“take all such lawful action (including resigning from your current employment) as shall be necessary to enable you to comply with your obligations under this agreement and commence your duties with the employer at the earliest possible time.”
“When assessing the probabilities the court will have in mind as a factor to whatever extent is appropriate in the particular case that the more serious the allegation the less likely it is that the event occurred and hence the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.”
‘I am going to kill Tullett Prebon if it is the last thing I do.’
‘Attending Kevin Cohen and Tony Verrier Resignation 2nd February Release within 6 weeks Cannot put in writing Put in writing too dangerous take it on trust = not binding Indemnity not prepared to lie in court kicks in when sign employment contract.’
‘Thanks for your help last night with project wire, I believe that it went very well and you certainly gave the guys a lot of comfort.’ – H 2143. This says something about Mr Marshall’s equivocal position. (66) On 29 January Mr Hall informed his desk that contracts would be signed the next day, Friday, 30 January. That occurred. On 28 or 29 January Mr Marshall made a calculation of some of the sums for which BGC might be liable to the forward cable brokers under their indemnities. The total assessed for claw-back by Tullett of bonuses was£320,000 – R 6931. Claw-back of signing payment was referred to but not calculated. (67) On 30 January Mr Verrier e-mailed Mr Marshall to say that there was no intention that the forward cable brokers should give notice to Tullett that they were leaving before the next bonus due in February – H 2230. There was here a divide of interest between the brokers and BGC. The brokers wanted to be paid their bonuses. Mr Verrier wanted them to give notice as soon as possible so that Tullett might refuse to pay the bonuses or otherwise behave in a way which might found a claim for constructive dismissal. There was no contractual need for the brokers to give notice at this time. It was simply a way of stirring things up with Tullett. It was not unlawful but it is relevant to the consideration of the brokers’ claims to have been constructively dismissed. Mr Marshall and Mr Verrier cooperated to this end. (68) On Sunday night, 1 February, Mr Verrier informed Mr Marshall of Project Antique, as Mr Marshall confirmed to Mr Arif on 2 February – R 6932.2. (69) Mr Verrier’s attempted recruitment of the Tullett spot foreign exchange desks – Project E9, began on 2 February. On that day he had lunch with Mr Gary Harris who is joint director of all the spot desks with Mr Russell Parkes. Mr Harris is desk head of the spot sterling desk. That desk consisted of 4 brokers including Mr Harris and there were 23 brokers in the division. Towards the end of the lunch Mr Verrier said that he would like Mr Harris to bring the majority of the spot brokers to BGC. There was a discussion of revenue and Mr Harris gave him the approximate figure for 2008. Mr Verrier offered£3.5 million in cash and£1.9 million in shares or stock for the whole team. As Mr Harris accepted in cross-examination he also mentioned figures for Mr Harris himself. Mr Harris also accepted that at this or the next meeting he had told Mr Verrier that he could not entice his own staff, and Mr Verrier had said he would make the approaches himself. Mr Harris said he would speak with Mr Parkes. In his e-mail to Mr Lynn of 4 February referring to Projects Antique, E9, Mist and Toscana Mr Verrier said of E9 ‘23 guys doing spot fx. Conversations at an early stage but main guys very positive.’ – H 2266. Mr Verrier and Mr Harris met again at a bar in the evening of 12 February with Mr Parkes. During the discussion Mr Parkes raised the problem that a number of brokers were contracted to Tullett for substantial periods. The witness statements of Mr Parkes and Mr Harris were made together. They both state as follows: ‘Tony said that once a sufficient number of brokers had been signed we would get a call one day asking us to get up and walk out. He didn’t say when this might be and at the time we were not sure whether he meant that we would be expected to walk out en masse during the day or simply all just not turn up to work at Tullett one morning. Either way the effect was the same. He said that once we had all walked out together we could expect to spend about six months in the garden while the legal’s were settled and then we would be able to start at BGC. He said Tullett would sue BGC and that BGC would expect to lose the court case and pay Tullett some money but it would mean that we could start at BGC much sooner than our contracts would normally allow. Tony was very confident about this exit strategy and that this was how it was going to work.’
‘John, thanks. Gavin [Matthews] is on his way in to work. John if you could liaise with him as to what might be a convenient time to come to your offices. Also John can you and Mo [Mr Mohammed Arif] keep me in touch with wire/phoenix re your exit chats with them.’
