Scottish Court of Session Decisions

[1] In this case which comes before me on the Motion Roll, the defender, Edward Power, seeks recall of an interdict pronounced by Lord Macfadyen on 11 July 2000. The effect of that interdict was, to interdict the defender directly or indirectly acting personally or through others on his behalf, from soliciting any client or work candidate of the pursuers' recruitment consultancy to transfer his custom to or otherwise deal with the defender or any recruitment consultancy business with which he is associated or by which he is employed. The interdict makes it plain that that interim period expires on 22 August 2000. The background to this matter emerges from the condescendence annexed to the Summons. It appears in distinction from the case that I dealt with this morning brought by the same pursuers against another former employee (Stuart Hallford) that in this case Mr Power, although he did the same kind of work according to the pursuers' averments and interviewed potential candidates for engagement, assessed their suitability, received notifications of vacancies from clients and matched candidates with vacancies, all as averred, had not been required to sign a contract of employment as in the previous case. It appears that all other recruitment consultants were engaged on written contracts, containing terms which provided for a 3 month period of notice. In the event, after doing such work for a number of months on a temporary basis from October 1999 and on a permanent basis with effect from 1 February 2000, the defender intimated his intention to cease to work for the pursuers with immediate effect. In other words, he gave no period of notice. He then went into business with the other former employee, Mr Stuart Hallford, in a business called KHS Personnel Scotland Ltd. The details of that company were not revealed to me although it was said that there was another person, Mr McCormack from Nottingham, was involved in that business. However, I can attach no significance to any of those details because they are not fully explained to me. The pursuers' position is that, although there was no written contract of employment, the position at common law was that, the contract of employment would be terminable by either party giving reasonable notice in all the circumstances of the employment. That proposition was not disputed by counsel for the defender and therefore the real issue in relation to whether or not was a prima facie case, is whether or not it is prima facie reasonable to accept the notional period which is suggested by the pursuers, namely a period of 2 months. It has not been suggested that this is a pure matter of law and indeed, it is expressly averred that it depends upon all the circumstances of the employment.

[2] Counsel for the defender founded upon the relative brevity of the period of employment. Counsel for the pursuers founded principally upon the character of the employment and the access to confidential information that it appeared to give. Against that background, I was again, as in the previous case, invited to look at the case of Thomas Marshall v Guinle in 1979 and to hold that, during the reasonable period, there was a duty of fidelity and good faith which gave rise to certain particular duties; and these duties would include a duty not to solicit clients in the manner sought to be interdicted. I am satisfied that there is a prima facie case that such duties survive the termination of the employment even in the absence of any contract of employment specifying a period.

[3] I have had very much more difficulty in relation to the question of length of the period, but I have had regard to the character of the employment and to the responsibility that goes with that particular employment. I have also had regard to the fact, which is not contradicted, that the pursuers normally offer into a contract which provides for a 3 month period of notice and that their employees accept that period. In these circumstances, I consider that it would be impossible for me to hold that a period of 2 months was excessive. It appears to me that there is a reasonable prima facie case that a period of 2 months is a reasonable period in the sense in which that term is used in the cases quoted.

[4] I was concerned with the breadth of the interdict because as was pointed out, the defender might not know the identity of each of the clients or work candidates of the pursuers' recruitment consultancy. However, the answer to that does appear to me to be found in the cases quoted to me by Mr Sandison, Agma Chemicals in 1984 and the Plowman case in 1964. In all the circumstances, I am persuaded that there is a case to try; the pursuers have some substance in their case.

[5] In relation to the balance of convenience, it was not suggested by Miss Carmichael that there was a strong case in her client's favour in this regard, and I consider that there is considerable strength in the pursuers' position here because the defender would be in a position to harm their business if he used this information. The period is short, but that does not affect the principle of the matter. In all the circumstances, I have been persuaded that I should not recall the interdict and I shall therefore refuse the motion inviting me to do so. I have been invited to award the expenses to the pursuers and that motion was not opposed. I shall therefore make such an order.