Lyne-Pirkis v Jones
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL,LORD JUSTICE EDMUND DAVIES,LORD JUSTICE FENTON ATKINSON |
| Judgment Date | 12 June 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J0612-3 |
| Docket Number | 1969 L. No. 1525 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 June 1969 |
[1969] EWCA Civ J0612-3
Lord Justice Russell
Lord Justice Edmund Davies and
Lord Justice Fenton Atkinson
In The Supreme Court of Judicature
Court of Appeal
Civil Division
On Appeal From The Queen's Bench Division
Revised
MR. JOHN ARNOLD. Q.C. and MR. D.A. THOMAS (instructed by Allen & Son, Solicitors, London; appeared on behalf of the Defendant (Appellant).
MR. PETER WEBSTER, Q.C. and MR. PETER SCOTT (instructed by Barlow, Lyde & Gilbert, Solicitors, London) appeared on behalf of the Plaintiff (Respondent).
This is a dispute between two doctors in partnership at Godalming in Surrey under a partnership deed of 1965.
At the time of the deed there were three partners already in partnership, but one of them died in 1966 and thereafter the parties to the proceedings remained as equal partners thereunder.
The partnership income was confined to the National Health Service capitation fees of the two partners: the income from what appears to have been the very few private patients, belonged to the respective individuals, and was not partnership income. Either of the partners had the right to expel the other for improper behaviour, which does not arise here; and either of them had the right to give six months' written notice of retirement to the other, expiring on 1st October in any year. The Defendant in fact gave such notice on 14th March of this year.
The partnership deed described the three parties as medical practitioners and recited that "the parties hereto have since the First day of February one thousand nine hundred and sixty-two carried on partnership as general medical practitioners at Godalming aforesaid as partners at will", and it provided that the partnership practice should be carried on from two places where they had surgeries and at a private address.
The partnership deed contained a covenant in restraint of trade on the occasion of the retirement or expulsion of any partner; that is clause 21 and it reads: "If any partner shall retire from the partnership under the provisions of clause 2(b) hereof or if any partner shall be expelled from the partnership under the provisions of clause 17 here of no such partner shall for a period of five years immediatelyfollowing such retirement or expulsion engage in practice as a medical practitioner either alone or jointly with any other person within a radius of 10 miles of the Market House in Godalming"
Friction had arisen between the two partners. They had to leave the remaining surgery premises by the end of March, 1969 because their tenancy of that was perforce coming to an end then. The Plaintiff found new premises in Gt. George Street which he thought was suitable for the partnership but the Defendant did not approve of those new premises.
Then, by a course of conduct which I do not think, at least at the moment, I need set out in detail, the Defendant conveyed to the Plaintiff's mind two things. The first was that the Defendant had no intention of continuing in partnership after the end of March, 1969; the second was that he would, on advice, disregard the restrictive covenant and would set up, apparently in partnership with a rival firm of doctors in Godalming, keeping his National Health Service patients who were of course, albeit on his list, patients of the partnership.
Understandably the Plaintiff launched proceedings on that basis and obtained from the Judge in Chambers two interlocutory injunctions, from both of which the Defendant now appeals.
The first was an injunction restraining him from "engaging in practice as a medical practitioner within 10 miles of the Market House, Godalming, in the County of Surrey until the 1st October, 1974- in breach of a partnership agreement dated the 28th July, 1965 made between the Plaintiff, the Defendant, and one Austin"; and the second was "at any time before the 1st October, 1969 from competing with the practice carried on pursuant to the said partner-ship agreement of the 28th July, 1965, until after the trial of this action or until further order".
In this court it was made plain to us, which was certainly not made plain on the Defendant's affidavit, that he does not contend that the partnership is no longer existing; he accepted that he is treating his National Health Service patients, true from the same building as the rival firm, not as a partner in the rival firm but as a partner of the Plaintiff, and that he will continue to treat them there until the partnership ends or until his retirement notice expires. He says that since he does not approve of the new surgery which the Plaintiff found he is entitled to practise otherwise than from the new surgery. The Defendant says that he is embarrassed by the form of the second injunction, in case it be thought that it prevented him from seeing his partnership patients at these new premises.
