Simpkin v The Berkeley Group Holdings Plc [2016] EWHC 1619 (QB)

[2016] EWHC 1619 (QB)Case No HQ15X04395IN THE HIGH COURT OF JUSTICEQUEEN’S BENCH D IV IS IO NVenue Royal Courts of JusticeDate Date: Friday, 24 th June 2016
Before
MR. JUSTICE FOSKETT
Between
SimpkinClaimantThe Berkeley Group Holdings PlcDefendantB E T W E E N:NICOLAS GUY SIMPKIN Claimant/Applicant- and -THE BERKELEY GROUP HOLDINGS PLC Defendant/Respondent
Com Transcribed by BEVERLEY F. NUNNERY & CO.(a trading name of Opus 2 International Limited)Official Court Reporters and Audio Transcribers25 Southampton Buildings, London WC2A 1ALTel: 020 7831 5627 Fax: 020 7831 7737info@beverleynunnery.com
MR. M. GRIFFITHS QC and Mr. E. WILLIAMS (instructed by Slater and Gordon) appeared on behalf of the Claimant/Applicant.MR. A. CLARKE QC and MR. D. LASCELLES (instructed by Gibson Dunn & Crutcher LLP) appeared on behalf of the Defendant/Respondent.
J U D G M E N T (As approved by the Judge)
[1]On Wednesday, 21st June I heard applications principally brought by the claimant concerning the conduct of these proceedings. The primary relief he seeks is an order for the trial of a preliminary issue or a split trial and an order that costs budgeting should apply to the proceedings.[2]I was provided with a large amount of material to pre-read, including pleadings that ran to about 77 pages on the claimant's side and 200 pages on the defendant's side. I spent all of Tuesday reading and digesting what I could and I took yesterday, and part of this morning, to consider the submissions I heard on Wednesday and to prepare a decision. My own commitments in respect of other cases, including two where judgments are pending, one of which is required urgently, dictated that I should endeavour to arrive at a decision quickly and give my reasons. It has meant that I have not been able to refine this ruling in the way I would otherwise have considered desirable, but the parties need a decision so that matters can proceed appropriately.[3]The statements of costs supplied for the purposes of any summary assessment of costs that might be made at the conclusion of the applications totalled about £287,000, split as to approximately two-thirds on the claimant's side and one- third on the defendant's side. The imbalance is presumably explicable on the basis that the applications are being made on behalf of the claimant and a considerable amount of work has been necessary to bring them forward. But the overall sums expended on a one day hearing is indicative of the way this litigation has been conducted so far and may be a portent of things to come. I will return to that matter later.[4]The defendant is the well-known FTSE 100 company engaged in house building and property development. It has a huge turnover, running to many millions of pounds. Until the events with which these proceedings are concerned, the claimant was, from September 2009, the group finance director having joined the Group in 2002. The defendant was not in fact the claimant's employer. His employer was a company in the Group called Berkeley Group Services Ltd. However, his remuneration package, which included a salary of £330,000 per annum, also included, albeit not as part of his contractual entitlement, membership of three variable compensation schemes operated under the auspices of the defendant. There were two long-term incentive plans (known as LTIPs) and referred to in the proceedings as the 2009 LTIP and the 2011 LTIP, and a bonus plan, known as the 2010 bonus plan.[5]It is not in dispute that if the claimant became entitled to benefit under those plans the sums payable to him would run into several million pounds. Equally, it is not in dispute that the terms of the various schemes provide that where, as in this case, the employee within the Group leaves the Group earlier than the date when benefits under those schemes vest, in which event the general rule is that the schemes lapse automatically in relation to that employee, the defendant has a discretion to make an exception to that general rule. Although the schemes do not use expressly the term "good leaver" or "bad leaver", which other similar schemes do, the approach of the defendant when exercising the discretion to which I have referred, is to decide whether the departing employee should be treated as a "good leaver". This approach is evidenced in the minutes, to which I will refer shortly, but there is no dispute about it.[6]All that is not in issue. I need to say a little now about the disputed issues. I will do so as neutrally as possible and I preface what I say by the clearest statement that nothing that I say is intended to prejudge any issue that will fall to be decided by the trial judge. In order to resolve the present dispute about how this case is to be managed up to trial I will, however, need to analyse the way in which the competing cases are framed to some extent. As I have said, what is decided ultimately will be for the trial judge but I have no alternative than to refer to the competing assertions in a way that might reflect a provisional view on the merits of some aspects. Since I will not be the trial judge, there is no harm in that, but I emphasise that I express any such view purely for the purposes of deciding whether or not I should accede to the claimant's application, whether as framed precisely or in some modified form.