Mark Dowding v The Character Group Plc [2025] EWHC 1755 (KB)

“48. The Defendants are responsible for putting a forged copy of the first 2 August 2017 Tosca Email … before the Court in the Original Action/SO/SJ Application Hearing; the version presented does not include the Claimant’s email address on its face, when the fact is he was an email recipient of the original email sent at the time on 2 August 2017. 49. The Defendants are responsible for putting a forged Fitzrovia Report before the Court, Allenby has acted as agent for TCG in the production and deployment of Fitzrovia Report which contains an inauthentic signature and attachments purported to be metadata copies of the four 2 August 2017 Tosca Emails but which do not show the Claimant as an email recipient when the Defendants know the Claimant was an email recipient and the Defendants know the Fitzrovia Report’s attachments are not authentic documents and the conclusions on Fitzrovia Report are fraudulent and there has been a misleading of the Court by way of deliberate fraud by Allenby as agent of Defendants and by the Defendants.”

“18. Tosca were considering investing in Character through one of its funds managed by Matthew Siebert (“Mr Siebert”). Tosca wanted to meet the Character executive director presentation team, as recommended by the Defendant. 19. On 2.8.17 Ms Nahal, emailed Mr Shah and the Claimant requesting “Dates for Tosca please xxx” or words to that effect (“Tosca Email 1”). 20. Mr Shah responded to Tosca Email 1 on 2.8.17, copying in the Claimant (“Tosca Email 2”). 21. Ms Nahal responded to Tosca Email 2, 2.8.17 copying in the Claimant (“Tosca Email 3”). 22. Ms Nahal followed Tosca Emails 1,2 and 3, at 13. 29 on 2.8.17 with a new email chain titled: “Maybe just you and Mark” (“Tosca Email 4”). 23. Ms Nahal sent Tosca Email 4 to Mr Shah and the Claimant. … 43. Mr Shah and or Character submitted into disclosure in the ET Claim, documents, in a materially adjusted form compared to the authentic original documents. 44. Included within these false / fake documents were adjusted copies of: 2.8.17 Tosca Email 1 showing a false time of 13.05, 2.8.17 Tosca Email 2 showing a false time of 13.35 and 2.8.17 Tosca Email 3 showing a false time of 13.36 (“Fake Tosca Emails 1,2 and 3”). 45. Fake Tosca Emails 1, 2 and 3, inaccurately do not show the Claimant’s email address as him being a recipient despite him receiving the original emails. 46. Fake Tosca Emails 1, 2 and 3, show inaccurate time stamps of 13.05, 13.35 and 13.36. 47. Mr Shah and or Character did not disclose any of the authentic original Tosca Emails 1,2,3,4 in the ET Claim; this was known at all material times by the Defendant. 48. On 18 December 2018 Ms Nahal sent Mr Shah an email attaching a pdf of what she purported to be a (true) copy of 2.8.17 Tosca Email 1 showing a time of 13.05 (“Fake Allenby Tosca Email 1”). 49. Fake Allenby Tosca Email 1 inaccurately does not show the Claimant’s email address in the sent to box despite the fact he was sent the original email Tosca Email 1. 50. Fake Allenby Tosca Email 1 is not an accurate copy of the original email document, it is a forgery, and this was known at all material times by Ms Nahal, Allenby, Mr Shah and Character. 51. Fake Allenby Tosca Email 1 was manufactured from the original Tosca Email 1 by Ms Nahal and or by Allenby and or by Mr Shah and or by Character. 52. The Defendant has refused to divulge whether it was Ms Nahal and or Allenby who manufactured Fake Allenby Tosca Email 1 or whether it was manufactured by Mr Shah and or Character. 53. The creation of Fake Allenby Tosca Email 1 constitutes an unfair and unlawful processing of the Claimant’s personal data. 54. The sending of Fake Allenby Tosca Email 1 by Ms Nahal/Allenby to Mr Shah/Character constitutes an unfair and unlawful processing of the Claimant’s personal data. 55. The Claimant’s email address appears on the four authentic original unaltered Tosca 2.8.17 emails 1, 2, 3 and 4, (“Original Unaltered Tosca Emails”). Those emails are about the Claimant and his email address appears on them, the information therein constitutes Personal Data of the Claimant as defined by GDPR and or DPA 2018.”

