England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		The Royal Courts of Justice The Strand LONDON WC2A
		8th May 2000

1. THE VICE CHANCELLOR: The matter for decision is whether an interlocutory injunction, and if so what interlocutory injunction, should be granted to Symbian Ltd, the claimants in this case, to restrain the defendant, Mr Christensen, from going to work for Microsoft, a competitor of Symbian.
2. Symbian is a company which was created as a joint venture company between Psion plc and four other companies. Psion is a developer of hand held computers and is a leading company in the mobile communications field. The other four companies are licensees of Symbian's software. The purpose of the joint venture is research, development and commercial exploitation of the software for wireless information devices, commonly known, as I understand it, as WIDs. WIDs are a new generation of mobile devices which combine the features of mobile phones on the one hand and hand held computers on the other. I imagine that they will be of a size and weight which will make them reasonably convenient to carry around. -- They will, no doubt, be further scourges of people who travel on railway trains. -- The WIDs work in conjunction with a software platform called EBOC which has been developed or is being developed by Symbian.
3. Microsoft needs no introduction. It is a competitor in practically every area of computer development and marketing. It has a rival platform to Symbian's EPOC platform. Microsoft's platform is called Windows CE. Microsoft is also concerned in the development of the back end computer service which serves the front end applications and platforms such as EPOC and WIDs.
4. Mr Christensen had been an executive of Psion. After the joint venture company, Symbian, had been set up he became Executive Vice President of Sales and Marketing for Symbian. He was, plainly, a senior executive in Symbian. His seniority was reflected by the fact that he was a Director.
5. Mr Christensen's service contract with Symbian, the Service Agreement, is dated 23rd June 1998. It starts with a number of definitions of which one at least is very important. The important definition is that of "the Business" which is defined as:

"The business of the research, development, devising, writing, engineering, licensing, marketing, distributing and supply of computer software and computer products of all kinds as carried on by the Group from time to time."

6. The expression "the Group" is defined as "the company [i.e. Symbian] and subsidiaries". Subsidiaries are defined as subsidiaries within the meaning of the definition in the Companies Act.
7. As I have said, Symbian, the joint venture company, was set up was to research, develop and exploit WIDs. That, no doubt, is the context in which the reference to "supply of computer software and computer products of all kinds as carried out by the Group from time to time" should be read. But Mr McGregor QC, counsel for Symbian, has emphasised that front end devices and applications are pointless and useless without being connected to a server, a back end, whose computer software must relate to the computer software at the front end. Mr McGregor's purpose in emphasising this symbiotic relationship between front end and back end was to resist a contention that the reference in the Service Agreement to "the Business" should be read as simply a reference to Symbian's development of the front end technology.
8. Continuing for the moment, however, with the Service Agreement, clause 2 contains what one would expect to find, namely, that Symbian employed Mr Christensen and he agreed to serve Symbian as Executive Vice President of Sales and Marketing. Clause 3 provides for the agreement to continue "until terminated at any time by either party giving to the other not less than six calendar months previous notice in writing." So six months written notice must be given in order to bring the Service Agreement to an end.
9. Clause 4.3 is of importance. It provides as follows:

"Notwithstanding the provisions of subclause 4.2 above" -- on which nothing whatever turns for the present purposes -- "the appointee shall not during the term of this agreement except as a representative of the Group or with the prior consent in writing of the Board, such consent not to be unreasonably withheld, be directly or indirectly engaged or concerned or interested in any capacity in any trade, business or occupation whatsoever other than the business of the Group, whether or not competing in any material respect with the Business."

10. The purpose of a provision in those terms seems to me to be clear enough. The purpose is to try and ensure that Symbian, the employer, has the exclusive call on the services of the employee. He is not without consent to engage in any collateral commercial activity.
11. The next provision to which I should refer is 12.3. Clause 12 is headed "Termination", and deals with the termination of the agreement. 12.3 provides as follows:

"The Company may suspend the appointee from his duties and not require the appointee to attend his place of work or provide him with any work during any period of notice, whether that notice is given by the company or by the appointee. The Company need not give any reason for exercising its rights under this clause, but must provide the remuneration due to the appointee during the relevant period of notice. During any period of suspension under this clause 12.3, the appointee must not without the written consent of the Board go to any premises of the company or other member of the Group, or contact any employee, other than a Director of the Company, customer or supplier of the company or other member of the Group."