‘I think a chat with you and those two gents may be advisable as to what action they should be taking.’ – R 6933. This was the beginning of the actions taken by Mr Verrier to try to provoke Tullett into action which would, or could be argued to, constitute constructive dismissal of BGC’s recruits, which would enable them to come to BGC together and without delay. Mr Lynn was kept informed of these actions and it is apparent that he was taking a close interest in the process. That evening, at 19.18, Mr Arif’s assistant e-mailed to Mr Lynn and Mr Verrier the contractual bonus payment dates by Tullett for the Phoenix and Wire brokers – R 6935. (72) On 4 February at 9.54 Mr Wilkes sent Mr Smith an e-mail asking why the sterling cash desk’s bonuses due at the end of January had not been paid. Mr Verrier said in cross-examination – Day 29.41 that the e-mail was not sent on his instructions. He said that the background was that Mr Wilkes had been chasing Mr Mead who had said that the problem was that Mr Smith would not sign them off, so Mr Wilkes decided to go direct to Mr Smith. Mr Wilkes gave the same explanation – Day 40.41,42. I accept that this was the background, but Mr Verrier’s evidence shows that he knew what was happening and I have no doubt that he encouraged the sending of the e-mail. Mr Smith replied at 10.54 – H.2262.2, that he had authorised the payments and explaining why there had been a delay. The delay had been just over 2 working days – 4 February being the Wednesday. The non-payment of bonuses when due was a matter that Mr Verrier had referred to when telling brokers that Tullett might breach their contracts or ‘mess up’ or ‘foul up’. (73) On 4 February Mr Verrier sent Mr Lynn an e-mail referring to Projects Antique, Mist, E9 and Toscana. With reference to Toscana he said that he was looking for 5/6 recruits and that the key man, ie Mr Yexley, was involved in the project – H 2266. That e-mail further stated: ‘I will be producing a more detailed report on each project covering revenue cost and business plan going forward.’
‘7 brokers Pre paid divs [ie signing payments]£2,250,000 2 year guarantees total£1,950,000 ’
‘Broker A [Mr Yexley] receives a sign on bonus on 1st March of£250k this to extend his term by 3 years. This was agreed in June last year and starts from when his present term ends. I have informed him that we will only cover him for 50% of the amount if Toscana becomes live. He is in agreement with this.’
‘I have a feeling these guys are going to want to see this comfort early on. I can at least confirm I have it.’
‘1. Shaun was supposed to speak to Tony at 14.30 today about John Marshall ceasing to act for the 12 Phoenix/Wire brokers – please could you check with Shaun whether this conversation has been had? 2. If so, does Shaun authorise us to formally instruct BLP [Berwin Leighton Paisner]? Or does he want us to wait until Tony has spoken to John Marshall? Apologies for hassling you but BLP want to proceed with their money laundering checks etc. so that they are all ready to go.’
‘I think that it may be fair to say that according to how the whole situation played out, you know, you don’t know what is going to happen. It wasn’t in our hands as to how Tullett were going to treat, or what was going to happen – unfold over the course of the next weeks, months.’
‘Following Tony Verrier’s arrival at bgc and subsequent notification to Terry Smith by 12 Tullett staff of their intention to join bgc, we believe that it is difficult to predict with any degree of certainty how Terry Smith will react in terms of possible media briefing.’
‘I have just spoken to mark [Yexley] and he has asked that the contracts with their numbers be prepared, including his, so he can make the next move. I think he is contemplating signing! Tony – I also referred him to the text I have sent all the guys (which he had not read) and asked him to get them moving on it and refer any queries on the contract to me asap – he said he would.’
‘I spoke with Mark [Yexley] yesterday and we have agreed to reduce Mark’s sign on from£750k to£600k . …. .’
‘Following my meeting with you, Angus [Wink] and Simon [Clark], the company lawyer, I am becoming increasingly concerned about the aggressive tactics being used by Tullett Prebon to try to convince me not to move to BGC. First I have signed an agreement with BGC that I will move there when I am able to do so and second, your criticisms of BGC and those representing me are defamatory and extremely stressful, as I only want to get on with my job. You should be aware therefore, that I will not be discussing my future with you again or anybody at Tullett Prebon. Should you fail to respect this, I will treat it as a breach of my contract.’