“The matter is not made any better, from Mr Dowding’s point of view, by the consideration that the nature of the documents that he seeks - and it is mostly documents that he is pressing for - has changed over time and seems to be under a process of continuous evolution and indeed amplification. His most recent letter of 24 April 2024, I think probably, even on its face, flags up a yet further data subject access request, and has within it under the headings “Personal data contained in specific documents that are believed to exist” and “Personal data believed to be contained in the following classes of documents” a list of 48 categories of documents. The Defendants submit that it is quite clear that the Claimant’s motivation is all to do with complaints about the dismissal process, which has already been dealt with, and a refusal to accept the findings of the Employment Tribunal. The Defendants submit - and I agree – that this is exemplified by the language of the Claimant’s letter dated 24 April 2024. For reasons that I have already indicated, it seems to me not only that this is right, but also that in all the circumstances this is not an appropriate or desirable exercise of the Claimant’s data subject access rights.”

“…the court’s ability to make interlocutory costs orders following, in particular, the Access to Justice reforms in 1998, is a sanction which is available to it in order to encourage responsible litigation. The court marks what it regards as an irresponsible application by an immediate order for the payment of costs. That is intended to bring home to a party – when considering whether to make an application – that an unsuccessful application may carry a price which will have to be paid at once. If the court is not in a position to enforce immediate interlocutory orders for the payment of costs which it was thought right to make, then the force of that sanction is seriously undermined. It is important that, in cases where the court thinks it right to make an order for immediate payment on an interlocutory application, that it does have the power – and can exercise the power – to ensure that order is met. For the reasons which Patten J explained, the only effective sanction in a case of this nature is to require payment of interlocutory costs as the price of being allowed to continue to contest the proceedings. Unless the party against whom an order for costs is made is prepared to, or can be compelled to, comply with, that order, the order might just as well not be made.”

“In any event I take the view that orders of the court, even in relation to interim costs, require to be complied with and that, unless there is some overwhelming consideration falling within Article 6 [ECHR] that compels the court to take a different view, the normal consequence of a failure to comply with such an order, is that the court, in order to protect its own procedure, should make compliance with that order a conditionof the party in question being able to continue with the litigation.”

“For my part, I would hold that – whether or not a statement in such general terms can be supported – the proposition can be supported in a case (such as the present) where there is no other effective way of ensuring that the interim costs order is satisfied. That, of course, is always subject to what the judge referred to as the overwhelming consideration falling within Article 6: that orders requiring payment of costs as a condition of proceeding with litigation are not made in circumstances where to enforce such an order would drive a party from access to justice. But, for the reasons that the judge explained and towhich I have already referred, this was not such a case.”

“I ask the Court to infer from the Defendant’s (sic) failure to deny any single allegation that the reason for that can only be they are unable to deny the allegations and there is agreement to the facts as alleged and that the Court has been misled and that includes the use of known to be forged documents in the SO/SJ Application evidence.” (6) Steps on the route to that conclusion include the following: - The Supreme Court decision in Takhar v Gracefield Ltd and others [2019] UKSC 13 establishes the relevant principles to be applied in the Fraud Proceedings which, in summary, support the maxim “fraud unravels all”. - Decisions such as Takhar and Salekipour & Anor v Parmar & Others [2016] EWHC (QB) establish that claims for set aside for fraud are claims dealing with the misleading of the court in a different original action, and therefore any application for strike out as an abuse of process will fail. - Freshacre Properties Limited v Kang [2025] EWHC 487 (Ch) establishes that for there to be valid judgment on the point of whether a document is or is not a forgery requires a trial with pleadings. Without pleadings and/or a pleaded response, any finding on the question of forgery is therefore unsustainable. - The decision of the Court of Appeal in Rawding v Seaga UK Limited [2015] EWCA Civ 113 considered evidence which showed it to be implausible that four emails were sent or received, as the case might be, by a Mr Rawding. Further it was noted: “Apart from the oral, highly contested, evidence of Mr Chesney and his personal assistant as to the circumstances and manner in which the emails purportedly emanating from him were sent, Seaga relies on upon paper copies of the four emails, having disclosed no hardware or backup material from which they can be reproduced electronically. It is common ground that it would be “childishly easy” to forge those paper copies with a word processor and leave no trace that they were not authentic.”

