In the recent case of Prophet v Huggett [2014] EWCA Civ 1013, the Court of Appeal in England & Wales made it clear that it would not read in words to ensure the efficacy of a non-competition restrictive covenant, where the language of the provision is ‘truly ambiguous’ and ‘admits clear alternatives as to the sense the parties intended to achieve’.
In this case, Prophet had managed to secure an injunction from the High Court against one of its employees, Mr Huggett, to prevent him working with its competitors. The High Court had therefore been willing to overlook drafting errors to enforce the restrictive covenant, stating that such an approach was required to make commercial sense of the agreement between the parties. A literal approach to the clause would only have prevented Mr Huggett selling Prophet’s software when working for another company – and would not have prevented him selling the software of the new firm.
The decision of the High Court, however, was overturned on appeal. Lord Justice Rimer, in the Court of Appeal, made it clear that, although the provision was virtually useless if given a literal interpretation, it was not for the judge or the court to re-determine the bargain that the parties had made. Essentially, ‘Prophet had made its… bed and… must now lie upon it’.
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