrote that, he was not on gardening leave, was required to come into the office every day, all day, from Wednesday 4.6.2025 and to sit in the Accounts Room. He would have no keys. She would give him access. He was instructed to complete detailed client information sheets and to answer questions from colleagues, send letters out to each client (drafted by someone else) and facilitate introductions. In relation to pay, he would receive only basic pay (no commission). He was given an ominous warning about his stock options: the company had discretion to in relation to his conduct, to review refusing to repurchase them. In my judgment, that series of letters was aggressive and humiliating in relation to his status, behaviour, stock options, pay and even his ability to get into and out of the office door. Ms Colby did not raise or comment on any of the contradictory and harsh content of these letters in her witness statement, she omitted them. What she did was to set out how the Defendant did not return documents and did not come into the office, did not invite customers to the trunk sale in June and she alleged that he had been approached by a competitor. She complained that the Defendant refused to sign the undertakings initially required by Baker McKenzie (which they later admitted were far too wide, but she did not mention that). The Claimant reassigned all of the Defendant’s customers and Ms Colby complained that the Defendant did not assist with handovers, despite her request. She asserted that she was suspicious of his GP’s medical certificates, for 2 days, until the second one was delivered. She received his USB stick with the company’s information from his devices but pointed out that his personal phone WhatsApp messages were not included. None of Ms Colby’s requests before 27.6.2025 mentioned those. He provided them 12 days later, on 9.7.2025.[26]On 13.10.2025, two days before trial, Ms Colby signed a second witness statement setting out the facts of a non-event in a pub on 8.10.2025, which occurred after a court hearing between the Claimant and Mr Powell, the result of which was kept confidential from the Court. A message had been sent by the Defendant via a waitress with a free drink alongside it to one Simon Herring, who was with Ms Colby upstairs in the pub. It read “good luck”. Simon went downstairs and spoke to the waitress and reported back that she said that the Defendant had said to the waitress that someone, (they presumed Simon) was his “worst enemy”. Ms Colby asserted that she was severely shaken by this. She found it intimidating and she felt threatened. She suspected the Defendant and Mr Powell were colluding to resign and compete against the Claimant.[27]In cross examination Ms Colby blamed the lack of documentation, to evidence what had led to the change in the restrictive covenants in 2022, on a cyber-attack. She accepted that she had produced the calculations and information at BP2077 calculating a buying cycle of 10.77 months for 116 of the Defendant’s customers who he inherited from other salespersons. She admitted that she had included in that list one who had been dormant for 7 years, another who took 76 months between purchases, another who took 62 and another who took 60 months. I have not been able to calculate whether the figure she provided was accurate but it certainly included outliers. As for the 2022 contract she asserted, for the first time in her live evidence, that Mr Powell and she went to Baker McKenzie and discussed the restrictive covenants in 2022. It was privileged and she could not say what was discussed. In contrast, Ms Colby could not confirm that she explained the covenants to the Defendant because she could not recall. She accepted that she should have explained them. She admitted that the Claimant made no suggestion, after the delivery of the USB sticks, that the Defendant retained any confidential information. She was asked why the Claimant did not issue salespersons with company phones if they were so worried about retrieving WhatsApp messages after they resigned. Her evidence was that they had thought about it but decided not to do so. She admitted that if she had known that the GP prescribed the Defendant Propranol and another drug for stress she would have changed her mind on her suspicion over his ability to provide handover. She accepted it was reasonable for him not to come in to work. She asserted that she was not aware that he had found the last months at the Claimant difficult and upsetting. She was aware that he had to take sessions weekly with Father Bob, was deprived of leadership roles, was prevented from going to Aruba on a sales earned reward basis and had suffered other restrictions. She was not aware that he felt he had been treated inconsistently with other staff who did the same as him or worse in Orlando. She was not aware that his quality concerns had not been addressed. She accepted that hand delivering letters to an employee’s home on a Sunday was not normal. She refused to say that her post resignation handling of the Defendant was aggressive and intimidating.[28]Stopping there, for the head of HR:(1) to be unaware of her own employee’s long held concerns at work which he had told her boss, and(2) to refuse to accept that hand delivering a threatening letter drafted by a large law firm to an employee’s home on a Sunday, was intimidating; were both disappointing. Particularly in the light of her third witness statement on the pub note non-event. Combining that with her inability to recall explaining the restrictive covenants to her staff and the Defendant and the uncontested evidence from the Defendant that over 50 salespersons had left the Claimant’s UK operation between 2017 and 2025, I did not find Ms Colby’s evidence insightful, persuasive or balanced. Quite the opposite.[29]Douglas Raynes. This gentleman was and is the London Sales Leader for the Claimant. He has worked for them since 1997. He described the business. Salespersons cannot alter pricing. He asserted that the price points were secret. They are not published. (I note however, that all customers are given prices for every item they buy and the company has thousands of customers). The only information I was given was that a man’s made to measure suit costs around £2,500. No other secret information was given to me either in open court or in closed session on price points. Mr Raynes stated that some customers make several purchases per annum. Often 2-3 outfits or for specific events. He asserted that the buying cycles were between 6 and 12 months which, he asserted, supported a 12 month RCC. He described the Defendant’s job. He was not, for instance, surprised that when he resigned the Defendant did not invite customers to the trunk show in June 2025. He accepted that the Defendant had some foreign customers but he met them in London. He accepted that the Defendant communicated with staff in the USA. He described how the Defendant’s sales grew over the years but he remained 5th out of 9 salespersons in the London office. He described the training process. He asserted that the Defendant had 461 customers allocated to him and 372 were “active”. Many were inherited. After the Defendant left, Mr Raynes needed time to rebuild customer relationships. The London sales team took his clients. Then they all reached out to the customers. The CRM showed the customers’ preferences and sales. He warned that a salesperson who left could offer a lower price for similar quality products.[30]Stopping there. I do not understand this assertion. The Claimant makes its own made to measure and off the peg garments in the USA (and maybe Canada and Chile) from fabric that it makes of its own design. It is wholly unclear to me how another company can compete on product or fabric because they do not have access to these, at least for made to measure garments. As to prices, every customer is told the price for the products ordered, so the final price is in the market for discussion between those in any office who want to buy made to measure. The Claimant’s only marketing is by referrals, so also any referee may (and probably will) get the price from the referrer. No evidence was provided by Mr Raynes nor the Claimant as to what advantage an ex-salesman would get working for a different company with different fabrics and different manufacturers and selling to people who are not one of the Claimant’s existing customers. As for existing customers, the ex-salesman would not be offering the same product if he broke his non-solicitation covenant.[31]Mr Raynes criticised the Defendant for failing to help with handover. He made no mention of the GP’s note in his witness statement, yet he was the Defendant’s boss. Mr Raynes mentioned the Defendant’s misconduct issues and asserted his resignation was a “shock”. He summarised a meeting with the Defendant in March 2025 (about “Trunk” Australia) but described them as “another tailoring company”. He accepted he was told that the Defendant had rejected the offer. He said this was not uncommon and he expected his salespersons to be approached. He made no mention at all of the Defendant’s dissatisfaction with the Claimant’s products or the last chance Addendum. Mr Raynes made general allegations that the Defendant had caused harm to the Claimant through:(1) use of confidential information from the CRM or his personal devices (he did not descend into any detail);(2) by his actions after resignation but before departure (he ignored the GP’s diagnosis and treatment for stress);(3) by his “clear intent” to compete. What he did not set out was evidential support for that assertion. He asserted that the RCC was needed, based on typical buying cycles and to give the Claimant time to re-establish relationships with customers and to ensure that confidential information lost its value with time.[32]In live evidence in chief Mr Raynes stated that the company had sold to 17% of the Defendant’s customers by near the end of August 2025 (3 months since resignation). (I note that this compares well with the target for sales post departure set by Mr Hitt at 20%.) He asserted that, if their customers heard that the Defendant was in business elsewhere doing the same work, they might “defer to Max”. He asserted that no client wanted to get involved in a fight between ex-employer and ex-employee and the Claimant did not want to ask clients if they had followed the Defendant by dealing with him in a competitor business. In cross examination, Mr Raynes accepted that the Defendant had 78 or 81 customers who had made purchases in the 12 months before he left. The Claimant had managed to sell to 39 of those since he had left (by near the end of August 2025). He admitted that the Claimant had not provided the Court with details relating to all the 461 allocated customers, about who had contacted them and what they said. This is an important point in my judgment. That full information would have given this Court an accurate view of whether customers were avoiding the Claimant’s new salespersons or were talking to them but just were not ready to buy and had asked for a call back, say later in the year or even next year. He admitted that he knew that the Defendant had “frustrations” when he left (which is to be compared with Ms Colby saying it was out of the blue). He accepted that he had access to customers details throughout the world. He was unaware what access the Defendant would have had. Mr Raynes had access to finance and strategy, the Defendant did not. (I will consider this below in relation to the one size fits all approach to the RCC for all salespersons including Mr Raynes). He accepted that having a rough idea of the Claimant’s pricing was not confidential information. He accepted that any competitor could undercut the Claimant’s prices for different products. His key evidence was that the Claimant needed 12 months to secure the relationships with existing customers and he asserted that it was hard to police the non-solicit and non-deal undertakings but gave no evidential support for that assertion. He agreed that if the Defendant complied with the undertakings there was “possibly” no need for the RCC. He mentioned concern that competition might affect the company’s referrals, which turn into prospects once they have been spoken to. He accepted that if the Claimant had seen a change in the buying patterns of a customer that could signal a potential breach by the Defendant. He accepted that the Defendant raised product concerns with him in April 2025. He asserted that he had engaged with the COO and clients as a result but produced no documentary evidence of that. In relation to the meeting on 23.5.2025 with Mr Adams and the Defendant, Mr Raynes said he understood that the Defendant was engaged in leaving to join a competitor, who he later found out was Trunk. (That did not make sense to me because he had also accepted that the Defendant had told him in March 2025 that he had rejected the offer from Trunk). He also accepted that the Defendant was genuinely frustrated about products. He explained the difference in build up times between a warm and a cold handover. The customers the Defendant passed on were cold hand overs because of the post resignation events. He was taken through some of the successful sales in the 3 months since resignation.