X-R Touring LLP v Joshua Javor & Anor

On applications to strike out or obtain summary judgment, the court must assess the claim on the evidence reasonably expected at trial and avoid a mini-trial. A post-termination restraint may be enforceable where it protects legitimate customer or employee connections, even if its maximum duration includes garden leave and it covers employees described as “any employee”. Whether a general announcement amounts to solicitation is a question of substance and may depend on cumulative evidence, including an appeal to customers collectively. A commission clause which indefinitely requires an employee or future employer to account for all commission connected with pre-termination discussions may operate as a restraint of trade. If it is unreasonably wide and unworkable, it cannot be rescued by reading down or severance.

X-R Touring LLP brought claims against its former booking agent, Joshua Javor, and his new employer, William Morris Endeavor Entertainment (U.K.) Ltd. The claims concerned a contractual non-solicitation covenant and a commission provision in Mr Javor’s employment contract.

The defendants applied to strike out the claims or obtain summary judgment. X-R alleged that Mr Javor and WME had solicited X-R’s artists and that the defendants were liable in relation to commission connected with bookings discussed or contemplated during Mr Javor’s employment. The central issues were whether the provisions were arguably enforceable, whether the alleged solicitation and inducement claims had a real prospect of success, and whether the commission claims should be summarily disposed of.

1. Non-solicitation covenant. The applications were dismissed insofar as they challenged the claims for breach of, and inducing breach of, the covenant. The covenant pursued legitimate interests in X-R’s connections with clients and employees. Its enforceability was a matter fit for trial. A restraint lasting up to 15 months, including possible garden leave, was not necessarily excessive because the contract did not prohibit employment by a competitor or non-solicited dealings with customers.
2. The reference to “any employee” did not make the covenant obviously unenforceable. A trial judge might construe that expression, in context and applying eiusdem generis, as referring to employees doing the same kind of work as Mr Javor. It was therefore unnecessary at this stage to determine whether the word could be severed.
3. There was a real prospect of proving solicitation. The press statement’s timing, wording, premature announcement, reference to Mr Javor’s inherited roster and subsequent media coverage could, cumulatively, support an inference of solicitation. Solicitation is a matter of substance rather than form. Although Trego v Hunt referred to a specific and direct appeal, an appeal to customers collectively may suffice if sufficiently powerful. Whether the conduct crossed that line required a trial.
4. The claim against WME for inducing breach was also fit for trial. If the press statement amounted to solicitation, WME had arguably encouraged and supported it. The pleading of loss was sufficient at this stage. Persuading artists to move booking agencies was capable of causing loss, unlike the circumstances in Jones Brothers (Hunstanton) Ld v Stevens.
5. Commission provision. The applications succeeded against the claims founded on the commission provision. The provision clearly operated as a restraint of trade because it strongly discouraged Mr Javor from working for an employer with clients in common with X-R. It applied even where pre-termination discussions were tentative, no booking resulted, Mr Javor was unaware of the later booking, or the commission was received by a future employer.
6. The obligation to ensure that bookings were contracted through X-R was absolute and unworkable. The provision was unlimited in time and went substantially further than necessary to protect X-R’s interests. It could not be treated as a fiduciary profit rule or as a bonus clawback provision, and could not be saved by reading it down or severance. The commission claims were struck out or were subject to summary judgment. The remaining claims were to proceed to trial, with consequential case-management and costs directions.