[7]On 1st September 2014 the claimant was told by Mr. Rob Perrins, the Group's chief executive, and Mr. Tony Pidgley, the chairman of the Group, that his services were no longer required. According to the minutes, to which I will return shortly, he was "invited to resign from the board" and "sent home on gardening leave".[8]On 8th September 2014 he was, according to the same minutes, "removed as a member of the board" and on 24th September 2014 the company that employed him gave him 12 months' notice of termination of his employment, expiring on 23rd September 2015, in accordance with this contract. The giving of notice would automatically result in the benefits under the schemes to which I have referred lapsing, unless the defendant had decided otherwise in accordance with the approach to which I have referred.[9]In the circumstances, two meetings took place at which the "good leaver" question was addressed, the first on 22nd September and the second on 24th September. Those two meetings are crucial to the way in which the claimant's case is advanced and, in essence, Mr. Martin Griffiths QC, who, with Mr. Edmund Williams, represented him on these applications, relies upon the minutes created by the defendant in relation to those meetings to establish the positive case he seeks to make. His submission, for the purposes of the present applications, is that he needs to go no further than those minutes to prove the claimant's entitlement to the relief claimed. It is that feature that he submits justifies a very substantial pruning at this stage of the issues revealed by the pleadings to a limited area to be determined at a trial of a preliminary issue or by way of a split trial.[10]The first meeting was one of the Remuneration Committee. That committee was the decision-maker for the purposes of the 2010 bonus scheme and the 2011 LTIP. The decision-maker on the 2009 LTIP was the full Board, but the Remuneration Committee was required to make a recommendation under that scheme. The minutes reveal that Mr. Glyn Barker was in the chair and the other two members of the Committee, Sir John Armitt and Mr. Andy Myers, attended by telephone. In attendance were two solicitors from Slaughter & May, Ms. Pritchard, the in-house legal adviser for the Group, and Mr. Perrins. The minutes, which run to 7½ pages of single space typing, indicate that it lasted 1 hour and 15 minutes. The minutes are very clearly expressed and I was told were not made available to the claimant until 31st October 2014. It is, therefore, a reasonable inference, so Mr. Griffiths submits, that very careful consideration was given to the contents before they were released. For present purposes I accept that that must be so.[11]The minutes record very careful and thorough advice from Slaughter & May given by Mr. Nigel Boardman. The minutes record that he said this in relation to the discretionary exercise being undertaken: "It is important that such discretion must be exercised honestly and in good faith having regard to appropriate factors including the reasons why the scheme was put in place. Discretion must not be exercised arbitrarily, perversely, capriciously, irrationally or in a way that no reasonable employer, faced with these circumstances, would have behaved. The Company must consider all the relevant facts of the case".[12]Mr. Boardman is then recorded as setting out a series of factors that he felt might be taken into account in deciding how the discretion should be exercised. These can be summarised as the company performance; the individual performance; the potential impact on the claimant of not affording him good leaver status; the purpose of the various plans; whether the treatment of the claimant would accord with the shareholders' reasonable expectations; how other departing executives have been treated under the plans; why the claimant was leaving; how close he was to falling within the good leaver category, and how compelling was the case for treating him as a good leaver.[13]The minutes then record the following matters as being in favour of exercising the discretion in the claimant's favour:
“(a) the company had been successful; (b) the claimant has not failed to achieve any personal performance targets (although his performance for the purposes of the plans was essentially based on company performance). The claimant was awarded pay increases and bonuses during his career at the Berkeley Group, was not formally appraised and has never been subject to formal warnings for misconduct or under-performance. (c) The claimant is leaving towards the end of the lifespan of the 2009 LTIP and, indeed, the first 50 percent of his 2009 LTIP award would ordinarily vest in April 2015 were he not subject to notice. However, it should be noted that the 2009 LTIP rules provide that a good leaver receives pro rata vesting of both tranches of his 2009 LTIP award (vesting in April 2016 as well as April 2015), preventing the board from, for example, allowing for partial vesting of a first tranche only of his award; (d) the claimant is also leaving towards the end of the lifespan of the 2010 bonus plan (the current financial year being the final year under the plan). Bonus units worth approximately £800,000 are held in the plan in respect of bonuses awarded to the claimant in prior years; (e) that the claimant stands to lose very substantial financial awards if he is not deemed a good leaver under one or more of the plans; (f) were he present at that meeting the claimant would no doubt argue that he has made a significant contribution to the success of the company over 12 years' service.”