[33]Mr Raynes was a long-term company man and clearly loyal. He made reasonable concessions where he had to make them and I generally accept his evidence was given with a genuine view to assist the Court, however I do not accept his evidence on cycle times and some other parts were illogical. Defendant’s witnesses[34]Mr Potter. The Defendant lives in Enfield. He started work with the Claimant in August 2017 and left in June 2025, so he worked for just under eight years. Much of his witness statement was occupied with answering the witness evidence provided by Mr Adams, both in his final witness statement and in his original witness statement given at the interim relief hearing. The thrust of his evidence was that Mr Adams had misled the court on a number of facts. The Defendant complained that Baker Mckenzie's disclosure was piece-meal, voluminous, overwhelming and inadequate. He described his role as a mid-level salesperson with no leadership element. He was not privy to any meaningful confidential information. In the light of his undertakings he invited the court not to make a non-compete order. He asserted there was no compelling evidence that he had breached his contract and that the 12 month RCC was unreasonable and unenforceable. He is out of work, with no job and applying for state benefits. He wants to earn money in personal tailoring, which is the only thing he knows. He feels humiliated, stressed and depressed. He takes medication for panic attacks and to sleep. He asserted that Mr Adams had misled the court when he stated there was a “review of the restrictive covenants” and “detailed consultation” with salespersons. There was no consultation or discussion with the Defendant and there was no evidence produced in the Trial Bundle. He pointed out that the Claimant made no claim for damages. The Defendant stated that he had not diverted any business or staff. He asserted that the UK company was trading as insolvent and the company auditors had expressed “unqualified concerns”. The US holding company had refused to give undertakings to the court. He asserted that the Claimant is a loss-making business. He was not challenged in cross examination on any of those assertions about the financial state of the Claimant. He asserted that the Claimant is not a member of the Saville Row Association or the Worshipful Company of Merchant Taylors. Of his role, he asserted he was not a professional. He had knowledge of textiles. His job was a lot of cold calling and then meetings, measuring and selling. He stated that none of the training he was given involved confidential information. The Washington Conference was a “work jolly” with a factory tour. The Nashville Conference was a “work jolly” with a tour of the head office and some sales training. The Chicago Conference was a “work jolly” with a tour of the Oxxford factory and a goal setting lecture. The Advanced Sales Training courses involved on-boarding and generic sales techniques. He started age 21 and it was his first proper job after he left school. He was given a contract with a 6-month set of restrictive covenants. He learned to love the job. His best sales year was 2024, when he was ranked 157 out of 450 salespersons. He asserted that the Claimant was trying to bully and crush him and he would be bankrupt if he lost. He asserted that the Claimant was trying to send a message to other sales staff. He asserted that there were 26 salespersons when he joined and 52 had gone before he left. After he left, Mr Powell, Daniel Staples and Caitlin Martin had also left. He was fed up with the working culture in the London office. Mr Adams knew that he had significant issues with the business before he left but wholly omitted to mention that in his interim relief witness statement. It was not true that his resignation “came out of the blue”. He did have conduct issues and did raise business concerns. He asserted that the holding company had businesses in 86 worldwide locations including: the UK, the USA and Canada. They make their own suits. All of the pricing is done in the USA. He was aware of pricing for made to measure and ready-made items and he was aware of promotions which were made public through LinkedIn advertisements, trunk office sales, WhatsApp messages and communication with customers. He could not recall all the different prices for all the different thousands of products and stated it would be impossible to do so. He denied ever having access to the costs of sale information. He stated that the US company owned Holland and Sherry and Oxxford, which had exclusive fabrics and manufacturing of made to measure suits. He stated that the RCC did not protect those companies from anything except mere competition. He asserted there were 20 competitors to the Claimant in London alone in made to measure garments and the Claimant was only unique because it manufactured its own clothes. The Defendant asserted his undertakings fully covered protecting the Claimant’s customer relationships. He denied that he had 461 customers and asserted he only had material dealings with far fewer. He asserted he had 81 Restricted Customers with whom he had dealings in the year before resignation, not 300. As to the build up for his successors, the Claimant usually sent videos to customers and used WhatsApp and LinkedIn messages to build up relationships and get introductions. The Defendant noted that the full extent of those had not been disclosed in the Trial Bundle. The Claimant had also given out personalised shoehorns to his ex-customers and offered 20% discounts, none of which had been properly disclosed. He stated that inadequate CRM data had been provided.[35]In relation to his contract, the Defendant stated that Mr Powell and other salespersons had threatened to resign because the base salary was so low they could not get proper mortgages. It was all about pay and benefits. The Claimant faced losing more big selling salespersons. Negotiations started in July 2022 and there were no lengthy discussions to his knowledge. Eventually, the new pay structure was put to staff. Ms Colby put the written contract on his desk and directed him to the signature page. He understood there were changes to pay and entitlements and he signed it. There was no e-mail or letter informing him of restrictive covenant changes. Ms Colby certainly did not go through the restrictive covenants or the contract with him. The Claimant had disclosed no documentation at all about the rationale behind the change in the restrictive covenants in the claim. In relation to confidential information, the Defendant denied he had any work product confidential information. He accepted there was a prospective customer list on CRM but he did not have it. He had information on customers and their personal information which he accepted was confidential. He wrote Notability notes and entered them onto the CRM. He entered measurements too. He listed the holding companies and Group Companies which included: Holland and Sherry, Oxxford, English American Tailoring, Individualised Shirts, Measure Up, Crossville (Chile), Gitman Grothers, TJ Chile, Couples Canada. The Defendant stated he had dealings with all of those companies. He had regular weekly meetings with US staff, chasing up items. He asserted that these communications were material to his work and sales. He complained that a global RCC prevented him working, for instance in the US, Chile and Canada, despite the fact that most of his customers were in London. He had five customers outside the UK living in Switzerland and Germany. He denied setting up in competition or working for any competitor. He asked what information the Claimant was seeking to protect. He had agreed not to solicit or deal with customers. He knew nothing of confidential pricing structures and pointed out there was no documentation about confidential pricing structures in the Trial Bundle. He had no proprietary planning and sales methodologies and did not know what that meant. He said the training was generic for sales and included reading Dale Carnegie's book “How to make friends and influence people”. The Defendant accepted he had information on all of the products sold in the UK but this was useless to competitors for they could not sell the made to measure products. The Defendant asserted the Claimant’s newsletters were full of lists of their products for sale. He asserted he could not recall 24 plus measurements for suits and 11 plus measurements for shirts for thousands of customers and Mr Adams was being misleading asserting that he could. He challenged Mr Adams’ assertion that the Restrictive Covenants were “substantially the same” save as to duration. They clearly were not. He pointed out that his notice period was one month, therefore the required handover could have been no more than one month and relatively simple. The Claimant wanted the minimum notice and the maximum restrictive covenant on competition. He asserted that no evidence had been provided of the reasoning for extending his RCC. As for buying cycles, he asserted customers’ habits fluctuated but were not generally seasonal. As for building up customer relationships, he denied that such would take a year. Most of his customers were “open ticket customers” not seasonal. They were not buying on bonuses generally. The average cost of a suit was £2,500. Bonuses for wealthy, high earning customers, were far higher than that. As for relationship build up times, he asserted from the information provided by the Claimant, that his customers were quickly reallocated and each new salesperson contacted each of his top 80 or so customers. 43 of those contacts were successful in getting responses. 18% had bought. Having done so himself, he gave evidence that it would only take a few weeks to set up a meeting if a customer wanted a meeting, therefore the reasons advanced for the 12 month RCC did not stand up to scrutiny. He analysed his top customers’ buying cycles and his analysis showed that 56% had buying cycles of under six months. His analysis showed a median buying cycle of 5.61 months and a mean of 7.78 months. He criticised the company's analysis because it covered 300 customers. Their analysis of the relevant 81customers (faulted though it was) came to 8.65 months as the median, therefore his median and their medium was apart by only 3 months and all were under 12 months. He criticised the Claimant’s figures for including outliers with very high purchase cycles.[36]In relation to the company's philosophy, the Defendant asserted it was a small, loss-making business, with a toxic culture. The company had 26 sales staff when he started and 9 when he resigned. When previous staff members resigned, he asserted the company had not enforced the restrictive covenants against any. He was not challenged on that assertion. Two had set up their own businesses in 2016 and 2017. He denied that information about company stock was received as an employee, it was received as a stockholder. He rejected the assertion that he had intentionally failed to take part in handovers. He was signed off sick by his GP in very early June 2025 after a buildup of stress due to: the issues at work, the “counselling” and the threatening letters he received from the Claimant after resignation. He handed back the company information on the 2 USB sticks. The second was later because he did not understand that WhatsApp messages were required. When he resigned, he had a sense of grievance because he was being disciplined when others, including XX, who was “doing cocaine” and YY, who he asserted was having relations with a junior female salesperson despite being married, were not disciplined. He was not challenged on either of those assertions and Mr Raynes said nothing relating to those allegations in his witness statement or live evidence. The Defendant received a job offer from Trunk via Edwin Jung. He informed the company about it. He was open and honest. In January 2025 he was suspended by Ms Colby and then required, by Mr Adams, to sign an Addendum or to resign. That Addendum required him: to go to Alcoholics Anonymous; abstain from alcohol; have weekly counselling meetings with Father Bob to confess his sins and other matters. He had to go to a workplace counsellor in London as well. He was excluded from a trip to Aruba, which he had earned and he was excluded from attending all conferences (work jollies) until 2026. He had to write a letter of apology. The Defendant found this profoundly demotivating, hypocritical and it made him unhappy that seniors had behaved worse and were not being disciplined in the same way. Alcohol was frequently drunk in the office and the Defendant asserted that Mr Raynes repeatedly behaved inappropriately with female staff. Various complaints had been made against him. The Defendant was not challenged on those assertions. The Defendant found the phone calls with Father Bob highly intrusive, oppressively religious and creepy. He told Mr Adams. He was deteriorating at work as a result of what he saw as unfair treatment and humiliation. He felt demeaned by Father Bob. He took advice from Mr Kwak who had recently moved. On the 12th of March 2025 he had a meeting with Mr Adams and informed him of the offer from Trunk and that he considered the mandatory counselling, the exclusion from management and the loss of earned rewards all unfair treatment. He also raised manufacturing quality issues and a breakdown in his relationship with another salesman called Hickey. Mr Adams said he should talk to Mr Raynes (one of those who had not been disciplined and who should have been in the Defendant’s view). The Defendant denied that he stated, as Mr Adams alleged, that he intended to leave and compete with the Claimant company. The Defendant asserted this was a “downright lie”. Later the Defendant did discuss the Trunk offer with Mr Raynes and told him that he had rejected it. The Defendant found Father Bob’s continuing “therapy” intrusive and also found out that Father Bob was reporting to Mr Adams about the contents of the therapy sessions. The Defendant raised garment quality issues with Mr Raynes, who was dismissive. The Defendant was at a family barbecue in April when an estate agency job was discussed. Father Bob then sent the Defendant a Briggs Myers personality test, to his home, on the 13th of May 2025, which the Defendant considered was intrusive. On the 23rd of May 2025 he met Mr Adams and Mr Raynes at a hotel and raised his product quality issues. These were dismissed. He was not criticised for the level of his sales. He resigned that afternoon, in frustration.