12. This provision provides a contractual basis enabling Symbian, during the currency of any notice of termination of the Service Agreement, whether the notice be given by Symbian or by the employee, to place the employee on what has become known as "garden leave". Garden leave describes the state of an employee who, while remaining entitled to his salary and the other benefits of employment, is not only not required but positively directed not to attend for work at his place of employment or to discharge any of the duties of employment that would ordinarily be expected of an employee. He is placed, so to say, on garden leave.
13. Next I should come to clause 15. This clause is headed "Confidentiality and Restrictions". 15.1 deals with the divulging of confidential information. Before reading that I should refer back to the definition clause, and the definition of "Protected Matters". Protected Matters are defined as trade secrets or other confidential information. I need not read the whole of the definition. It is enough to draw attention to the nature of Protected Matters as defined. I return to clause 15.1, which provides as follows:

"The appointee must not during the continuance of his employment under this agreement, except in the performance of his duties, divulge the Protected Matters to any person, or body cooperate, or unincorporate, or put them to any use except for the company's purpose. The appointee must also use his best endeavours to prevent improper disclosure of the protected matters."

14. I would draw attention to the variation in language, so far as the duration of the contractual obligation imposed by clause 15.1 is concerned, when compared with the contractual language in clause 4.3. Clause 4.3 is expressed to apply "during the term of this agreement". Clause 15.1 is expressed to apply "during the continuance of his employment under this agreement". This difference in language may in the end be immaterial, but it is interesting to notice that the draftsman approached the duration of the contractual obligation somewhat differently in these two different clauses.
15. I can then go to clause 15.4. 15.4 imposes six express restrictions on the employee. The duration of these restrictions is dealt with in the first few lines of the clause. It provides as follows:

"For a period of six months from the earlier of: (a) the date the appointee ceases to work for the company or carry out his normal duties, or; (b) the expiry or termination of this agreement, the appointee must not..." and then follow the six specific restrictions.

16. It is apparent, therefore, that the clause 15.4 restrictions apply either from the termination of the agreement, on the expiry of a notice or any earlier agreed termination date, or from the date on which a clause 12.3 garden leave notice is given by Symbian, whichever of the two may be the earlier.
17. One of the issues of construction of this Service Agreement which has arisen is whether the restrictions in clause 15.4 must be regarded as a complete and comprehensive code setting out all the restrictions that will apply during a garden leave period. Undoubtedly clause 15.4 provides a comprehensive list of the contractual restrictions to apply after the termination of the agreement, if that is the date from which the six months runs. But it is not so easy to decide whether clause 15.4 constitutes a comprehensive code where the agreement is still on foot, because the notice of termination has not yet expired, but a garden notice under clause 12.3 has been given.
18. In particular, it is not so easy to see why clause 4.3, which is expressed to continue during the term of this agreement, does not continue during the term of this agreement, that is to say up to the end of a notice period whether or not a garden leave notice under clause 12.3 has been given. This is an issue to which I must return.
19. Of the specific restrictions in clause 15.4 I think I need read in full only 15.4.6. Before I come to that, however, it is probably convenient for me just to mention what the other restrictions deal with. 15.4.1 is a restriction against the soliciting of orders or custom or services from customers of Symbian. 15.4.2 is a restriction against dealing or entering into dealings, in competition with Symbian, with any former customers or clients of Symbian. 15.4.3 imposes a restriction against attempts to damage the relationship between Symbian and its suppliers, customers or clients. 15.4.4 restrains attempts to entice away from Symbian any of its employees. 15.4.5 is a restraint against employing or engaging any person who has been an employee or director or manager of Symbian within the previous twelve months. That brings me to 15.4.6 which provides, so far as is relevant, as follows:

" ... engage in the United Kingdom, Germany or any state of the USA where Business is carried on in any capacity directly or indirectly in the Business before obtaining prior written consent of the Board, such consent is to be withheld only so far as is reasonable to protect the legitimate interests of the Company or any member of the Group. Provided that this restriction will only relate to engaging in a business of such nature that the appointee engaged in during one year before notice of termination of this agreement."

