"a man or woman usually does not enter into employment solely for the money: a job is status, reputation, a way of defining one's self-worth, and worth in the community. It is also essential to financial security, offering assurance of future income needed to repay present debts and meet future obligations ... in short, 'in a modern industrialised economy, employment is central to one's existence and dignity' (Gould [1986] BYUL Rev 885, 892)."
"... Employers must take care not to damage their employees' future employment prospects by harsh and oppressive behaviour or by any other form of conduct which is unacceptable today as falling below the standards set by the implied trust and confidence term." (c) it must be the employer, and not merely rogue employees of the employer, who are carrying on the corrupt or dishonest business: "
"An employer seeking to employ a messenger, for instance, might be wholly unconcerned by an applicant's former employment in a dishonest business, whereas he might take a different view if he were seeking a senior executive"; (3) Lord Steyn (at p.47C) plainly envisaged that, even in the case of branch managers such as Mr Mahmud and Mr Malik, proof of handicap on the labour market might be difficult: "these relatively senior bank employees may be able to establish as a matter of fact that the corruption associated in the public mind, and in the minds of prospective employers, with the bank may have undermined their employment prospects. They may conceivably be able to prove that in the financial services industry they were regarded as potentially tarnished and therefore undesirable employees to recruit. In that way these particular employees may be able to sustain their assertions of fact that they have suffered financial loss"
"Before one can consider the principle on which one should calculate the damages to which a plaintiff is entitled as compensation for loss, it is necessary to decide for what kind of loss he is entitled to compensation."
"The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past the court decides upon a balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards."
"... where the plaintiffs' loss depends upon the actions of an independent third party, it is necessary to consider as a matter of law what it is necessary to establish as a matter of causation, and where causation ends and quantification of damage begins. (1) What has to be proved to establish a causal link between the negligence of the defendants and the loss sustained by the plaintiffs depends in the first instance on whether the negligence consists of some positive act or misfeasance, or an omission or non-feasance. In the former case, the question of causation is one of historical fact. The court has to determine on the balance of probability whether the defendant's act, for example the careless driving, caused the plaintiff's loss consisting of his broken leg. Once established on balance of probability, that fact is taken as true and the plaintiff recovers his damage in full. There is no discount because the judge considers that the balance is only just tipped in favour of the plaintiff; and the plaintiff gets nothing if he fails to establish that it is more likely than not that the accident resulted in the injury. Questions of quantification of the plaintiff's loss, however, may depend upon future uncertain events. For example, whether and to what extent he will suffer osteoarthritis, whether he will continue to earn at the same rate until retirement, whether, but for the accident, he might have been promoted. It is trite law that these questions are not decided on a balance of probability, but rather on the court's assessment, often expressed in percentage terms, of the risk eventuating or the prospect of promotion, which it should be noted depends in part at least on the hypothetical acts of a third party, namely the plaintiff's employer. (2) If the defendant's negligence consists of an omission, for example to provide proper equipment, given proper instructions or advice, causation depends, not upon a question of historical fact, but on the answer to the hypothetical question, what would the plaintiff have done if the equipment had been provided or the instruction or advice given? This can only be a matter of inference to be determined from all the circumstances. ... Although the question is a hypothetical one, it is well established that the plaintiff must prove on balance of probability that he would have taken action to obtain the benefit or avoid the risk. But again, if he does establish that, there is no discount because the balance is only just tipped in his favour. ... (3) In many cases the plaintiff's loss depends on the hypothetical action of a third party, either in addition to action by the plaintiff, as in this case, or independently of it. In such a case, does the plaintiff have to prove on balance of probability, ... that the third party would have acted so as to confer the benefit or avoid the risk to the plaintiff, or can the plaintiff succeed provided he shows that he had a substantial chance rather than a speculative one, the evaluation of the substantial chance being a question of quantification of damages? ... I have no doubt that ... the second alternative is correct. ... In Spring v. Guardian Assurance Plc.[1995] 2 AC 296 the House of Lords held that an employer who negligently gave a bad reference for the plaintiff, their former employee, might be liable to him in damages. The case was remitted to the Court of Appeal for the assessment of damages, the plaintiff's case being in essence that he failed to obtain employment with a third party because of the adverse reference. The defendant's case was that the third party would not have employed him anyway. Lord Lowry expressed the opinion obiter, at p.327: 'Once the duty of care is held to exist and the defendants' negligence is proved, the plaintiff only has to show that by reason of that negligence he has lost a reasonable chance of employment (which would have to be evaluated) and has thereby sustained loss: McGregor on Damages, 14th ed. (1980), pp. 198-202, paras. 276-278 and Chaplin v. Hicks[1911] 2 KB 786 . He does not have to prove that, but for the negligent reference, Scottish Amicable would have employed him.' I respectfully agree with that statement of the law ... But, in my judgment, the plaintiff must prove as a matter of causation that he has a real or substantial chance as opposed to a speculative one. If he succeeds in doing so, the evaluation of the chance is part of the assessment of the quantum of damage, the range lying somewhere between something that just qualifies as real or substantial on the one hand and near certainty on the other."
