“you could be sent to prison if the order was disobeyed”
“Prohibited Tasks – means any tasks carried out by the Defendant for or on behalf of Klarius or Quinton Hazell whether as employee, consultant, agent or otherwise howsoever relating to the management of the [LSA] or the commercial relationship between Klarius/Quinton Hazell and the Claimant and including (but not limited to) dealing with matters relating to the performance of the Claimant under the [LSA], the legal position in relation to any dispute between the Claimant and Klarius/Quinton Hazell regarding the [LSA], any negotiation relating to an assumptions review between the Applicant and Klarius/Quinton Hazell pursuant to the [LSA], any claim for breach of contract by Klarius/ Quinton Hazell against the Clamant, the review and/or approval of any invoices submitted by CLS pursuant to the [LSA]and any negotiations regarding he payment of CLS’s charges, the negotiation of revised commercial terms between the parties and/or the commercial strategy for Klarius/Quinton Hazell in relation to its dealings with the Claimant.”
“I cannot accept that the law's only concern underlying the doctrine of restraint of trade is to ensure that employees can earn their living …. If this were so, such restraints could always be purchased outright and yet the cases clearly show that they cannot be. And in any event, public policy clearly has regard too to the public interest in competition and in the proper use of an employee's skills.”
"In this connection one must bear in mind that not all information which is given to a servant in confidence and which it would be a breach of his duty for him to disclose to another person during his employment is a trade secret which he can be prevented from using for his own advantage after the employment is over, even though he has entered into no express covenant with regard to the matter in hand. For example, the printing instructions were handed to Holloway to be used by him during his employment exclusively for the plaintiffs' benefit. It would have been a breach of duty on his part to divulge any of the contents to a stranger while he was employed, but many of these instructions are not really 'trade secrets' at all. Holloway was not, indeed, entitled to take a copy of the instructions away with him; but in so far as the instructions cannot be called 'trade secrets' and he carried them in his head, he is entitled to use them for his own benefit or the benefit of any future employer."… [Principle] (5) In order to determine whether any particular item of information falls within the implied term so as to prevent its use or disclosure by an employee after his employment has ceased, it is necessary to consider all the circumstances of the case. We are satisfied that the following matters are among those to which attention must be paid: (a) The nature of the employment. Thus employment in a capacity where "confidential" material is habitually handled may impose a high obligation of confidentiality because the employee can be expected to realise its sensitive nature to a greater extent than if he were employed in a capacity where such material reaches him only occasionally or incidentally. (b) The nature of the information itself. In our judgment the information will only be protected if it can properly be classed as a trade secret or as material which, while not properly to be described as a trade secret, is in all the circumstances of such a highly confidential nature as to require the same protection as a trade secret eo nomine. The restrictive covenant cases demonstrate that a covenant will not be upheld on the basis of the status of the information which might be disclosed by the former employee if he is not restrained, unless it can be regarded as a trade secret or the equivalent of a trade secret:… We must therefore express our respectful disagreement with the passage in Goulding J's judgment at[1984] ICR 589 , 599E, where he suggested that an employer can protect the use of information in his second category [‘information which the servant must treat as confidential … but which once learnt necessarily remains in the servant’s head and becomes part of his own skill and knowledge’:[1987] Ch p133 G], even though it does not include either a trade secret or its equivalent, by means of a restrictive covenant. As Lord Parker of Waddington made clear in Herbert Morris Ltd. v. Saxelby[1916] 1 AC 688 , 709, …, a restrictive covenant will not be enforced unless the protection sought is reasonably necessary to protect a trade secret or to prevent some personal influence over customers being abused in order to entice them away. In our view the circumstances in which a restrictive covenant would be appropriate and could be successfully invoked emerge very clearly from the words used by Cross J. in Printers & Finishers Ltd. v. Holloway[1965] 1 WLR 1 , 6 …: "
"The employee might well not realise that the feature or expedient in question was in fact peculiar to his late employer's process and factory; but even if he did, such knowledge is not readily separable from his general knowledge of the flock printing process and his acquired skill in manipulating a flock printing plant, and I do not think that any man of average intelligence and honesty would think that there was anything improper in his putting his memory of particular features of his late employer's plant at the disposal of his new employer."
“An express restrictive covenant would not be needed to protect third category trade secrets; the implied term would do that. Neill LJ must, therefore, in my view, have been contemplating the protection by an express restrictive covenant of confidential information in respect of which an obligation against use or disclosure after the determination of the employment could not be implied. Moreover, the criteria that determine whether or not an express covenant in a contract of employment restricting the use or disclosure of particular information after the determination of the employment is enforceable are very different from the criteria that determine whether or not an obligation restricting the use or disclosure of that information can be implied into the contract. The implied obligation will always, I think, be unlimited in time and probably in area as well. It is difficult to construct a case in which an obligation could be implied that restrained disclosure for, say, one year only or restrained use in, say the Home Counties. If the information sought to be protected is not fit for protection, unlimited by time or area, it is very difficult to see how protection can be supplied by an implied term. On the other hand, an express covenant against use or disclosure is very likely to be limited both as to time and as to area. In short, express restricted covenant and implied term raise to my mind quite different considerations and I decline to read the Faccenda judgment as holding that confidential information that could not be protected by an implied term ipso facto could not be protected by a suitably limited express covenant. The importance of the Faccenda decision for the purposes of the present case is, in my opinion, first, that it lays the obligations against use or disclosure of confidential information that can be placed on the shoulders of an employee after the determination of his employment firmly in contract. If there is an express covenant in the contract of employment, the enforceability of the covenant will depend on well known restraint of trade considerations. In the absence of an express covenant, the obligations can, in appropriate cases be implied into the contract of employment. But if there is no enforceable express covenant and the alleged covenant cannot be implied into the contract, there is an end of it.”
