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Courts can only correct obvious drafting mistakes to make restrictive covenants effective if the drafting is ambiguous. For example, if a contractual provision could have one absurd meaning and one commercially sensible meaning, a court may choose the commercially sensible meaning. But if the clause is unambiguous, the court will not rewrite the clause to avoid a meaningless result.
H’s contract prevented him, for twelve months after his employment ended, from working for a competitor if he was engaged ‘in connection with any products in or on which he/she was involved whilst employed …’ No competitors would provide systems with which H had been involved since he had only dealt with Prophet’s own products: but clearly the clause was meant to prevent his involvement in providing systems similar to those produced by Prophet. The High Court was prepared to add words to that effect to make the restrictive covenant achieve its purpose.
The Court of Appeal, however, held that the clause was unambiguous and only covered Prophet’s own products and not competing products. Prophet was therefore stuck with a ‘toothless restriction’.