Miles v Genesys Wealth Advisers Limited

Miles v Genesys Wealth Advisers Limited - [2009] NSWCA 25 - NSWCA 2009 case summary — Zoe

[122]

Client or Customer 8 Mr Ian Neil SC for Mr Miles submitted that the primary judge mischaracterised the relationships between Genesys, the Member Firms and the retail clients, in saying that the retail clients were clients of the Member Firms and that Genesys provided services for the Member Firms for fees. In truth, he submitted, the clients were clients of Genesys; the Member Firms acted as Genesys's agent in dealing with them; Genesys retained all rights in connection with providing financial services to the clients; and Genesys received payment for those services from the clients, retained some of such payments, and paid the balance to the Member Firms. 9 Mr Neil submitted that the primary judge's finding (Judgment at [70]) that "the business of Genesys consisted of attracting, retaining and dealing with Member Firms" should be replaced by a finding that "the business of Genesys consisted of providing financial products and services to retail clients using Member Firms as its agent for that purpose". 10 Mr Neil further submitted that retention of retail clients was important to Genesys, and something which Genesys would wish to ensure. They were the source of the revenue of Genesys, they could leave the Genesys network immediately (whereas Member Firms had to give three months notice), they could be influenced by Mr Miles' reputation in the financial planning industry, and their identity was confidential (whereas the identity of the Member Firms was published on the Genesys website). He submitted that some individual clients were of substantial importance to the business of Genesys, and could be lost to Genesys if Mr Miles took employment with them. He submitted that Mr Miles' undisputed evidence showed direct contact with some retail clients. 11 Mr Neil submitted that the fact that Mr Miles dealt with all Member Firms within the last twelve months of his employment would mean that the limitation in clause 6.1 to clients "with whom you dealt or to whom you provided services at any time during the last twelve months of your employment" would be superfluous and inappropriate, if Member Firms were taken to be clients. 12 Mr Neil submitted there was no basis for any inference of a common intention that the Deed restrain Mr Miles from soliciting Member Firms. At most, there was evidence that this was the intention of Mr Kirk; and to rely on that in construing the contract would involve error of the kind identified in DTR Nominees Pty Limited v Mona Homes Pty Limited (1978) 138 CLR 423 at 429. To the extent that the primary judge relied on business common sense, that required caution: see Peppers Hotel Management Pty Limited v Hotel Capital Partners Limited [2004] NSWCA 114 at [124]-[127]. 13 The actual wording of the Deed, Mr Neil submitted, was contrary to the primary judge's decision. Member Firms were not customers or clients in the ordinary sense of the words; and in the same clause, they were referred to by the different expression "Genesys practice". Member Firms were not referred to as customers or clients in any contractual documents. 14 I accept Mr Neil's submission set out in the second sentence of par [8] above, and I accept that the primary judge's characterisation of the relationships between Genesys, Member Firms and retail clients has to be understood subject to the matters set out in those submissions. 15 However, even if the primary judge's finding that "the business of Genesys consisted of attracting, retaining and dealing with Member Firms" is considered subject to those considerations, and even if it were to be replaced by a finding that "the business of Genesys consisted of providing financial products and services to retail clients using Member Firms as its agents for that purpose", it was plainly the case that attracting, retaining and dealing with Member Firms was central to the success of the business of Genesys. 16 Further, it is also plain that at no relevant time, and particularly at no time during the last twelve months of his employment, was there any retail client "with whom [Mr Miles] dealt or to whom [Mr Miles] provided services". Although there was evidence of some social and other contact between Mr Miles and some retail clients, it is plain that this contact did not fall within that expression. Further, the business of Genesys was such that Genesys would know this, apart from the remote possibility that, without the knowledge of Genesys, there may have been some limited dealing of the kind referred to by Mr Kirk, such as dealing with a complaint to Mr Miles by a retail client about the conduct of a Member Firm. Accordingly, if "Genesys Wealth Adviser's Client" is interpreted as contended for Mr Miles, pars (ii) and (iii) of cl 6.1(a) would, to the knowledge of both Mr Miles and Genesys, have been to no effect whatsoever. 17 In my opinion, the words used plainly manifested an intention that the class identified by the words "Genesys Wealth Adviser's Client with whom you dealt or to whom you provided services" would extend to some entity with whom Mr Miles dealt or to whom he provided services; and this could be so only if the words extended to Member Firms. That this was the intention is confirmed by the circumstance that the great potential for damage to the business of Genesys was by way of subsequent solicitation of Member Firms and subsequent dealings with them. 18 In my opinion, the definition in terms of "client or customer" is apt to extend both to Member Firms and to retail clients, although for the reasons given above the restriction in pars (ii) and (iii) of cl 6.1(a) would only apply to Member Firms, because it was only Member Firms with whom Mr Miles dealt or to whom he provided services. 19 Accordingly, in my opinion the decision of the primary judge was correct on this question.