For the form of the second injunction, I am bound to say that I think the Defendant has only himself to thank; but in my view to see his patients, acknowledged to him to be partnership patients, until the 1st October at these premises is not a breach of the injunction restraining him from competing with the partnership practice. It would indeed be so if the truth of the matter were that which the Plaintiff thought it was, that he was seeing them not as partnership patients but as patients either of himself alone divorced from the Plaintiff or of himself in partnership with the rival firm that I have mentioned. Therefore I would leave the second injunction in its existing form, with that intimation of its scope or lack of scope.
It was argued for the Plaintiff before us that in fact it was a form of competing and that in fact the Plaintiff would be entitled to an injunction in terms restraining the Defendant from seeing the partnership patients at thisaddress; but as I have indicated I cannot myself see that it comes within the phrase "competing"; nor do I think that we should add to the injunction any injunction to prevent him from continuing to see the partnership patients as such at this address. Various objections to it were ventilated on behalf of the Plaintiff and one can understand some of the objections; but I do not think the case was pointed, or the evidence was sufficiently pointed, to an injunction in that actual form to say that he must not see partnership patients as such at this particular address. Whether further application should be made asking for an injunction in that form I know not; I would hope, as I have indicated in the course of the discussion, that the possibility of that might be avoided by the Defendant stomaching his objections to the surgery which was found by the Plaintiff, for the brief period which the partnership still has to run, that is to say, until 1st October. Therefore I would be in favour of leaving the second injunction to stand, and I say no more about it.
That brings me to the first injunction, which as a technical matter I think, if it is to stand, should anyway be limited to the period after the determination of the partnership.
The Defendant attacks the restrictive covenant in two ways. First of all he says that it is wider than is reasonably required for the protection of the practice, because it prohibits the engaging in practice as a medical practitioner either alone or jointly with any other person; that that phrase prohibits practice as a medical consultant and is not limited to general medical practice, whereas the partnership practice which the restrictive covenant is, or should be, concerned reasonably to protect was, as I have indicated, that of general medical practitioners and wouldnot include the practice of a consultant.
The second attack by the Defendant is against the radius of 10 miles from the Market House in Godalming, which he says is far more extensive than is reasonably required for the proper protection of the partnership practice, having regard to the area from which the partnership patients were and are drawn, which the Plaintiff agrees, for the purpose of this hearing, may he taken as not more extensive than a five mile radius; and the Defendant also points to the fact that within the 10 mile radius are substantial centres of population such as Haslemere, Farnham, Aldershot, Farnborough and Woking, from which, so far as the evidence goes, the practice never did and does not draw any patients. The size of the practice is about 5,200 patients and I think the Defendant's list of the partnership National Health Service patients was 2,400.
On the first point the Defendant relies primarily on the case of Routh v. Jones in the Court of Appeal, reported in (1947) 1 All England Reports at page 758. In that case, which was in fact (though it is irrelevant for the present point) a case not between medical partners but a case of a covenant restricting the activities of an employee, a medical assistant, the restrictive covenant was that the Defendant would "not during this contract of service save in the employ of the principals nor within the space of five years thereafter practise or cause to assist any other person to practise in any department of medicine, surgery or midwifery nor accept nor fill any professional appointment whether whole time or otherwise whether paid by fees salary or otherwise or whether honorary within a radius of 10 miles from 11 East Street, Okehampton".
To continue reading
Request your trial
- Clarke v Newland
- Kerr v Morris
-
Carlos Bertram Clarke v Michael Arthur Newland
...matter came before Mr. Bates, sitting as a deputy judge, on 15th December. He was referred to the decision of the Court of Appeal in Lyne-Pirkis v. Jones (1969) 1 W.L.R. 1293. He held that he was bound by that decision and dismissed the summons. The plaintiff has appealed. 17 The case for t......
-
Nicholas George Naish (Plaintiff) v Thorp Wright & Puxon (A Firm)and Another
...language used, we get a result which in its totality produces something unreasonably wide." 223 The next case to which I must refer is Lyne-Pirkis v. Jones [1969] 1 W.L.R.1293. That was a case which involved a clause in a medical partnership which provided that if a partner retired for the ......