PCCW - HKT TELEPHONE LTD AND ANOTHER v. DAVID MATTHEW MCDONALD AITKEN AND ANOTHER

PCCW - HKT TELEPHONE LTD AND ANOTHER v. DAVID MATTHEW MCDONALD AITKEN AND ANOTHER

The appeal is dismissed: the court will not extend the special remedy available against solicitors to a former employee merely because the employee had access to privileged information; legal professional privilege does not trump the policy against restraint of trade in this context; the trial judge correctly refused the broad restrictive order and correctly fashioned a particularised non‑disclosure injunction protecting specified confidential information.

Citation
PCCW - HKT TELEPHONE LTD AND ANOTHER v. DAVID MATTHEW MCDONALD AITKEN AND ANOTHER
Parties
1st Appellant (1st Plaintiff): PCCW HKT Telephone Limited; 2nd Appellant (2nd Plaintiff): PCCW Services Limited; 1st Respondent (1st Defendant): David Matthew McDonald Aitken; 2nd Respondent (2nd Defendant): Hong Kong CSL Limited
Court
Court of Final Appeal
Jurisdiction
Hong Kong
Judgment Date
13 February 2009
Case Number
FACV27/2008
Procedural Posture
Final Appeal (civil) to the Court of Final Appeal / Final Judgment (appeal Dismissed)
Outcome
Appeal dismissed
Legal Topics
Injunctions, Restrictive Covenants, Legal Professional Privilege, Restraint of Trade, Solicitor Fiduciary Duties, Scope of Confidential Information
Source Language
ET
Confidentiality Employment Law Equity and Trusts Administrative/telecommunications Regulation Professional Ethics Injunctions Restrictive Covenants Legal Professional Privilege +3 more

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Parties

PCCW HKT Telephone Limited

1st Appellant (1st Plaintiff)

PCCW Services Limited

2nd Appellant (2nd Plaintiff)

David Matthew McDonald Aitken

1st Respondent (1st Defendant)

Hong Kong CSL Limited

2nd Respondent (2nd Defendant)

Procedural Posture

Final Appeal (civil) to the Court of Final Appeal / Final Judgment (appeal Dismissed)

Legal Issues

  1. 1 Whether an employer can obtain an injunction restraining a former employee from being employed in matters to which confidential information acquired during employment may be relevant
  2. 2 Whether legal professional privilege justifies treating a former employee like a former solicitor for the purpose of extended injunctive relief
  3. 3 Whether the trial judge properly formulated an injunction in sufficiently precise terms to protect confidential information without unduly restraining employment

Ratio Decidendi

The appeal is dismissed: the court will not extend the special remedy available against solicitors to a former employee merely because the employee had access to privileged information; legal professional privilege does not trump the policy against restraint of trade in this context; the trial judge correctly refused the broad restrictive order and correctly fashioned a particularised non‑disclosure injunction protecting specified confidential information.

Court Disposition

Appeal dismissed

Orders

  • Order nisi that PCCW pay the respondents' costs
  • Parties granted liberty to file and serve written representations as to costs within 14 days and any written replies within a further 14 days