Prescott v Dunwoody Sports Marketing, Court of Appeal - Civil Division, May 17, 2007, [2007] EWCA Civ 461,[2007] 1 WLR 2343

Issuing Organization:Civil Division
Actores:Prescott v Dunwoody Sports Marketing
Resolution Date:May 17, 2007
 
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Neutral Citation Number: [2007] EWCA Civ 461

Case No: A2/2006/1598

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEENS BENCH DIVISION

MR JUSTICE SIMON

HQ05XO1639

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 17/05/2007

Before :

LORD JUSTICE LAWRENCE COLLINS

and

LORD JUSTICE TOULSON

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Between :

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(Transcript of the Handed Down Judgment of

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The Appellant appeared in person

Mr David Cavender (instructed by Boodle Hatfield) for the Respondent

Hearing date : April 19, 2007

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JudgmentLord Justice Lawrence Collins :

1. Dunwoody Sports Marketing (``the Partnership'') was a partnership which carried on business as marketing and advertising consultants for sports clients, such as the Rugby League.

2. The Partnership had its origin in a partnership between Mr Diamandis and Chris Higgins Limited under the name PIA Advertising and Marketing, which became (with the addition of Ian Tonks Ltd) the PIA Partnership under a partnership agreement dated January 20, 2001. On February 27, 2001 it became Dunwoody Sports Marketing with the addition of new partners (including Mr Prescott) by a Deed of Variation, and a consolidated partnership agreement was produced. The agreement provided that the partners would be partners in the business with effect from November 1, 2000 (clause 2.1).

3. By clause 27.4:

``The PIA Partners may at any time require the Partnership to incorporate. Upon incorporation, all the assets of the Business shall be transferred to the Company in consideration of an allotment of shares to each of the Partners proportionate to the number of Points held by each Partner at the date of incorporation.''

4. Clause 30 provided that in the event of any partner ceasing to be a partner the provisions of schedule 3 should have effect, and clauses 5.1 and 5.2 of schedule 3 provided as follows:

``5.1 Restrictions

Each Partner covenants with all the other Partners that:

5.1.1 (except where he is expelled from the Partnership without first having been given an opportunity to learn of and respond to the reasons for his proposed expulsion or where the Partnership is wound up or dissolved) within a period of two years from his Succession Date he will not either on his own account or for or jointly or in conjunction with or on behalf of any other person firm or company whether directly or indirectly solicit business entice clients or interfere with the relationship between the Partnership and its customers or any of them for any goods or services supplied by the Partnership where such clients were receiving such goods or services from the Partnership at any time during the period of twelve months prior to his Succession Date Provided that this covenant shall not extend to customers who it is agreed between the Outgoing Partner and the Continuing Partners were introduced to the Partnership by the Outgoing Partner whilst he was a Partner.

5.1.2 (except where he is expelled from the Partnership without first having been given an opportunity to learn of and respond to the reasons for his proposed expulsion or where the Partnership is wound up or dissolved) within a period of two years from his Succession Date he will not either on his own account or for or jointly or in conjunction with or on behalf of any other person firm or company whether directly or indirectly solicit or endeavour to entice away offer employment or partnership to or enter into partnership with or employ any person who is at such Succession Date and who at any time during the twelve months prior to such Succession Date was a Partner in or employed by the Partnership.

5.2 Each of the clauses 5.1.1 and 5.1.2 constitutes an entirely separate and independent restriction on each Partner so that if either is held to be invalid for any reason whatever then the other shall be valid to the extent that it is not held to be so invalid.''

5. ``Succession Date'' was the date on which the partner ceased to be such: clause 1.1.

6. The Partnership's case was that on May 6, 2005 Mr Prescott resigned from the Partnership. It was its case that following his departure it was discovered that both before and after his departure he had attempted to poach clients and staff and had successfully poached Carol Rutter, one of the staff.

7. On June 9, 2005 Goldring J granted an injunction on a without notice basis to enforce the covenants in clause 5.1.1 and 5.1.2 of schedule 3. On June 16, 2005, the return date, Mr Prescott gave undertakings substantially in terms of the injunction.

8. The particulars of claim as amended in...

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