‘Following my recent meeting …… I am becoming increasingly concerned, upset and stressed by the aggressive strong-arm tactics being used by Tullett Prebon to try to convince me not to move to BGC. Firstly, I have signed an agreement with BGC that I will only move there when I am able to do so and I intend to abide by this. Secondly, I find your criticisms of BGC and those representing me offensive and extremely unsettling.I just want to get on with my job, so please leave me alone. I do not wish to discuss my future again with you or anybody else at Tullett Prebon. Should you fail to respect this, I will treat your actions as a breach of my contract.’
‘I know exactly how you feel about this but I saw Tony yesterday and we are all thinking of leaving together…. This is only going to work if we all start together at BGC.’ – Day 19.186 and paragraph 44 of Mr di Palma’s witness statement. I accept that Mr Hall spoke to Mr di Palma along those lines, in particular saying that it would only work if they all started at BGC together. (101) The Tullett management had wanted to hold a meeting with Mr Hall on 11 March, but after lunch he did not return to the office. He knew that the meetings were occurring because he reported them to Mr Verrier – I 2582. I deduce that he intentionally avoided a meeting that day. Mr Hall could not make a meeting on 12 March and one was held on 16 March. The meeting followed the form of the presentations given to the other brokers. I will return to it in the context of Mr Hall’s claim for constructive dismissal. On 19 March Mr Hall sent Mr Potter an e-mail – I 2620, which had been drafted with the help of Mr Marshall. Mr Verrier’s evidence was that he was aware that it was being sent but that he had not seen it. The telephone records make it clear that Mr Verrier had a close involvement. The e-mail was strongly critical of the meeting on 16 March and ended ‘This lying, bullying and intimidation of me and my staff is totally unacceptable. I expect a full response to the email by 4pm tomorrow.’
‘Thinking about ‘whistle blowing’ costs, I have suggested to Tony that you may need to get a handle on Mist costs. These look a real prospect after last night, and I think if we can get these guys in the first wave, this would be the best route to go. Problem is, we do not have most of their details of their TP deals, so we will have to make an educated guess on the down side for them.’
‘However, it had become clear to me even before the March trip to Majorca that there was an opportunity for BGC to exploit Tullett’s behaviour towards the employees we had recruited. They wanted to leave and we wanted them to leave. We felt that if Mr Hall were to meet in person with Mr Wink on 25 March, then Mr Wink would inevitably throw his toys out of the pram and provide a proper basis for Mr Hall to claim constructive dismissal.’
‘I mulled the issues over in my mind over the course of the weekend. Mr Farrington’s information continued to trouble me as I thought, in the light of what I already knew about Mark Comer, that Tullett may well be about to “turn” other members of the Wire desk in breach of their BGC contracts. As a result of this, I wanted the Wire brokers and Mr Yexley to walk out of Tulletts claiming constructive dismissal in response to Tullett’s conduct towards them as soon as possible, and preferably that week. If this were not to happen, I feared that Tulletts would “turn” the rest of the team and BGC’s contracts would not be honoured. I also knew that Mr Hall was due to have a meeting with Tullett’s management, and I hoped and anticipated that this meeting which we knew was shortly about to take place would be a volatile one. Assuming that this proved to be the case, and if Mr Hall was to walk out in response, I anticipated that, subject to the matters referred to in para 40(b) below the other members of his desk and Mr Yexley would also walk out at the same time relying on the conduct towards them to date and any further conduct which emerged from the meeting. Much as I personally would have liked the Phoenix brokers to join BGC at the same time, they had not been given the same recent management meeting presentations by Mr Wink and so did not have the same grounds for complaint.’ (108) On 24 March at 17.30 Mr Marshall sent an e-mail – I 2635.6, to Mr Verrier, Mr Arif and BLP, copied to Mr Lynn, subject Toscana and Wire projects, the first part of which is covered by privilege, but then stated: ‘Mohammed, as discussed, in all cases I need your final confirmation that BGC agree to all those in Toscana and Wire projects claiming repudiation in the circumstances now known to us and as such, each individual is acting in accordance with and covered by the terms of the indemnity letters issued to them by BGC and the memo of understanding between you and I regarding ‘loss’ as referred to in the indemnity letters.’