[37]The Defendant denied any unlawful conduct. He did not invite customers to the trunk show because he had resigned. In any event, 13 of his customers did attend and bought goods there. Usually, salespersons invite customers a few days before. He asserted he cooperated with the handover of group data but he was initially put on gardening leave and then called back in after being cut off from all IT and required to sit in the Accounts office. On the Sunday, after he resigned, he had received what he regarded as a very aggressive and contentious letter from Baker McKenzie, delivered in person to his partner’s hand at his home. It was deliberately threatening and intimidating. He believed they were gearing up to sue him with the allegation that he was going to compete. He replied and met Ms Colby in a coffee shop and handed over the key a few days later. The company did not return his personal effects until late August 2025. Ms Colby never did an exit interview with him. His sales dropped in the two months before he left the company because of the intrusive, religious style counselling from Father Bob and his disaffection with the company including quality issues. He pointed out that he did not drop 131% of his sales. He was off work for 9.5 days, on holiday, took two days on sick leave and was suspended in January 2025. On the 28th of May 2025, Father Bob emailed him personally to ask for him to pay privately for therapy. He was upset that Ms Colby had threatened that the company might not repurchase his stock. He went to his GP in very early June and produced the two GP certificates. He was upset that Ms Colby was highly sceptical of his diagnosis. She could have arranged an occupational health review but never did. He criticised Baker McKenzie's aggressive letters and demands for wide-ranging undertakings, which were beyond the contractual ones, and which they subsequently withdrew and apologised for. He denied doing anything improper in a conversation with Mr Kwak, other than unburdening his situation and asking for advice. He did not say he was setting up a new business in competition and ask Mr Kwak to come with him. He denied Mr Adams’ assertions about his conversation with Connor Morrison. Mr Morrison had been given a “last chance” Addendum too and was considering leaving the holding company. The Defendant gave him reassurance. Finally, in relation to rebuilding relationships with customers, the Defendant analysed the sales post departure and the information provided, which was deficient, but showed 43 of his top 80 or so customers had been contacted successfully. He complained that the RCC had no geographic restriction; included the words “intends to” which were vague and was far too wide and was broader than just restricted to clothes manufacturers. It applied to suppliers of competing products globally. He asserted he was materially concerned in businesses outside the UK, including the US and Chile. He asserted that the scope of the RCC was so wide he would be prevented from working in the USA and the duration was far too long. He had asked for objective data to justify the RCC but Baker McKenzie refused to provide it.[38]In cross examination the Defendant repeated that he would love to do what he loves doing, in competition with the Claimant, but not with their customers. He stuck to his evidence about the lack of confidential information in training. He stated that the garments produced in the Oxxford factory and the English American factory were not secret. There was a video of how these suits were made and stitched available which was sent to customers. English American makes suits for other companies and those are not confidential either. He stated that all of the training made him a more skilful salesman and increased his skill base. It was not confidential. Although the majority of his clients were in the City of London, Canary Wharf and Westminster he also went to Harpenden and Hounslow. As for the off the peg and ready-made products, he accepted they were a small part of his sales because he personally liked to concentrate on custom clothing, but he did sell shoes, ties and off the peg items. He stressed, in relationship building, that the key was the first contact made, then the interest of the customer could be judged and a meeting set up or the customer could state the reason for delaying a meeting until later. Establishing first contact was the most important thing. He stuck to his evidence about his discussion with Mr Kwak. He accepted he had benefited from a warm handover from Paul Copp, but reasserted that his handover was prevented by his diagnosis of stress and being signed off work. He stated that many other salespersons had left with no handover and it was not unusual at all. In total 56 sales persons had left during his time and including some after he resigned. He had rarely received information from any prior salesperson who had resigned assisting him in handover. He just read the CRM data and contacted the clients. He was taken through the Claimant’s analysis of median cycle times and persisted with his criticism of the way they had calculated their median figures. He criticised the use of clients who had only been buyers as long ago as three years. Some were dormant and inactive. That skewed the Claimant’s figures. He did not accept that he had limited contact with US staff in his work. He asserted he had weekly contact in relation to the garments he was selling and customer queries. He called to the US most days. He had sold over 500,000 U.S. dollars in 2024 and had joined the Presidents Club in 2023 and his sales were progressing. He had incentive trips arranged, including to Aruba. He had no agenda for leaving. He stuck to his evidence about there being no discussion of the changes to the 2022 restrictive covenants. He accepted that the customer measurements could be regarded as confidential and if they were obtained by a competitor would give a competitive advantage however, he could not recall them and had handed all the information back. As for referrals and prospects, he could not recall them and there might be hundreds of them. As for pricing, he was aware of the pricing of products at 5 core levels of suits but he could not remember the detailed pricing of alterations. However, prices and promotions were publicised on LinkedIn. He did not change his evidence in relation to the vast majority of his witness statement. He was cross examined firmly on the basis that he was “choking off” sales in his last three months with a view to building up a competing business with Mr Powell, but he vigorously denied this assertion. He relied on the successful sales by the Claimant to his top 78 customers since his resignation. He gave evidence that, for contact with the customer to be material, a sale was not necessary. What was necessary was to record that the customer wanted the relationship to continue and when he wanted the seller to return to him. He did not consider it would be difficult to police his undertakings. Clients would stop buying and sales patterns would be visibly changed if he was poaching them. Customers, when spoken to, would give different answers to those that they usually gave. He did not accept that because it is a face to face market it was difficult to police. The opposite. The Defendant asserted that he regularly spoke to staff in Holland and Sherry, the Oxxford factory, the English American factory, the Chile factory and a factory in Canada. The Defendant considered that inheriting customers was a good thing because it gave a chance to reopen a relationship and push it on. Every salesperson wanted to inherit customers in the top part of the leaving salesperson's list. He maintained his criticism of Mr Hitt’s median buying cycle calculations, because they included outliers and the wrong sample range. Even using those buying cycles the Defendant asserted that the real median figure was either his figure which was below 6 months or Mr Hitt’s figure, which was 8.7 months, but Mr Hitt’s figure should be reduced because it included outliers. He asserted that it took him ages to organise the WhatsApps for the second USB stick because, when his access to the company’s IT was cut off, all of the names were deleted, so all he had left were the numbers. He had to go laboriously through each, one by one, and transfer it onto the USB stick and then delete it from his personal phone. There was quite a lot of cross examination on which legal firm he had instructed at what stage, but I did not find the questions or the answers at all helpful with the issues I have to decide.[39]During cross examination Claimant’s counsel clarified that the risk that the Claimant was worried about was the risk to existing customers, referrals and prospects, not the risk of competing for new customers.[40]Mr Johnson. This former employee of the Claimant gave evidence for the Defendant. His experience showed that many of his customers purchased 3 or 4 times per year in a regular buying pattern. He left the Claimant in 2021. He considered that a 12 month RCC was an “outrageous” notion and sought to answer the points raised by Mr Adams. He contradicted Mr Adams’ assertion that most clients buy every two years. He did not consider that clients’ buying cycles supported a 12 month RCC. He did not consider that salespersons were privy to business related information that could confer a competitive advantage in relation to work products, strategic planning materials or sales methodologies. He stated Mr Adams was “hamming it up”. Nor did the salespeople have pricing strategies, product line development or other proprietary planning sales methodologies. What salespeople knew were clients’ measurements, names, personal information and contact details. Mr. Johnson stated that a large number of salespersons had left the Claimant because it was not a happy place to work, with aggressive management. He felt unvalued, so he left. When he left, he was not asked to hand back his WhatsApp messages and nothing was done to assert there was any confidential information in them. He had regular experience of inheriting clients from departing salespersons. Clients were often lawyers, accountants or investment bankers and the new salesperson would make contact as soon as possible and in particular during the notice period. He did not find such customers hard to reach. The cross examination of Mr Johnson was short. His evidence was not seriously challenged and those challenges which were put did not change his evidence. Whilst employed, he had access to the intranet through something called VSS, which was a company app put on his phone, which provided pricing for products of various styles and fabrics.[41]Mr Duncan. This gentleman was a former salesperson between 1996 and 2019 for the Claimant. He resigned. His evidence was that he was disappointed to see that the Claimant company was seeking a 12 month RCC. His contract had 6-month restrictive covenants, therefore he refrained contacting his old customers for six months. He did so even when customers contacted him. He referred them back to the Claimant. He set up his own tailoring business in 2019 and was not injuncted by the Claimant. However, in February 2020 John Hitt sent him a communication alleging his non-compete clause was of 12 month duration. Mr Hitt was corrected and backed off. Based on his experience, his clients made purchases 3 to 4 times per annum and a small number of clients contributed disproportionately to his volume of sales. He inherited many of his customers. He denied Mr Adams’ assertion that most customers do not buy every year but every two years. He rejected Mr Adams’ justification for the 12 month duration of the RCC based on buying cycles or to protect confidential information. He considered that salespersons did not have business related information or information about work products, strategic planning materials, proprietary sales methodologies or pricing strategies. He had happy memories of working for the Claimant for 23.5 years but, by the end, it was not a happy place to work. He was threatened when he had shoulder surgery of being demoted out of leadership. He had a handover meeting or two with Ms Colby when he resigned. It was his experience that salespersons were heavily incentivized to start selling to inherited Restricted Customers straight after the departure of the previous salesperson. This was a regular occurrence. He rejected Mr Adams’ evidence that it took many months before customers could be contacted. He said this was “untrue”. He asserted that the Claimant had lied to his old customers saying he had moved to Scotland. He had told the Claimant that he was taking six months off and was then going to set up his own business. Cross examination of Mr Duncan was particularly short and at the end of it I could see no proper reason why he had been called to Court at all. All that was put to him was that his information was a bit out of date. In any event, I found Mr Duncan an honest and balanced, independent witness.[42]Mr Kwak. Patrick Kwak is a high flying corporate lawyer, in a large legal firm which is global. He was a customer of the Claimant, served by the Defendant. He considers that a 12 month non-compete for a garment salesperson was an “outrageous notion” and he was disappointed that the Claimant, through their lawyers, had weaponized his conversation with the Defendant. He bought the Claimant’s garments between March 2023 and March 2025. His average purchasing time was 4.8 months. He denied Mr Adams’ hearsay summary of his conversation with the Defendant. He denied what Mr Ashton allegedly said to Mr Adams. When Mr Ashton had first called him, after the Defendant left the Claimant’s employment, he was on the school run, in the rain and so it was not a convenient time. He accepted he had been present for a conversation with the Defendant in March 2025 about the Defendant’s potential exit from the Claimant and his future plans. The Defendant was trying to work out what to do and they had recently discussed Mr Kwak’s own job move and the Defendant sought his input. Mr Kwak denied the assertion that the Defendant had indicated he had secured a new job in a competitor and wished to poach Mr Kwak for the competitor. He also denied telling Mr Ashton on the 10th of June 2025 that he intended to continue buying from the Defendant “in his new shop”. He considered that the quality of the Claimant’s product was slipping and had become increasingly “mass market”. It was only the Defendant’s curation that kept him buying. He stated clearly to the Court that the Defendant did not solicit him on behalf of any rival business. He denied that the Defendant breached any duty of good faith or fidelity he owed to the Claimant. Mr Kwak did not alter his evidence in cross examination and stated he did not wish to get into bullying of the Defendant by the Claimant.