[123]

Confidential Information 20 Mr Neil submitted that the primary judge erred in finding there was confidential information, and in finding that there was confidential information that could be used to the detriment of Genesys. On the former point, Mr Neil submitted that it was necessary both to identify with some precision what was alleged to be confidential information and to show that it was truly confidential. He referred to O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310, where at 326 to 328 Mason J referred to the importance of identifying the information said to be confidential; and to Pioneer Concrete Services Limited v Galli [1985] VR 675 at 711-712, where the same point was made by the Full Court of the Supreme Court of Victoria. He also referred to GlaxoSmithKline Australia Pty Ltd (GSK) v Ritchie [2008] VSC 164; (2008) 77 IPR 306, where Harper J at [20] referred to the first task as being to identify what was confidential. In the present case, Mr Neil submitted, the agreement itself did not identify what was confidential information except in the broadest terms; and the documents put into evidence by Genesys contained much that was plainly not confidential. The global claim of confidentiality over the whole of the documents was plainly invalid, he submitted. 21 As regards "use to detriment", Mr Neil submitted that, particularly in circumstances where Mr Miles had not taken any documents and did not now remember the detail of information, much of which would in any event now be out of date, it was not shown that any of this information could now be used to the detriment of Genesys. To the extent that there was information concerning the position and performance of Member Firms, such information was readily obtainable, as shown by the evidence of Mr Dulin. 22 In my opinion, it is important to keep in mind that this is not a case where what is relied on is (1) an equitable obligation of confidentiality (as in O'Brien); or (2) the existence of a trade secret (as in GlaxoSmithKline); or (3) a direct restraint against use of confidential information (as in Pioneer, and also Wright v Gasweld Pty Limited (1991) 22 NSWLR 317 and Del Casale v Artedomus (Australia) Pty Limited [2007] NSWCA 172; (2007) 73 IPR 326). Rather, it is (4) a case where there is a restraint on engaging in certain conduct, by reference to the potentiality for confidential information to be used to the promisee's detriment, as in Kone Elevators Pty Limited v McNay (No 2) (1997) Aust Contract R 90-080. 23 In relation to categories (1) to (3), it is plainly necessary to identify with some precision the confidential information, not least because an injunction in terms of a prohibition against using undefined confidential information would be inappropriately vague and uncertain, while an injunction restraining the use of globally defined information only some of which was confidential could not be justified. 24 However, there are different considerations that apply in relation to category (4). In Kone, there was a restraint in similar terms to that in cl 6.1(a)(i) in this case. Sheller JA (with whom Meagher and Cole JJA agreed) referred to Littlewoods Organisation Limited v Harris [1977] 1 WLR 1472, and continued (at 90,595): In Littlewoods Organisation Ltd v Harris , Lord Denning MR after pointing out at 1478 that a master cannot stipulate for freedom from competition but can protect his trade secrets or his confidential information ( Herbert Morris Ltd v Saxelby [1916] 1 AC 688), said at 1479: "It is thus established that an employer can stipulate for protection against having his confidential information passed on to a rival in trade. But experience has shown that it is not satisfactory to have simply a covenant against disclosing confidential information. The reason is because it is so difficult to draw the line between information which is confidential and information which is not: and it is very difficult to prove a breach when the information is of such a character that a servant can carry it away in his head. The difficulties are such that the only practicable solution is to take a covenant from the servant by which he is not to go to work for a rival in trade. Such a covenant may well be held to be reasonable if limited to a short period." 25 Then, at 90,597 (having referred earlier to Haynes v Doman [1899] 2 Ch 13 at 25-26), he said this: However this may be, as Lord Lindley said in Haynes v Doman , the covenant must be construed with reference to the objects sought to be attained by it. That object is described in the passage that I have quoted from the judgment of Lord Denning in Littlewoods Organisation Ltd v Harris , namely to protect Kone's confidential information by taking a covenant from the employee by which he is not to go to work for a rival in trade. Thus are avoided the difficulties and impracticabilities of investigating whether or not and to what extent the employee possessed confidential information or was likely to pass it on to Schindler. That is not the question the covenant poses. The question is whether the employee proposed to engage in any business in Australia as a consultant or employee which could make use of confidential information as defined to the material detriment of Kone's business. 26 In my opinion, as submitted by Mr Meagher SC for Genesys, the material identified by Genesys (as set out in par [17]-[24] of the primary judge's judgment) did include information that was confidential to Genesys; and in my opinion, that information plainly could be used to the detriment of Genesys by a competitor, in particular by assisting it to target Member Firms by reference to their value to a business of the type conducted by Genesys and their vulnerability to being persuaded to leave Genesys, and to formulate attractive offers to such Member Firms, and also to structure the competitor's business plan taking into account the business plan of Genesys. 27 In my opinion, having regard to the circumstance that this was a category (4) case, there was sufficient identification of information that was sufficiently confidential to justify a restriction of the kind discussed in Kone. The question of the extent of the restriction so justified is a matter going to the reasonableness of the restraint; and in that regard, the question of the extent to which such information might not be remembered by Mr Miles and/or might become stale is relevant to the reasonableness of the restraint, to which I will now turn.