‘Please in the circumstances, as previously requested, confirm that the indemnity issued to him and the loss memo between us is in full force and effect.’
‘BGC is free to continue discussions with Tullett employees about future employment though cannot agree to the terms of a contract until after the July trial. Tullett was unsuccessful in its attempt to prevent all communication between BGC and Tullett staff.’
‘I do not think that the Respondents can complain if pending trial they are prevented from approaching or entering negotiations with employees in respect of whom it may be argued that they have obtained no unfair advantage.’
‘We have taken instructions from Tony [Verrier] and Shaun [Lynn]. Accordingly, I attach tracked version of the draft Contract, Terms & Conditions and Indemnity. Please note that we have added the word “loss” to the first paragraph of the Indemnity to cover the loss of income point that yourself and Mo [Mr Arif] discussed. You can agree an appropriate file note with Mo at some point.’
‘Further you will not be breaking your own or inducing any breach of others contracts as you will all commit to serving out your [Tullett] contracts unless BGC ask you to do otherwise. In which case the indemnity will be expressly extended to cover this and I have discussed this with Tony.’ (8) This confirms that Mr Marshall and Mr Verrier had discussed the operation of the indemnity in the context that BGC asked the brokers to walk out of Tullett. It appears that there was then to be an extension of the indemnity to cover the situation. It is unclear what Mr Marshall had in mind. It may be that he meant no more than that BGC should agree that the indemnities applied to the situation. That is in fact what happened on 25 March in response to Mr Marshall’s requests. No attendance note of this important discussion between Mr Marshall and Mr Verrier has been disclosed. Given the care that was taken in the further disclosure exercise in December 2009 and January 2010, the probability is that none was made. It is highly likely that the reason that it was not, is the sensitivity of the topic. (9) On 9 February Mr Arif’s assistant informed Mr Marshall that Mr Lynn had signed all the Phoenix documents – H 2287. This would include the indemnities. (10) On 25 February Mr Arif’s assistant sent to Mr Marshall the definition of’ ‘loss’ for Toscana. It followed that for Wire – R 6939. (11) I have already referred to Mr Marshall’s requests on 24 and 25 March for confirmation that the indemnities applied. (12) The indemnities which have been disclosed by BGC are dated12 June 2009 . It is said by BGC that the ones signed earlier by Mr Lynn have been lost within BGC’s human resources department. (13) In his evidence in chief Mr Lynn said that he had never authorised any extension to the form of indemnity signed by him and no one else had authority to do so – Day 22.32. In cross-examination he could not explain why the definition of ‘loss’ was not part of the indemnity, but he accepted that the brokers were entitled to be indemnified against loss of bonus. I refer to Day 23.98-101. It seems clear from the e-mail of 16 January referred to at (2) above – G 1797, that he was involved in the decision and may have been an instigator. He was unable to explain the contradiction between clause 2(a) of the indemnities – exclusion of repayment of bonus, and the loss memo or note agreed between Mr Arif and Mr Marshall which defined ‘loss’ to cover bonus. (14) There is thus no explanation for the separate e-mail definitions of ‘loss’
“The conduct must, of course, impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in the employer. That requires one to look at all the circumstances. The objective standard just mentioned provides the answer to the liquidators’ submission that unless the employee’s confidence is actually undermined there is no breach. A breach occurs when the proscribed conduct takes place: here, operating a dishonest and corrupt business. Proof of a subjective loss of confidence in the employer is not an essential element of the breach, although the time when the employee learns of the misconduct and his response to it may affect his remedy.”
“In assessing whether there has been a breach, it seems clear that what is significant is the impact of the employer’s behaviour on the employee rather that what the employer intended. Moreover, the impact will be assessed objectively.”
“However, [the Tribunal] patently erred when it did so. It rejected the "last straw" argument because it applied the subjective test of asking whether the employee's trust and confidence had in fact been undermined. Even if that had been the appropriate approach, the conclusion that Mrs Meikle's trust and confidence remained despite her relationship with the headteacher having broken down is an unsustainable one. But the test itself is wrong in law. As Lord Nicholls of Birkenhead said in the Mahmud case[1997] ICR 606 , 611b: "Proof of a subjective loss of confidence in the employer is not an essential element of the breach." As I have already noted, the employer does not now seek to argue to the contrary.”