“…it is arguable that a duty of confidentiality that has been expressly assumed under contract carries more weight, when balanced against the restriction of the right of freedom of expression, than a duty of confidentiality that is not buttressed by express agreement-contrast the observations of Walker LJ in London Regional Transport v Mayor of London[2001] EWCA Civ 1491 at [46] with those of Lord Donaldson of Lymington MR in Attorney General v Barker[1990] 3 All ER 257 , 260.”
“It is, in my judgment, very important to notice that this is not a case such as Spycatcher (see eg A-G v Guardian Newspapers Ltd (No 2) …,[1990] 1 AC 109 ), where the Attorney General is relying on a duty of confidentiality. His claim is based on a breach of contract, the consideration for the covenant by Mr Barker (that he would not publish matter true or false concerning his experiences in the royal household) being the agreement by those concerned to take him on the staff of the royal household and to pay him wages or a salary. It is not in principle in any way different from the case of someone who enters into a contract with a newspaper whereby the person concerned undertakes, in consideration of a money payment, not to give their story to anyone else for publication. The newspaper in those circumstances would be likely to publish, but they would not be obliged to publish. That is an exact analogy here: the royal household would be entitled to authorise publication if they wished but equally are fully entitled under the contract to refuse to allow it. …Exactly the same considerations would apply if the employer had been an ordinary citizen. It is a simple case of someone who has entered into a negative covenant for a consideration where the covenant is not limited territorially and is not limited in time. As Nourse LJ pointed out in argument, in such circumstances the courts habitually enforce the covenant provided only that the covenant itself cannot be attacked for obscurity, illegality or on public policy grounds such as that it is in restraint of trade.”
“Some employers seem to regard competition from former employees as presumptive evidence of dishonesty. Many have great difficulty in understanding the distinction between genuine trade secrets and skill and knowledge which the employee may take away with him. In cases in which the plaintiff alleges misuse of trade secrets or confidential information concerning a manufacturing process, a lack of particularity about the precise nature of the trade secrets is usually a symptom of an attempt to prevent the employee from making legitimate use of the knowledge and skills gained in the plaintiff's service. That symptom is particularly evident in this case. Judges dealing with ex parte applications are usually also at a disadvantage in dealing with alleged confidential knowledge of technical processes described in technical language, such as the electric circuitry in this case. It may look like magic but turn out merely to embody a principle discovered by Faraday or Ampere.”
“Even in cases in which the plaintiff has strong evidence that an employee has taken what is undoubtedly specific confidential information, such as a list of customers, the court must employ a graduated response. To borrow a useful concept from the jurisprudence of the European Community, there must be proportionality between the perceived threat to the plaintiff's rights and the remedy granted. … People whose commercial morality allows them to take a list of the customers with whom they were in contact while employed will not necessarily disobey an order of the court requiring them to deliver it up...”
"It is thus established that an employer can stipulate for protection against having his confidential information passed on to a rival in trade but experience has shown that it is not satisfactory to have simply a covenant against disclosing confidential information. The reason is because it is so difficult to draw the line between information which is confidential and information which is not and it is very difficult to prove a breach when the information is of such a character that a servant can carry it away in his head. The difficulties are such that the only practicable solution is to take a covenant from the servant by which he is not to go to work for a rival in trade. Such a covenant may well be held to be reasonable if limited to a short period. That appears from the judgment of Mr Justice Cross in Printers & Finishers Limited v Holloway[1965] 1 WLR 1 at page 6: "
“Once the former client has established that the defendant firm is in possession of information which was imparted in confidence and that the firm is proposing to act for another party with an interest adverse to his in a matter to which the information is or may be relevant, the evidential burden shifts to the defendant firm to show that even so there is no risk that the information will come into the possession of those now acting for the other party. There is no rule of law that Chinese Walls or other arrangements of a similar kind are insufficient to eliminate the risk. But the starting point must be that, unless special measures are taken, information moves within a firm. In MacDonald Estates v. Martin 77 DLR (4th) 249, Sopinka J said at p269 that the court should restrain the firm from acting for the second client "unless satisfied on the basis of clear and convincing evidence that all reasonable measures have been taken to ensure that no disclosure will occur." With the substitution of the word "effective" for the words "all reasonable" I would respectfully adopt that formulation.”
“The principles of equity to which I refer have been illustrated in a variety of relations, none of them perhaps precisely similar to that of the present parties, but all resting on the same basis, and one which is strictly applicable to the present case. The relations of principal and agent, trustee and cestui que trust, parent and child, guardian and ward, priest and penitent, all furnish instances in which the Courts of Equity have given protection and relief against the pressure of unfair advantage resulting from the relation and mutual position of the parties, whether in matters of contract or gift; and this relation and position of unfair advantage once made apparent, the Courts have always cast upon him who holds that position, the burden of shewing that he has not used it to his own benefit.”
“If at any time during the Term either party believes in good faith that one or more of the assumptions is or has become materially incorrect in the ordinary course of business and through no fault of either party it shall notify the other party in writing and [CLS] shall as soon as practicable thereafter make a formal written proposal to Affinia Group Inc and QH setting forth (1) the modifications to this Agreement… that [CLS] reasonably considers necessary in order to honour the spirit and intent of the parties…”
“We have spoken with our agent who does not accept your account of events”
“I find this inaccuracy, together with the absence of any explanation for it, a matter of great concern.”