Sharpening the Blue Pencil - Can A Court Rewrite A Non-Compete Restriction?

Posted in : Supplementary Articles ROI on 29 August 2019
Karen Killalea
Maples Group
Issues covered:

In the recent UK Supreme Court case of Tillman v Egon Zehnder Ltd, the Court decided to amend the wording of a non-compete restriction. It deleted words which it regarded as both unenforceable and severable from the overall restriction. The decision is interesting because it looks in detail at the so-called 'blue pencil' test.

The key points from the judgment are:

  • The doctrine of severability permits a court to sever or delete words from a post termination restriction but it must exercise caution in doing so;
  • The unenforceable provision should be capable of being removed without the necessity of adding to or modifying the wording of what remains (the 'blue pencil' test);
  • The deletion of

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This article is correct at 29/08/2019

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Karen Killalea
Maples Group

The main content of this article was provided by Karen Killalea. Email +353 1 619 2037

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