The minutes reveal that some further advice was given about the way to approach the exercise of the discretion and the need for exceptional circumstances to be shown.[14]The minutes show that Mr. Perrins was then asked to set out why the claimant had been asked to resign. It should be noted that the minutes record simply an oral report from Mr. Perrins. The matters raised by Mr. Perrins were not, it seems, committed to writing in advance for the benefit of the committee members. In summary, he said that the relationship of the claimant with him (Mr. Perrins) and other members of the senior management team, and indeed third parties, had broken down because, he said, of the claimant's "behaviour"; that the 2013/2014 audit was handled incompetently and that Mr. Myers, who was of course a member of the Remuneration Committee, had been critical of the claimant's "aggressive, uncompromising style and unwillingness to share information"; that the claimant did not share information with him (Mr. Perrins) and gave misleading information in some respects, citing in particular the ongoing discussions with HMRC, and that he did not work collaboratively with others. After he gave this synopsis, Mr. Perrins is recorded as having left the meeting.[15]The minutes show that Sir John Armitt had observed that whilst there had been conversations with the claimant over his performance "there had not been a formal process despite serious performance issues".[16]On the question of whether the Committee should invite the claimant to make representations as to whether there were exceptional circumstances of which it was unaware, Mr. Boardman confirmed his advice that there was no obligation to do so and if the members of the Committee felt able to make their decision without consulting him this was within their discretion. The minutes record as follows, substituting the words "the claimant" for the name of the claimant: "It was noted that [the claimant] had not raised any matter which might support good leaver status. The [Committee] did not feel it would be useful to invite [the claimant] but would consider further".[17]No decision was made at that meeting and Mr. Barker asked the other members of the Committee to consider carefully everything that they had heard at the meeting, and then at a joint Remuneration Committee and Board meeting on 24th September they would be asked to decide whether to exercise their discretion in relation to the 2010 bonus plan and the 2011 LTIP and make their recommendation in relation to the other bonus plan.[18]I will review briefly the minutes of the meeting on 24th September because plainly what occurred at that meeting has to be read in the context of what had happened at the meeting on 22nd September. The meeting was attended, albeit by several parties by telephone, by more individuals than the previous meeting. Only one apology was noted. It started as a Board meeting and the chairman, Mr. Pidgley, explained the background to the meeting. Shortly after it began, he handed over the chair to Mr. Barker, the chairman of the Remuneration Committee, and it appears that what took place at that point was a joint meeting of the Remuneration Committee and the Board. In short summary, the same representatives of Slaughter & May gave the same advice as had been given two days earlier.[19]In relation to the question of whether the claimant ought to be asked for representations, Mr. Boardman again explained that it was not obligatory on the part either of the Remuneration Committee or the Board to do so. He said that if members of the Committee and the Board felt able to make their decision without the need to consult the claimant then this was a matter that fell within their discretion.[20]In the same manner as had occurred at the meeting two days previously, Mr. Perrins was invited to explain why the claimant had been asked to resign. He said that there was no financial impropriety involved and reassured everyone that the 2013/14 accounts were true and fair, but went on to say that there had been a breakdown of the relationships between the claimant and other members of the senior management team and third parties. He identified three broad categories of criticism of the claimant. First, incompetence and lack of judgment evidenced by lack of technical ability in relation to the accounting policies of the company; second, an aggressive attitude towards both staff and external advisers, and of a failure to work collaboratively with colleagues; third, his secretive and aggressive approach to transactions meant that he could no longer be trusted to engage with third parties. Certain further details were given by Mr. Perrins.[21]I would say in passing that Mr. Griffiths points out that one member of the Board asked about the timing of the decision to ask the claimant to leave. He comments that the explanation given by Mr. Perrins does not really amount to a reason for the apparently sudden decision.[22]The members of the Remuneration Committee indicated that they were ready to make a decision on the exercise of their discretion and said that in their view the claimant was leaving the Group as a consequence of significant concerns over his behaviour and performance. They did not see any basis for treating him as a good leaver.[23]The following paragraph also appeared:
"As the Remuneration Committee did not consider this to be a borderline case (in which circumstances might be present to persuade them to exercise their discretion) they did not consider it necessary nor appropriate to invite [the claimant] to make further representations before exercising their discretion"
. Mr. Griffiths highlights the word "further" and says that in fact the claimant had made no representations at any stage because he had never been asked for any.[24]The chairman of the Board then resumed the chair and the decisions made by the Remuneration Committee were ratified by the Board, including the decision that the claimant should not be invited to make representations to the Remuneration Committee. The Board then resolved to reach the same conclusion in relation to the bonus scheme, where the decision of the Board governs the outcome, and the minutes repeat that the Board did not regard this as a borderline case and thus did not consider it necessary or appropriate for the claimant to be invited to make further representations before exercising their discretion. The whole meeting took 1 hour and 20 minutes.[25]The claimant's pleaded case in relation to the meeting of 22nd September, which led to the meeting two days later, is that the Remuneration Committee gave decisive weight in exercising its discretion to "untested, unsupported, insubstantial anecdotal evidence from Mr. Perrins given orally and informally at the meeting of alleged performance and conduct issues". None of it was put to the claimant and nor was it supported by evidence of sufficient cogency to support the serious allegations made.[26]A similar assertion is made in relation to the meeting of 24th September in respect of which it is said, inter alia, that both the Remuneration Committee and the Board proceeded without having notified the claimant(a) of the meeting and(b) of things that would be said against him at the meeting. The meeting therefore proceeded without the claimant being given any opportunity to be heard and the decisions were made without those present at the meeting knowing the claimant's side of the case.[27]Mr. Griffiths asserts that if one applied the Wednesbury test to what occurred, these would be decisions that would be struck down in public law terms. He said that the claimant's case was that the discretion was exercised arbitrarily, perversely, capriciously and irrationally, and in a way that no reasonable employer, faced with the circumstances, should have countenanced.[28]The pleaded case is that there are implied terms that the discretions will not be exercised arbitrarily, capriciously or unreasonably and would be exercised without taking into account irrelevant matters, would be exercised taking into account matters that ought to be taken into account, and that they would be exercised in accordance with a fair procedure which allowed the person affected to have a say and to permit any allegations made to be properly tested.[29]The existence of such implied terms is contested by the defendant, but it is not suggested that the claimant's case in this regard is unarguable. The terms of the advice given by Mr. Boardman was along these lines in any event.[30]As I have said, and I repeat, it will be a matter for the trial judge to assess the general thrust of these allegations, but at the very least there is a strongly arguable case that the decision was reached following a procedure which afforded the claimant no opportunity to state his own case in relation to the matters relied upon to support the decision that he was not to be treated as a good leaver. Mr. Griffiths says that he will contend that the decision-making bodies in this case took into account matters which ought not to have been taken into account, namely, Mr. Perrins' informal allegations of performance and conduct issues, which had not been properly investigated or established against the claimant, and failed to take into account matters which ought to have been taken into account, notably the claimant's response to the allegations which they positively decided not to seek.[31]I will turn to what the defendant wishes to say in response to this part of the factual case alleged, but the point that Mr. Griffiths makes for case management purposes is that it is not necessary to go much beyond what is revealed in the minutes of these two meetings for him to be able to sustain that case. In public law terms, if such a case was sustained the court would ordinarily quash the decision made and remit it to the decision-making body for reconsideration in accordance with proper procedures. Mr. Griffiths does not seek that but seeks the declaration that the claimant was "entitled to be treated as a good leaver" and that he was entitled to have the discretion exercised in his favour.