[137]

[84] For these reasons, I am satisfied that the restraints in cl 6.1(a)(i) and (iii) go no further than are reasonably necessary to protect Genesys' legitimate business interests against competition from Mr Miles for the remainder of the restraint period. I hold that the restraint clauses are valid. 29 Mr Neil submitted that, in relation to the restraint against soliciting or dealing with Member Firms, the primary judge did not identify the legitimate interest of Genesys which could be protected, or address the question of what extent of protection was justified. 30 He submitted that the claim for protection must be based on some advantage that can properly be regarded as the employer's property, and that it would be unjust to allow the employee to appropriate (Stenhouse Ltd v Phillips [1974] AC 391 at 400); and client connection based on the employee's personal qualities does not belong to the employer (J D Heydon The Restraint of Trade Doctrine, 3rd ed, (2008) at 121,133; Herbert Morris Limited v Saxelby [1916] 1 AC 688 at 714). The restraint could be justified only if Genesys had proved its employment of Mr Miles caused him to acquire inducing influence over the Member Firms, and caused the Member Firms to regard him as the personification of its business (Australian Retail Wholesalers v Stafford [2007] NSWSC 572; (2007) ATPR 42-168 at [55]-[60]; John Fairfax Publications v Birt [2006] NSWSC 995 at [30]). The only relevant findings made by the primary judge (at [77] and [80]) did not address these issues. 31 As regards the period of restraint, Mr Neil submitted that restraint could only be justified for such period as was reasonably necessary for Genesys to put someone else in Mr Miles place and for that employee to have a reasonable opportunity to demonstrate his effectiveness to Member Firms (DalySmith Corporation (Australia) Pty Limited v Cray Personnel Pty Limited (Supreme Court of New South Wales, Young J, 14 April 1997, unreported) at 13). There was no consideration of this matter by the primary judge. 32 As regards the period of the restraint on the basis of confidential information, Mr Neil submitted there was no basis for a conclusion that there was a risk of detriment to Genesys after 14 months (and for the remainder of the 30 months) from use of confidential information such as to justify a restraint that effectively precluded Mr Miles from performing senior executive roles in the planning industry. 33 Mr Neil also submitted that the primary judge erred in not having regard to the length of restraint imposed by Genesys on employees in positions similar to Mr Miles, and in rejecting evidence in relation to that matter. Evidence is admissible as to what is usual in similar circumstances (Sir W C Leng & Co v Andrews [1909] 1 Ch 763 at 770; Mason v Provident Clothing and Supply Co Limited [1913] AC 724 at 732-3) and in the business of the particular employer (Portal Software v Bodsworth [2005] NSWSC 1179 at [79]; Koops Martin v Dean Reeves [2006] NSWSC 449 at [56]-[59]). 34 Mr Meagher submitted that some of the statements relied on by Mr Neil were too restrictive, and he referred to the judgment of Brereton J in Koops at [26], [29]-[34], [80] and [83]-[84]. 35 Mr Meagher submitted that Mr Miles was intimately involved, on behalf of Genesys or its predecessor, with the principals of Member Firms for 20 years, and so had influence that had been acquired in the service of or for the benefit of Genesys. Further, he had participated extensively in the preparation of a business plan for Genesys for the next five years. He had legal advice in entering the relevant Deed, and he and Genesys were in the best position to judge what was reasonable to protect the legitimate interest of Genesys. The restraint was also not unreasonable in that it allowed for him to work for Brown Bulley. 36 In my opinion, there is no precise rule on the basis of which the period for which an employer is legitimately entitled to protection can be determined. I would not endorse the statement by Young J in DalySmith at 13 that "a restraint that enures after the time taken for a reasonably competent new employee to master the job and be able to demonstrate to the customer that he or she is effective and efficient will be too long". 37 I would respectfully adopt the general statement of principle by the Privy Council in Stenhouse at 400: The accepted proposition that an employer is not entitled to protection from mere competition by a former employee means that the employee is entitled to use to the full any personal skill or experience even if this has been acquired in the service of his employer: it is this freedom to use to the full a man's improving ability and talents which lies at the root of the policy of the law regarding this type of restraint. Leaving aside the case of misuse of trade secrets or confidential information (which is separately dealt with by clause 3 of the agreement and which does not arise here), the employer's claim for protection must be based upon the identification of some advantage or asset inherent in the business which can properly be regarded as, in a general sense, his property, and which it would be unjust to allow the employee to appropriate for his own purposes, even though he, the employee may have contributed to its creation. For while it may be true that an employee is entitled - and is to be encouraged - to build up his own qualities of skill and experience, it is equally his duty to develop and improve his employer's business for the benefit of his employer. These two obligations interlock during his employment: after its termination they diverge and mark the boundary between what the employee may take with him and what he may legitimately be asked to leave behind to his employers. 