“It has been held by the Employment Appeal Tribunal in Jones v F Sirl & Son (Furnishers) Ltd[1997] IRLR 493 that in constructive dismissal cases the repudiatory breach by the employer need not be the sole cause of the employee's resignation. The appeal tribunal there pointed out that there may well be concurrent causes operating on the mind of an employee whose employer has committed fundamental breaches of contract and that the employee may leave because of both those breaches and another factor, such as the availability of another job. It suggested that the test to be applied was whether the breach or breaches were the "effective cause" of the resignation. I see the attractions of that approach, but there are dangers in getting drawn too far into questions about the employee's motives. It must be remembered that we are dealing here with a contractual relationship, and constructive dismissal is a form of termination of contract by a repudiation by one party which is accepted by the other: see the Western Excavating case. The proper approach, therefore, once a repudiation of the contract by the employer has been established, is to ask whether the employee has accepted that repudiation by treating the contract of employment as at an end. It must be in response to the repudiation, but the fact that the employee also objected to the other actions or inactions of the employer, not amounting to a breach of contract, would not vitiate the acceptance of the repudiation. It follows that, in the present case, it was enough that the employee resigned in response, at least in part, to fundamental breaches of contract by the employer.”
‘I reject as a proposition of law the notion that there can be no acceptance of a repudiation unless the employee tells the employer, at the time, that he is leaving because of the employer’s repudiatory conduct. Each case will turn on its own facts and, where no reason is communicated to the employer at the time, the fact-finding tribunal may more readily conclude that the repudiatory conduct was not the reason for the employee leaving. In each case it will, however, be for the fact-finding tribunal, considering all the evidence, to decide whether there has been an acceptance.’
“The courts will, however, continue to scrutinise closely the arguments of employees (particularly highly paid individuals and teams moving to a competitor of their employer) who have already secured alternative employment prior to resigning, and who construct arguments of repudiatory breach as a means of avoiding notice periods and irksome covenants. In such cases the argument will fail: (a) often at the first hurdle of whether there has been a repudiatory breach at all; or (b) sometimes, because any such breaches have been waived.”
‘The meeting was a transparent attempt to pressure and manipulate Mr Harkins to breach his contract with BGC.’
“Mr Sully, Mr Bishop and Mr Harkins each rely upon the conduct of Tullett in relation to the meetings with Mr Wink (including seeking to procure that they breached their contracts with [BGC] and the manner in which Tullett sought to procure this), and the conduct of Tullett in relation to the manner of Mr hall’s suspension. Reliance is placed on the conduct of Tullett subsequent to this including the failure to explain the action taken against Mr Hall and the refusal to address Mr Sully’s request to provide any reassurance or guidance as to the situation on the FC Desk. Further, they considered (realistically) that it was wholly untenable for them to continue working at Tullett given that they had lost all trust in their colleagues, Messrs Comer, Di Palma and Stevenson, whom they considered to have gone back on their word and “stabbed in the back”
‘JP opened meeting explaining we are not breaking PB’s contract. We aren’t trying to persuade PB to stay. Meeting about how we persuaded all out other staff to stay with TP having been offered jobs by BGC. Discussed litigation if Paul breeches either TP contract or if Paul breeches BGC contract. Discussed risks of leaving TP before end of contract. Angus [Wink] did his white-board talk which concentrated on TP pros and cons, BGC pros and cons. PB was invited to comment on anything he wished. PB was also told he was welcome to say nothing if he so wished. PB did not want to comment on TP cons.’
‘The provisions of this Agreement, as appropriate, will come into effect on the date hereof. Your employment under this Agreement will commence as soon as you are free and able to do so …. .’