Assessment of lay witnesses

[43]I found the evidence of Mr Kwak, Mr Duncan and Mr Johnson independent, compelling and credible. Most of their evidence went unchallenged. I accept their evidence within the bounds of its historic setting. I was particularly struck by how motivated Mr Kwak was to the fairness he wished to see in the dealings between the Claimant and the Defendant and how he rejected Mr Adams’ hearsay assertions. Mr Potter was cross examined at length, professionally and properly. I found his evidence clear, consistent, logical and untainted by malice or overbearing self-interest. I consider him to have been a witness doing his best honestly to set out the facts.[44]Partly for the reasons set out above, but mainly for the defects in his evidence, I reject much of the evidence of Mr Adams. He was manipulative in the way he saw events. There was vague hearsay which he put forwards as hard fact. There were holes in disclosure which he made no effort to apologise for. His approach to the alleged breaches of duty by the Defendant was supposition entwined with a tinge of bullying. He ignored the humiliating effects of his last chance Addendum on the Defendant despite being told of them. He imposed “counselling” from Father Bob without privacy for the content. He banned the Defendant from drinking and required him to attend AA without a doctor’s diagnosis. He dismissed the Defendant’s concerns about product quality and he caused or permitted Ms Colby and the UK company to come down very hard on the Defendant immediately after he resigned. Overall, I was not impressed by the evidence of Mr Adams or Ms Colby. I was impressed by the evidence of Mr Hitt, but do not accept the relevance of his calculations. When their evidence conflicts with the evidence of Mr Potter, Mr Duncan, Mr Kwak and Mr Johnson, I prefer the evidence of the defence witnesses.

The expert evidence

[45]In my judgment, if the Claimant wished to show the buying cycles of customers were relevant to the RCC, it could have taken figures from its digital records before September 2022. This, it did not do. It did rely on a 2017 survey, which was the date of the first contract offered to the Defendant, which had a 6-month RCC. This stayed so until 2022. The Claimant mainly relied on the Defendant’s own figures from 12 months or 2-3 years before his resignation. This, despite the Claimant’s counsel accepting that the pre-2022 records would have been the relevant ones.[46]The Claimant could also have instructed a forensic accountant to carry out a proper analysis of the figures and determine whether outliers should be included or excluded and other relevant assumptions. Instead of doing this Ms Colby and Mr Hitt (who got junior staff to do the work) produced analyses which were presented in various different ways and for which the basic sub strata kept changing. For one set of figures the base sample was put forwards as 300 customers and later changed to 250 customers. There were many other such examples.