38 Where, as in this case, a senior officer of an employer company has on behalf of that employer fostered close and productive relationships with customers, having dealings on behalf of the employer with principals of those customers and being to them the human face of the employer, there may be a relationship of the employee with the customers that "can properly be regarded as, in a general sense, [the employer's] property". Of course, insofar as the employee's own qualities of skill and experience recommend him or her to the customer, the employee should be free to employ that, but subject to considerations of the unfairness of the employee being able to exploit relationships that are properly regarded as the employer's property. 39 In my opinion, that approach may, in cases such as the present, justify a restraint longer than that contemplated by Young J in DalySmith. 40 I accept Mr Neil's submission that the length of restraints imposed on employees in similar positions has some relevance and should not have been excluded, just as the restraint of 13 weeks in Mr Mile's own earlier contract has some relevance. However, in my opinion the relevance is not greatly significant in this case, where the relevant restraint was freely agreed upon in negotiations in which Mr Miles was by no means disadvantaged and in which he had legal advice. 41 In my opinion, the relationship shown to exist between Mr Miles and the Member Firms and their principals could properly be regarded as being, to a substantial extent, the property of Genesys, as well as being something supported by Mr Miles' own qualities of skill and experience. A fair and proper balance between these competing considerations is a matter of judgment, as to which reasonable minds could differ. Having regard to the length and quality of the connection maintained on behalf of Genesys, a judgment that a restraint of 30 months was appropriate to protect the employer's legitimate interests would not in my opinion be an unreasonable one. 42 As put by Mr Meagher, the persons in the best position to make that judgment were Mr Miles and Genesys, and that judgment was expressed in an agreement reached in the way mentioned. In my opinion, this is sufficient to justify the restraint protective of the customer connection. 43 In relation to the confidential information restraints, the position is less clear. One justification for restraints of the kind used in this case and in Kone is the difficulty of protecting confidential information in any way other than by precluding types of employment. However, provisions of that kind are extremely restrictive when those types of employment are broadly co-extensive with the employee's area of expertise, as in this case. This is to some extent ameliorated in this case by the qualification permitting Mr Miles to engage in something like the area of his expertise in the particular way contemplated at the time, namely in any Member Firm that he buys into; and of course the reasonableness of the restraint has to be judged at the time of entry into the agreement: Woolworths Limited v Olson [2004] NSWCA 372 at [40]. 44 However, an important part of the confidential information sought to be protected in this case was information concerning Member Firms which could assist Mr Miles to target Member Firms and to formulate offers attractive to them; and Genesys has some protection against misuse of that confidential information by the covenant against soliciting or dealing with Member Firms. That protection is not absolute, and would no doubt be assisted by a prohibition on working in areas where there is the possibility of Mr Miles covertly trying to deal with Member Firms, or doing so indirectly (as pointed out by Handley AJA); but in my opinion, the blanket restraint on Mr Miles working in the area of his expertise (other than with Brown Bulley or some other Member Firm) for the period between 14 months and 30 months after termination of his employment goes beyond what is reasonably necessary to protect the legitimate interests of Genesys in relation to confidential information concerning Member Firms, when Mr Miles is bound by his agreement during this period not to deal at all with Member Firms. 45 As regards the remainder of the confidential information, concerning Mr Miles' knowledge of the business plan of Genesys, in circumstances where no documents were taken it is unlikely that such information as Mr Miles could recall after 14 months would be sufficiently detailed or currently relevant to have the potential to be used in any effective way to the detriment of Genesys; and in my opinion, in this respect also, a blanket restraint on Mr Miles working in the area of his expertise (other than with Brown Bulley or some other Member Firm) for the period from 14 to 30 months after termination of his employment goes beyond what is reasonably necessary to protect the legitimate interests of Genesys. 46 The primary judge did not explicitly address these questions; and in my opinion it is appropriate for this Court to give effect to its own views on them. 47 For those reasons, I would uphold the appeal to the extent that it relates to the restraint based on confidential information.