20. The subclause was described to me by Mr Stafford, counsel for the defendant, as being a policing provision intended to police the other restrictions in 15.4 and to make it unnecessary to an attempt to enforce them, specifically. That policing intention may or may not have been in the mind of the draftsman, but it seems to me that 15.4.6 imposes a restriction which in its terms is distinct from the separate restrictions imposed by the previous subclauses. Whether it serves also a policing function does not seem to me to be particularly relevant.
21. My attention was drawn by Mr McGregor to clause 15.4.7 which provides that the restrictions imposed on the employee in clause 15.4 will include "acts of the appointee alone or jointly with others, whether or not on his own account or by other person, firm or company, and whether as principle shareholder, partner, employee, agent, adviser, or otherwise directly or indirectly."
22. It is quite difficult to make the words "or otherwise directly or indirectly" mean anything at all in that context. I cannot for my part see that clause 15.4.7, whatever it might do in other circumstances, assists at all in the issues that have arisen in this particular case.
23. Clause 15.5 is quite interesting. It contains what is, in effect, a declaration that, the restrictions in clause 15 "are considered reasonable by the parties and are in respect of each part separate, severable and separately enforceable in the widest sense from the other parts, so that each covenant is a separate covenant", and then it goes on. I need not read it to the end. Clause 15.5 is obviously intended to enable severance to be affected in case some court might consider one or other of the restrictions to be wider than was reasonable.
24. Indeed, it is apparent from a reading of clauses 15.4 and 15.5 as a whole that the draftsman is concerned with the law on restraint of trade. I think that that becomes apparent not simply from clause 15.5 but also from the reference in clause 15.4.6 to the requirement for the written consent of the Board to be obtained with the further proviso that the consent is not to be unreasonably withheld, or is to be withheld only so far as is reasonable to protect the legitimate interests of the company et cetera.
25. The drafting shows considerable care taken to try to ensure that the restrictions survive, so far as is possible for them to survive, any attack based on restraint of trade principles. In doing so, it seems to me that the draftsman's attention is focused firmly on the position after the determination of the Service Agreement. So far as the period from the inception of the Service Agreement to the expiration of a notice of termination is concerned, it seems to me very unlikely that the draftsman was concerned with restraint of trade at all. It is a matter of convenience as well as reasonable that the six months during which the restrictions are to apply should commence on the date on which the employee is taken off all duties under a garden leave notice. But restraint of trade considerations while the Service Agreement was still on foot, i.e. during a garden leave period, seem to me to be unlikely to have been in the mind of the draftsman.
26. Let me now leave the Service Agreement and return to the history that has given rise to this litigation. On 17th March of this year a letter from Mr Christensen to Symbian gave notice his wish to terminate his Service Agreement. The letter was dated 17th May, but it is accepted that is an error for 17th March. The letter contained no indication that Mr Christensen was proposing to go and work for Microsoft. It simply said, over a page and three quarters or thereabouts, that he felt that it was time for him to make a move. On the second page of the letter he said:

"I feel it is best for me to disengage quickly."

27. The letter was not a formal six month notice letter. It is plain enough that Mr Christensen had in mind a more speedy termination of his Service Agreement than a termination brought about by a six month notice. He said also, "a clean break is best for both parties".
28. Symbian's response, by letter of 22nd March, included the application of clause 12.3. The letter started by emphasising that a six month notice had to be given. It said:

"I am writing to confirm that the Company requires you to give six months written notice of termination of your employment as set out in the Agreement."

29. It then went on to give a garden leave notice in accordance with clause 12.3. It said:

"... the company is suspending you from your duties and will not require you to attend your place of work. The initial period of such suspension will be two weeks, i.e. to Thursday, 6th April. The Company reserves its right to extend the initial period."

