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Ensure restrictive covenants in a sale agreement are enforceable (as the courts won't do it for you)
The Court of Appeal has recently overturned a decision of the High Court in which the judge read words into a restrictive covenant clause to reflect what he determined the parties had in mind at the time of drafting. The Court of Appeal decision underlines the importance of ensuring that any non-compete restriction in a sale agreement is clear and fully reflects the intention of the parties. The Court generally will not correct poor draughtsmanship which makes the clause ineffective.
The case of Prophet PLC v Huggett  EWCA Civ 1013 concerned a restrictive covenant which attempted to restrict Mr Huggett from competing with software manufacturer, Prophet PLC, when he left the business “in connection with any products…which he was involved whilst employed.” As he would only have been involved in working with Prophet PLC’s proprietary software during his employment, the restrictive covenant – when read literally – provided no protection for Prophet. Once Mr Huggett began working for a competitor, he would no longer be dealing with Prophet’s software but with that of the competitor.
Generally, any ambiguity in the wording of a non-compete restriction will be interpreted by the Court against the party in whose favour it is drafted. Such restrictions in a sale agreement, particularly where they apply to individuals, are onerous obligations – they interfere with a seller’s ability to earn a living after the sale if he no longer works for the buyer. If the restriction is too onerous, all or part of the offending clause may be struck out of the agreement – a judge would not normally re-write it to something reasonable. Similarly, if the restriction is ineffective, the Court would not look to amend the wording to enable it to operate correctly.
Given this, the High Court decision reached in the Prophet case was surprising. The literal interpretation of the restriction was clear, although it did not work in the way Prophet PLC intended. Despite this, and as the provision could not be amended merely by striking out part of the clause, the judge was prepared to add the words “or similar thereto” to the restriction, effectively preventing Mr Huggett from working in a competing software business. The basis of the decision was that the wording introduced must have been what the parties had intended; restricting Mr Huggett from working with competing software products was the “true” meaning of the clause.
This line of reasoning was rejected by the Court of Appeal, which allowed Mr Huggett’s appeal. If a contractual provision is ambiguous and has two interpretations – the first making the provision absurd and/or useless and the second making it commercially sensible and/or effective – a court will usually adopt the second approach. However, this only applies where the provision is “truly ambiguous and admits of clear alternatives as to the sense the parties intended to achieve”. Where the wording is unambiguous but wrong (as in the Prophet case), the Court will not re-engineer the clause or correct bad draftsmanship.
In short, a buyer who may want to rely on post-completion non-compete restrictions should always ensure these are drafted in such a way so as to be unambiguous and fully protect the buyer and the business being acquired.
For further information please contact Charles Claisse