[139]

Conclusion 51 The appeal would thus, according to my decision, have been partly successful. Having regard to the result, and the extent to which time was taken on matters on which the appellant was unsuccessful, my tentative view would be that each party should pay its own costs of the appeal. As regards the costs of the trial, my tentative view would be that Mr Miles should pay one-half of the costs of Genesys of the proceedings below. 52 Accordingly, I would propose the following orders: (1) Appeal allowed in part. (2) Orders below set aside and in lieu thereof: (a) Mr Miles be restrained until 15 September 2009 from directly or indirectly soliciting, attempting to solicit or dealing with a person or entity who is and was at 31 March 2007 a party to a Member Firm Agreement with Genesys (which has not been lawfully terminated). (b) Declare that the restraint of trade in cl 6.1(a)(i) of the Deed of 28 February 2007 is invalid to the extent that it purports to operate on and after 26 May 2008. (3) Direct that within 14 days Mr Miles provide written submissions concerning costs and any application concerning an enquiry as to damages, that Genesys provide written submissions in response within a further 14 days, and that any submissions strictly in reply be provided within a further 7 days. 53 However, in accordance with the majority decision, the order of the Court will be: (1) Order 1 below varied by substituting for par a(ii) thereof the following: (ii) in any capacity or role, a business conducted or carried on or to be conducted or carried on within Australia which is competitive with the business of the Plaintiff and which involves the provision of financial products or services to retail clients by the agency of financial planning firms or practices. (2) Notes 4 and 5 below deleted. (3) Appeal otherwise dismissed. (4) Appellant to pay respondent's costs of the appeal. 54 BASTEN JA: Subject to the point of departure discussed by Handley AJA (with which I agree), I agree with the reasons of Hodgson JA. Accordingly, the appeal should be dismissed with costs. 55 HANDLEY AJA: In this matter I have had the considerable benefit of reading the reasons for judgment of Hodgson JA in draft. He has set out the facts, the terms of the contractual restraints, the history of the proceedings, and the relevant parts of the judgment of the primary judge. I agree with everything his Honour has written up to paras [44]-[47], but must respectfully dissent from the views expressed in those paragraphs. 56 Hodgson JA has proposed (para [1]) that the appeal be allowed in part and that para 1 of the injunction granted by Palmer J be set aside because the restraint imposed by cl 6.1(a)(i) (para [3] sub-para [35]) on which that injunction was based was invalid to the extent that it purported to operate on and after 26 May 2008. This would leave in place the injunction against directly or indirectly soliciting or attempting to solicit or dealing with a person or entity who was a party to a Member Firm agreement with the plaintiff on 31 March 2007 (herein clients of the plaintiff). 57 The foundation for the reasoning of Hodgson JA is therefore that the covenant against solicitation of clients of the plaintiff in cl. 6.1(a)(iii) of the Deed of Release provides all the protection for the plaintiff that it could reasonably require against the misuse of its confidential information by the defendant on and after 26 May 2008. 58 In my opinion, the covenant against solicitation does not provide sufficient protection for the plaintiff during the period between 26 May 2008 and 15 September 2009. That part of the covenant and the related injunction prevent the defendant from directly soliciting clients of the plaintiff during that period and any attempt by him to do this personally would expose him to serious risks of punishment for contempt. 59 The covenant against solicitation also extends to indirectly soliciting or attempting to solicit, or deal with a client of the plaintiff but a breach of this limb of the covenant and the related injunction would be very difficult to prove. The organisation that Suncorp proposed to establish, centred on the skills and experience of the defendant and his personal connections with the plaintiff's clients, could well include sales representatives who could approach clients of the plaintiff. 60 Such approaches would not necessarily be a breach of the injunction against indirect solicitation, but could be in particular circumstances. However the facts which could establish an indirect solicitation by the defendant would occur within the organisation established by Suncorp and would be very difficult for the plaintiff to establish. 