“My evidence as to inability to pay down the Judgment Debt now without having the benefit of the proceeds of the breach of contract damages claim of £390,000 is as follows: I have a property valued at £600,000 fully charged including in favour of HSBC Bank and the Defendants with outstanding mortgage of £440,000. The Defendant’s, I believe have obtained a valuation of £620,000. A copy of my mortgage details can be seen at MD5/35-40. I have a pension fund of circa £550,000 (please see MD5/47) which on an annuity basis is capable of providing an annual income, for a 60-year-old, according to The Times of between £35,283.16 and £37,207.99 per annum (please see MD5/54). If I liquidated the fund in full now I would have no income and post-tax the realisation would be circa £302,500, however that would leave me with no source of income and is therefore untenable as a strategy to settle the Judgment Debt now as I would have no means to live. I am 60 years old and cannot claim state pension until age 67. My girlfriend contributes £800 towards bills each month. Monthly living expenses are circa £2,750 including Rates £188, water £50, electric £180, service charge £340, food and general £2,000. Fixed monthly mortgage payments are £1,775.58 see MD5/38-40. Fixed monthly loan repayments are £1,217.55 (Zopa Bank, and Santander see MD5/41 and MD5/44). I do not have a further source of family or friends finance.”

“I do not have the means to settle the Judgment Debt now, and if the Court makes the unless order in the terms sought by the Defendants that will completely stifle the current claim for breach of contract, which is undefended and has a value in excess of the Judgment Debt. The Defendant has said nothing about any prospective defence and that indicates without more that the claim should succeed and yield damages in excess of the Judgment Debt and thus could provide the necessary funds to settle the Judgment Debt. I believe that an unless order now in the terms sought will result in an infringement of my human rights to pursue the breach of contract claims.”

“In terms of pragmatism and being mindful of the relevant authorities cited above including Broomhead v National Westminster Bank plc [2020] EWHC 1005 (Ch) I respectfully ask the Court to defer the making of any unless order until after there is a resolution of the Set Aside Claim, or at least until after there is a decision pursuant to any strike out application relating thereto. … I ask the Court to exercise its discretion to defer the making of an unless order so that the Breach of Contract claim defence can be presented, (if there is a defence), and damages may become available in short time which the Defendants can seek then seek to enforce settlement of the Judgment debt from the damages, further, I also ask for a stay on enforcement of the Judgment Debt pending resolution of the undefended Sat Aside Claim. I believe such action would be within the overriding objective.”

“All this was supplemented by further material placed in front of me this morning including a letter dated 8 November 2023 from IT experts commissioned by Allenby which found: “There is no evidence of email tampering as emails were directly received securely by Mimecast servers. There is no evidence of man in the middle alterations as all the emails were protected by TLS (transport layer security) meaning they were protected by encryption in transit. All emails were protected by encryption, using storage level encryption so they cannot be altered. This is a key feature of Mimecast”

“This document incorrectly stated the Claimant’s terms at £100,000 salary. 50 per cent of salary for a profit target is related bonus”

“In November 2016 (I believe during the second week), Kiran Shah asked me for my thoughts on a remuneration packet to be effective from 1 January 2016. He said we also need to think about bonus arrangements. Mr Shah then said without a prompt from me that “Without telling me, Joe has increased Jerry Healy and David Bramford’s bonuses from 50 per cent to 100 per cent; will do the same for you”

“In deciding that the Claimant’s contractual bonus was to be calculated based on 50 per cent of his salary and that his notice period was three months, the ET:1 adopted a legally erroneously approach; and/or 2, took into account irrelevant considerations; and/or 3, failed to give adequate reasons for its decision.”