“39 To be liable for inducing breach of contract, you must know that you are inducing a breach of contract. It is not enough that you know that you are procuring an act which, as a matter of law or construction of the contract, is a breach. You must actually realize that it will have this effect. Nor does it matter that you ought reasonably to have done so. This proposition is most strikingly illustrated by the decision of this House in British Industrial Plastics Ltd v Ferguson[1940] 1 All ER 479 , in which the plaintiff's former employee offered the defendant information about one of the plaintiff's secret processes which he, as an employee, had invented. The defendant knew that the employee had a contractual obligation not to reveal trade secrets but held the eccentric opinion that if the process was patentable, it would be the exclusive property of the employee. He took the information in the honest belief that the employee would not be in breach of contract. In the Court of Appeal[1938] 4 All ER 504 , 513, MacKinnon LJ observed tartly that in accepting this evidence the judge had “vindicated his honesty … at the expense of his intelligence” but he and the House of Lords agreed that he could not be held liable for inducing a breach of contract. 40 The question of what counts as knowledge for the purposes of liability for inducing a breach of contract has also been the subject of a consistent line of decisions. In Emerald Construction Co Ltd v Lowthian[1966] 1 WLR 691 union officials threatened a building contractor with a strike unless he terminated a subcontract for the supply of labour. The defendants obviously knew that there was a contract—they wanted it terminated—but the court found that they did not know its terms and, in particular, how soon it could be terminated. Lord Denning MR said, at pp 700–701: “Even if they did not know the actual terms of the contract, but had the means of knowledge—which they deliberately disregarded—that would be enough. Like the man who turns a blind eye. So here, if the officers deliberately sought to get this contract terminated, heedless of its terms, regardless whether it was terminated by breach or not, they would do wrong. For it is unlawful for a third person to procure a breach of contract knowingly, or recklessly, indifferent whether it is a breach or not.” 41 This statement of the law has since been followed in many cases and, so far as I am aware, has not given rise to any difficulty. It is in accordance with the general principle of law that a conscious decision not to inquire into the existence of a fact is in many cases treated as equivalent to knowledge of that fact: see Manifest Shipping Co Ltd v Uni-Polaris Insurance Co Ltd[2003] 1 AC 469 . It is not the same as negligence or even gross negligence: in British Industrial Plastics Ltd v Ferguson[1940] 1 All ER 479 , for example, Mr Ferguson did not deliberately abstain from inquiry into whether disclosure of the secret process would be a breach of contract. He negligently made the wrong inquiry, but that is an altogether different state of mind.” “Even if they did not know the actual terms of the contract, but had the means of knowledge—which they deliberately disregarded—that would be enough. Like the man who turns a blind eye. So here, if the officers deliberately sought to get this contract terminated, heedless of its terms, regardless whether it was terminated by breach or not, they would do wrong. For it is unlawful for a third person to procure a breach of contract knowingly, or recklessly, indifferent whether it is a breach or not.”
“69 In my opinion this case comes squarely within British Industrial Plastics Ltd v Ferguson[1940] 1 All ER 479 . On the finding of the judge, Mr De Winter honestly believed that assisting Mr Young and Mr Broad with the joint venture would not involve them in the commission of breaches of contract. Nor can Mr De Winter be said to have been indifferent to whether there was a breach of contract or not, as in Emerald Construction Co Ltd v Lowthian[1966] 1 WLR 691 , or made a conscious decision not to inquire in case he discovered a disagreeable truth. He therefore did not intend to cause a breach of contract and the conditions for accessory liability under the Lumley v Gye tort are not satisfied. Nor is there any question of his having caused loss by unlawful means. He neither intended to cause loss to Mainstream nor used any unlawful means.”
