[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Accounting, Secretarial & Personnel Ltd (t/a " Asap Recruitment") v Hallford [2000] ScotCS 222 (10 August 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/222.html Cite as: [2000] ScotCS 222

[New search] [Help]

[1] This case comes before me on the Motion Roll. The defender invites the Court to recall the interim interdict pronounced by the Lord Ordinary on 11 July 2000. It was accepted by counsel for the pursuers that the interdict as pronounced was not in the correct or intended terms. The error arose from the typing of Conclusion No 1 in the Summons. As framed, the words restricting the geographical reach of the Conclusion and the time envisaged by the Conclusion appear as if they are related to Paragraph (b) only. In fact the intention had been to have these restrictions applicable both to Paragraph (a) and to Paragraph (b). In the course of the debate, counsel for the pursuers undertook to seek an appropriate amendment and I proceed upon the basis that the invitation from the pursuers is to recall the interdict as pronounced and to pronounce it in terms applying the geographical and time restrictions originally intended.

[2] The principal argument advanced by Miss Carmichael for the defender was that there was no prima facie case in favour of the pursuers. She pointed to the fact that the interdict was based upon a contract and that the effect of giving effect to the contract by pronouncing the interim interdict would be to prevent the defender from obtaining employment or dealing in the ways envisaged by Paragraph 1(b) of the Conclusions within a very large geographical area. The area was in fact 30 miles radius round each of the three centres in Hamilton, Livingston and Cumbernauld in which the pursuers traded. This, she pointed out, meant that virtually the whole of the Central Belt of Scotland fell within the ambit of geographical restrictions. She also drew attention to the fact that the nature of the pursuers' business was that they dealt essentially with clients who were potential employers and they assisted those clients to find suitable employees for work whether on a temporary or a non-temporary basis. Against that background she drew the Court's attention first of all to the summary of law which is contained in the Opinion of the Lord Ordinary, Lord Johnston, in Jack Allan v Smith 1999 SLT 820. Counsel for the pursuers accepted that the statement of law by the Lord Ordinary there was accurate and applicable in a case of this kind but he drew attention to the very different facts in that particular case. Miss Carmichael however, had not sought to found upon the particular facts, merely upon the statement of law; and I am content to accept as both parties urged upon me, that the Lord Ordinary there stated the law accurately, albeit in broad terms. Miss Carmichael also drew my attention to an English case Office Angels 1991 1 RLR 214 and to the facts and circumstances there. She drew my attention to the observations by the Court in that case, notably in paragraphs 56 and 57 relating to the geographical reach of the contract and the restriction and upon the relationship between the plaintiffs and their clients. She submitted that that case was very similar to the present case. Her argument essentially was that it was clear that the contract in the present case, and therefore the interdict, went far too wide and was neither necessary to protect the pursuers' interests nor likely to be effective to do so. In relation to the balance of convenience, she pointed out that the effect of the interdict would be to preclude the defender from doing the work in which he was qualified and skilled anywhere in Central Scotland; in effect he would lose his present job. She also said that there was under consideration a live issue of constructive dismissal. However, she acknowledged that no such claim had been intimated to the pursuers or indeed to anyone else. The matter was simply under consideration between the defender and his legal advisers.

[3] Counsel for the pursuers in reply pointed out that matters of this kind had been discussed in a number of cases and in particular he referred to PR Consultants (Scotland) Ltd v Mann 1997 SLT 437; to the case of AGMA Chemical Co Ltd v Hart 1984 SLT 246 and to Thomas Marshall Exports v Guinle 1979 Ch. 227. The first of these cases demonstrated the rationale lying behind the approach of the Court of this branch of the law and he referred to a number of passages, which I will not quote at length here because I consider it to be unnecessary. He referred to the AGMA Chemicals case as giving guidance to the Court about approaching any suggestion that geographical restrictions might be too wide; that case warned that the approach to, and a judgment on, such a matter was not to be made on too narrow a basis at the stage of interim interdict.

[4] He also referred forcibly to the fact that the first Conclusion with which we are concerned today relates to a period of time which is the same as period of notice in the defender's contract with the pursuers. The background to that is that the defender gave notice by letter which is a production in the case dated 29 June 2000 in which he intimated that he was intending to leave the employment of the defenders immediately. The first sentence reads, "After due consideration I have decided that I can no longer work with you and therefore tender my resignation with immediate effect". Insofar as the prima facie case was concerned, the argument was that the employee's duty of fidelity and good faith survived the giving of such notice because, although the Court could not compel an employee to work, nonetheless the Court could compel compliance with duties of that character which were part of the contract; that was the matter in respect of which the case of Thomas Marshall Exports v Guinle was quoted as authority. In other words, the common law duties there referred to warranted the granting of the interdict in the terms quoted.

[5] In my opinion, there is clearly a prima facie case here. I accept the arguments which Mr Sandison, for the pursuers, has advanced in this regard. We are concerned here with a limited period of time and it is in fact the period of time in respect of which the notice was required under the contract of employment. For the reasons that Mr Sanderson has advanced, supported by the authorities quoted I am satisfied that there is clearly a case to try.

[6] The other matter for consideration is the balance of convenience. In my view the balance of convenience heavily favours the pursuers here. The main consideration advanced by Miss Carmichael for the defender was that the defender was precluded from doing his job anywhere in Central Scotland. That may be so, but if it is so, he appears to the be author of his own misfortune in that respect, having regard to his decision by the letter of 29 June to leave the employment of the pursuers with immediate effect. It also appears from the other material before the Court that within a very short time, certainly within a matter of days, he was operating in a different capacity and, it is averred, using information obtained in the course of his employment with the pursuers and to further his interests in that employment. In all the circumstances, I am satisfied that I should do what I have been invited to do, recall the interdict as pronounced and pronounce interdict in the terms of the Conclusion which I understand will be amended to show both the time a geographical restrictions applied to Paragraph (a) as well as to Paragraph (b).

[7] The pursuers moved for the expenses of the motion; that motion was not opposed. I shall therefore grant the pursuers the expenses of today's proceedings and indeed the motion for recall of interdict.