Case No. KB-2025-003035 - [2025] EWHC 2654 (KB)

Mr Marchant and Mrs Hampton submitted that the test in American Cyanamid should be modified because this is a case where the period of restraint is so short as to preclude the opportunity for a trial. As such, it is submitted that the claimant needs to demonstrate not only that there is a serious issue to be tried but also that it is more likely than not to succeed at trial. Mr Marchant and Mrs Hampton referred in their written submissions to N.W.L Ltd v Woods [1979] 1 WLR 294 and to Lansing Linde Ltd v Kerr [1991] 1 All ER 418. Mr Northall very properly acknowledged the force of this line of cases.

Mr Marchant and Mrs Hampton submitted in essence that the claimant will not succeed at trial because the post-termination obligations were not likely to be found to be part of the contracts of employment and were not likely to be found reasonable. They submitted that a period of restraint of 12 months, as stipulated in the fresh covenants, was likely to be found greater than the minimum reasonably required to protect the claimant’s interests. A six-month period, which had been stipulated in the original covenants before fresh obligations were issued, was likely to be found reasonable. That period had lapsed for Mr Marchant and was soon to elapse for Mrs Hampton.

Mrs Hampton submitted, in addition, that the claimant was not likely to prove that she had breached any of her own obligations, and that the Court at trial would weigh the inequality of bargaining power between the claimant and her.