“199 The relevant findings of the trial judge were these. Mr De Winter knew Mr Young and Mr Broad had contracts of employment, although not their precise terms. He knew sufficient to spot the conflict problem. He raised this issue with the others. In the light of what they told him Mr De Winter genuinely believed their participation in the Findern venture would not occasion a conflict between their duty and their interest. Accordingly Mainstream failed to establish that Mr De Winter intended to procure a breach of the others' employment contracts. 200 These are factual findings, which were not disturbed by the Court of Appeal. On these findings the appeal must fail. The burden of proving Mr De Winter intended to persuade Mr Young and Mr Broad to break their contracts lay on Mainstream. Mainstream failed to discharge this onus. 201 Mr Randall sought to avoid the difficulty posed by the judge's findings by drawing attention to Mr De Winter's written statements. These showed that Mr Broad told Mr De Winter that Mainstream was not interested in buying the land at Findern. Mr De Winter believed what he was told. On this basis he believed the joint venture would not entail a breach by the others of their contracts with Mainstream. This, submitted counsel, was not good enough. The matters on which Mr De Winter relied did not, as a matter of law, leave Mr Broad and Mr Young free to compete with Mainstream over the development of the Findern land while still working as full-time executives of the company in that area. Mr De Winter was relying on his own, erroneous, legal conclusion. He was not entitled to escape liability by relying on his own mistaken assessment of the legal position. 202 I cannot accept this. An honest belief by the defendant that the outcome sought by him will not involve a breach of contract is inconsistent with him intending to induce a breach of contract. He is not to be held responsible for the third party's breach of contract in such a case. It matters not that his belief is mistaken in law. Nor does it matter that his belief is muddle-headed and illogical, as was the position in British Industrial Plastics Ltd v Ferguson[1940] 1 All ER 479 . As Lord Devlin said in Rookes v Barnard [1964] 1129, 1212, the defendant must know of the contract “and of the fact that the act induced will be a breach of it”
“135. In the end, Icap, through Mr Spencer, made the decision that all three individual defendants should go down the avenue of alleging constructive dismissal by Cantor. The decision was taken after receiving legal advice. I do not speculate, of course, as to what legal advice was given. However, in my view, Mr Spencer took the view that such risks as there were in taking that course were worth taking, even though he was clear that it would be likely to lead to litigation with Cantor. He must have been conscious that, as with all litigation, there would be uncertainties in the outcome, but he hoped that Icap would prevail. As already indicated, however, Icap, as he must have known, had no knowledge of the true position between Cantor and Mr Boucher and yet subsequently persuaded him to leave regardless of that fact. While not intending to procure breaches of contract Icap decided to accept whatever risks there were. In Mr Boucher's case they had no grounds for considering that he had a constructive dismissal claim to make whereas in Mr Gill's and Mr Bird's cases they were prepared to take the risks and they have been fortunate in being vindicated in that choice. …… 143. ….. On the other hand, in the recruitment of all three individuals in this case, Icap “sailed very close to the wind” in its efforts to secure them. It took the risks of in its stride and, where that risk was unjustified, it seems to me that suitable injunctions should follow. 144. These are two organisations (Cantor and Icap respectively) for whom, as it has seemed to me, the interests of individual employees have been subordinated to a larger “game” (the word used regularly by one of Icap's officers in the course of the events related above). Cantor conducted its relations with staff at the borderlines of the employees' contractual rights and sometimes beyond them. Icap desired to recruit its targets as soon as possible and as soon as it was thought there was an arguable case that they had been constructively dismissed. The result as to whether the boundaries of legality were crossed, by either Cantor or Icap, in the case of any individual employee was largely fortuitous. In such circumstances, it seems only appropriate that, where the line is crossed, injunctions should be granted to fit the breaches of the law that had been established in any individual case.”
‘My role in the recruitment … has been a limited one. The recruitment was conducted by [Mr Verrier], … . In so far as the activities of [Mr Verrier] are concerned I accept that these are activities of the First and Second Defendants but have no direct knowledge of them and did not direct them. I am reliant on what [Mr Verrier] has told me about them since his employment began and what he will say in his affidavit.’
‘Turning next to Mr Verrier, it is admitted by BGC that Mr Verrier was relied upon by it to conduct recruitment for the benefit of BGC. In doing so, he was expected to use all lawful means at his disposal. BGC believes that Mr Verrier did so, though has little direct knowledge of the intricacies of Mr Verrier’s dealings with the broker defendants. Given that lack of independent knowledge on BGC’s part, together with the fact that [Tullett] makes extensive allegations of wrongdoing against Mr Verrier, he is separately represented before the court. BGC relies upon and adopts the submissions made on his behalf. BGC believes that Mr Verrier acted properly.’
‘We must be careful how we approach [Mr Comer]. He doesn’t want to be a whistleblower.’
‘I think I’m just going to pop out and buy some rope to hang myself.’
“I asked them at that point – I basically said: I cannot go to BGC, I have absolutely no interest, can you help me stay? And they said yes. And I said; there are a couple of problems with this; I fear that I may be sued by BGC. I do not have the money left to give back to BGC. And to be honest I have plans for some of the rest of the money. I was quite looking forward to getting that. And they said: just trust us, it is fine. So I did.”
‘Only if you take trust as an informal arrangement, then, yes. Otherwise, no.’
“The fact of an earlier contract with a defendant inconsistent with the claimant’s contract may well afford a justification to the defendant for procuring a breach of the latter, or in other words: There are circumstances in which A is entitled to induce B to break a contract entered into by B with C. Thus, for instance, if the contract between B and C is one which B could not make consistently with his preceding contractual obligations towards A, A may not only induce him to bread it, but may invoke the assistance of a Court of Justice to make him break it.”