“At paragraphs 46 and 113 of the judgment, the ET determined for the purposes of sections 11 and 12 of the ERA that the claimant was entitled to a bonus based on 50 per cent of his salary, rejecting his case that this was varied to 100 per cent in 2016 by agreement.”

“This is another example of Mr Shah and the company disregarding legal obligation [I think it should be in the plural: s] and the basic requirements of good corporate governance.”

“The Tribunal has found that the claimant did have knowledge, at least at the meeting on 17 and 18 July 2020. This was not withheld from him.”

“Mr Shah subjecting the claimant to closer monitoring, for example, Mr Shah demanded e-mails relating to day-to-day matters which came under the claimant's job role and had hitherto been dealt with exclusively by the claimant and carried out a 'fishing exercise' designed with the objective of discrediting the claimant.”

“There was no closer monitoring; the claimant was not subjected to a detriment. Alternatively, Mr Shah's 'closer' monitoring was entirely for reasonable and proper cause and unconnected to any disclosures entirely.”

“The tribunal also concluded there was nothing irregular and certainly no causal link with the respondent’s reference to the claimant having purchased IRIS software.”

“ ... on 14th July 2017, Mr Shah giving the Claimant a purported statement of the terms of his employment on 14th July 2017, that he knew was contrary to what had been agreed and peremptorily revoking the Respondent’s proposal of the Claimant’s outstanding January 2017 pay review, before the Claimant had been able to properly consider the proposal.”

“The offer was not peremptorily revoked. The claimant was not subjected to a detriment.”

“Mr Shah excluded the Claimant from a meeting with Allenby and Tosca taking place in August 2017” and “[The Defendant company], Mr Shah, Duane Morris (who are a firm of solicitors) introduced “doctored evidence” into the ET proceedings, including an allegedly doctored version of an email dated 2 August 2017”

“This is further evidence the Claimant was being ostracised by Mr Shah”

“Unfortunately, I’m in sunny Majorca. Mmmmm, conference call or sunny Majorca? See you on the 17th, hee, hee”

“The document page 1441 purported to be an email invitation re Tosca, 2 August, from Amrit and which is evidence in this case as being presented in a form materially inconsistent with the original document and Amrit must know that. The authentic original document will show the invitation was made to both Kiran and I, not Kiran alone.”

“The Claimant maintained the version he had seen was different yet he confirmed to the Tribunal he had copies of all emails and failed to provide his version of the original to the Tribunal or to clearly explain why this could not be done”

“I do not have in my possession or under my control any confidential information or other property belonging to the company”

“There is no evidence of email tampering as emails were directly received securely by Mimecast servers. There is no evidence of man in the middle alterations as all the emails were protected by TLS (transport layer security) meaning they were protected by encryption in transit. All emails were protected by encryption, using storage level encryption so they cannot be altered. This is a key feature of Mimecast”

“These fabricated inaccuracies (amongst others) led me to believe that the minutes have been altered from their original form by the respondent as a deliberate attempt to shore up the sham disciplinary case against me. The respondents have been asked to provide copies of any earlier drafts of these draft minutes.”

“I believe that Sarah Wells' minutes are accurate and full. I do not agree with the changes made by the claimant on the notes themselves or on the additional page provided by the claimant. I have no recollection of saying 'bollocks to this' at any time in the disciplinary hearing.”

“The minutes that Sarah Wells took at the disciplinary hearing may well be accurate, but it is impossible to confirm that because that record has not been given to me or disclosed by the respondent (despite a number of specific requests) or been included as part of the bundle of documentary evidence in this case.”

“These notes are not a verbatim record of the disciplinary hearing but record, as far as possible, the discussions that took place during the disciplinary hearing.”