"You can prove that a past event happened, but you cannot prove that a future event will happen and I do not think that the law is so foolish as to suppose that you can. All that you can do is evaluate the chance. Sometimes it is virtually 100 per cent: some times virtually nil. But often it is somewhere in between."
"The crucial question is whether the onus remains on Miss Nestle to prove loss for which fair compensation should be paid or whether it is enough for her to claim compensation for loss of a chance (as in Chaplin v. Hicks[1911] 2 KB 786 ) that she would have been better off if the equities had been properly diversified. The starting point must, in my judgment, be that, as Miss Nestle is claiming compensation, the onus is on her to prove that she has suffered loss because between 1922 and 1960 the equities in the annuity fund were not diversified ... In some cases it is sufficient to prove loss of a chance because in such cases, as in Chaplin v. Hicks, the outcome, if the plaintiff had not lost the chance, can never be proved. But in the present case, if the annuity fund had been invested wholly in fixed interest securities, it would have been relatively easy to prove, even though the event never happened, that the annuity fund would have been worth more if a substantial part had been invested in equities. Consequently, fair compensation could have been assessed. Equally it would have been possible, even though much more difficult and expensive, to prove, if it be the fact, that the equities in the annuity fund would have performed even better if diversified than they did as concentrated in bank and in insurance shares. But Miss Nestle has not provided any such proof ...."
"In my judgment, either there was a loss in the present case or there was not. Unless there was a loss, there was no cause of action. It was for the appellant to prove on balance of probabilities that there was or must have been a loss. If proved, the court would then have had to assess the amount of it and for the purpose of doing so might have had recourse to presumptions against [wrongdoing trustees]. In short, if it were shown that a loss was caused by breach of trust, such a presumption might avail the appellant in quantifying the loss. The appellant's difficulty is in reaching that stage."
"Negotiations may depend on the will of the parties and neither party was under any obligation at that stage to agree anything. But it is unrealistic to treat the outcome of further negotiation between commercial parties as arbitrary and wholly unpredictable. Those with experience of commercial negotiation are able, with a reasonable degree of accuracy, to form a view of what can be achieved by such negotiation. The present was such a case. It is possible to make an informed judgment of what the chances were of achieving certain results. The situation is certainly less speculative than that in Chaplin v. Hicks[1911] 2 KB 786 (the beauty competition case) or Dunbar v. A&B Painters Ltd[1986] 2 Lloyd's Rep 38 (the underwriter's waiver case). On the evidence before him the judge ... was entitled to find that, if the plaintiffs had negotiated further, they had a measurable chance of negotiating better terms which would have given them at least some protection against liability."
