What does "solicitation" mean in a post termination non solicitation clause?
In Towry EJ Limited v Barry Bennett and others, in a 350 page judgment handed down today Mrs Justice Cox held that it should be generally defined as meaning if an employee "directly or indirectly request[s], persuade[s] or encourage [s] clients of their former employer to transfer their business to their new employer" (para 440)
So far, so straightforward. However, how can an employer actually show that a former employee has solicited former clients in breach of a non solicitation clause? Can this solicitation be inferred only from the fact that a "tidal wave" of clients have moved across to the business where the old employees now work where there is no primary evidence of requesting, persuasion or encouragement by those employees?
In Towry, Mrs Justice Cox's answer was "no". The Claimnt was not able to show that those clients had not moved across out of a sense of loyalty towards their former employee rather than due to request/persuasion/ encouragement (para 884).
Mrs Justice Cox did not hold that a wholly inferential case would have been impossible (see para 893-4) just that the burden of proof rests firmly on the employer - who was placed in the unenviable position of cross examining a catalogue of its former clients.
This case demonstrates the key difference in strength between a "non dealing" post termination restriction and a significantly less strong "non solicitation clause". Had the employees had non dealing clauses in their contracts, their conduct would have been straightforwardly unlawful.