Findings of fact

[47]On the balance of probabilities, on all of the evidence before me, and taking into account the civil burden of proof on the Claimant to prove the facts and matters asserted in the particulars of claim, I make the following findings of fact. The Defendant joined the Claimant as a salesperson in 2017 and was given a contract which included a set of restrictive covenants limited in duration to six months and with a narrowish purview, which I will set out below. He was well trained. He worked for them for just under eight years. He was increasingly successful, but he was never a top salesman and eventually achieved a mid-ranking position. He joined the Presidents Club, which provided status as one of the better salespersons and work jollies (as he called them). He was given rewards of the work jollies which included some training and factory visits. He had various conduct issues, which are not unusual for young men in their first employment. After a conduct issue in January 2025, in Orlando, at a work conference, which appears to have involved drinking too much with work colleagues and then getting up late, he was subject to a tough choice imposed on him by Mr Adams: resign or agree to a set of conditions and continue working. Those conditions involved: weekly counselling from the USA with Father Bob, which was intrusive, humiliating, quasi-religious and the content of which was not kept private but was reported back to the Claimant company; the Defendant was banned from leadership roles for a year; he was banned from attending a work jolly in Aruba which he had earned through his sales; he was banned from conferences for a year; he had to have workplace counselling in London; he was required to go to Alcoholics Anonymous and he was required to abstain from drinking alcohol. I find it unsurprising that this young man found the full extent of those work restrictions intrusive and humiliating and it led to a sense of dissatisfaction. The Defendant believed that others who had drank a lot or had office affairs had not been disciplined. Furthermore, when he discussed various product related concerns, he felt they were dismissed by Mr Raynes and Mr Adams. Eventually, after a morning meeting on the Friday 23rd of May 2025 when his concerns were again dismissed, he decided to resign and handed in his notice. Thereafter, the treatment of him by the company was, in my judgment, insensitive, verging on brutal and was inconsistent. On Saturday 24th May he was told his IT had been cut off and he was not to come into the office and a misconduct investigation had been started. On Sunday 25th May, Baker McKenzie, instructed by the Claimant, hand delivered a letter to his home, stating that he was suspected of breaching his contract and an investigation was being carried out and reminding him of the restrictive covenants imposed upon him for 12 months. Then, three or four days later, Ms Colby wrote and required him to return to the office but required him to sit in the accounts room with no IT access and no key, being paid only his basic salary with no commission. She also made a threat that his stock options might not be honoured if he was found in breach of contract. All of this led to him suffering stress and loss of sleep. He went to his GP and was signed off sick for four weeks. I find that he was stressed by it and the diagnosis (which was unchallenged) was valid. That took up his notice period and therefore he was unable medically to do a warm handover for the Claimant’s new sales staff. He handed over a USB stick at the end of that month with all of the information he thought was confidential from his personal devices, having earlier handed back his work devices a few days after he resigned. He did not realise that WhatsApp messages were to be included in that because he was not aware that the company had ever required WhatsApps chats to be taken off resigning salespersons’ personal phones. When he was told to do so, it did not take him long, about 12 days, to extract those from his phone. The job was made more difficult when the IT was cut off because no names remained on his WhatsApp messages, only numbers. In any event he delivered the second USB stick on the 9th of July 2025.[48]None of the pleaded allegations of breach was made out on the evidence before me. In fact, many were conceded by Mr Adams in cross examination. The Defendant’s conversation with Mr Kwak did not breach any of his duties. I accept the Defendant’s and Mr Kwak’s version of their conversation. The Defendant’s discussion with Mr Morrison did not breach any of his duties. I accept the Defendant’s version of that conversation. He did not collude with Mr Powell and the un-pleaded allegation that was put in cross examination was not made out. I find that there was the same wording in sentences in at least one paragraph in the Defendant’s witness statement, when compared to a witness statement in the litigation with Mr Powell, but by the time the Defendant’s statement was served, they had the same solicitors. The relevant paragraph describes the Claimant’s worldwide business, so I see nothing sinister in that. I find that the Defendant did not set up in competition or work for a competing business and has, on the evidence before, me complied with his undertakings and the interim order. Nor do I find that the Defendant ran down his sales between January and May 2025. He was suspended from work for most of January, he was allowed 9.5 days of holiday during that period and he had two days of sick leave during. Also, he was having workplace counselling by one professional counsellor and suffering intrusive, quasi-religious “counselling” by Father Bob. This debased and demotivated him and he became less focused. Despite this, he still made very substantial sales in February 2025.[49]I find the effect of the Claimant failing to disclose relevant information, in relation to buying cycles before 2022 and in relation to replacement salespersons contacting the Defendant’s active customers after his resignation, somewhat undermines the Claimant’s case. Some information was provided but it was not full and it was not updated. Had that information been fully available in relation to the efforts to rebuild relationships, this Court would have been in a better position to know how well those had gone. However, it is clear that in the three months since the Defendant’s resignation 32 sales were made and the Defendant achieved the same number of sales in the same three months the year before. Also, it is clear from the documentation produced that many of his top clients have been contacted and have had positive discussions with the new salespersons, so that the contacts are still live whether or not they have made active purchases immediately.

The contract and the restrictive covenants

[50]The Defendant’s 2017 contract contained the following covenants and definitions:
“17. POST-TERMINATION RESTRICTIONS In order to protect the Confidential Information, trade secrets and business connections of the Organisation and each Group Company to which you have access as a result of your employment, you covenant with the Organisation (for itself and as trustee and agent for each Group Company) that you shall not for the period of 6 months after termination: • Solicit or endeavour to entice away from the Organisation or any Group Company the business or custom of a Restricted Customer with a view to providing goods or services to that Restricted Customer in competition with any Restricted Business; or • In the course of any business concern which is in competition with any Restricted Business, offer to employ or engage or otherwise endeavour to entice away from the Organisation or any Group Company any Restricted Person; or • Be involved in any Capacity with any business concern which is (or intends to be) in competition with any Restricted Business; or • Be involved with the provision of goods or services to (or otherwise have any business dealings with) any Restricted Customer in the course of any business concern which is in competition with any Restricted Business; or None of the restrictions in clause 17 shall prevent you from: • Being engaged or concerned in any business concern insofar as your duties or work shall relate solely to geographical areas where the business concern is not in competition with any Restricted Business; or • Being engaged or concerned in any business concern, provided that your duties or work shall relate solely to services or activities of a kind with which you were not concerned to a material extent in the twelve months prior to Termination. …”
Definitions:
“Restricted Business: Those parts of the business of the Organisation and any Group Company with which the Employee was involved to a material extent in the twelve months prior to Termination. Restricted Customer: Any firm, company or person who, during the twelve months prior to Termination, was a customer of or in the habit of dealing with the Organisation or any Group Company with whom the Employee had contact or about whom he became aware or informed in the course of his employment.” (I have added the italics). • Solicit or endeavour to entice away from the Organisation or any Group Company the business or custom of a Restricted Customer with a view to providing goods or services to that Restricted Customer in competition with any Restricted Business; or • In the course of any business concern which is in competition with any Restricted Business, offer to employ or engage or otherwise endeavour to entice away from the Organisation or any Group Company any Restricted Person; or • Be involved in any Capacity with any business concern which is (or intends to be) in competition with any Restricted Business; or • Be involved with the provision of goods or services to (or otherwise have any business dealings with) any Restricted Customer in the course of any business concern which is in competition with any Restricted Business; or • Being engaged or concerned in any business concern insofar as your duties or work shall relate solely to geographical areas where the business concern is not in competition with any Restricted Business; or • Being engaged or concerned in any business concern, provided that your duties or work shall relate solely to services or activities of a kind with which you were not concerned to a material extent in the twelve months prior to Termination. …”
[51]The RCC in this contract, at bullet point 3, prevented the Defendant from being involved in any Capacity with any business concern which is (or intends to be) in competition with the Restricted Business for 6 months. This anti-competition clause was subject to three reliefs:(1) geographic – it was restricted to the area where the Defendant worked (so London);(2) role – it only applied to similar services or activities; and(3) the definition of Restricted Business was only in relation to the parts of the business with which the Defendant was concerned to a material extent in the year before departure.[52]The 2022 contract contained the following restrictive covenants:
“19. POST-TERMINATION RESTRICTIONS In order to protect the Confidential Information, trade secrets and business connections of the Organisation and each Group Company to which you have access as a result of your employment, you covenant with the Organisation (for itself and as trustee and agent for each Group Company) that you shall not for the period of 12-months after the Termination Date: • Solicit or endeavour to entice away from the Organisation or any Group Company the business or custom of a Restricted Customer with a view to providing goods or services to that Restricted Customer in competition with any Restricted Business; or • In the course of any business concern which is in competition with any Restricted Business, offer to employ or engage or otherwise endeavour to entice away from the Organisation or any Group Company any Restricted Person; or • Be involved in any Capacity with any business concern which is (or intends to be) in competition with any Restricted Business; or • In competition with the Organisation or any Group Company, be involved with the provision of goods or services to (or otherwise have any business dealings with) any Restricted Customer in the course of any business concern which is in competition with any Restricted Business; or The restrictions imposed on you by this clause 19 apply to you acting, directly or indirectly, and on your own behalf or on behalf of, or in conjunction with, any firm, company or person.”
The definitions clause provided that: “Relevant Confidential Information: Confidential Information which would be of value to any business which competes or is preparing to compete with the organisation or an Associated Company, including, without limitation, Confidential Information that would enable it to: (a) review, amend, change or introduce products, services, systems, processes, proposals, forecasts, terms of trade or strategies (including, but not limited to, marketing and/or sales strategies); or (b) otherwise gain a competitive advantage. Restricted Business: Those parts of the business of the Organisation and any Group Company with which you were involved to a material extent in the twelve months prior to the Termination Date or in respect of which you had access to Relevant Confidential Information in the course of your employment. Restricted Customer: Any firm, company or other person who, during the twelve months prior to the Termination Date, was a customer of the Organisation or any Group Company with whom you had material contact or dealings or in respect of whom you had access to Relevant Confidential Information in the course of your employment.” (I have added the italics). • Solicit or endeavour to entice away from the Organisation or any Group Company the business or custom of a Restricted Customer with a view to providing goods or services to that Restricted Customer in competition with any Restricted Business; or • In the course of any business concern which is in competition with any Restricted Business, offer to employ or engage or otherwise endeavour to entice away from the Organisation or any Group Company any Restricted Person; or • Be involved in any Capacity with any business concern which is (or intends to be) in competition with any Restricted Business; or • In competition with the Organisation or any Group Company, be involved with the provision of goods or services to (or otherwise have any business dealings with) any Restricted Customer in the course of any business concern which is in competition with any Restricted Business; or The definitions clause provided that: (a) review, amend, change or introduce products, services, systems, processes, proposals, forecasts, terms of trade or strategies (including, but not limited to, marketing and/or sales strategies); or (b) otherwise gain a competitive advantage.

The definitions clause provided that:

[53]The third bullet point in the clause 19 RCC therefore restricted the Defendant from competing by being involved in any Capacity with any business concern which is (or intends to be) in competition with any Restricted Business for 12 months, extending the duration by doubling it. Furthermore, the reliefs in the 2017 contract were removed, thus the scope of the RCC was widened. So,(1) geographic – it was not expressly restricted to the area where the Defendant worked (London);(2) role - it was not restricted to only similar services or activities;(3) As for the definition of Restricted Business, it was broadened to add “or in respect of which you had access to Relevant Confidential Information in the course of your employment”, so, not just material involvement but also access to information. Further, there was a new definition of Relevant Confidential Information which covered information which would be of value to any business which competes or is preparing to compete with the organisation or an Associated Company. No definition of Associated Company was given although there was a definition of Group Company, but that term was not used.