"The reported cases on the loss of a chance may be grouped into three categories. There are first those cases where the outcome is not dependent on the unrestricted volition of a third party, since his decision must be justifiable by objective criteria. Into this category fall the cases of the loss of the right to be a finalist in a competition (Chaplin v. Hicks[1911] 2 KB 786 ) or to bring legal proceedings (Kitchen v. Royal Air Force Association[1958] 1 WLR 563 ). In these cases the plaintiff has clearly lost something of value and its value must be assessed however difficult the task may be. The prospects of ultimate success (or, in the case of litigation, of receiving an offer of settlement) may be less than 50 per cent, but they are nevertheless capable of objective evaluation. Secondly, there are those cases where the outcome depends upon whether a third party who had been properly advised would have acted in accordance with his own best interests.... In these cases there is obviously a very strong probability that the third party would have acted in his own interests. and accordingly the plaintiff is likely to be awarded the full amount of his damages less a discount to allow for the possibility that something might have occurred to prevent his doing so. Thirdly, there are cases where the outcome appears to depend on the unrestricted volition of a third party but there are objective considerations which make it possible to predicate how he would have acted. Into this category fall Hall v. Meyrick[1957] 2 QB 455 (where the outcome depended on whether a man who had already made a will in favour of his fiancee would have made a fresh will in her favour after his marriage to her if advised that this had had the effect of revoking it-clearly a strong likelihood and such as to make the case virtually indistinguishable from the second category): Dunbar v. A & B Painters Ltd[1986] 2 Lloyd's Rep 38 (where the outcome depended on whether an insurance company would act against its commercial interests; again unlikely and virtually indistinguishable from the second category); and Richardson v. Mellish (1824) 2 Bing. 229 (where evidence of the third party's customary practice was available). Spring v. Guardian Assurance Plc.[1995] 2 AC 296 probably falls into this category. ... The 'chance' of which the plaintiffs claim to have been deprived is the chance that they might have negotiated better terms from their vendors. In the absence of evidence from Gillow, what would have been the outcome of such negotiations is a matter of pure speculation. No case has gone so far as to allow damages in such a situation, and in my view it would be wrong to do so. The nearest is Davies v. Taylor[1974] AC 207 , where the outcome depended on whether a married couple who had separated would have had a reconciliation; it was held that this was too speculative to sound in damages. I call to mind the words of Vaughan Williams LJ in Chaplin v. Hicks '[1911] 2 KB 786 , 792-793: 'There are cases, no doubt, where the loss is so dependent on the mere unrestricted volition of another that it is impossible to say that there is any assessable loss resulting from the breach'; In my judgment this is just such a case."
"(1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail. (2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves ... (3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by a Tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s.65(2)(b) of the 1976 Act from an evasive or equivocal reply to a questionnaire. (4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the Tribunal will look to the employer for an explanation. If no explanation is then put forward or if the Tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May LJ put it in Noone, 'almost common-sense'. (5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the Tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case." see King v. The Great Britain - China Centre[1992] ICR 516 at 528 per Neill LJ ("
"In my view, if it was reasonably foreseeable that a particular type of loss of this character was a serious possibility, and loss of this type is sustained in consequence of a breach, then in principle damages in respect of the loss should be recoverable."
"... we think that industrial tribunals should be very slow indeed in finding reasonable a decision of a dismissed employee not to accept subsequent employment because thereunder he would be receiving less than the unemployment benefit or any other benefit that he might be obtaining from the state. There are many cases, and it may be the majority of cases, in which it is better not only for the individual himself, but also for society at large, that a man has a job, albeit at a lower salary than he would wish or at a lower salary than he might be able to obtain from other sources. Particularly in days of high unemployment possession of a job is, in itself, a very valuable asset."
"Individual Case Histories 117. The following histories are based on Witness Statements in addition to information provided at interview with the individuals concerned. It is considered that an interview was worthwhile because it assisted the conclusions as to whether an employee had personal qualities rendering him or her suitable or unsuitable for employment."
"ETHNIC PENALTIES Racial disadvantage, then, continues to be a fact, even if it does not apply to all ethnic minority groups. Moreover, this disadvantage is attributable partly to discrimination in employment. Controlled tests, whereby white and ethnic minority persons respond to advertised vacancies for which they are equally suitable, have been conducted since the 1960s and tend to reproduce the result that at least one third of private employers discriminated against Caribbean applicants, Asian applicants or both ... Discrimination is found not just in face-to-face encounters, or in telephone calls, but also in tests using written applications where it is clear from the applicant's name or biographical details that they are or are not white. ..."
"I also recognise that and accept that there is discrimination in the labour market, but I think it is extremely difficult to decide in any one specific case as to whether or not a person has been discriminated against."
"I thought it would be inappropriate to employ Mr Khan, given the strong feelings about [the Bank] within the community in which I worked."
