Although this case is in the context of a commercial transaction, rather than an employment relationship, the High Court in Baldwins (Ashby) Ltd v Maidstone [2011] EWHC B12 (Mercantile) has given some useful guidance on the meaning of "canvassing or soliciting" in a restrictive covenant.
Maidstone had sold his accountancy business to Baldwins and, as part of the sale documentation, had agreed to a three year restriction on "canvassing, soliciting or endeavouring to entice away" clients from the accountancy business.
The High Court held that both canvassing and soliciting involved an approach to customers with a view to appropriating the customer's business or custom, and enticing away had to be interpreted similarly. There had to be an active component and a positive intention, and the approach to the customer had to involve some direct or targeted behaviour.
The implication of this finding is that some types of contact with customers will not breach non-solicitation etc clauses. The finding also serves to highlight the importance of including non-dealing provisions as well as non-solicitation covenants, as any contact with a client will fall foul of a non-dealing clause, without having to prove that there was a positive intention or that the approach was direct or targeted.
http://www.bailii.org/ew/cases/EWHC/Mercantile/2011/B12.html
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
