Mulligan v Corr

• Jurisdiction: Ireland
• Judgment Date: 31 July 1925
• Date: 31 July 1925
• Docket Number: (1925. No. 4816.)
• Court: Supreme Court (Irish Free State)

Mulligan v. Corr.

PATRICK J. MULLIGAN

and

EDMUND A. CORR

(1925. No. 4816.)

Supreme Court.

Contract - Restraint of Trade - Solicitor and Managing Clerk - Contract of Service - Covenant not to practise within certain areas - Reasonableness - Ambiguity in contract - Severability of parts of contract.

Plaintiff, having been admitted a solicitor, opened an office in Ballina, Co. Mayo, and a branch office in Charlestown, about 18 miles distant. At the same time he entered into an agreement in writing with the defendant, a solicitor's clerk of ten years' standing, by which he agreed to engage the defendant as his assistant for a period of twelve months, and on the expiration of the twelve months to grant to the defendant indentures of apprenticeship without requiring the payment of any fee, and without any reduction of the defendant's salary during such apprenticeship; and the defendant agreed not to practise within thirty miles from the towns of Ballina and Charlestown when qualified as a solicitor, nor within twenty miles from the town of Ballaghadereen, Co. Roscommon. When qualified, the defendant commenced to practise in partnership with another solicitor whose office was close to that of the plaintiff's in the town of Ballina. The plaintiff sought an injunction to restrain the defendant from practising as a solicitor within thirty miles from the towns of Ballina and Charlestown, or within twenty miles from Ballaghadereen.

Meredith J., holding that the restriction was severable as regards each area defined, granted an injunction restraining the defendant from practising as a solicitor in the town of Ballina or within thirty miles from that town.

Held by the Supreme Court (reversing Meredith J.), that the restriction could not, on any view of its construction, be upheld in its entirety, as the area which the plaintiff endeavoured to protect was too large, and went far beyond anything which he could reasonably require for his protection; and, even if the restriction was severable as to the areas defined, it could not be supported, as it was not reasonable or necessary for the protection of the plaintiff that the defendant should be restrained from practising at any place which was within a distance so great as thirty miles from Ballina and Charlestown, or from either of those towns.

Witness Action.

The plaintiff, a solicitor, practising in Ballina and Charlestown, in the County of Mayo, claimed an injunction to restrain the defendant, who was also a solicitor, from practising within thirty miles from Ballina and Charlestown, or within twenty miles of Ballaghadereen, in the County of Roscommon, in breach of an agreement entered into by him. The agreement which had been entered into between the plaintiff and defendant was dated the 18th of February, 1919, and under it the plaintiff engaged defendant as his assistant for twelve months at a salary of £3 a week, and at the end of the twelve months he agreed to give the defendant articles of apprenticeship without fee; and the defendant agreed, when qualified as a solicitor, not to practise within thirty miles from Ballina and Charlestown, or within twenty miles from Ballaghadereen. Subsequently plaintiff gave defendant his articles of apprenticeship, as agreed, but that indenture contained nothing to restrain defendant from practising in the towns mentioned. Defendant in due course qualified as a solicitor, and shortly afterwards entered into partnership with a solicitor who had his office close to the plaintiff's in the town of Ballina. The plaintiff then brought the action. The material portions of the evidence appear from the judgment.

Defendant contended that, as a matter of fact, the restrictive clause in the agreement had been waived by consent, and had for this reason been struck out of the draft indenture of apprenticeship, and was to be treated as having been rescinded; and that, as a matter of law, the restraint contained in that clause was not reasonably necessary for plaintiff's protection, and that it was also contrary to the public interest.

The defendant appealed (1).

Cur. adv. vult.

Meredith J. :—The clause of the agreement restraining the defendant from practising within the area defined has unquestionably been broken. The main defence relied on is that the area in which the defendant is precluded from practising is unreasonably wide, particularly because the limit approaches so near to Roscommon, where the defendant might reasonably be expected to desire to set up business, and that, consequently, the clause is bad in its entirety, and therefore the defendant is justified in starting business in partnership with Mr. Ruttledge, solicitor, Ballina, a few; doors from the plaintiff's office. There is no doubt on the authorities that some restriction would have been valid, and as what the defendant has actually done would be within any conceivable restriction, however limited, the defendant has no merits so far as this defence is concerned.

But, before dealing with this point further, I shall dispose of the other defences set up. On the evidence I find that there was neither waiver nor acquiescence on the part of the plaintiff. Further, the conversations between the plaintiff and defendant, in which the plaintiff stated what his attitude would be in certain events, left the contract where it was and could not effect a variation. The point, however, that gave me most difficulty was the contention that the indentures of apprenticeship superseded the agreement so far as concerns the clause in question. Now, if the clause in question were simply a provision as to a clause to be inserted in the indentures, there would be much to be said for this contention. But on the true construction of the agreement it seems to me that the agreement as a whole was not to be superseded, satisfied and determined by the granting of the indentures of apprenticeship, but that after the indentures had been granted the relation of clerkship under the agreement might continue, and that the agreement, with the clause in question, would continue to regulate the rights of the parties. Accordingly, I hold that the granting of the indentures was merely a satisfaction of one clause of the agreement, and...