Brightwater v Allen & Robert Walters Ltd
| Jurisdiction | Ireland |
| Judge | Miss Justice Laffoy |
| Judgment Date | 12 May 2005 |
| Neutral Citation | [2005] IEHC 155 |
| Docket Number | (93P/2005) |
| Court | High Court |
| Date | 12 May 2005 |
[2005] IEHC 155
THE HIGH COURT
INJUNCTIONS
Interlocutory
Breach of undertaking - Contempt of court - Employment contract - Restraint of trade clause -- Appropriate standard of proof - Attachment and committal - National Irish Bank Ltd v Graham [1994] 1 IR 215 followed - Finding of limited breach of undertaking - (2005/93P - Laffoy J - 12/5/2005) [2005] IEHC 155 -Brightwater v Allen
The plaintiff was a recruitment specialist company, which employed the first named defendant prior to her employment with the second named defendant. The plaintiff sought an interlocutory injunction restraining certain activity on the part of the defendants, which it alleged was in breach of the restraint clause in the first named defendant’s contract with the plaintiff. The defendants resisted that application but gave a number of undertakings to the court. Subsequently, the plaintiff sought leave to serve orders of attachment directed to the first named defendant and three named directors of the second named defendant on the grounds that the defendants breached the undertakings given to the court. The plaintiff also sought orders sequestering the assets of the defendants and the named directors and fining them for contempt.
Held by Laffoy J. in favour of the plaintiff:
That the plaintiff established beyond reasonable doubt that there were breaches of so much of the court order as restrained the first named defendant from directly or indirectly canvassing, soliciting or approaching for business firms which had been clients of the plaintiff within the six months prior to her departure and restrained the second defendant form using her for that purpose. Having regard to the limited finding of the breach it was appropriate to hear counsel for the defendants and then counsel for the plaintiff as to the form of order to be imposed.
Reporter: L.O’S.
BRAMBLEVALE LTD, RE 1970 1 CH 128
SPUC v GROGAN 1989 IR 753 1990 ILRM 350 1990 1 CMLR 689
NATIONAL IRISH BANK LTD v GRAHAM 1994 1 IR 215
on 12th May, 2005.
The first defendant was employed by the plaintiff, an Irish company which is a recruitment specialist, from 7th July, 2003 until 29th November, 2004. Having resigned on 2nd November, 2004, she was on "garden leave" until 29th November, 2004. During her employment with the plaintiff, the first defendant worked in the plaintiff's legal division. Her contract of employment contained a restraint clause which provided that she would not for a period of six months after the termination of her employment, howsoever arising, directly or indirectly, canvass, solicit or approach for business any person, firm or company who on the date of termination of her employment or within the previous six months was or had been a client of the plaintiff or someone who had been placed by the plaintiff or was on the plaintiff's books for that purpose.
Following her departure from the plaintiff, the first defendant took up employment with the second defendant which also carries on the business of recruitment specialist.
In the substantive action the first defendant contends that the restraint clause is unenforceable on various grounds.
On 17th January, 2005 in this court the plaintiff sought an interlocutory injunction to restrain certain activity on the part of the defendants which it was alleged was occurring in contravention of the terms of the restraint clause in the first defendant's contract with the plaintiff. The application was resisted in part by both defendants, neither of whom filed an affidavit in reply. The outcome was that the court accepted undertakings from both defendants in the following terms:
(a) to refrain from directly or indirectly disclosing or divulging to any person, firm or company any information (whether in hard copy or computer format) concerning the plaintiff's business, finances, dealings, transactions or other affairs which might have come to the knowledge of the first defendant during the course of her employment;
(b) to refrain from using any confidential information and/or using the plaintiff s property including all documents, correspondence and papers (whether in hard copy or computer format) belonging to the company;
(c) to surrender and forthwith deliver to the plaintiff all the plaintiff's property including all documents, correspondence and papers (whether in hard copy or in computer format) belonging to the plaintiff;
(d) to forthwith furnish a list of all information and/or documentation (whether in hard copy or in computer format) concerning the plaintiff's business, finances, dealings, transactions or other affairs disclosed and/or divulged by the defendants since the first defendant's departure from the plaintiff;
(e) to forthwith furnish a list of persons canvassed, solicited, approached and/or placed by the defendants on or since the first defendant's departure from the plaintiff's employment who were placed on the plaintiffs books and/or recruited by the plaintiff; and
(f) to forthwith furnish a list of all of the plaintiffs property (whether in hard copy or in computer format) taken by the defendants on or since the first defendant's departure from the plaintiff.
Although the perfected order seems to me not to fully reflect this, it is common case that the first defendant alone gave an undertaking to forthwith furnish a list of persons, firms or companies solicited by her after her departure from the plaintiff.
The court ordered that the first defendant be restrained pending the trial of the action from -
(i) directly or indirectly canvassing, soliciting, or approaching for business any person, firm or company who on the date of the termination of her employment with the plaintiff or within the previous six months was and/or had been a client of the plaintiff,
(ii) directly or indirectly soliciting, approaching and/or canvassing for business any person who was or had been placed on the plaintiff's books and/or recruited by the plaintiff.
Further the court ordered that the second defendant be restrained pending the trial of the action from -
(i) using the first defendant directly or indirectly for canvassing, soliciting, or approaching for business any person, firm or company who on the date of the termination of the first defendant's employment with the plaintiff or within the previous six months was or had been a client of the plaintiff, and
(ii) directly or indirectly using the first defendant for soliciting, approaching and/or canvassing for...
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