"Incentive Awards All employees are eligible to be considered for an annual Discretionary Incentive Award. Details are specified in the Handbook (page 23). The Company reserves the right to deliver a percentage of the Incentive Awards (whether Guaranteed or Discretionary) under any applicable DB compensation plans that are in effect at the time of the award. The portion of your Incentive Award under DB compensation plans will be determined in a manner broadly consistent with that applied to your peers at similar levels of compensation and taking into account any other factors that the Company determines are relevant in a given year for each business."
"(1) The defendant would not behave arbitrarily, capriciously or inequitably in matters relating to remuneration and, in particular, it would exercise its discretion as to whether to award a bonus to the Claimant and, if so, the amount of that award, in good faith and in a manner which was not irrational or perverse. It was, inter alia, an incident of the said implied term that the Defendant would treat comparable employees in a similar fashion, including as to the amount of their awards, when exercising its discretion. (2) The Defendant would not, without reasonable and proper cause, act in a manner that was likely to destroy or similarly to damage the relationship of trust and confidence to be expected between the Claimant and the Defendant as employer and employee. It was, inter alia, an incident of the said implied term that the Defendant would give the Claimant proper reasons for his bonus awards, and further that such reasons would be truthful and not misleading."
“The court may give summary judgment against the claimant ... on the whole of the claim or on a particular issue if- (a) it considers that: (i) that the claimant has no real prospect of succeeding on the claim or issue ... and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.”
" .. the court must be careful before giving summary judgment on a claim. The correct approach on applications by defendants is, in my judgment, as follows: i) The court must consider whether the claimant has a 'realistic' as opposed to a 'fanciful' prospect of success ... ii) A 'realistic' claim is one that carries some degree of conviction. This means a claim that is more than merely arguable ... iii) In reaching its conclusion the court must not conduct a 'mini-trial'... iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents ... v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial ... vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without a fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case … vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction ... "
"... the court should still consider very carefully before accepting an invitation to deal with single issues in cases where there will need to be a full trial on liability involving evidence and cross examination in any event, or where summary disposal of the single issue may well delay, because of appeals, the ultimate trial of the action ... Removing road blocks to compromise is of course one consideration, but no more than that. Moreover, it does not follow from Lewison J's seventh principle that difficult points of law, particularly those in developing areas, should be grappled with on summary applications; ... Such questions are better decided against actual rather than assumed facts. On the other hand it may be possible to say that the trajectory of the law will never on any view afford a remedy ... "
"In line with well established principles, discussed at great length below, the evidence cannot be tried at this stage and the facts must, unless plainly contradicted by insurmountable material or otherwise wholly fanciful, be assumed in the claimant's favour."
"The language used by the parties will often have more than one potential meaning. I would accept the submission made on behalf of the appellants that the exercise of construction is essentially one unitary exercise in which the court must consider the language used and ascertain what a reasonable person, that is a person who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract, would have understood the parties to have meant. In doing so, the court must have regard to all the relevant surrounding circumstances. If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other."
"The Award represents a contingent right, granted by the legal entity which employs the Participant on Award Date, subject to the terms and conditions in these Plan Rules, to receive a payment of the value of an Award following the Vesting Date."
"All employees are eligible to be considered for an annual Discretionary Incentive Award. You will be considered for an award based on a number of factors including but not limited to (in no particular order of importance) the performance of the Bank generally, the specific contribution of its component business units, your individual personal contribution and the need to retain you in employment within the bank."
