[2025] EWHC 2873 (KB)

In the particulars of claim, dated 2.7.2025, the Claimant asserted that the Defendant was responsible for 461 customers and had access to the Claimant’s confidential customer lists, sales methods, pricing and product development information. He was under a contract dated 22.9.2022 which included specifically clauses: 1, 14 and 19 relating to restrictive covenants. The Claimant submitted that the covenants were reasonable, enforceable and necessary to protect its legitimate business interests. The Claimant pleaded the parties envisaged the buying patterns of clients had 12 month cycles and seasonal cycles and that it was difficult for the Claimant to prove breach against the Defendant after his departure, so that the Defendant would give competitors an advantage and undermine the Claimant’s business, if he competed. The Claimant pleaded it was entitled to enable other sales staff to build a relationship with its customers in a 12 month cycle. The Claimant also relied on the express and implied duty of confidentiality and the implied duty of fidelity. The Claimant pleaded unlawful activities by the Defendant including: that he told Mr Adams on the 12th of March 2025 that he intended to leave and go to a competitor; that he approached Mr Morrison in Boston and invited him to leave and set up in competition; that he delayed sales for the company between March and May 2025 and failed to invite customers to a trunk show in London in June 2025; that he failed to return company documents on the 27th of May 2025 as remanded; that he failed to provide client summaries for handovers and that, although he produced sick notes, he had no intention of effecting client handovers. In addition, the Claimant pleaded that the Defendant solicited a customer whilst he was employed and that he failed to return confidential information until the last day of his notice, which he then did on a USB drive. Even that did not include his WhatsApp messages to customers and therefore he was in breach of his duties of good faith and fidelity. The Claimant pleaded that the Defendant has a financial interest in another business and that he approached a restricted customer and a restricted person (staff member) and intended to continue to do so. No damages were claimed, merely a declaration of breach and enforcement of the RCC.

On the same day the Claimant applied for interim relief and, at a hearing on 10.7.2025, David Pittaway KC accepted undertakings from the Defendant not to solicit Restricted Customers; not to solicit Restricted Persons (defined below) and not to provide goods and services to Restricted Customers whilst working in a competing business. What the Defendant refused to agree to, but the judge ordered, was that he could not work in competition until the trial or the expiry of 12 months from the termination of his employment. Directions were made for a speedy trial on the 1st open date after the 1st of October 2025.

During the trial, some time was spent by the Claimant asserting that the Defendant had colluded with another salesperson in the London office, Mr Powell, to start up a competing business in London. The Claimant flagged up that it might wish to amend to add this assertion to the pleadings. That never occurred, so no such issue arose for me to decide.