30. The receipt of that letter led to the advent of solicitors. Solicitors for Mr Christensen wrote to solicitors for Symbian. The letter, dated 28th March, contained an acknowledgment that Mr Christensen was obliged to give six months notice to terminate his employment, and an express acknowledgment of his continuing duties to the company until such time as his employment terminated. The letter stated that Mr Christensen intended to join Microsoft, but said that his intention was to join Microsoft "not in a role which competes with Symbian's business". It went on to draw a distinction between Symbian's business, which it said was "involved only in the development of a common software platform which would guarantee compatibility of software between mobile phones and WIDs from major manufacturers" on the one hand, and Mr Christensen's role with Microsoft which "will be the defining marketing and selling of server software, not that relating to WIDs", on the other hand. The letter recognised that Microsoft did have a group which dealt with WID software but said that Mr Christensen would not be involved with that group at all.
31. The letter from Mr Christensen's solicitors was a lengthy one. It was endeavouring to persuade Symbian and its solicitors both that Mr Christensen was entitled to do what he was proposing to do and, second, that what he was proposing to do would not be damaging to Symbian. But Symbian did not see it that way. Correspondence between the solicitors continued, in the course of which a clause 12.3 notice to apply for the whole of the six months notice period was served on behalf of Symbian.
32. In order to try to allay Symbian's fears that confidential information, which Mr Christensen certainly possessed, about the technological development of the Symbian platform and the WIDs, and regarding the road map, as it was called, by means of which Symbian was proposing to develop and eventually market the WIDs, Mr Christensen gave a number of assurances to Symbian. These were given by his solicitors in the course of the solicitors' correspondence. They were assurances that Mr Christensen would not be divulging any of Symbian's confidential information. But there emerged some differences between the parties, entirely understandable and common in almost all such cases as this, as to exactly what was confidential information and what was simply part of the expertise and know-how which Mr Christensen had obtained from his work in this field over many years.
33. Microsoft supported Mr Christensen in the giving of the assurances that I have referred to, and made clear that they would not knowingly permit or take advantage of any confidential information which Mr Christensen might inadvertently divulge to them. But none of this satisfied Symbian who commenced proceedings by issuing a claim form on 12th April. The claim form was accompanied by Particulars of Claim and by an application notice asking for interlocutory injunctive relief.
34. It is the application for the interlocutory injunction that is before me today. An injunction is sought restraining Mr Christensen until whatever the return date may be from doing the following acts, or any of them: (a) undertaking or continuing employment with or providing advice, assistance or services to any present or intended future competitor of the claimant including, without prejudice to the generality of the foregoing, Microsoft Corporation, its subsidiaries or associated companies, servants or agents; (b) otherwise acting in breach of his duties of good faith and fidelity owed to the claimant and implied under his Contract of Employment.
35. It is accepted by Symbian that the restrictions that it can enforce against Mr Christensen can be enforced only up to the expiry of the six month notice period. I think it is accepted also that the six months should be taken as running from 17th March of this year, the date on which the letter from Mr Christensen to Symbian was sent. On that footing the six months would expire on 16th September this year.
36. Whatever may be the directions for speedy trial it is relatively unlikely, it seems to me, that a trial of this action can be staged before that date. After that date a trial will be relatively pointless. This is, therefore, one of those cases where the answer given to the application for an interlocutory injunction is, subject to any appeal that may be brought, likely to be an end of the proceedings.
37. The relevance of that is that the court has to be very careful as to the use to which such a criterion as balance of convenience is put. The balance of convenience is of high importance where there is something to be decided at a trial which is subsequently expected to take place. In the present case there are, it has become apparent from submissions made to me, some areas of fact which are not common ground between the parties. But, broadly speaking, the history and background are not disputed. What is in dispute are judgmental matters: what effect various actions are likely to have, what inferences should be drawn from admitted facts, matters of that sort.
