Comberg v Vivopower International Services Ltd & Anor [2020] EWHC 2438 (QB)

“It is not to be forgotten that, in the present case, the Judge was faced with the task of assessing the evidence of witnesses about telephone conversations which had taken place over five years before. In such a case, memories may very well be unreliable; and it is of crucial importance for the Judge to have regard to the contemporary documents and to the overall probabilities.”

“In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which crossexamination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.” 50. These passages were considered by the Court of Appeal in Kogan v Martin [2020] EMLR 4, confirming the general proposition that especially in commercial cases, the Court must adopt this approach. However, that is not to say that all the evidence including the oral evidence should not be taken into account. The Court of Appeal was there critical of a judge who said that he would take very little account of the oral evidence because of the documents. In the judgment of the court at 88-89 (Floyd, Henderson, Peter Jackson LJJ), it was stated: “88. …First, as has very recently been noted by HHJ Gore QC in CBX v North West Anglia NHS Trust [2019] 7 WLUK 57, Gestmin is not to be taken as laying down any general principle for the assessment of evidence. It is one of a line of distinguished judicial observations that emphasise the fallibility of human memory and the need to assess witness evidence in its proper place alongside contemporaneous documentary evidence and evidence upon which undoubted or probable reliance can be placed. Earlier statements of this kind are discussed by Lord Bingham in his well-known essay The Judge as Juror: The Judicial Determination of Factual Issues (from The Business of Judging, Oxford 2000). But a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all of the evidence. Heuristics or mental short cuts are no substitute for this essential judicial function. In particular, where a party's sworn evidence is disbelieved, the court must say why that is; it cannot simply ignore the evidence.”

“Q. Did you understand that to be a capability issue or something else? A. I could not determine whether it was capability, unwillingness to engage or a disciplinary matter. That is a matter of judgment that different people can take a different view on, I think, in this case. It was a complex set of issues. As I said, not very much was working well, you could point to one and say that was disciplinary; you could point to another and say that was lack of attention or dereliction or something. It is a question of judgment as to how you think that is. But whatever it is, there was a loss of confidence in the board in Dr Comberg continuing, reflecting a loss of confidence in the staff, which means they were not responding to him properly or adequately and a loss of confidence from shareholders as well. Q. You are saying you could call it this or you could call it that, but your judgment is what I am asking you about. In your judgment, are you saying this was a capability dismissal situation? A. I am saying given his contract and given the situation, it is a disciplinary matter. Q. It is not a capability matter? A. Not by this time, no. I had endeavoured to assist it being resolved as if it was a capability matter, but by this time it was clear we had gone beyond that.”

“Can you tell the court, by reference to that, of any impressions that you have of his management style? A. Yes. He is very entrepreneurial and very ambitious, and he takes on challenges with an expectation of great success and reward. He brings people together to fulfil those goals and holds them to very high standards. His reach is across many different companies at the same time, so his ability to spend lengthy periods of time is somewhat limited on any one issue, so he tends to be quite abrupt with his e-mails and, as you said, trenchant at times. So, he takes some getting used to. I think many people find it difficult to work with him, but many people find it very fulfilling to work with him. He looks for a very particular type of person to work with and, as a result, those that meet his expectations and find his working style to be compatible with theirs remain with him for many years and can be very successful. Others quickly realise that they are not going to be a fit and move on. So, he is a very strong personality. He is very bright and energetic. He can be very frustrating at times because he does have high expectations, but he is also fair and can work through conflicts in a reasonable way. JUDGE: Thank you. Does anybody have any questions arising out of that? MR. BROWN: You describe a particular style. Presumably, you would accept that Dr Comberg did not have that particular style that Mr. Chin looked for? A. Correct.”