"Thank you for attending the interview on Tuesday7 March 1992 . Unfortunately your application was unsuccessful. Although you proved to be an ideal candidate for the position of the Senior Accounts Clerk we regret that your background and links with the Bank of Credit and Commerce influenced the panels' decision in rejecting your application. May I also take this opportunity of apologising for the comments made by a member of the interview panel. The comments were unjust but you will no doubt accept that such comments are unfortunately common knowledge world wide and reflect the international publicity expressing the general view of the business community. You will appreciate that many thousands of depositors who have lost their investments with the notorious BCCI; many of whom could well be our clients; and we cannot risk business opportunities by employing anyone connected to the formerly collapsed and bankrupt bank, BCCI. This is not a personal comment on your character. It is also regretted that the only experience of work that you have is with BCCI. You have not worked anywhere else in your financial career. Thank you for showing your interest in this client.
"Human suffering is the first call we must answer"
" ... I constantly receive letters of rejection or letters advising me that I would have been suitable for a position if only I did not have [the Bank] on my curriculum vitae."
"Good routine worker, attends to the customers satisfactorily. Must improve communications skills."
"9. I understand that the Liquidators are now alleging that I was unable to find work, not because of the stigma of my association with [the Bank] but because of my ethnic origin and race. They appear to have labelled me incorrectly as being 'of Pakistani origin ...'. 10. Therefore although I have only lived in India for three years, I consider myself of Indian origin rather than Pakistani or Burmese."
"Dear Mr Mayet POSITION IN OUR TRADE FINANCE DEPARTMENT We refer to your recent application for a position in our company and thank you for the interest in our company. While we appreciate your varied experience in Trade Finance which can be useful to our company, we regret to say that your recent employment background and the adverse publicity received by your previous employer will not be helpful in promoting our business. We trade in a very sensitive market and all our marketing and business promotion is based on personal contacts and relationships developed on individual basis. Although we received excellent references about you from our contacts in the kingdom [sic] but it is with great regret that we have to decline your application. We wish you best of luck in your future endeavours. Yours faithfully [signed] A.Deia General Manager"
"Q. 'You do not have to tell the truth if you do not think that lying will harm [the prospective employers]?' A. 'It depends upon the situation. But it is not a criteria.'"
"Since being on holiday I have been vigorously seeking alternative employment and have had interviews with prospective employers. Furthermore I have several other interviews lined up in September 1990."
"I have no savings and the present employment conditions in UK, are so worse that it is extremely difficult, if not unlikely, for any one to find a suitable job in the immediate future. The meagre redundancy package, as it is, will not last for more than few months. Please donot (sic) ask me to compromise the future of my family and children and forego a very substantial amount for no fault of mine."
"On my return from leave there had been a number of communications from Mr Zafar awaiting my attention. They were as follows: A memorandum dated the 10th of September referring to staff luncheon vouchers. It contained a number of very scurrilous statements about Mr Iqbal Rizvi, who Mr Zafar sees as his persecutor. It did not really deal with the question of what Mr Zafar intended to do about his luncheon vouchers but suggested that Mr Iqbal Rizvi had used his position in the Bank to advance his and his family's situation. Asked what Mr Zafar intended that I should do with this communication he said nothing, only hold it. The point is that he also is pursuing his claim for unavailed holiday of 65 weeks and will not accept that this is a totally unacceptable basis of claim .... Finally, Mr Zafar informed me that he is negotiating with Mr Iqbal Zafar [Chowdhery], the newly appointed Chief Executive Officer, for reinstatement. He has given me a copy of a memorandum dated22nd June 1990 and26th September 1990 , which he has apparently forwarded to Mr Iqbal Zafar, he is making allegations of unfair dismissal against his redundancy and once again blaming Mr Iqbal Rizvi for his situation. No-one has discussed this situation with me although they are mindful of the fact that he has at this time caused the Bank to be involved in its first sexual harassment case, even though he claims that the applicant, Linda Bradford, is lying. This is a costly, protracted and unwelcome action which even if some of the allegations against him are untrue, mainly comes about because of Mr Zafar's peculiar style of man-management. ... The one substantiated claim that he makes regarding his own circumstances is the fact that he was in salary review rated outstanding in 1986/87, 1987/88, 1988/90. He claims to have been an effective manager in a heavy profit-making area but it is also appropriate to note that Mr Zafar has a very strong and determined personality of which his Executive in Charge would have been no equal and one wonders whether the assessment was given on the basis of contribution or to avoid confrontation...."
