Bartholomews Agri Food Ltd v Thornton

An interim injunction enforcing an employment restrictive covenant requires a serious question to be tried as to enforceability. The court should construe the covenant at the interim stage where disputed facts do not prevent construction. A restraint must protect a legitimate business interest and go no further than reasonably necessary. Its reasonableness is assessed when agreed, so later promotion cannot cure a covenant that was unreasonable for a junior employee. A covenant covering customers with whom the employee had no dealings is likely to exceed what is necessary to protect customer connection. Confidential information must be identified with sufficient precision and distinguished from an employee’s general skill, knowledge and experience. An employer cannot justify an otherwise excessive restraint merely by continuing to pay the employee during its operation.

Bartholomews Agri Food Ltd applied for an interim injunction to enforce a six-month restrictive covenant in Michael Thornton’s contract of employment. Thornton had worked for Bartholomews since 1997, initially as a trainee agronomist, and intended to join another agricultural business after his notice period expired.

The covenant restricted work supplying similar goods or services to Bartholomews’ customers, trade competitors within specified counties, or Thornton’s own account. Bartholomews relied on customer connection and confidential information. Thornton argued that the covenant was an unreasonable restraint of trade and that the information relied on was part of his skill and experience. The central issue was whether there was a serious question to be tried concerning the covenant’s enforceability.

1. The application for interim injunctive relief was refused. The covenant was in restraint of trade and unenforceable.

2. The interim threshold was a serious question to be tried, excluding claims that were frivolous or vexatious. The court should construe the restraint at the interlocutory stage if disputed facts did not prevent it from determining the contractual meaning, applying BSW Ltd v Balltech Ltd [2006] EWHC 822 (CH) and Arbuthnot Fund Managers Ltd v Rawlings [2003] EWCA Civ 518.

3. The covenant had been imposed in 1997 when Thornton was a trainee agronomist with no experience or customer contacts. Its reasonableness therefore had to be assessed when agreed. Later development or promotion could not cure an otherwise unenforceable covenant, applying WRM Ltd v Ayris [2008] IRLR 889 and Pat Systems v Neilly [2012] IRLR 979.

4. The covenant was materially wider than necessary to protect customer connection. It applied to all customers of Bartholomews and associated companies, regardless of whether Thornton knew them or had worked for them. A restriction limited to customers with whom he had dealt for a defined period could have been sufficient.

5. The evidence did not identify specific confidential information in Thornton’s possession. The contractual confidentiality provision was not properly defined, and the presentation relied on was largely public, out of date, or incapable of having been memorised. The court distinguished protectable confidential information from skill and knowledge acquired during a career.

6. The provision for continued full remuneration during the restraint did not save the covenant. The court considered it contrary to public policy in effect to allow an employer to purchase a restraint, applying the principle in JA Mont (UK) Ltd v Mills [1993] IRLR 1782.

First-instance decision. No prior appellate decision was stated in the judgment.