Case Law
Wallace Bogan & Co. v Gove and Others
[1997] EWCA Civ 973 (7 Feb, 1997)
Faccenda Chicken Ltd. v Fowler
[1987] Ch 117
The Guide to the Professional Conduct of
Solicitors 1999 (eighth edition).
Competition
Case Note: Wallace Bogan & Co. v Gove and Others
This case note first appeared on the Lancaster Buildings website in Oct 1997
Last updated 23 Dec 2005
In Wallace Bogan & Co. v Gove and Others [1997] EWCA Civ 973 the Court of Appeal considered whether there is an implied term in a solicitor's contract of employment against canvassing the clients of his former employer.
The Order Appealed against
By an order dated the 21 Jan 1997, Harman J had restrained members of a new firm of solicitors who had previously worked for the plaintiffs:
".. for 12 months or until after judgment …………. from doing the following acts or any of them that is to say canvassing or soliciting by letter or by any other means whatsoever, those clients who at 24 December 1996, were currently instructing or had not withdrawn instructions in relation to any ongoing matter with the [plaintiff] firm of solicitors….. and whose cases had been in the conduct of any of the First, Second, or Third Defendants herein."
None of those solicitors had covenanted against canvassing or soliciting clients after termination of their employment. Immediately after they left the plaintiffs they notified their clients of their departure and the formation of the new partnership. The judge had granted the injunction on the ground that there was a serious issue to be tried as to whether there was an implied term against canvassing and soliciting. To avoid the expense of a trial the Court offered the parties an opportunity to dispose of the issue under Order 14A of the Rules of the Supreme Court. Counsel for the plaintiffs submitted that the personal influence that a solicitor gains over a client arises from a confidential relationship.
The Judgment
The Court agreed that was so but held that it was not the issue. So far as the importation of an implied term against canvassing and soliciting was concerned the position of a professional man did not differ from that of anyone else. Applying Neill LJ's dicta in Faccenda Chicken Ltd. v Fowler [1987] Ch 117, the Court reasoned that the plaintiffs might have protected their connections by a restrictive covenant but failed to do so. The injunction was discharged and the action dismissed.