"[Mr Houssami] feels that his position is threatened [by me], which he should not"
"It was felt that this appointment (Assistant Managing Director), if at all required, should have first been cleared with the Bank of England as per their requirement, more particularly because of [Mr Zafar's] past association with the [Bank]. The Managing Director informed the committee that Mr Zafar has refused to accept the new designation when conveyed to him in the Letter of Appointment issued by the Managing Director and that he has sent his Form 3 to the Bank of England himself. After considering the matter carefully, the committee decided that a fax be sent to Dr Hassan from [Lord Denman] in order to take such action as is necessary."
"Dear Dr Hassan, At a meeting of the Standing Committee on 8.7.91, we reviewed the position of Mr Iqbal Zafar. Sadly, it seems that the decision to employ him as Assistant General Manager offered in your letter of19 June 1991 has not been accepted by Mr Zafar. He seems to regard this as a demotion. He has the letter of26 May 1991 signed by your brother outlining nine itemised responsibilities and he regards this as his brief. He has personally sent his C.V. and Form 3 to the Bank of England. This will appear to the Bank of England that the Board have approved the appointment as Assistant Managing Director. The very recent suspension of BCCI and the specific mention in Monday's Financial Times (copy attached) of the auditors anxieties in regard to several BCCI operations in Africa with specific mention of Kenya and Nigeria must, in our view, make our Board unable to endorse the appointment of any BCCI personnel, at least for some time. We now feel in a position of serious embarrassment opposite the Bank of England and the repute of our Bank in the marketplace. We must recommend and ask for your concurrence that we suspend Mr Zafar from duties so that we can explain our position to the Bank of England and the other enquiries. We feel this should be done forthwith. We had hoped to resolve this tiresome matter quietly, but believe the BCCI events have overtaken this strategy. Owen Rout and Hani Houssami are fully aware of this message. Yours sincerely, Lord Denman The "tiresome matter" referred to was the dismissal of Mr Zafar: in his view on any basis Mr Zafar had to go. On the 11th Lord Denman sent a further fax to Dr Hassan. He said that the Bank of England had raised the question of Mr Zafar and the reply had been given that the non-executive directors had the matter under consideration; that the Bank of England was alarmed at the serious charges against the Bank; and that by recommending suspension no final decision was being taken but time would be gained to consider all aspects of "this awkward predicament"
"OHR [Mr Rout] - IZ's [Zafar's] actions: BCCI contact + Resign - due to BCCI - otherwise you will hear from [solicitors]."
"10. Since losing my employment with AIBL, I have made several hundred applications to prospective employers. The tragedy is that despite being professionally qualified FCIB, I have not been able to secure alternative employment anywhere. I have been told many times on my face that although I have the relevant qualifications, background and experience but I cannot be offered a job due to BCCI's stigma and its reputation in the market place. To name few, I have been told this on my face by Qatar Islamic Bank, Saudi International Bank DMI Banking Group, American Express, Coutts and Co, Hong Kong Shanghai Bank, Bank of Nova Scotia, Banque Indosuez, Citibank, United Bank of Kuwait plc, Merryl Lynch Bank, Prudential-Bache, Union Bank of Switzerland, Banque National de Paris, Goldman Sachs, etc. and amongst the Employment Agencies by Jonathan Wren, Sheffield-Howarth, Devonshire executive and N.B. Selection Limited, etc."
"Was it BCCI factor?"
"We would not have wasted his or our time interviewing him if this was the case"
"With [my background in banking] and the fact that my name is on [the] Bank of England's Approved List for the purpose of [the]Banking Act 1987 [sic]. I trust that your decision is not in anyway the reflection of the rather unfortunate and damaging negative publicity surrounding BCCI's closure in July 1991 who, as you know, were my employers until 1991. Your response will certainly bring clarity to my mind."
"I trust that my previous employment with BCCI and the unfortunate negative publicity attached to this name was not the determining factor for [the clients] decision."