In his defence, dated 30.7.2025, the Defendant pleaded that his role was entirely in sales, mainly of suits, at 1 to 1 appointments in the homes and offices of customers. The Claimant makes garments in-house in the United States and the Defendant had no involvement in manufacturing, design, creation, management, leadership, strategy or business development. His role was customer development and sales. He pleaded that the confidential information he had was limited to sales and customer information recorded on the Claimant's computer system (CRM). The reason he resigned was that he had experienced significant relationship difficulties with the Claimant company between January and May 2025. He was suspended on the 10th of January following a misconduct allegation at a USA conference. No disciplinary process was followed but instead, on the 16.1.2025 Mr Adams gave him an ultimatum choice between (1) termination and (2) a performance Addendum, with conditions, involving: engaging with Alcoholics Anonymous; having no leadership roles; getting weekly counselling with a Pastor called “Father Bob”, who would report back to leadership; exclusion from all sales conferences, an awards trip to Aruba; and providing a letter of apology to the London office. He signed the Addendum but felt he had no choice. Counselling started and continued until his resignation. He pleaded that the Claimant's actions were hypocritical because they had a permissive culture at sales conferences and senior sales professionals encouraged the Defendant to drink excessively, and the London management team members behaved similarly, but no disciplinary action was taken against them. On the 12th of March 2025 the Defendant met Mr Adams and told him that he was profoundly disaffected by all of this and angry about ongoing product issues. In April he raised these issues with Mr Raynes, the leader in London, explaining the product defects: some faulty collar fusing, incorrect measurement and customer remakes, but Mr Raynes was dismissive and provided no support. On the 23rd of May 2025 the Defendant raised these product details at a meeting with Mr Adams and Mr Raynes, who again were entirely dismissive, so later in the day he resigned. He pleaded that the 2022 contract changes related to a pay increase and he was not told about the changed RCC terms. He pleaded no consideration was provided for employment terms changes in 2022 which were changed from the terms he signed up to when he started in 2017. He pleaded that the restrictive covenants were void. He pleaded that, although he signed the new contract, there was no discussion about the restrictive covenant changes. He denied that the contract granted more benefits but accepted there was a slightly raised salary of an extra £4,000 pa. He pleaded this base salary was raised to enfranchise mortgage applications by salespersons, the restrictive covenants were expanded and elongated. He denied that he had 461 customers. Many of those were inactive, old or dead. He denied he had 372 active customers, many were not. He admitted that he sold to 81 customers in the 12 months before he terminated the contract but he did not maintain active relationships with inactive customers. As for training, he accepted there was training in the USA on knowledge of textiles and patterns but not on tailoring. As to his role: he visited customers, took measurements and orders. He only looked at his customers’ details on the CRM system. He knew nothing of sales methodologies and had no access to pricing strategies. He had no discretion to discount prices and was not aware of base costs or profit margins. As for product line development, the Defendant denied he had access to that allegedly confidential information or to proprietary planning. He accepted he had access to his regular customers. The Claimant had provided him with an iPad but it was not sufficient, so he used his bigger computer and later was given a new Chromebook by the Claimant. After that, he bought his own MacBook for work and used it. The Defendant returned all the company information from his devices on the 23.6.2025. He used his own phone for WhatsApp messages, as did all salespersons. His days were structured by the Claimant. He admitted his duty of good faith. He put his customer information on “Notability”, an app on his computer and then stored those notes on the CRM system. There were 24 suit measurements, 11 shirt measurements and personal information in those notes and he provided all of those on the first USB stick which he returned to the Claimant. He asserted the Claimant had never sought to obtain WhatsApp messages from previous salespersons who had left and so he did not think that he had to provide them. He pleaded that the RCC was unenforceable in light of the undertakings he had given and the covenants covering non-solicitation, non-dealing and non-poaching. As to the Claimant’s legitimate business interests, he admitted that goodwill, reputation, customer relationships and confidential information were legitimate business interests. As to the necessity for an RCC, he pleaded that clause 19, bullet 3 was not necessary to protect the Claimant’s legitimate business interests because those were already protected by the other covenants. The Defendant was not senior, he was junior, he made sales to his customers and his confidential information only related to his customers. The contractual notice period was only one month, so a 12 month RCC was out of proportion to the notice period. He pleaded that the temporal period of 12 months was far too long and that the Claimant had produced no good reason for reaching that duration. He pleaded there was no change in his role in 2022 and he denied that 12 months was the buying cycle of customers. He pleaded that customers had different buying cycles, only some purchased every two years and there was a lack of consistency. He denied that customers bought when they received their annual bonuses, in particular. The average price of a Tom James suit was £2,500 and the majority of customers were very wealthy so did not need to rely on their bonuses. He denied that their purchases were seasonal either. In relation to his handover, the Claimant had all the information they needed on their CRM system. He denied that proof of breach of his other covenants (non-solicit, non-deal, non-poach) was difficult to obtain or police. He asserted that it would be obvious if repeat customers ceased to order after a salesperson had left and the CRM system could easily identify this. As for the geographic scope of the restrictive covenant, the Defendant pleaded it was worldwide and hence far too wide. He had customers in Germany and Switzerland. The Defendant asserted his work was in London and that the Claimant had no legitimate business interest in restraining him from working worldwide. He pleaded the covenant was too wide in relation to the competing businesses with whom he might work because it included businesses that “intended to be” in competition with the Claimant. As for confidential information, he denied access to any significant confidential information other than customer information. He could not recall the detailed pricing of the huge range of the Claimant’s garments, which changed in any event every 6 to 12 months or more frequently. He denied unlawful activity. The Defendant denied telling Mr Adams on the 12.3.2025 that he was going to work in a competing business. He told Mr Adams he had been offered a job with “Trunk” Australia, a storefront tailor shop. He also later told Mr Raynes that he had a job offer but that he had refused. He denied that Trunk would really be a competing business, because it was not visiting tailoring. In relation to Mr Morrison, the Defendant pleaded they had been out for a beer and Mr Morrison had been given a last chance Addendum and the Defendant consoled him, stating that, with their skills, they would be fine on their own and would probably earn more money. He denied that was a breach of his duties. As for the assertion that he had intentionally reduced his sales, he accepted there was a 34% drop, between January to April, when comparing 2025 with 2024, but he had been suspended for the most part of January 2025, he was on holiday for 9 days, sick for 2 days and so had only worked 58% of the available days in 2025. He was never criticised for his sales performance before he left and he denied that he had delayed sales. He did not invite customers to the June trunk show because he resigned in May. As for handovers, the Defendant denied that the Claimant demanded he do a handover initially in their communication of 24.5.2025. In any event the Claimant had removed his access to CRM and his Outlook app immediately. This disconnected him from customer information and communications. He denied breach of his obligations of good faith and fidelity. He returned all of the relevant work documents, but not within a few days as demanded by the Claimant, because he had stress and was certified off work by his GP. Instead, he returned them on the 23.6.2025. However, on the 27.5.2025 he did hand over physical property to Joanna Colby and he sent a medical certificate on the 4.6.2025 so he could not assist with handover because he was certified off work with stress thereafter. He denied soliciting customers, in particular Mr Kwak, but accepted he had a discussion with Mr Kwak about how he was disaffected and might move, but that was not an enticement to buy clothes from him. In relation to the WhatsApp messages, he did not at first realise they might contain confidential information. Eventually, he put them onto a USB stick and delivered that on the 9th of July 2025. He denied any direct competition at work and stated he did not intend to approach the Claimant’s customers.