James Pickwell and Another v Pro Cam CP Ltd
| Jurisdiction | England & Wales |
| Judge | Judge Curran |
| Judgment Date | 03 June 2016 |
| Neutral Citation | [2016] EWHC 1304 (QB) |
| Docket Number | Case No: HQ16X00873 |
| Court | Queen's Bench Division |
| Date | 03 June 2016 |
[2016] EWHC 1304 (QB).
His Hon Judge Curran QC
sitting as a judge of the High Court
Case No: HQ16X00873
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Jacques Algazy QC and Nathaniel Caiden for the Claimants
Michael Duggan QC for the Defendant
This judgment is divided into topics as follows.
| Topic | Paragraph |
| Introduction | 1 – 4 |
| The facts | 5 – 8 |
| Terms of the restrictive covenants | 9 |
| The evidence of Mr Eames | 10 – 14 |
| Mr Pickwell's evidence as to his employment with Pro Cam | 15 – 20 |
| Ms Nicholls evidence as to her employment with Pro Cam | 21 – 28 |
| Summary of the Claimants' progress within Pro Cam after signing the contracts | 29 – 32 |
| How the Claimants came to leave Pro Cam | 33 |
| Evidence as to the potential consequences of refusal to accept the restrictive covenants | 34 – 38 |
| The issues | 39 |
| Consideration – the law | 40 – 46 |
| The Claimants' submissions on consideration | 47 |
| The Defendant's submissions on consideration | 48 – 54 |
| Conclusion on the issue of consideration | 55 – 63 |
| Restrictive covenants in contracts of employment — relevant legal principles | 64 – 68 |
| Construction of the restrictive covenants | 69 |
| The Claimants' case on 'protectable interest' | 70 – 71 |
| The Defendant's case on 'protectable interest' | 72 – 75 |
| Conclusion on 'protectable interest' | 76 – 78 |
| The Claimants' case that the covenants are unreasonably wide | 79 |
| The farming cycle, its relation to Pro Cam's business and duration of the covenants | 80 – 82 |
| 83 | |
| The Defendant's case on the third issue | 84 – 86 |
| Conclusion on the third issue | 87 – 97 |
| The Outcome | 98 |
Introduction
At the conclusion of the hearing on 22 April 2016, it was agreed that the urgency of the case was such that the parties should be informed before 2 May 2016 of the conclusion the court had reached, although the full terms of the judgment would be reserved. On 29 April 2016 arrangements were therefore made for the parties to be informed that the finding of the court was that these claims must be dismissed and judgment entered for the defendant company. The reasons for that finding now follow.
The case arises out of a dispute between the two Claimants, Mr Pickwell and Ms Nicholls, and their employer, the agricultural supplies company Pro Cam CP Limited ("Pro Cam"), as to the enforceability of restrictive covenants in their contracts of employment as trainee agronomists. In each case, the contract of employment was signed some weeks or months after the claimants had received a written offer of employment from the defendant company and had signed a document accepting that offer.
The validity and enforceability of the covenants were disputed by the employees, and they sought declaratory relief that the covenants were unenforceable. Each claimant said in evidence that their prospective employer, a company called Frontier Agriculture Limited ("Frontier"), an agricultural supplies and agronomy company in competition with the defendant company, had funded the litigation on their behalf although it was not itself a party to the action.
Pro Cam resisted the claim, and counterclaimed for declaratory and injunctive relief to enforce the disputed covenants.
The facts
In late summer 2009 Mr Pickwell was interviewed by directors of the defendant company, Mr Bianchi, the managing director, and Mr Barry Eames, head of its 'Field Care South' division. As a result Mr Pickwell received and accepted an offer of employment in a letter from the defendant company dated 16 September 2009. The letter confirmed "the offer of an appointment as a trainee agronomist" and gave details of salary (£23,000 p.a.); a company car or car allowance; private health scheme; pension; expenses arrangements; and holidays. Mr Pickwell accepted the offer in a letter dated 21 September 2009, and actually began work on 2 November 2009.
Following her successful interview with Mr Bianchi and Mr Eames, Ms Nicholls accepted an offer of employment made in a letter from the company secretary dated 17 August 2012. The letter included the words "… I am writing to offer you the position of Trainee Agronomist …" and gave details of salary (£18,000 p.a.); a company vehicle; expenses; hours of work; mobile telephone provision; holiday entitlement; pension; life cover; private health scheme; permanent health cover; and notice period (one week's notice on each side during the probationary period). Ms Nicholls accepted the offer by signing and returning a reply slip dated 18 August 2012. She actually commenced employment on 24 September 2012.
