Evening Standard Company Ltd v Henderson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON,LORD JUSTICE BALCOMBE |
| Judgment Date | 07 November 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J1107-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 86/0998 |
| Date | 07 November 1986 |
[1986] EWCA Civ J1107-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE EVANS)
Royal Courts of Justice
Lord Justice Lawton
Lord Justice Balcombe
86/0998
MR. A. R. BOSWOOD Q.C. and MR. N. F. STADLEN (instructed by Messrs. Stanleys & Simpson North) appeared for the Appellant (Plaintiff).
MR. M. J. BRINDLE (instructed by Mr. A. P. F. Williamson) appeared for the Respondent (Defendant).
This is an appeal by the plaintiffs, Evening Standard Company Limited, against a judgment of Mr. Justice Evans delivered on 28 October 1986 whereby he refused the plaintiffs an interlocutory injunction to restrain the defendant, Mr. Peter Henderson, from working for any rival of theirs in the newspaper trade for a period of approximately ten months.
Mr. Henderson has been employed by the plaintiffs and their predecessors for about 17 years. He has been employed in the production room of the evening newspaper, which is nowadays known as the Standard. In 1979 he was appointed the Production Manager of the production room and he then entered into a written contract made on 3 April 1979. That contract provided that he should be employed as the Production Manager.
Clause 4 of it was in these terms:
"This engagement is terminable on any day of the year on either side by 1 year previous notice in writing or payment of salary in lieu thereof. Notwithstanding the foregoing, the engagement will terminate automatically upon your reaching your 65th/60th birthday and no further notice to this effect need be served upon you."
There were provisions in the usual way about attendance, annual and statutory holidays and sickness. Then there was a provision for pension and life cover benefit which was in these terms:
"Pension Scheme provisions will be in accordance with the handbook and rules of the Express Newspapers Ltd. Management 'P' Pension Scheme, contributory membership of which is a condition of employment."
There was a provision about grievance and discipline procedure and the final provision of the contract was in these terms:
"In accordance with the usual terms of our service contracts, it is understood that your entire services are to be devoted to the interests of the Company, its Subsidiary and Associated Companies, or as the Directors may decide, and that on no account are you to engage in work outside, unless special permission has first been obtained for you to do so."
After his appointment as Production Manager the defendant went on working, and he has gone on working until today, 7 November 1986. During 1986 it became known that a rival publisher of newspapers, Mr. Robert Maxwell, was intending to start a company which would publish a new evening paper circulating in the London district. Later, the scheme for the publication of that new evening newspaper was expanded into a publication of a newspaper which would be issued at all hours and, in particular, during the afternoons and evenings. That newspaper, if it started, was likely to be a rival of the plaintiff newspaper. For some years now the plaintiffs' evening newspaper has been the only one circulating in the Greater London area. At the present time it has a circulation of about half a million copies a day. A large proportion of that circulation is sold to people on their way home from work. It is obvious that, if there is another evening newspaper in the London area, the plaintiffs are going to have their circulation cut down unless they take special steps to maintain it at its present level.
It is equally obvious that any new newspaper will require people of considerable experience to run it, particularly when it first starts. One of the problems of the production of evening newspapers is that there is a strict time schedule for all the printing operations. A Production Manager in an evening newspaper is the member of the staff who is responsible for seeing that the timetable is maintained. Maintaining the timetable necessarily requires a good deal of knowledge and experience of producing newspapers. Mr. Henderson (the defendant) has that experience. It seems obvious to me that the proposed newspaper would very much like to get the services of an experienced Production Manager such as Mr. Henderson. If that newspaper could get the services of Mr. Henderson when it started, it would benefit the new newspaper and injure the plaintiff company.
In September 1986 the defendant sent a letter to the plaintiffs, saying that he wished to terminate his contract on 7 November 1986. He was giving the plaintiffs two months notice instead of the 12 months notice which he was required to give pursuant to his contract. In fairness to him, he did say that he would go on working a little longer for the plaintiffs if it would enable them to find somebody to replace him. It became known very quickly after he had sent that letter that he was leaving in order to join the staff of the proposed rival newspaper. In other words, he was going to break his contract in order to take his skilled services to a rival.
On the face of it, that seems to be something which he was not entitled to do. It is also something which, on the face of it, will cause damage to the plaintiffs. But the damage would be very difficult to assess. That was the view of Mr. Justice Evans and it is my view.
As a consequence of these facts the plaintiffs decided to apply for an injunction to restrain the defendant from working for a rival newspaper during the period which his contract had to run. When they started to apply for an injunction they concentrated on that aspect of the matter which then appeared to them to be the most important, namely that the defendant, over his many years in the production department, had acquired what they called confidential information about the way they produced their newspaper. When the matter was examined before Mr. Justice Evans it was clear that in law there was no confidential information which the defendant had acquired. What he had acquired was, as a result of doing his job, considerable expertise which would be valuable to a rival newspaper, but which could not in law be classified as confidential information. Had there been in the possession of the defendant confidential information, the position which we have got to consider might have been different because often, in cases where there is confidential information and a breach of a contract of service, it is possible to grant an injunction. But that is not this case.
By the time this case got to this court it was accepted by the plaintiffs that they could not get an injunction against the defendant on the grounds they first thought...
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...73 Evans v Teamsters Local Union No 31, 2008 SCC 20 ....................................... 577 Evening Standard Co Ltd v Henderson, [1987] ICR 588 (UKCA) ..................... 584 Everywoman’s Health Centre (1988) Victoria Drive Medical Clinic Ltd v Bridges (1990), 78 DLR (4th) 529, 54 BCL......
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