[32]He relies upon the decision of the Supreme Court in Braganza v BP Shipping Ltd. [2015] 1 WLR 1661 to support the claim for relief in this regard. Because of the time constraints, I will not attempt a detailed exegesis of that decision, but in summary, and by reference to the headnote, it establishes the principle that where contractual terms give one party to a contract the power to exercise a discretion or form an opinion as to relevant facts, it was not for the court to make that decision for them but where the decision would affect the rights and obligations of both parties there was a conflict of interest and the court would seek to ensure that the power was not abused. It will achieve this by implying a term in appropriate cases that the power should be exercised not only in good faith but also without being arbitrary, capricious or irrational in the sense in which that term was used when reviewing the decisions of public authorities, and that it followed that such a decision could be impugned, not only where it was one that no reasonable decision-maker could have reached, but also where the decision-making process had failed to exclude extraneous considerations or to take account of all obviously relevant ones. The Supreme Court substituted the decision that ought to have been made in that case rather than remitting it to the decision-maker for reconsideration.[33]Mr. Griffiths submits that this case, together with McCarthy v McCarthy & Stone Plc [2008] 1 AER 221 and also Hills v Niksun [2016] EWCA Civ. 115, demonstrate that there is ample jurisdiction in this context for the court to decide what, had proper consideration been given to the decision under challenge, that decision should have been.[34]It is not for me to say whether this approach is, in the event, a sustainable approach, but it has been necessary for me to have spelt out the way in which the claimant's case is sought to be advanced in order to decide whether I can accept the suggestion made by Mr. Griffiths that this part of the case, as revealed in a relatively small part of the very extensive pleadings, can effectively be hived off and dealt with without the need to consider the vast swathes of evidence that the defendant suggests is or may be relevant to the issue.[35]I will turn to the submissions of Mr. Andrew Clarke QC for the defendant shortly, but I need to identify the issues the defendant raises on the pleadings. I will do so in a very general way because I consider it will suffice for present purposes. By way of introduction, it is needs to be understood that the claimant has brought proceedings in the Employment Tribunal against the company that employed him for unfair dismissal and for detriment suffered having made protected disclosures (in common parlance, whistle-blowing). He brought his first Employment Tribunal claim in December 2014 on this latter basis. A further claim to the Employment Tribunal was made in June 2015 on a similar, but extended, basis. Both those proceedings have been stayed pending the outcome of these proceedings. Employment Judge Spencer helpfully summarised the nature of those proceedings in her ruling on the stay application and I quote as follows:
"The claims rely on a significant number of alleged protected disclosures which, in turn, concern a very wide-ranging number of matters over a period of some two years. They include disclosures relating to bribery issues, sales and purchases of land, potential market abuse, tax and accounting issues to name but a few. The claimant's case is that he was subjected to a significant number of detriments on grounds that he made protected disclosures, more so that he was dismissed because of those disclosures. The respondent's case is that he did not make any protected disclosures and was not performing well in his role as Finance Director. The pleadings are extensive. The response to the first claim runs to some 90 pages and there the response to the second claim runs to some 156 pages"
. She referred to the extensive pleadings, as I have indicated, and the estimated length of the hearing as 45 days.[36]Obviously the matters relied upon by the claimant in those proceedings, by way of protected disclosure, do not arise as such as part of the case presented in these proceedings along the lines already foreshadowed. My understanding, however, is that much, if not all, of the extensive nature of the defendant's case, as pleaded in the present proceedings, replicates in large part its response to the claims made in those proceedings. That, of course, is acceptable providing it is relevant to the present proceedings. Mr. Griffiths says that if the present proceedings are confined initially to the issues to which I have referred, all this material is irrelevant or, if it becomes relevant, will be material about which the trial judge can give further directions in order to ensure that it is dealt with in a manageable way in the second stage of the trial process. This will avoid, he submits, preparing for a lengthy trial which could well be unnecessary.