“12.1 For 6 months after the date of the termination of your employment, you shall not directly or indirectly do or attempt to do any of the following: (a) undertake, carry on or be employed, engaged or interested in any capacity in an area of business competitive with Restricted Business, which trades or an objective or anticipated result of which is to trade in the Territory in competition with the Company or any Group company: (b) entice, induce or encourage a Client to transfer or remove business from the Company or any Group company, (c) solicit or accept business from a Client for Restricted Business in competition with the Company or any Group company, (d) employ, engage or retain the services of an Employee of the Company or any Group company for the purpose of business, which competes with Restricted Business. (e) entice, reduce or encourage, or attempt to entice, induce or encourage an Employee to leave or seek to leave his or here position with the Company or any Group company for the purpose of being involved in business which competes with Restricted Business regardless of whether or not that employee acts in breach of any contract of employment by so doing. 12.2 If you are required by the Company not to attend for work under Clause 11.3, up to 6 weeks of the period of such exclusion shall be set against the period of post termination restriction under Clause 12.1(a). “Client” means a person: (i) who is at the expire of the Relevant Period or who was at any time during the Relevant Period a client of the Company or any Group company or to whom at the expiry of the Relevant Period the Company or any Group company was actively and directly seeking to supply services in either case for the purpose of Restricted Business; and (ii) with whom (directly or indirectly through subordinates or colleagues) you had dealings at any time during the Relevant Period or for whom you were responsible or about whom you were in possession of confidential information, in any such case in the performance of your or their duties to the Company or any Group company. “Relevant Period”
“The Springboard doctrine”
“The combination. The tort requires an agreement, combination, understanding or concert to injure, involving two or more persons. …. Of the various words used to describe a conspiracy, “combination” has been preferred on the ground that “agreement” might be thought to require some agreement of a contractual kind, whereas all that is needed is a combination and common intention. But judicial descriptions still speak of “concerted action taken pursuant to agreement”
‘In the event that you resign, are not actively performing your duties, are working under notice of termination or if your employment is terminated by reason of your gross misconduct (pursuant to clause 11.1 of the attached Schedule of Standard terms) before the end of the initial minimum term you will no longer be entitled to receive the Retention Payment. Furthermore, the Retention Payment will become repayable immediately to the Company if during the initial minimum term, your employment is terminated or on the day notice to terminate is given, whichever is earlier.’
‘In the event that you resign, are not actively performing your duties, are working under notice of termination or if your employment is terminated by reason of your gross misconduct before the end of the Term you will be liable to repay the whole of the Signing Payment to the Company upon the termination of your employment or on the day notice to terminate is given, whichever is earlier.’
‘In the event you resign before commencing employment under the terms of this agreement you will be liable to repay the whole of the Signing Payment to the Company. Thereafter in the event that you resign, are not actively performing your duties, are working under notice of termination or if your employment is terminated by reason of your gross misconduct (pursuant to clause 11.1 of the attached Schedule of Standard Terms) before the end of the Term you will be entitled to retain only 1/36 of the Signing Payment for each complete month of service after the Start Date. The balance of the Signing Payment will become repayable to the Company upon the termination of your employment or on the date notice to terminate is given, whichever is earlier.’
“I do not think that there can be any doubt that proviso (i) is a restraint of trade. It had been well established since the decision of the Court of Appeal in Wyatt v Kreglinger and Fernau [1933] 1 K.B. 793 that there is no relevant difference between a contract that a person will not carry on a particular trade and a contract that if he does not do so he will receive some benefit to which he would not otherwise be entitled. Proviso (i) is a financial incentive to the agent not to carry on business in the specified fields. It is therefore unlawful unless it is justified as being reasonable in the interests of the parties and in that of the public.”
“You agree that the bonuses are not only a reward for past service but also seen by the Company as an incentive to remain in employment with the Company. As such, a Discretionary Performance and Loyalty bonus consists of two elements: a past performance element and a loyalty element. 25% is attributable to past performance and 75% is in respect of your continued loyalty. Please refer to clause 5 of the attached Schedule of Standard Terms for further details in this regard.”