"The Executive shall comply with his fiduciary and legal duties during the continuance of his employment and, in particular shall: 4.1.1 comply with the provisions of Part 10 of the Companies Act 2006 (a copy of which will be made available to him) including the: (A) duty to act within powers; (B) duty to promote the success of the company; (C) duty to exercise independent judgment; (D) duty to exercise reasonable care, skill and diligence; (E) duty to avoid conflicts of interest; (F) duty not to accept benefits from third parties; and (G) duty to declare interest in proposed transaction or arrangement; 4.1.2 faithfully and diligently perform: (A) the usual duties of a Chief Executive Officer; and (B) such other duties as may from time to time be assigned to him by the Board, whether those duties relate to the business or interests of the PLC Company or the Company or to the business or interests of any other Associate (and such duties may include holding any office or other appointment in or on behalf of any Associate or any other company for as long as the Company requires); 4.1.3 familiarise himself with and in all respects comply with: (A) all and any lawful and reasonable directions given by or under the authority of the Board; and (B) all relevant policies, rules and regulations of the PLC Company and the Company from time to time in force; and (C) all laws, codes of conduct, rules and regulations or listing rules relevant to the PLC Company, the Company and/or any other Associate or to him as a director of the PLC Company and the Company or as an office- holder of any other Associate. 4.1.4 exercise only such powers as are consistent with his duties and act only in accordance with the Articles of Association of the PLC Company or the Company (as appropriate), where his duties relate to the business or interests of an Associate, of that company; 4.1.5 use his best endeavours to promote the success of the PLC Company and the Company, each for the benefit of its members as a whole and, save where there is any conflict with the success of such company, the success of all Associates; 4.1.6 keep the Board promptly and fully informed (in writing if so requested by the Board) of his conduct of the business, finances or affairs of the PLC Company, the Company and any other Associate and provide such explanations as the Board may require; 4.1.7 promptly disclose to the Board full details of any knowledge or suspicion he has that any employee or officer (including the Executive himself) of the PLC Company, the Company or any other Associate has or plans to commit any serious wrongdoing or serious breach of duty or other act which might materially damage the interests of the PLC Company, the Company or its Associates or plans to leave their employment or to join or establish a business in competition with the PLC Company, the Company or any of its Associates (including details of any steps taken to implement any such plan); and 4.1.8 save where on authorised leave (for holiday or sickness or injury or other reason) and save as modified by the provisions of this Agreement where the Executive is placed on garden leave or suspended, devote the whole of his time, attention and ability during his agreed hours of work to the performance of his duties under this Agreement."

"The nature of the Executive's job is such that his working time is not measured or predetermined. The agreed hours of work of the Executive shall be normal business hours and such other hours as may be required for the proper performance of his duties under this Agreement."

"The Executive shall perform his duties principally at the London office of the Company or at such place or places in the United Kingdom as the Board may from time to time reasonably determine. The Executive may be required to travel for work as reasonably required, the expenses for which he will be reimbursed in accordance with clause 8."

“The Executive's salary shall be inclusive of any other sums receivable as directors' fees or other remuneration to which he may be or become entitled as the holder of offices or appointments in or on behalf of the PLC Company, the Company or of any of its Associates. To achieve this the Executive shall account for any such sums he receives to the Company and his salary shall be reduced by the amount of such sums (and the Executive hereby authorises the Company to make any such reduction(s)).”

"in accordance with the Companies Act 2006, all remuneration payments and benefits due to the Executive (including any payment for loss of office) will only be payable if and to the extent that they are either consistent with the most recent remuneration policy approved by members of the Company pursuant to section 439A of the Companies Act 2006 or are separately approved by resolution of the members of the Company,"

“In lieu of pension contributions, the Company shall pay the Executive an annual amount equal to 10% of his annual base salary under clause 5.1, such amount to be paid in equal monthly instalments at the same time as salary is paid to him.”

"The Executive hereby agrees that at any time during the continuance of his employment under this Agreement and on termination of his employment the Company shall be entitled to deduct from any sums due to the Executive (including salary, pay in lieu of notice, bonus, holiday pay or sick pay) any outstanding monies then owed by the Executive to the Company, including all outstanding loans or advances of salary made by the Company to the Executive (and any interest), any expense floats, any pay received for holiday taken in excess of the Executive's accrued holiday entitlement under clause 9, any sums paid on behalf of the Executive by the Company which have not been incurred by the Executive in the proper performance of his duties."