[37]For reasons I will summarise shortly, he does submit that there is a potential "knock-out blow" that in the circumstances it is appropriate to permit to be the subject of a relatively short trial in the first instance. If what occurs does not amount to a knock-out blow, then nothing will ultimately have been lost but, if it does, a great deal of expense and time would have been saved.[38]It is not easy in a few sentences to summarise the nature of the defendant's pleaded factual case, as set out in the Amended Defence and the draft Rejoinder, but there are essentially two broad features. First, evidence of the allegations of poor performance and misconduct by the claimant, which the defendant contends were being referred to by Mr. Perrins at the meetings on 22nd and 24th September 2014; second, other allegations against the claimant which were not raised by Mr. Perrins at the meetings on 22nd and 24th September 2014. Mr. Griffiths, for shorthand purposes, has labelled these two areas of evidence as "Perrins' complaints" and the "afterthoughts" respectively. I simply adopt that classification for convenience, without necessarily accepting their accuracy.[39]The defendant appears to have assumed, for the purposes of the pleadings, that had the claimant been given an opportunity to make representations at either or both of the meetings in September 2014 he would have raised all the matters that were subsequently raised in the Employment Tribunal proceedings and, accordingly, the defendant has sought to refute them in the pleadings in these proceedings. The defendant also wishes to suggest, as part of its response to the claimant's case as advanced in its present narrow form, that the members of the Remuneration Committee and the Board were well-placed to assess what Mr. Perrins was saying about the claimant because they all had experience of working with him, and they knew of what are said to be the difficulties he presented. As I have said before and repeat, it will be a matter for the trial judge to consider matters of this kind when they arise. But it is not difficult to see that this does raise the question of(1) why, if that was so, nothing appears in the detailed and very carefully crafted minutes about it and, in any event,(2) how potential preconceived and unrevealed notions about the claimant's conduct and capabilities on the part of the decision-makers impacts on the conduct of those meetings if Wednesbury principles are applied to them.[40]At all events, a great deal of the factual material advanced in the pleadings by the defendant refers to events going back to 2012, 2013 and early 2014. Phrases and expressions such as "aggressive and rude", "deliberate manipulation", "inappropriate, divisive and destructive", and others of a similar nature, appear as descriptors of his behaviour on occasions and a great deal of detailed material is advanced, most of which could only be advanced with the support of evidence from a large number of people. Indeed, the defendant's directions questionnaire and the annex to it refers to the possibility of calling as many as 20 third party witnesses - and there are 34 named witnesses from within the Berkeley Group. There are four groups of evidence referred to as follows:• Reasons for dismissal;• dismissal process and exercise of discretion;• amendments to the 2011 LTIP;• whistle-blowing allegations made by the claimant. Mr. Griffiths submits that only evidence relating to the exercise of discretion would be relevant if the attenuated form of the first trial was of the nature for which he contends. All the other matters are either issues that will fall to be decided in the Employment Tribunal proceedings or at a later stage in these proceedings if that stage is reached.[41]Plainly it would not be appropriate simply to decide that there should be this attenuated form of initial trial because there are potentially large numbers of witnesses whose evidence would take weeks to hear. However, the fact that there are, it is said, potentially so many witnesses does at least bring into focus the question of the relevance of what they might say in the context of a claim that is as is sought to be presented on the claimant's behalf, which is, as Mr. Griffiths describes it, a straightforward and simple case. If there is a satisfactory and fair way of deciding on that relatively simple case without shutting out the possibility of dealing with the more complex and detailed matters that the reception of such evidence might involve if it becomes relevant, then it would be consistent with the overriding objective and all the authoritative statements concerning the trial of preliminary issues or split trials, to which reference has been made in the course of argument and in the skeleton arguments. Equally, from my perspective as Judge in charge of the Queen's Bench Civil List, I would be reluctant to have a judge tied up for eight weeks or so, as is estimated, on hearing evidence that may prove to be irrelevant. That is not a satisfactory use of limited judicial resources.