The Law

[54]In the English and Welsh free-market, capitalist economy, trade is encouraged and restraint of trade is discouraged, unless it is justified. In the field of employment contracts, post-termination restrictive covenants against competition are only permitted and hence enforceable in so far as they go no further than is reasonably necessary to protect the employer’s legitimate business interests, see Office Angels v Rayner-Thomas [IRLR] 214, per Sir Christopher Slade at [20-26]. The RCC must be reasonable in the interests of both parties [21]; the employer cannot restrain pure competition by the employee using his acquired skills [23]; but can protect its identified business asset or advantage which it would be unjust to allow the employee to appropriate for his own purposes [24]. He went on to rule:
“25. (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].”
[55]There are three stages to this assessment. Firstly, this Court needs to construe the contract to determine what it says, secondly consider whether the employers have shown that, at the date of the contract, they had a legitimate business interest which required protection by an RCC, and thirdly, the RCC must be shown, on the evidence, to have been no more than was reasonably necessary, through the eyes of a reasonable person in the position of the parties at the date of the contract, having regard to the interests of both parties, the contractual provisions as a whole and the factual matrix, to protect the legitimate business interests, see TFS Derivatives Ltd v Morgan [2005] IRLR 246, per Cox J at [36-38]. Even, if it is found reasonable the Court must then decide whether to grant a discretionary injunction.[56]The principles of construction of contracts are summarised in Chitty on Contracts 25th Ed. paras 16-053 to 16-110. A useful summary on construction of RCCs was given by Calver J in Quilter v Falconner [2022] IRLR 227, [167-170]. I must take into account the objective meaning of the words and ascertain what a reasonable person with all the background information reasonably available to the parties would have meant by using those words. I must consider the contract as a whole. Where two possible constructions are possible and realistic, I should prefer the one consistent with business sense. I should consider the quality of the drafting and that one party may have agreed to something which in hindsight was not in his interests.[57]The approach to construction of restrictive covenants and validity was considered by the Supreme Court in Egon Zehnder [2019] ICR 1223, IRLR 838 SC,by Lord Wilson JSC. If the principle of validity applies, the parties are considered to have intended for the contract to be valid [38]. So, if a clause in the contract is capable of having two meanings, one which would result in its being void and the other which would result in its being valid, the latter should be preferred [38]. Lord Wilson then examined two schools of thought on when the validity principle applies: is it only if the two constructions are equally plausible? Or is it when the clause is ambiguous and the RCC is at least susceptible to the alternative construction? He chose a middle line and ruled that the alternative construction must be “realistic” to be preferred under the validity principle [42].[58]The Court has power to sever (blue pencil) offending words in an RCC provided they can be excised without a major change to character of the remaining restrictive covenants, or the need to add to or re-write them, see Egon Zehnder per Lord Wilson JSC [85-89].[59]RCCs have been enforced where the employer proves a reasonable necessity to protect confidential information and where there is proven difficulty in establishing a breach and/or difficulties policing non-solicitation or non-dealing covenants with existing customers. The Court’s task is to examine all the evidence and involves separating out the employee’s skill, experience and know how (which he may use to compete) from the employer’s trade secrets, which the employers must particularise and for which it may be entitled to protection, at least for a reasonable period of time, see Thomas v Farr [2007] IRLR 419, CA, per Toulson LJ:
“37. … FSS Travel and Leisure Systems Limited v Johnson. In that case the employee was a 25 year old computer programmer. He worked entirely on a computerised booking system devised by the employer for the travel industry. The system consisted of a large number of separate programmes which interacted with each other and which were constantly updated. The employer conspicuously failed in its pleaded case or in its evidence to identify what it was about the system which was said to be confidential. 38. Mummery LJ set out what he described as “well settled legal propositions affecting restrictive covenants in an employment contract”, beginning with the propositions that the court will never uphold a covenant from an employer merely to protect himself from competition by a former employee, and that there must be some subject matter which an employer can legitimately protect by a restrictive covenant. He cited the words of Lord Wilberforce in Stenhouse Limited v Phillips [1974] AC 391 at 400 that: “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.” 39. Lord Wilberforce was using the word property only in a general sense, as he indicated, because it is now well established that (aside from any obligations undertaken by contract) the law relating to confidential information is an equitable invention and is not founded on the concept of information as property. (For the latest relevant authority rejecting the property theory, see Douglas v Hello! Limited (3) [2005] EWCA Civ 595, [2006] QB 125 at 126 to 127.) 40. Mummery LJ went on to observe that the employer had failed to adduce sufficiently cogent relevant evidence to identify and establish a separate body of objective knowledge qualifying for protection as a trade secret by means of a restrictive covenant. 41. In order to establish that the inclusion of a non-competition clause in an employment contract was reasonably necessary for the protection of the employer's interest in confidential information, the first matter which the employer obviously needs to establish is that at the time of the contract the nature of the proposed employment was such as would expose the employee to information of the kind capable of protection beyond the term of the contract (i.e. trade secrets or other information of equivalent confidentiality). The degree of the particularity of the evidence required to establish that matter must inevitably depend on the facts of the case. To say this is to say nothing new. Aldous LJ stated the principle in Scully UK Limited v Lee [1998] IRLR 263 at 23: “In cases where a restrictive covenant is sought to be enforced, the confidential information must be particularised sufficiently to enable the court to be satisfied that the plaintiff has a legitimate interest to protect. That requires an enquiry as to whether the plaintiff is in possession of confidential information which it is entitled to protect. (See Littlewoods Organisation v Harris [1977] 1 WLR 1472 at 1479F). Sufficient detail must be given to enable that to be decided but no more is necessary.” 42. Provided that the employer overcomes that hurdle, it is no argument against a restrictive covenant that it may be very difficult for either the employer or the employee to know where exactly the line may lie between information which remains confidential after the end of the employment and the information which does not. The fact that the distinction can be very hard to draw may support the reasonableness of a non-competition clause. As was observed by Lord Denning MR in Littlewoods Organisation v Harris at 1479 and by Waller LJ in Turner v Commonwealth and British Minerals Limited [2000] IRLR 114 at para 18, it is because there may be serious difficulties in identifying precisely what is or what is not confidential information that a non-competition clause may be the most satisfactory form of restraint, provided that it is reasonable in time and space.” “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.” “In cases where a restrictive covenant is sought to be enforced, the confidential information must be particularised sufficiently to enable the court to be satisfied that the plaintiff has a legitimate interest to protect. That requires an enquiry as to whether the plaintiff is in possession of confidential information which it is entitled to protect. (See Littlewoods Organisation v Harris [1977] 1 WLR 1472 at 1479F). Sufficient detail must be given to enable that to be decided but no more is necessary.”