38. On an interlocutory application for an injunction, where there are no primary facts in dispute and, particularly, if a trial is unlikely for an injunction, constrained to try to decide the answer to the issues that have been raised. It is not satisfactory simply to look for a modus vivendi to carry the parties over in a convenient fashion until all can be resolved at an eventual trial.
39. It seems to me that the issues in this case depend upon the construction of the Service Agreement. If I may for a moment return to the terms of the interim injunction that has been sought. First, under paragraph (a) an injunction is sought restraining Mr Christensen from "being employed by or providing advice or services to any present or intended future competitor of the claimant". I think that that is objectionable; it is much too wide. It does not seem to me that one obligation can be imposed on Mr Christensen to avoid being employed by an intended future competitor of Symbian. So I regard (a) as really constituting an application for an injunction restraining Mr Christensen from employment by Microsoft or by Microsoft's subsidiaries or associated companies or servants or agents. That is what has led to this litigation, that is what Mr Christensen wants to do, and that is the real point at issue in the case.
40. As to the injunction sought under sub-paragraph (b), restraining Mr Christensen from acting in breach of duties of good faith and fidelity owed to Symbian, and implied into his contract of employment, I am not impressed by those implied duties as a platform for the grant of an injunction in a case like the present. One of the, to a lawyer, interesting features of this case is the position that is produced by the giving of a garden leave notice.
41. The relationship of employer and employee involves obligations both ways. There are obligations of good faith and fidelity both ways, as the BCCI employees have succeeded in establishing in the House of Lords. The origin of these obligations is the relationship of employer and employee. What a garden leave notice does is, in effect, to put an end to that relationship. It does not put an end to the contractual relationship. It is expressed to continue only for so long as the notice period terminating the contract continues. But since the garden leave not only requires the employee not to attend for work but forbids him to attend for work, not only absolves him from carrying out employment duties, but forbids him to take any part in the work of his employer or to enter upon his employer's premises, or to approach any of his co-employees, it seems to me that it fundamentally and irretrievably undermines the employment relationship between the parties. The contractual relationship continues but the employment relationship is destroyed, as it seems to me, by the garden leave notice. I do not think that thereafter there can subsist any implied obligation of good faith and fidelity between the parties.
42. What there is is a contractual obligation, and that must be analysed and if necessary, enforced. But that there are implied obligations of good faith and fidelity which can survive the service of a garden leave notice, such as is involved in the present case, I would not accept. I am not prepared to grant an injunction based upon an implied obligation of good faith and fidelity said to continue during the garden leave period.
43. Let me return to the real issue in this case which s one of construction of the express terms of the contract. Let me start with clause 4.3. Clause 4.3, it will be recalled, is the clause forbidding the employee from carrying out any commercial activity -- I am paraphrasing but I think innocuously -- otherwise than for his employers. There is no doubt whatever, in my judgment, but that Mr Christensen working for Microsoft during the currency of the agreement would be a breach of the terms of clause 4.3.
44. Clause 4.3 imposes a negative obligation. There is no fundamental reason why it should not be enforced. It does not prevent the employee from earning his living. During the currency of the agreement, whether or not there is a garden leave notice, the employee will continue to be entitled to be paid his full salary and benefits.
45. Mr Stafford has urged that clause 4.3 should be regarded as not continuing to apply after the service of a garden leave notice. He submitted that the Service Agreement, construed as a whole, justified the conclusion that clause 15.4 contained a comprehensive code, not only to regulate the situation after determination of the Service Agreement had come to an end, as to which I agree, but also a comprehensive code to regulate the position after service of a garden leave notice. But during a garden leave notice the Service Agreement is still on foot. And clause 4.3 is expressed to apply during the term of the agreement. Contrast clause 15.1, which is expressed to apply "during the continuance of his employment...".
46. The construction that Mr Stafford urges on me does, therefore, do some violence to the language of clause 4.3 itself. Why should not clause 4.3 be given the clear meaning and effect that the language justifies? For my part I am unable to find a satisfactory answer to that question. The only answer, it seems to me, that there could be would be an answer that depended in some way upon the width of the restriction and the proposition that to enforce it during the currency of a garden leave notice would be unreasonable.