[42]So how is it said that there is a way of constructing a relatively short trial on issues carved out from the pleaded issues in which there is a realistic prospect of its outcome being decisive or potentially decisive? Mr. Griffiths' argument on the "knock-out blow" or the "decisive or potentially decisive" issue is that a trial on the confined approach for which he contends might be won outright by either side. If the claimant's argument is correct and accepted the court will decide that the issues he seeks to exclude at this stage are indeed irrelevant and judgment can be given without trying them. However, the defendant disputes the applicability of each of the implied terms alleged by the claimant to be relevant to the discretionary decision on the bonus scheme, and if the defendant succeeds on that point, which is a matter of law and does not require consideration of the evidence nor the Perrins' allegations or the afterthoughts, the claimant's case will fail.[43]Mr. Clarke submits that before I should accede to the claimant's submissions I would be need to be satisfied that certain essential propositions put forward on his behalf are correct, or that the risk of them being incorrect is so small as to justify proceeding on a preliminary issue/split trial basis. The first of those propositions is that it is possible for the court properly to examine the defendant's exercise of discretion without hearing from the decision-makers themselves, including their views as to what they made of what they were told, or from Mr. Perrins as to the truth of what he said to the Remuneration Committee and his fellow Board members, and why he said as much or as little as he did. The second proposition is that the primary remedy sought, namely, a declaration, can be dealt with without evidence as to the factual matters underlying the whistle-blowing claims in the Employment Tribunal. In summary, these propositions are that the court can, and should, look no further than the minutes of the two meetings as I have already indicated.[44]Mr. Clarke submits that reaching a conclusion about these matters requires a much more wide-ranging enquiry into what had been going on within the defendant set-up as between the claimant and his colleagues than merely confining the focus to those matters.[45]I am not persuaded that this is so or that I must approach the question purely on the basis of the risk analysis for which he contends. I see nothing wrong in the claimant seeking to put forward his case on the narrow basis I have endeavoured to summarise, with a view to the trial judge deciding whether that case succeeds on the merits or fails. As Mr. Griffiths recognises, if it fails that would be the end of the claimant's claim. If his arguments about the available remedy or remedies are accepted, there will at least be a basis for resolving the monetary side of the claim. If that should not be so further directions for the assessment of that aspect can be given. Whatever the outcome of this narrowly-based argument, the trial judge will be in the best position to decide to what extent (if any) further evidence on any issue is required. This, as it seems to me, is a much more focused, cost effective and fair approach to this litigation, bearing in mind also the court's resources, than the open-ended approach that would be required for a trial that raised all the issues of past conduct and the truth of what Mr. Perrins told the Committee and the Board, reflected in the pleadings to which I have referred. In my view, the circumstances I have described would meet the factors mentioned by Mr. Justice Neuberger (as he then was) in Steele v Steele [2001] C.P. Rep 106, particularly the decisive or potentially decisive issue to which I have referred.[46]The approach of Mr. Griffiths to identifying specific parts of the pleadings that might form the subject of a trial may be a satisfactory one, but I would prefer not to make a specific decision about that until the parties have had an opportunity to discuss the implications of the general ruling which, by virtue of this judgment, I have made. In broad terms, the issues to be resolved at the preliminary trial are, as he suggested, namely, an examination of the reasons given in the minutes of the two meetings for not treating the claimant as a good leaver, whether that decision was unlawful, and, if so, whether, on the other material reflected in the minutes, the decision ought to have been that he should be treated as a good leaver. As I understood it, Mr. Griffiths accepts that this would not preclude the decision-makers from giving evidence but it would preclude an examination of whether what Mr. Perrins said was true and of whether there were other factors influencing the decision of the Committee and/or the Board, and whether he should have been treated as a good leaver.[47]As I have said, I consider the mechanics need some further consideration in the light of the decision of principle, in the first instance between the parties, to see if a suitable modus operandi can be agreed. If not, I will have to make a decision.