Applying the law to the facts

[60]I shall address the two main legal issues identified above:(1) did the Defendant breach the terms of his contract relating to good faith, fidelity and confidentiality;(2) is clause 19, bullet point 3, which is the restrictive covenant against competition (RCC), enforceable? Within that second issue the parties agreed that the Court should decide on: (a) the proper construction of the RCC; (b) the legitimate business interests covered by the RCC; (c) whether the RCC goes further than is reasonably necessary to protect the Claimant’s legitimate business interests and is unenforceable; (d) whether the offending words (if any) can be severed. Validity[61]The Defendant challenged the validity of the whole 2022 contract in the defence. This challenge was abandoned during the trial. Breach of contract[62]On the findings of facts I have made above I do not consider that the Claimant has proven that the Defendant breached the employment contract in any of the ways set out in the particulars of claim. Having preferred the Defendant’s evidence, supported by the witnesses he called, I find that the evidence of Mr Adams, Ms Colby and Mr Raynes was not sufficient to prove the allegations made against the Defendant. I dismiss the claim for breach of contract made against the Defendant. I find that he did not breach his duty of fidelity, good faith or confidentiality to the Claimant. He did not act inappropriately when speaking to Trunk, Mr Kwak, Mr Morrison or Mr Powell (the latter being an un-pleaded collusion assertion). He did not intentionally run down his sales between January and his resignation. He did not unreasonably refuse to assist with the handover after his resignation and he did not unreasonably delay returning the Claimant’s customer information on the first USB stick or the WhatsApp messages from his personal phone on the second USB stick. Nor did he solicit the Claimant’s Restricted Customers. I find that the diagnosis of stress at work (which was unchallenged) was proven and prevented his involvement in handover. The Validity of the RCC[63]The Claimant conceded that some of the words used in the RCC were not reasonably necessary or too vague to be enforceable. Those words were (or intends to be) in clause 19 bullet point 3. Thus, unless the Court is prepared to blue line them, the RCC will be unenforceable. There was no objection to them being severed, in that severance would not affect the meaning and effect of the contract’s restrictive covenants under the test set out above. I agree that those words are severable. I take this into account when making the decision below. If all the rest of the RCC is enforceable, then I will sever those words.[64]Legitimate Business Interest. Confidential Information. The definition of Confidential Information is set out in clause 14. For instance, Work Product is defined there. It includes customer lists. As to the legitimate business interest which the Claimant sought to protect, I consider that, other than the Defendant’s customers’ information, the Claimant has not proven that any of the asserted range of relevant information was:(1) in the Claimant’s possession or(2) in the Claimant’s possession and confidential or(3) in the Claimant’s possession and of value to competitors. In 2022, when the contract was signed, the Defendant had worked for the Claimant for 5 years. He was a mid-ranking salesperson who had not yet peaked. He was not in a leadership position. He did not have access to the level of business information available to Mr Raynes or any management employees. I find that he did not have or gain access to any valuable confidential management level information about pricing strategies or margins, future garment design plans, product reviews, secret future product amendments, secret changes or secret new services, new systems, secret new processes, secret proposals, forecasts, secret terms of trade or business strategies. What he and all UK salespersons had, apart from their skills and knowledge of the trade generally, was the information provided in the VSS app and the training provided about the Claimant’s prices for their custom made and off the peg products and accessories which salespersons were required to offer to the public. He passed those on, where he could, to every customer, referral and prospect (as defined in evidence). He advertised some of the Claimant’s products and promotions using word of mouth, LinkedIn, messaging and at trunk sales. The parties agreed that the main “of value” confidential information he had related to customers and consisted of their contact details at work and maybe home addresses, their measurements, their personal wardrobe and other choices and their interests and other disclosed details which he had recorded. I consider that, at the time the contract was made, both parties would objectively have understood that when a non-leadership salesperson left and after all the IT access had been removed, it was unlikely that the ex-employee would remember the detail of the pricing for the thousands of products or the details provided by customers. He would of course know that the made to measure suits were priced at around £2,500. He would probably remember the names and workplaces of his top customers, and the broad details of their buying wishes. The Claimant never identified or particularised the allegedly confidential information in the Defendant’s possession. All of Mr Adams’ evidence, and Mr Raynes’ evidence was general, non-specific and precisely matched the general words used in clause 14. That was not good enough. It was incumbent on the Claimant to prove the detail of what information was confidential and how it was of value. The Claimant did not do so, despite my prompting on several occasions. Thus, I consider that the only confidential information which the Defendant had, which was the property of the Claimant and in which they had a legitimate business interest was the customers’ details.[65]Duration. Before considering the more complicated competing submissions on the proper construction of the other parts of the RCC, the duration needs to be considered. There was no alternative construction for the duration of the RCC in the 2022 contract. It was 12 months. In the light of the 12 month restrictive covenants against contacting existing customers for soliciting business and selling them, was there any reasonable necessity for an RCC of that duration?[66]Buying cycles and the factual matrix of changes in 2022 contract. The Claimant relied on the assertion that in the USA non-compete RCCs are 24 months long. Other than that the Claimant mainly relied on their evidence of buying cycles to justify the 12 month duration. Tellingly, after Mr Hitt’s large-scale review of buying cycles in 2017, the Claimant offered 6 month restrictive covenants to the Defendant and other salespersons, not 12 months. Thus, whatever the result of that large scale analysis, the company itself considered 6 months adequate for salespersons. They had longer RCCs for others. The Defendant’s role did not change in 2022. So, role change did not justify the duration increase. The “one size fits all” 2022 RCC covered leadership and well as salespersons. Leaders had far more responsibility and they had access to more valuable financial information, yet were not differentiated in relation to the duration of the RCC. Additionally, the notice period was kept at one month, so the Claimant clearly did not consider the Defendant was important enough to require a longer notice period (for handovers for instance). Additionally, the factual matrix of the introduction of the 12 month RCC in 2022 proved, on the balance of probabilities, that the Defendant was never informed of the changes to the RCC and that no union or other representative negotiated the new RCC on his behalf. I have no idea what happened at the meeting with Baker McKenzie which Ms Colby said Mr Powell attended and which she asserted involved discussion of RCCs. She made no mention of it in her witness statement and Mr Powell was not called. The Claimant wholly failed to provide any documentation proving that any consideration was given to the salespersons’ interests when the duration was doubled. Nor did the Claimant call their Chief Legal Counsel, Mr Stohner, to give evidence. So, none of the primary evidence which might have justified the doubling was put before the Court. I find that, the Claimant has failed to prove that any consideration was given to the balance of interests between the Claimant and the Defendant (or any salesperson) in relation to duration. Being out of work in his/her field of excellence for 12 months might (and probably would) cause default on his/her mortgage, loss of a house, a car, the ability to care for children and many other things and a very substantial restraint of the ex-employee’s ability to trade. There was no evidence that the Claimant though about that at all.[67]The main evidence which the Claimant relied upon was various analyses of the Defendant’s sales after 2022. From this, they extracted median buying cycles and sought to use those to justify, in arrears, the decision made in 2022. In doing so they did not use an expert to assist the Court with some independence. On their own calculations they put forwards mean buying cycles of 11.7 months (Hitt 1), 10.77 (Colby) or 8.7 (Hitt 2), but their figures were skewed by their customer sample choices and the outliers they included. On the Defendant’s analysis the majority of his customers (56%) bought in under 6 months and the median was 5.48 months. Whilst I preferred the Defendant’s analysis, I did not find any of this evidence of much value. All witnesses agreed that the 80/20 rule applied to sales, which means that 20 percent of a salesperson’s customers produce 80% of her/his sales. They all agreed that each customer’s buying pattern was wholly individual and changeable, depending on work and personal circumstances, life, death, moving abroad and so on. In my judgment, it was not the buying cycles which could help to justify a duration for an RCC, it was the length of time needed for a salesperson who inherited the departer’s customers, to contact the customers and rebuild a positive relationship with a view to sales. That information should have been provided for a period before 2022, the date of the contract. None of that information was put forward, save for the 2017 information, in general terms, which led to a 6-month RCC that year.[68]As for the post event sales and records of conversation with customers, which has some, but only post event, indirect relevance, the Defendant caried out a helpful analysis (BP191-193) of contacts, sales and meetings for 77 of his top customers, between his resignation and 9.7.2025. It evidenced an impressive effort by a range of replacement salespersons, showing progress. The sales figures back this up showing sales to 17% (or 18%, as one witness stated) of the Defendant’s customers. That was near the Hitt target of 20% within 3 months. In my judgment none of the Claimant’s success after the event supported the Claimant’s case that a 12 month RCC was needed.[69]Policing. The Claimant asserts that it is difficult to police the 12 month non-solicitation and non-dealing covenants for their customers. However, the evidence in support of that pleading was mere assertion. At least 52 salespersons had left the UK company during the Defendant’s employment. Many had left before 2022. No evidence was provided by the Claimant about how difficult it had been to police those departures. Mr Duncan gave evidence of directly competing with the Claimant after 6 months. His first 6 months was not held up by the Claimant as difficult to police or as damaging. He was not cross examined on that. The Claimant does not advertise or market in a traditional sense. Their business depends on word of mouth referrals. They know their customers intimately. Their business is utterly different from a business which advertises online or using traditional methods for customers or runs a shop and does not know their customers intimately. The Claimant’s records kept by their salespersons of their customer interactions are detailed. In my judgment the Claimant is in a powerful position to police whether the Defendant is soliciting and so breaking the non-solicit covenant. Of course, the new salespersons would not wish to ask customers outright most of the time. Instead, considering the tone and content of the Defendant’s customers’ communications will likely provide clear or implied evidence of solicitation. If a significant number of customers refuse to communicate at all, that would perhaps be an obvious example. Standing back, with 52 departures before the Defendant left, it cannot have been beyond the capabilities of the Claimant to have gathered evidence showing what had happened when a departing salesperson had solicited in breach or once who solicited without breach (Mr Duncan for instance – who did compete from month 6 onwards), and what had happened when they did not compete (persons A,B,C,D etc). No such evidence was called. Additionally, I found it telling that the Claimant allowed or expected salespersons to use their own phones to message and call customers. That would allow them, after departure, to call customer and their names and numbers would come up as known by each customer. If the company had provided work phones and numbers, and withdrawn them on departure, the customer would not know the personal numbers of the departed salesperson. However, the new salesperson could make the call on the same phone and the customer would know the number (or rather his phone would). Mr Adams said he had never contemplated this. Contradicting him, Ms Colby said the Claimant had contemplated this and had decided not to provide company phones. This would have been a less restrictive way to protect their customers but they chose not to deploy it. So, in relation to the assertion that the other restrictive covenants were difficult to police, that case was not made out by the Claimant.