In Prophet plc v Huggett  EWHC 615 (Ch), the High Court redrafted a 12 month non-compete covenant in order to make it enforceable.
Mr Huggett was the UK Sales Manager for Prophet plc ("Prophet"), a software developer for the fresh produce industry. He resigned to join K3 Business Solutions Ltd ("K3"), one of Prophet's direct competitors. Prophet sought an injunction to prevent Mr Huggett from starting work with K3 on the basis that his employment contract contained a non-compete covenant preventing him from selling any products with which he was involved during his employment for a period of 12 months following the termination of his employment. The High Court found that there had been an error in the drafting of the covenant. The reason for this was that, read literally, it was ineffective to protect Prophet because none of its competitors would sell Prophet's products which were the only products Mr Huggett would have been involved with during his employment with Prophet. The Court further found that the intention behind the covenant had clearly been to prevent Mr Huggett from selling products similar to those of Prophet (such as those sold by K3), and the minimum amendment necessary to achieve this was to add the words "or similar thereto" to the covenant. The Court held that the covenant as re-drafted was enforceable, and granted Prophet the injunction.
While it is common for courts to delete unenforceable parts of a covenant, this decision is very unusual in that the court added words to make it commercially effective and enforceable. However, it is worth noting that in this case, the Court found Mr Huggett to be a ‘thoroughly unreliable witness' and appears to have been influenced by this. It will be interesting to see whether other courts take a similar approach in the future. We think this unlikely.