COST BUDGETING

[48]I will turn now to the question of costs budgeting. Obviously the decision I have made in principle about the nature of the trial means that the costs of that trial ought to be significantly less than the costs of a trial lasting 9 weeks or so. That, however, does not mean that I should not consider the question of whether to make an order for costs budgeting. The claimant invites me to do so. CPR 3.12(1A) says that costs budgeting will apply in any case "where the court so orders". I am being asked so to order in the present case.[49]There is no doubt that on the figures deployed this is potentially an extremely large claim, possibly exceeding £10million, and it might be said not the kind of claim where costs budgeting is to be considered, although the observations of Mr. Justice Coulson in CIP Properties (AITP) Ltd. v Galliford Try Infrastructure Ltd. [2014] 6 Costs Law Reports 1026 at para.27 are relevant in this regard. However, this is not a contest between two giant corporate entities - it is a dispute between a private individual and one giant corporate entity. The claimant may have been paid well during his time with the defendant and he may have, since his dismissal, acquired a job that, by the standards of many people, is well paid, but his resources for conducting litigation are miniscule by comparison with those available to the defendant. What the defendant chooses to pay its lawyers is, of course, a matter entirely for it to decide upon. Those lawyers will not be restricted to recovering from their clients sums well in excess of anything that may be permitted by the court by way of costs budgeting. However, the advantage of costs budgeting from the claimant's point of view is that he, or those who may in due course fund him, will know now the potential downside of losing the case. They will know that it would have been assessed by the court as reasonable in advance of proceeding further, rather than simply awaiting the outcome of an assessment in due course.[50]The claimant would like costs budgeting to be put in place so that potential after the event insurers will know the position. I can see nothing objectionable to that being, at least in part, an objective on his part. If he fails to secure such insurance he will have the reassurance of knowing the limit of his personal liability if his claim should fail. I do not think that the decision to order costs budgeting requires any greater justification than that. It will help to even the playing field between the parties and keep everyone focused on what they are spending on this litigation. The costs said to have been involved in the applications made to me are indicative of where the costs sought to be recovered in this case might go unless property considered and, where appropriate, restrained.[51]The costs budgeting should be carried out by a judge in this case, but that judge will need the advice and assistance of a Queen's Bench Master in carrying out the task, and appropriate steps to that end will have to be undertaken before the costs budgeting hearing takes place.[52]Having made that decision in principle, I will invite the parties to endeavour to agree a form of order that gives effect to it. Equally, now that the decisions in principle have been made, it is possible that the parties will be able to agree the relevant directions necessary to move matters forward towards the preliminary trial. If they cannot do so I will make a decision on the basis of written representations.

MEDIATION

[53]Before I part with this case today I should like to make one observation. I have noted that the defendant has suggested that there is scope for mediation here and that, as things stand, the claimant has not taken up that suggestion. I do not know the full reasons for that and there may be entirely understandable reasons for thinking that now is, or at least when it was first suggested was, not the time to do so. However, I would urge both parties as strongly as I can to embrace the possibility of achieving a mediated settlement before long and before even the costs-budgeted costs start assuming significant figures. The shape of the litigation is somewhat clearer now that this hearing has occurred and a large number of the underlying disputed areas have been identified.[54]Prior to my appointment as a judge I acted as a mediator in a number of cases, including cases where disputes had arisen between former employees and their employers in a corporate setting. My experience suggests that this is just the sort of the case where, with an experienced mediator present and a willingness on the part of all parties(1) to look at the bigger picture rather than simply the picture created by the allegation and cross-allegation culture of litigation and(2) to approach the problem with some lateral thinking, there is a good prospect of a settlement. All those who would be involved in the litigation are busy people who have better things to do than to spend time instructing lawyers and preparing for litigation, and then taking part in it if it remains unresolved. That applies to all the potential witnesses of the preliminary trial who might be called by the defendant and to the claimant himself, who now has a new job. I can only hope that these words are heeded.

Cited in 2 later judgments