"39. As to the size of the bonuses which have been paid by the Bank to Mr Keen and the bigger bonuses which he claims should have been paid to him, I must make it clear that it is not the function of the court to usurp the Bank's exercise of its discretion. It is for the Bank to decide whether to pay a bonus and, if so, how much, when and in what amount and form. The court is not entitled to substitute itself for the Bank. The court is not a bank. It does not employ the staff of the Bank or pay them. The court's function is limited to deciding whether the Bank acted in breach of the contractual term relating the discretionary bonus decisions in the years 2003 and 2004. 40. Mr Keen agreed with the Bank that it has a discretion to decide whether he is paid a bonus on top of his basic annual salary and, if so, how much. The only function of the court is to decide on the legal limits to the Bank's contractual discretion and whether the Bank has acted within or outwith the limits. Apart from that consideration, the Bank, not the court, is the judge of what it should pay its staff. If the employee thinks that he has been underpaid, he can make his representations to the Bank on the level of his pay or he can seek a better paid job with another bank, but he can only pursue a claim in court if there has been a breach of contract by the Bank. 41. All of this is obvious, but it needs to be stated and emphasised in order to answer ill-informed criticisms of the decisions under challenge." "58. In my judgment, the claim that the bonus pool decisions for 2003 and 2004 were irrational or perverse faces difficulties which Mr Keen is unable to surmount. 59. First and foremost, the Bank has a very wide contractual discretion. Mr Keen has to show that the discretion has been exercised irrationally. It cannot be said that the decisions of the Bank on bonuses for 2003 and 2004 are irrational on their face. The burden of establishing that no rational bank in the City would have paid him a bonus of less than his line manager recommended is a very high one. It would require an overwhelming case to persuade the court to find that the level of a discretionary bonus payment was irrational or perverse in an area where so much must depend on the discretionary judgment of the Bank in fluctuating market and labour conditions"
"... incredibly influential figure in the bank. He made such a profit in 2008 that the rumour was he had 'saved the bank' ... Mr Bittar's influence cannot be underestimated."
"There is an obvious parallel between cases where a contract assigns a decision-making function to one of the parties and cases where a statute (or the royal prerogative) assigns a decision-making function to a public authority. In neither case is the court the primary decision-maker. The primary decision-maker is the contracting party or the public authority. It is right, therefore, that the standard of review generally adopted by the courts to the decisions of a contracting party should be no more demanding than the standard of review adopted in the judicial review of administrative action. The question is whether it should be any less demanding."
"By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness'. … It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."
"The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it."
"The first limb focuses on the decision-making process – whether the right matters have been taken into account in reaching the decision. The second focuses upon its outcome – whether even though the right things have been taken into account, the result is so outrageous that no reasonable decision-maker could have reached it. The latter is often used as a shorthand for the Wednesbury principle, but without necessarily excluding the former."
"... unless the court can imply a term that the outcome be objectively reasonable – for example, a reasonable price or a reasonable term – the court will only imply a term that the decision-making process be lawful and rational in the public law sense, that the decision is made rationally (as well as in good faith) and consistently with its contractual purpose."
"In cases such as Clark v Nomura International Plc, Keen v Commerzbank AG and Horkulak v Cantor Fitzgerald International[2005] ICR 402 the courts have reviewed contractual decisions on the grant of performance-related bonuses where there were no specific criteria of performance or established formulae for calculating a bonus. In such cases the employee is entitled to a bona fide and rational exercise by the employer of its discretion. The courts are charged with enforcing that entitlement but there is little scope for intensive scrutiny of the decision-making process. The courts are in a much better position to review the good faith and rationality of the decision-making process where the issue is whether or not a state of fact existed, such as whether an employee's wilful act caused his death. The decision of the employer is not a judicial determination and the court cannot expect judicial reasoning. But I see no reason why an employer's decision-making should be subject to scrutiny that is any less intense than that which the court applies to the decision of a public authority which is charged with making a finding of fact …"
"What then is the power of the courts? They can only interfere with executive authority if it be shown that the authority has contravened the law. It is for those who assert that the local authority has contravened the law to establish that proposition."
"My clear understanding was therefore that I would never receive less than 5 per cent of the monies I generated for the bank."
"… it seems to me that breach of expectations is, at root, an aspect of irrationality or perversity. In other words, if expectations have been engendered by an employer, that may have been done in such a way that to disappoint those expectations would, absent some special change in circumstances, involve the employer acting in a way that no reasonable employer would act; in which case, irrationality or perversity, as those concepts are to be understood in this context, is established. …"
"For the sake of clarity, this letter supersedes any prior offers or representations, whether verbal or written."