47. So far as that is concerned, the grant of an injunction is, as every law student knows, a discretionary remedy. There are some situations in which judicial precedent and practice has produced a state of affairs in which the element of discretion has become virtually invisible. But it remains at core a discretionary remedy, and unless there is a proper interest to be served by the request for the enforcement of a particular provision such as clause 4.3 the discretion can, in my opinion, come into play and, in appropriate circumstances, the injunction may be refused.
48. If the injunction is refused there may still be a breach of contract but, nominal damages apart, an injured party can recover only the damages that he has suffered by reason of the breach. That at least is the classic statement of the law. There are those that think some revision of this principle might be appropriate. -- See Attorney General v Blake -- But in a case like the present it would be impossible for Symbian to establish, I imagine, that they have suffered any loss by reason of Mr Christensen taking up his employment with Microsoft. I suppose it might even be said that they will gain, because if Mr Christensen takes up his employment with Microsoft Symbian can be under no conceivable obligation to continue paying him themselves. It follows that if the contractual obligation in clause 4.3 is to be enforced, it must be enforced by the grant of an injunction.
49. I agree with Mr Stafford that the court must look for some legitimate interest of Symbian which will be served by the grant of an injunction enforcing this contractual obligation. Various examples demonstrating the point have been suggested in the course of the debate. If, during the six months leading up to 17th September, Mr Christensen wanted to go and work for Oxfam in one of its shops, or to undertake other charitable activity, or to paint pictures and sell them at an exhibition, all being ventures which might be described as commercial, an attempt to restrain him by injunction would, I think, be bound to fail. The injunction would be refused not because what was being proposed would not be a breach of clause 4.3 of the contract but because the activity sought to be restrained would be doing no harm at all to Symbian. There would be no legitimate interest of Symbian which would be being damaged or that would be served by the injunction.
50. In the present case Symbian are seeking the injunction in order to prevent Mr Christensen from entering into employment with a competitor. It is common ground that Microsoft competes with Symbian in the development and marketing of front end applications such as Symbian's WIDs. The question is whether that is a legitimate interest or whether restraint of trade concepts should be taken into account by the court in deciding whether, as a matter of discretion, to grant the injunction.
51. This is a point to which I will come back because I think I can most conveniently deal with it after considering the injunction sought should be granted in order to enforce the restrictions in clause 15. In clause 15.1, it will be recalled, there is a restriction restraining the employee from divulging confidential information and trade secrets, the "Protected Matters".
52. I have already said that it is common ground that Mr Christensen is in possession of a great deal of confidential information. His confidential information relates in the main to the development of the front end applications and devices, but he no doubt has some information also about the manner in which the front end devices relate to the back end platforms and computer software.
53. An injunction which followed the actual language set out in clause 15.1 would give Symbian the full protection, according to the letter, to which that part of the contract entitled them. Symbian, however, are not content with that. They point out with some justification the difficulty they would have in ever knowing whether there had been a breach. First there is the difficulty in drawing a clear line between what is protectable confidential information, and what is simply part of Mr Christensen's expertise and know-how. Second, there is the difficulty in being able to tell from things done by Microsoft whether what is being done is the result of and indicates any divulging of any confidential information.
54. It is said, and I think said with considerable force and justification, that the only certain way of knowing that confidential information will not be divulged in a case such as the present is to prevent Mr Christensen from working for Microsoft during the six month period. Nonetheless, clause 15.1 does not, in my judgment, by itself justify an injunction preventing Mr Christensen from working for Microsoft at all. It justifies no more than an injunction restraining him from divulging Protected Matters.
55. Moreover, clause 15.1 is expressed to apply "during the continuance of Mr Christensen's employment". There is a strong argument, in my judgment, for the view that clause 15.1 does not apply after a garden leave notice has been given for the notice period.
56. As to clause 15.4, the clause is expressed to restrain Mr Christensen from engaging in the Business, as defined. It may be convenient if I repeat the relevant passage:

