Editor's Note

"To Be ... or Not To Be" a fiduciary is one of the most important questions to address when companies are looking at ways to combat "unfair competition". When a senior executive leaves and takes with him/her valuable information and contacts to help him in a new and competing business, there is no time to waste if the ex-employer wants to get a "springboard injunction" to prevent that executive and his new business unfairly taking advantage of that information and those contacts.

Restrictive covenants, of course, and confidentiality provisions in a contract are the first line of defence for any prudent employer. But if it is clear that the leaving executive was actually a "fiduciary" i.e. occupied a senior position like a director (whether formally appointed to the Board or not) then a whole new world of relief becomes available to the employer, not just against the fiduciary but also against anyone knowingly assisting him.

Where the "fiduciary" has either started setting up his new business whilst still at the old employer (very common) or, worse still, has taken with him a project or opportunity that he acquired and incubated whilst at his old employer (also sadly very common), the courts will bend over backwards to restrain the fiduciary from taking advantage of the information/business opportunity that he took with him. The case of Attwood v Woodward below shows that the courts continue to take a hard line against "fiduciaries" who cross the line. Long may it last!

My continued thanks and admiration to my colleagues Richard Trainer and Craig Timmis for the work they put into this issue.

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