• At Kemp Little, we are known for our ability to serve the very particular needs of a large but diverse technology client base. Our hands-on industry know-how makes us a good fit with many of the world's biggest technology and digital media businesses, yet means we are equally relevant to companies with a technology bias, in sectors such as professional services, financial services, retail, travel and healthcare.
  • Kemp Little specialises in the technology and digital media sectors and provides a range of legal services that are crucial to fast-moving, innovative businesses.Our blend of sector awareness, technical excellence and responsiveness, means we are regularly ranked as a leading firm by directories such as Legal 500, Chambers and PLC Which Lawyer. Our practice areas cover a wide range of legal issues and advice.
  • Our Commercial Technology team has established itself as one of the strongest in the UK. We are ranked in Legal 500, Chambers & Partners and PLC Which Lawyer, with four of our partners recommended.
  • Our team provides practical and commercial advice founded on years of experience and technical know-how to technology and digital media companies that need to be alert to the rules and regulations of competition law.
  • Our Corporate Practice has a reputation for delivering sound legal advice, backed up with extensive industry experience and credentials, to get the best results from technology and digital media transactions.
  • In the fast-changing world of employment law our clients need practical, commercial and cost-effective advice. They get this from our team of employment law professionals.
  • Our team of leading IP advisors deliver cost-effective, strategic and commercial advice to ensure that your IP assets are protected and leveraged to add real value to your business.
  • Our litigation practice advises on all aspects of dispute resolution, with a particular focus on ownership, exploitation and infringement of intellectual property rights and commercial disputes in the technology sector.
  • We have an industry-leading reputation for our outsourcing expertise. Our professionals deliver credible legal advice to providers and acquirers of IT and business process outsourcing (BPO) services.
  • We work alongside companies, many with disruptive technologies, that seek funding, as well as with the venture capital firms, institutional investors and corporate ventures that want to invest in exciting business opportunities.
  • Our regulatory specialists work alongside Kemp Little’s corporate and commercial professionals to help meet their compliance obligations.
  • With a service that is commercial and responsive to our clients’ needs, you will find our tax advice easy to understand, cost-effective and geared towards maximising your tax benefits.
  • At Kemp Little, we advise clients in diverse sectors where technology is fundamental to the ongoing success of their businesses.They include companies that provide technology as a service and businesses where the use of technology is key to their business model, enabling them to bring their product or service to market.
  • We bring our commercial understanding of digital business models, our legal expertise and our reputation for delivering high quality, cost-effective services to this dynamic sector.
  • Acting for market leaders and market changers within the media industry, we combine in-depth knowledge of the structural technology that underpins content delivery and the impact of digitisation on the rights of producers and consumers.
  • We understand the risks facing this sector and work with our clients to conquer those challenges. Testimony to our success is the continued growth in our team of professionals and the clients we serve.
  • We advise at the forefront of the technological intersection between life sciences and healthcare. We advise leading technology and data analytics providers, healthcare institutions as well as manufacturers of medical devices, pharmaceuticals and biotechnological products.
  • For clients operating in the online sector, our teams are structured to meet their commercial, financing, M&A, competition and regulatory, employment and intellectual property legal needs.
  • Our focus on technology makes us especially well positioned to give advice on the legal aspects of digital marketing. We advise on high-profile, multi-channel, cross-border cases and on highly complex campaigns.
  • The mobile and telecoms sector is fast changing and hugely dependent on technology advances. We help mobile and wireless and fixed telecoms clients to tackle the legal challenges that this evolving sector presents.
  • Whether ERP, Linux or Windows; software or infrastructure as a service in the cloud, in a virtualised environment, or as a mobile or service-oriented architecture, we have the experience to resolve legal issues across the spectrum of commercial computer platforms.
  • Our clients trust us to apply our solutions and know-how to help them make the best use of technology in structuring deals, mitigating key risks to their businesses and in achieving their commercial objectives.
  • We have extensive experience of advising customers and suppliers in the retail sector on technology development, licensing and supply projects, and in advising on all aspects of procurement and online operations.
  • Our legal professionals work alongside social media providers and users in relation to the commercial, privacy, data, advertising, intellectual property, employment and corporate issues that arise in this dynamic sector.
  • Our years of working alongside diverse software clients have given us an in-depth understanding of the dynamics of the software marketplace, market practice and alternative negotiating strategies.
  • Working with direct providers of travel services, including aggregators, facilitators and suppliers of transport and technology, our team has developed a unique specialist knowledge of the sector
  • Your life as an entrepreneur is full of daily challenges as you seek to grow your business. One of the key strengths of our firm is that we understand these challenges.
  • Kemp Little is trusted by some of the world’s leading luxury brands and some of the most innovative e-commerce retailers changing the face of the industry.
  • HR Bytes is an exclusive, comprehensive, online service that will provide you with a wide range of practical, insightful and current employment law information. HR Bytes members get priority booking for events, key insight and a range of employment materials for free.
  • FlightDeck is our portal designed especially with start-up and emerging technology businesses in mind to help you get your business up and running in the right way. We provide a free pack of all the things no-one tells you and things they don’t give away to get you started.

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 [2014] 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