[70]Taking all the evidence into account, I consider that the Claimant has failed to prove that the 12 month duration of the 2022 RCC was reasonably necessary to protect the Claimant’s legitimate business interests. It is therefore unenforceable. Having made this decision there is no need to consider the other issues and submissions, however I will do so because the parties spent time on them. The proper construction of the RCC[71]Capacity and Role. The RCC prevents the Defendant from competing with any Restricted Business of the Claimant in “any Capacity” (role) in any other business concern. There was no dispute that “business concern” covered a very wide range of business vehicles, including self-employment, employment by another company or partnership, consultancy or otherwise. The words “any Capacity” are also wide. They were defined in Clause 1 on interpretation and include: as principal agent, consultant, officer, shadow director, director, partner, independent contractor, employee directly or indirectly. The Defendant submitted that to be reasonable and necessary the Capacity should have been restricted to only his role with the Claimant, not the wide range of roles in the term “any Capacity”. No evidence was provided by the Claimant to support the need for this wide definition of the competing roles. Prima facie, in my judgment, the RCC should relate to competition in the role the Defendant was doing at the Claimant’s company or a role close to that role, so as a salesperson. The RCC definition covers receptionists, drivers, floor sweepers and all roles. No evidence was provided by the Claimant to justify the deletion of the role relief (narrowing) clause in clause 17 of the 2017 contract. On the evidence put before me, in my judgment, the Claimant has failed to justify the reasonable necessity of the width of the RCC on the competing roles which are caught by it.[72]Range of competitor businesses. There is no restriction on the range of competitor businesses save that they are in competition. So, shops and online businesses which sell made to measure, and those which sell high end, off the peg and those which sell high end shoes and ties, are all included. No evidence was provided by the Claimant as to why this scope should not have been restricted to businesses which offer mainly a face to face service for made to measure garments with accessories tagged on. So, for this reason, I consider that the RCC range of competitor businesses was not shown to be reasonably necessary.[73]Claimant’s Restricted Business: how many businesses? Moving on to the definition of the Claimant’s Restricted Business. The first matter to note is that it the RCC is not restricted to the Defendant’s UK employer. It is much wider. It includes any Group Company. That is defined as including the USA Tom James holding company and any subsidiaries of the Claimant or the USA holding company. The Claimant did not direct me to a list of subsidiaries or provide them in its evidence in chief. The Defendant did set out the huge range of asserted subsidiaries in the USA and around the world. I have recited his evidence above. This included garment manufacturers in the USA (Oxxford and many others); manufacturers in Canada and Chile; a shop in Saville Row under a subsidiary’s name and more. The Claimant and the holding company sold in many EU countries. The Defendant gave unchallenged evidence that the Claimant sold to 86 countries worldwide. As I understood the evidence, only the Claimant could sell the Claimant’s made to measure ranges. No competitor could sell those, so how can any other company compete for that product? The only competition could be for other similar products. As for the garments which any company could buy from the subsidiary companies, and sell onwards, I do not understand the need for the RCC if those sales were to be to new buyers (as distinct from the Claimant’s customers or even as distinct from the holding company’s customers). A sale is a sale. There was no dispute on the breadth of the companies covered by the non-compete. No evidential justification was put forwards by the Claimant for preventing the Defendant from competing with this huge range, instead of just his own employer. The core need for protection would be to protect from the Defendant working in competition for existing customers, in a job selling made to measure suits, face to face, in London. The core is not to protect from the Defendant working in competition, if his job would be selling made to measure suits, face to face, in London to the Claimant’s customers. Not to other people who are not the Claimant’s customers. Furthermore, the core is not to protect from the Defendant working in competition, if his job would be selling made to measure suits, face to face, in the UE or Australia or the USA, to other people who are not the Claimant’s customers. I consider that the Claimant has failed to satisfy the burden of proof that this huge range of competing companies was reasonably necessary to protect the UK Company’s legitimate business interests in their own customers.[74]Material involvement. The words limiting the scope of the Tom James’ businesses with which the Defendant was restricted from competing under the RCC are:
“Those parts of the business of the Organisation and any Group Company with which you were involved to a material extent in the twelve months prior to the Termination Date.”
The evidence on this was conflicting, as were the submissions. The Claimant relied on what the Defendant mainly did, which it submitted was selling made to measure suits in London for the Claimant. The Claimant submitted that he had no material involvement in: (1) the USA holding company or (2) Oxxford, or Holland and Sherry, or (3) any of the holding company’s factories or businesses in countries outside the UK or (4) any City outside London or (5) any of the Claimant’s (or the holding company’s) business; and (6) selling the many accessories or off the peg clothing (shoes, ties, shirts, jackets, luggage etc) which he sold. The Defendant submitted that he did sell a wide range of accessories and off the peg garments. Also, he spoke to the USA head office weekly and to manufactures, for instance the Oxxford factory, Holland and Sherry and the facilities in Chile and Canada. He did so weekly and sometimes more often. The Defendant gave evidence that, when chasing deliveries, or going back to the factories with alterations, defects and customer complaints, those were intensely material for customers. So, he submitted he had material involvement in a wide range of worldwide companies owned by the and Tom James USA. I shall deal with each sub issue in turn.[75]Accessories and off the peg garments. I consider that an objective bystander at the date the contract was made, knowing all the relevant information about what the Claimant’s salespersons did and what the Defendant did, would consider that material involvement with a Tom James business definitely covered all the products which it sold. It did not matter that shoes, belts, luggage and off the peg jackets were a small part of the Defendant’s own sales (whether £40,000 or £60,000 pa), they were a part of his selling job. I consider the Claimant’s submissions on how to construe the accessories and off the peg garments was an unreasonable or fanciful interpretation and I reject it. Thus, the scope of the products which the Defendant could not sell in competition with the Claimant was far wider than only made to measure, and covered off the peg garments (shirts, men’s jackets, women’s jackets), shoes, ties, luggage and all other accessories which he sold for the Claimant. The Claimant provided inadequate evidence to justify this huge width of anti-competition when the Claimant’s main business was to sell made to measure. Potentially it prevented the Defendant working in any shops or large department stores as a salesperson selling any of these goods.[76]Material involvement. I take into account that the parties two alternative constructions would not have been so much of a problem if the geographical and role reliefs in the 2017 RCC were still in the 2022 RCC, but they were removed. No explanation was provided by the Claimant justifying that potentially substantial geographic widening of scope.The question of whether the Defendant’s involvement in, for instance, the Oxxford factory business or the USA holding company or the Chile factory business or any of the multiple subsidiaries, was material is nuanced. On the one hand, his job was sales in London and once he had made the sale one could say his material involvement in the garment being made at, for instance, the Oxxford factory was over. On the other hand, delivery times, or communications about odd cut shapes for disabled or large size customers, chasing up delays, curing defects in the garments ordered, obtaining resulting corrections or alterations and satisfying complaints, are all very important matters for customers. I have accepted the Defendant’s evidence on the level of his interactions, for instance with Oxxford. After all, why would the Claimant send him to the factory as part of his sales training if that was not material to his job? The Claimant provided no evidence in response to the Defendant’s evidence about his involvement with the overseas factories. Cross examination on his involvement was merely putting the assertion that he did not call businesses like Oxxford very often. In my judgment the only reasonable construction of the term, by an objective, well informed bystander, would be that “material involvement” covers the actions which the salespersons are required to perform in the course of their work for the benefit of the business which aims to increase sales and maintain high levels of customer satisfaction. Actions like chasing orders, correcting errors and ensuring sizes are right are material matters and crucial to customers. I am unable to accept the Claimant’s submissions that such communications are wholly immaterial. Furthermore, if the Defendant had failed to make necessary communications, for instance with the USA Head Office or Oxxford, he could be subject to misconduct charges and discipline. However, the material involvement from those overseas interactions was all plainly material to the Claimant’s business. I consider that a realistic construction of what was “material involvement” included asking “material to which company?” The materiality of all of the Defendant’s actions, including his communications with Oxford, was focussed on the Claimant’s sales by the Defendant to the Claimant’s customers in London. Although it was material to, for instance Oxxford, for their product to be correct, the customer was the Claimant’s, not theirs. Oxxford’s customer was the Claimant, in reality. I consider that the validity principle applies here. Thus, in my judgment, the definition of “material involvement” in the definition of Restricted Business can properly be construed as restricting the scope to the Claimant only, not opening up the range of organisations which he dealt with beyond the Claimant. So, in my judgment, the clause does not cover the USA holding company, or the companies in Chile and Canada and beyond. Likewise, the part of the Claimant with which the Defendant was materially involved was their operation in London, not Birmingham or the USA for instance. So, on the proper constructions of the contract I consider that the geographic scope was restricted to the UK Company’s operation in London by the words “material involvement”. I do not consider that, on this aspect, the contract was wider than reasonably necessary.[77]Access to information. The 2017 contract did not have this widened definition. The 2022 contract was widened so that Restricted Business included any of the Tom James companies to which the Defendant “had access” to relevant confidential information in the course of his employment. This addition does not have a limitation to “the last 12 months” of his employment. No evidence was provided by the Claimant as to why this extension was added or how it was justified. However, I consider that it was logical for the Claimant to seek to protect any information to which the Defendant had access if it was confidential Information for customers and if that information could be used by a competing company to their advantage. Customer information is the obvious target. The evidence showed that the Defendant was allowed access to USA customer information if he had certain basic facts already. The main principle does not per-se stand out as unreasonable or unnecessary, but the lack of any temporal and geographical restrictions was wholly without justification and hence I do not consider that the Claimant has provided evidence that it was reasonably necessary.

Conclusions

[78]For the reasons set out above, I consider that the Claimant has failed to prove the pleaded breaches of contract by the Defendant.[79]For the reasons set out above, I consider that the restrictive covenant against competition in clause 19, bullet point 3, of the 2022 contract goes further than is reasonably necessary to protect the Claimant’s legitimate business interests and is unenforceable. I consider that, on the evidence, the duration; the range of businesses being protected; the range of competing businesses and the roles banned were all not reasonably necessary.[80]In my judgment the offending words in clause 19 bullet point 3 (or intends to be) can be severed but the clause is not saved by doing so.[81]I discharged the interim injunction at the end of the hearing. The undertakings given shall continue. END