“The Tribunal concluded that the minutes were a fair and accurate summary. The claimant had made changes to the notes, some of which were not decipherable. In some places large volumes had simply been struck through. The job of a notetaker is to take notes, and the Tribunal did not accept that save for a few inaccuracies, they could be changes of the kind inserted/deleted by the Claimant. The Claimant’s changes were rejected.”

“Lord Reid suggested that if a plaintiff sued X and established some right in that action, a servant or third party employed by X to infringe the right and so raise the whole question again should be regarded as being a privy of X’s in subsequent proceedings, for it would be X who would be “the real defendant”

“Thus in relation to trust property, I think there will normally be a sufficient privity between the trustees and the beneficiaries, where a decision that is binding on the trustees is also binding on the beneficiaries and vice versa.”

“Post termination, the Respondent and/or Mr Shah making malicious, false or misleading statements to the media concerning the circumstances of the dismissal which caused the Claimant anxiety, distress and unjust damage to his reputation.”

“Following a formal meeting of the board held yesterday (14 September 2017) the directors of the company have resolved that because of a loss of confidence in him by the senior executive team, Mr Mark Dowding’s contract of employment with the group has been terminated and he has ceased to be a director of the group and company secretary, all with immediate effect.”

“The circumstances surrounding the sudden departure of finance director Mark Dowding, who joined The Character Group in 2012, were not immediately clear to investors but it has emerged that a disciplinary hearing was held last week which led to his abrupt exit.”

“It was nothing to do with trading or finances. We just sort of felt that there were a few relationships that had broken down.”

“There was a “fundamental” deterioration in the trust and confidence between Dowding and the board, as well as other employees of the company, Shah said. “Dowding was not doing anything illegal”, he added.”

“An employee acting bona fide within the scope of his authority is not liable for procuring the breach of contract made between his employer and a third party. He is treated as the alter ego of the employer.”

“Without consulting the Claimant, Mr Shah, during the contractual notice period, cancelled the Claimant’s private medical cover in circumstances where he was fully aware that the Claimant might have cancer...” and then these are the words that follow that are sought to be struck out: “... and after he had procured the Company to breach the Claimant's contract by relying on a noncontractual PILON (i.e. Payment in lieu of notice) …”

“The likely consequences of any decision in the long-term … the interests of the company’s employees … the impact of the company’s operations on the community and the environment … the desirability of the company maintaining a reputation for high standards of business conduct.”

“Accordingly, as a general matter, the fact that the breach of contract has such a statutory element may point to there being a failure on the part of the director to comply with his or her duties to the company and, by extension, to the director’s liability to a third party for inducing the breach of contract. Whether such a breach has these effects will, however, depend on the circumstances of the particular case.”

“the absence of a legitimate reason (i.e. for making the subject access request) has a bearing on the exercise of the court’s discretion … even though a collateral purpose of assisting in litigation is not an absolute bar” and “[i]f the personal data are of no real value to the data subject, that too may be a good reason for refusing to exercise the discretion in his favour”

“a realistic claim is one that carries some degree of conviction, this means a claim that is more than merely arguable”; “[i]n reaching its conclusion, the court must not conduct a ‘mini-trial’”; and “[a]lthough a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation of the facts at trial than is possible or permissible on summary judgment”

“Duane Morris time ledger/billing support records and invoices 1.1.16 to 4.9.18 (they were not created for the dominant purpose of providing legal advice or for litigation purposes and are therefore not legally privileged).”

“... there is no realistic prospect of the Court concluding that [The Character Group] has not complied with its obligations imposed [under the data protection legislation]”

“This case falls readily into the category identified in Rudd v Bridle at [72]: “If the data controller has acted with reasonable diligence, and there is no reason of substance to doubt the validity of the conclusions arrived at, the Court would be likely to refuse an order under s7(9)”.”

“If there are no material factors other than a SAR in valid form and a breach of the data controller’s obligation to conduct a proportionate search, then the discretion will ordinarily be exercised in favour of the data subject”