"The business of the research, development ... of computer software and computer products of all kinds as carried on by Symbian and its subsidiaries."

57. But the restriction was only to bar Mr Christensen from engaging in a business of the same nature as that which he had been engaged in during the year before 17th March 2000.
60. Mr McGregor submits that clause 15.4.6, correctly construed, does not bar Mr Christensen from working for Microsoft in connection with the development and marketing of back end applications and software. Symbian was not itself directly engaged in the development of back end systems. But there is undoubtedly a connection, a link between front end and back end, so that Mr Christensen's functions in regard to the front end would involve some knowledge of and some input into things done in connection with the back end. As Mr McGregor put it, the individual companies engaged in this type of research and development are looking for end to end solutions; one end being the back end, the other end being the front end. You cannot, he submitted, compartmentalise either the front end or the back end; everything done at one end must be done in accordance with standards set and protocols devised for the other end.
61. I follow the force of that, but I find it difficult to fit those concepts into the language used in clause 15.4.6. Although the business that Mr Christensen was engaged in, the business of developing a front end system, involved of course some knowledge of and connection with the back end system, he was nonetheless primarily concerned with the front end. The clause 15.4.6 restriction bars him, in my view, from engaging in the part of Microsoft's business that is directly in competition with Symbian in the development of front end applications and software. I do not think the restriction bars him from working for Microsoft in developing and marketing back end applications and devices.
62. Nonetheless, the fears expressed by Mr McGregor on Symbian's behalf that Mr Christensen's employment by Microsoft in marketing and sale of their back end technology may operate to damage Symbian in a number of various ways, which are in my opinion justified fears, at least from Symbian's point of view. Microsoft, of course, suggest that these fears are illusory and to some extent they may be right. I doubt whether even with the advantage of full evidence at trial a judge could be clear either that Symbian's fears were definitely well founded or that they were definitely ill-founded. The impression I had is that they are genuine fears that commercial disadvantage may result from the engagement of Mr Christensen in the back end side of the Microsoft business, notwithstanding that Symbian's primary concern is with the front end.
63. I am, for the reasons I have given, very doubtful whether the injunction that Symbian is seeking could be justified simply by reference to the restrictions in clause 15.4.6. It is necessary, in my view, for Symbian to rely on clause 4.3. As I have said, the clause 4.3 restriction remains, in my judgment on foot during the term of the agreement, that is to say, until 16th September. An injunction to enforce the provision and to restrain Mr Christensen from all commercial activity during the garden leave period would not, in my view, be granted. An injunction of that width would not serve any genuine interest of Symbian's. But in my view an injunction limited to restraining Mr Christensen from being employed by or advising Microsoft, activities which would constitute a breach of clause 4.3, would serve a genuine and legitimate interest of Symbian's. It would provide Symbian with a legitimate degree of protection which would not, in my judgment, be vulnerable as being an unreasonable restraint of trade.
64. If there had been an express term in this agreement that, for the period of six months after termination of the agreement or the commencement of a garden leave period Mr Christensen should not enter into the employment of a competitor of Symbian, that restriction, in my view, would have been eminently reasonable for the purpose of protecting the confidential information of Symbian for all the reasons that Mr McGregor advanced in his submissions to me.
65. Accordingly, it seems to me, there is no restraint of trade objection that can be taken to the enforcement of the clause 4.3 restriction by the grant of an injunction on the lines of that express term. Enforcement of the clause 4.3 obligation to the extent of restraining Mr Christensen from being employed by Microsoft until the expiry of the six month notice would, in my judgment, be a justifiable exercise of discretion. To that extent it seems to me clause 4.3 should be enforced. It remains part of the contract between the parties. Mr Christensen has sought to avoid the Service Agreement by serving a termination notice which was shorter than the requisite six months. But he cannot, in my judgment, escape clause 4.3 so far as working for Symbian's competitors are concerned.
66. In my judgment, therefore, this application succeeds so far as an injunction in the more limited terms that I have described is concerned. There must be an amendment of sub-paragraph (a) of the draft in the draft order that accompanied the application notice and I will make an order to that effect.
67. MR McGREGOR: I am very grateful to your Lordship. Would it be convenient to your Lordship if my learned friend and I liaised on the production for your Lordship tomorrow, for example, of a minutes of order properly, or is your Lordship content simply to make the necessary excisions from the draft as proposed.
68. THE VICE CHANCELLOR: It will be an injunction restraining the defendant until further order in the meantime. Well, restraining the defendant -- do I need until further order? I suppose I have to hold open the possibility of a trial. Mr Stafford?
69. MR STAFFORD: It should be until 16th September. This is the effect of --