61 The targeted solicitation of the plaintiff's clients who were both vulnerable and valuable could be disguised by including them within a larger group of the clients which are identified on the plaintiff's website. In this and other ways, the confidential information about the plaintiff's clients could be used to its detriment without any obvious or provable breach of the covenant and injunction against indirect solicitation. 62 The plaintiff has some 133 independent clients, about 40% of which, or approximately 53, had been clients of Associated Planners Financial Services Ltd (APFS), but these provided 63% of the plaintiff's projected revenue for the 2008 financial year. The defendant who was the founding Chief Executive Officer of APFS in 1989 held that position until he became its Managing Director in 1992 or 1993. He retained the latter position until APFS was taken over by the plaintiff's parent company in 2004. There is no evidence that the defendant owned shares in APFS which he sold in the takeover, and this possibility must be disregarded. If proved, it would have been highly relevant: Connors Bros Ltd v Connors [1940] 4 All ER 179 PC. 63 The defendant said that he did not take away any of the plaintiff's documents when he left its employment, and that must be accepted. However he could hardly forget the former clients of APFS with whom he had worked closely, perhaps for a great many years before the takeover, and for the next three years until he left the plaintiff's employment. He could not help remembering which were the most important in terms of funds under management and revenue. He would also remember the clients with whom he was on especially close terms and those who were free to leave and minded to do so. 64 In these circumstances, the principles applied in Littlewoods Organisation Ltd v Harris [1977] 1 WLR 1472 CA, 1478 and by this Court in Kone Elevators Pty Ltd v McNay [1997] Aust Cont R 90-080 establish the prima facie justification for a restraint on the defendant's employment with a trade rival of his former employer. Sheller JA, giving the principal judgment of the Court in the Kone case, said at pp 90596-7: "There was a legitimate interest in an employer's protecting itself from a competitor poaching an employee who possesses information about new products and future marketing strategies... the covenant must be construed with reference to the objects sought to be attained by it. That object is... to protect Kone's confidential information by taking a covenant from the employee by which he is not to go to work for a rival in trade. Thus are avoided the difficulties and impracticabilities of investigating whether or not and to what extent the employee possessed confidential information or was likely to pass it on to [the new employer]. That is not the question the covenant poses. The question is whether the employee proposed to engage in any business in Australia as a consultant or employee which could make use of confidential information as defined to the material detriment of Kone's business. To this, in my opinion, there can be only one answer, namely, that the employee by taking employment with [the new employer] proposed to do exactly that... In my opinion, Kone is entitled to protect itself from having the employee engage in a business as employee which 'could' make use of such information to the material detriment of Kone's business." 65 In that case, the evidence established (p 90596) that within six to twelve months the employer's new products would be well established, and the employer did not seek to enforce the restraint after six months. There was no evidence in this case that the confidential information was likely to become obsolete or public knowledge before 15 September 2009. 66 Factors which tend to support the reasonableness of the restraint in time include its acceptance by the defendant for what, at the time, was thought to be valuable benefits, (compare Beak v Robson [1943] AC 352; Higgs v Olivier [1952] Ch 311 CA) and that it was the result of armslength bargaining with legal advice on both sides. It is also relevant that the defendant was free to work for any of the plaintiff's clients, and intended to exercise this freedom by working for Brown Bulley, later known as Stamford Brown, in which he took an equity position. He sold his equity and ceased working for that firm in March 2008, but could either have remained with them, or worked for another client until his restraints expired. 67 In these circumstances, I have not been persuaded that the contractual period was unreasonably long, or that any lesser period would have given the plaintiff no greater protection than what was reasonably necessary for the protection of its confidential information. In my opinion, the appeal fails. 68 During the appeal the respondent proffered a simplified alternative form of order 1(a)(ii), which would read: 1. The Defendant be restrained, until 15 September 2009 from: (a) directly or indirectly engaging or preparing to engage in: …

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