As trainee agronomists working for the defendant company their duties included the following tasks.
(1) They were expected to acquire the knowledge and to develop the skills of an agronomist over a period of training and practical work experience by shadowing experienced qualified colleagues and assisting them in their duties, including visiting farms and listening to their discussions with the farmers.
(2) They were required to attend appropriate "BASIS" courses, the fees for which were paid by the defendant company, and to acquire recognised qualifications. BASIS refers to a company called BASIS Registration Ltd, which has become a recognised non-statutory British training and examining body and which makes awards regarded as qualifications in agronomy. Another acronym in terms of agronomy qualifications is "FACTS" which stands for the Fertiliser Advisers Certification and Training Scheme, for agronomists wishing to become advisers to farmers and growers on the use of fertilisers. In summarising the details of these matters Mr Eames made the following uncontroversial points in his witness statement.
i) In order to attain the BASIS Certificate in Crop Protection a trainee agronomist would need to acquire a sound introduction to agronomy, integrated crop protection and crop nutrition.
ii) It is a legal requirement for anyone advising on or selling pesticides in the UK to hold the BASIS Certificate in Crop Protection.
iii) The FACTS certificate concerns crop nutrition and requires successful agronomists to demonstrate they can advise and write recommendations for fertiliser use, which are both economically and environmentally sound. Such certification is also a legal requirement for agronomists advising on fertilisers.
iv) To achieve these two qualifications trainee agronomists would be required to undertake courses delivered by a combination of internal experienced agronomists and external trainers, and to work with experienced agronomists in the field, until they are deemed ready to be entered for the relevant qualifying examinations.
v) Once an agronomist obtains the relevant qualifications he or she can apply to be registered with BASIS Registration Limited. As part of that registration the agronomist would be required to undertake a certain level of continuing professional development each year to maintain their registration.
vi) After qualifying, the trainees would be required to work under the supervision of an experienced BASIS-qualified agronomist for about a year.
vii) Thereafter, the Claimant were expected to acquire customers for the defendant company (a) by cold-calling farmers and inviting them to trade with the defendant company and to receive advice gratis if they did so; and (b) by taking over from more senior agronomists (on their retirement, for example) in dealing with established customers.
Mr Pickwell explained in his witness statement that the qualified agronomist's function is to advise farmers on the purchase and use of agricultural chemicals such as pesticides, fertilisers and fungicides. As a matter of practical reality, agronomists are employed by companies such as Pro Cam and Frontier whose business involves the production and sale of 'agrochemicals', seed, and other products such as 'micronutrients.' It takes time for a farmer to develop a business relationship with an agronomist and to trust his or her judgment. Once such a relationship has been established, however, many farmers become reliant on the advice of the agronomist, and are likely to follow the advice given and purchase products sold by the agronomist's employer, and such relationships often endure for many years.
Terms of the restrictive covenants
The restrictive covenants in issue in each case are in the same terms. They are as follows.
"You will not from the date of termination of your employment either on your own account (whether directly or indirectly) or as a representative employee, partner, director, financier, shareholder or agent of any other person, firm, company or organisation:—…
… for a period of 6 months have any dealings in the sale or supply of any relevant goods or services to any relevant customer …[the 'non-dealing' covenant]
… for a period of 6 months canvass or solicit order for any relevant goods or services from any relevant customer …." [the 'non-solicitation' covenant]
The following definitions in their respective contracts apply.
"… ' relevant goods or services' are goods or services which are the same as or of a similar kind to those which in the period of 12 months before termination of your employment have been dealt in or supplied by you in the course of your duties for the Company or group company
… 'relevant customer' means any person, firm, company or organisation...
To continue reading
Request your trial
-
Harcus Sinclair LLP and another v Your Lawyers Ltd
...... Ltd v Dunnes Stores (Bangor) Ltd [2020] UKSC 36 ; [ 2021 ] AC 1014 ; [ 2020 ] 3 WLR 521 ; [ 2021 ] 1 All ER 1 , SC(NI) Pickwell v Pro Cam CP Ltd [2016] EWHC 1304 (QB) ; [ 2016 ] IRLR 761 Ruparel v Awan [ 2001 ] 1 Lloyd’s Rep PN 258 Schroeder (A) Music Publishing ......
-
Team Tours Direct Ltd v Aspire Sports Tours Ltd
...principles may, for convenience, be taken from the judgment of His Honour Judge Curran Q.C. in Pickwell v Pro Cam CP Limited [2016] EWHC 1304 (QB), where he summarised them at [65]: “(1) The court must determine what the covenant means, properly construed. (2) The court must then consider w......