70. THE VICE CHANCELLOR: Restrain the defendant until 16th September from undertaking or continuing employment with or providing, advice, assistance or services to Microsoft Corporation, its subsidiaries, or associated companies servants or agents. That is all.
71. MR McGREGOR: I am very grateful to your Lordship. My Lord, we have asked for the costs to be reserved but that was on the basis that this would be an interlocutory application, and it would be followed by a speedy trial.
72. THE VICE CHANCELLOR: It is up to Mr Stafford. I would be content if the parties are agreed, I would not do it if he did not, to say that this is to be treated as trial of the action.
73. MR STAFFORD: I would be content with that, but I am just looking for confirmation that those would be my instructions.
74. THE VICE CHANCELLOR: Mr Stafford, I do not see why people should make up their minds on a thing like that just on a snap of the fingers. It seems to me that would be quite sensible.
75. MR STAFFORD: I respectfully agree.
76. THE VICE CHANCELLOR: And take some instructions, and if you communicate the result of them to Mr McGregor or your solicitors do to his solicitors then -- the order will not have been drawn up that quickly -- that can be put into the order and the order can be drawn accordingly.
77. MR STAFFORD: My Lord, yes.
78. MR McGREGOR: If not and we cannot agree should we have liberty to apply.
79. THE VICE CHANCELLOR: There is nothing I can do about that. If do you not agree then the injunction will be an injunction until trial or further order and that is how it will be.
80. MR McGREGOR: And the costs will be reserved.
81. THE VICE CHANCELLOR: No, they will not. I do not see why. I can deal with the costs now. Do you have a costs statement?
82. MR McGREGOR: No, my Lord, we have not, for the reason that we would not normally in an application of this kind where --
83. THE VICE CHANCELLOR: I am not sure about that, but the practice direction for some months now has said that if a party does not put in a cost statement it will be assumed he is not going to ask for them.
84. MR McGREGOR: My Lord, with respect, in relation to these kinds of applications it is impossible to assume that the costs will either follow the event or be awarded in any event because you do know at the trial what discretion the judge is going to exercise.
85. In many of these cases where an interlocutory injunction is granted the trial judge has determined that either no injunction should have issued or the injunction should have been limited to a period of time less than the interlocutory relief that is actually carried out at trial, so there are too many eventualities to try and finesse, so to speak, the matter of costs at this stage in a case of this nature. So I apologise if we have not put our costs in, we have thereby sacrificed our opportunity to do so.
86. The other reason why we say it was not appropriate for a summary assessment of costs is simply because, as your Lordship sees, a very great deal of evidence has been prepared. It has been a very heavy application and a very important one for both sides and, in my respectful submission, given the volumes of evidence, including one expert not yet divided for by any order of the court.
87. THE VICE CHANCELLOR: Expert! What on earth do you need expert evidence for?
88. MR McGREGOR: We did not.
89. THE VICE CHANCELLOR: Then you need not bother.
90. MR McGREGOR: We did not worry in the event of putting in a reply to that, but they went to the expense of that. My Lord, for all those factors we would contend that a summary determination of costs should be --
91. THE VICE CHANCELLOR: I will not insist on summarily assessing the costs. I cannot, because you do not have any figures. I think I will say that the costs judge is to consider whether a detailed assessment is justified in this case, and may take that into account in deciding how to deal with the costs of the assessment.
92. MR McGREGOR: My Lord, yes.
93. THE VICE CHANCELLOR: Mr Stafford.
94. MR STAFFORD: My Lord, I do not have anything to say with regard to costs, but I would ask for permission to appeal. If I was on the other side I would be opposing my own application saying, it is a matter of discretion and how are you expected to make the Court of Appeal differ from the exercise of discretion, but this is a case in which the discretion effectively follows the legal determinations. It is a contract which is complex. It has very great significance for Mr Christensen, and it also raises, in a fairly acute form, the problems that arise in connection with garden leave, and the interrelationship between the typical duties of fidelity, whether crystallised as express terms or its implied terms, and the covenants contained in this particular contract and, in my respectful submission, this is an appropriate case for you to grant permission to appeal.
95. MR McGREGOR: Your Lordship held that this was a matter of construction, and on that basis --
96. THE VICE CHANCELLOR: I think that this case turns on construction of the contract and an element of discretion, and I do not think that it is a case where leave to appeal should be given.
97. MR McGREGOR: My Lord, there remains finally the matter of the passages that we were concerned about in relation to --
98. THE VICE CHANCELLOR: Has Mr Stafford seen them?
99. MR STAFFORD: I have only just been handed them myself in the course of argument this afternoon. I cannot imagine I will have any sensitively about these matters, but it may be the sensible thing to do would be for me to take a few moments to consider them and communicate with Mr McGregor rather than detain you.
100. THE VICE CHANCELLOR: Yes, and if I might ask you both to reflect on the proposition that anything said in the course of this hearing should have been in secret would have been absurd, nothing whatever was said that was the slightest bit confidential.
101. MR McGREGOR: My Lord, yes.

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