"Notwithstanding sub-clause 3.2 and without prejudice to its rights under the other provisions of this clause 17, the Company shall be entitled to terminate the employment of the Executive with immediate effect by giving summary notice if the Executive commits a repudiatory breach of this Agreement or if the Board reasonably considers that any of the events set out below occur or have occurred (whether or not such event would otherwise be a repudiatory breach): 17.2.1 the Executive commits a serious or persistent breach of any material term of this Agreement; 17.2.2 the Executive is guilty of conduct (whether or not related to his employment or office) likely in the reasonable opinion of the Board to bring himself or the Company or any Associate into disrepute; 17.2.3 the Executive repeatedly neglects, fails or refuses to carry out any of the duties properly assigned to him under this Agreement; ... For the avoidance of doubt, in the circumstance of a termination pursuant to this clause 17.2 the Executive shall have no pro-rata entitlement to any bonus or carried interest arrangement in respect of that year."

"Each of the Executive and the Company, on behalf of itself and its Associates, confirms that this Agreement represents the entire understanding, and constitutes the whole agreement, in relation to its subject matter (save only for any terms implied at law or by custom) and supersedes any previous agreement between the parties with respect thereto (which shall be deemed to have been terminated by mutual consent)."

"The Executive confirms that: 22.2.1 in entering into this Agreement he has not relied on any representation, warranty, assurance, covenant, indemnity, undertaking or commitment which is not contained in this Agreement, or any document referred to in it; and 22.2.2 in any event, without prejudice to any liability for fraudulent misrepresentation or fraudulent misstatement, the only rights or remedies he has in relation to any representation, warranty, assurance, covenant, indemnity, undertaking or commitment given or action taken in connection with the entering into or performance of this Agreement are pursuant to this Agreement and, for the avoidance of doubt and without limitation, the Executive does not have any right or remedy (whether by way of a claim for contribution or otherwise) in tort (including negligence) or for misrepresentation (whether negligent or otherwise, and whether made prior to, or in this Agreement)."

“The Executive's salary shall accrue from day to day and be payable by equal monthly instalments on or about the last day of each month.”

“Philip is not resolved to my knowledge (I’m not in the loop) but no more payroll”

“…PLC chose not to pay Dr Comberg his October salary because the parties were in negotiations in relation to the terms of the termination of Dr Comberg’s employment”

“If, before the time arrives at which a party is bound to perform a contract, he expresses an intention to break it, or acts in such a way as to lead a reasonable person to the conclusion that he does not intend to fulfil his part, this constitutes an “anticipatory breach” of the contract and entitles the other party to take one of two courses.”

“Renunciation requires a “clear” and “absolute” refusal to perform. This need not be a refusal to perform at all; it is sufficient that one party intends to act in a manner “substantially inconsistent with his obligation”, i.e. in a way which would amount to a substantial failure to perform which is the general requirement for the right to terminate for “actual” breach. Nor does a renunciation need to be express; it can take the form of conduct indicating that the party is unwilling, even though he may be able, to perform. A renunciation may even be inferred from silence where it is a “speaking silence”, e.g. the previous conduct of a party in refusing to perform another related contract may give rise to the inference that he will refuse to perform the contract in question. His silence or inactivity can then be a renunciation of that contract unless he takes positive steps to dispel that inference. The conduct must indicate to the other party that the party alleged to have renounced the contract is about to commit a breach of it: an indication given to a third party of an intention to commit a breach at an unspecified time in the future has been held not to amount to a renunciation.”

“I would also accept Mr Cordara’s submissions about Latreefers’ silence to the extent that they may go beyond the judge’s analysis. The silence was not mere silence, it was overlaid with all that had gone before. It was a speaking silence. The difficulty with silence is that it is normally equivocal. Where, however, it is part of a course of consistent conduct it may be a silence which not only speaks but does so unequivocally. Where silence speaks, there may be a duty on the silent party in turn to speak to rectify the significance of his silence. The circumstances of this case demonstrate the importance of these principles. This was not a case where a party seeks to derive assent out of mere silence. These parties were in contractual relations, and the question was whether the yard should continue to perform in circumstances where Latreefers had made it clear that it did not want performance on the terms of the existing contracts. The yard needed to know where it stood.”

“23. The focus is on the damage to the relationship between the parties. Dishonesty and other deliberate actions which poison the relationship will obviously fall into the gross misconduct category, but so in an appropriate case can an act of gross negligence. 24. The question for the judge was, therefore, whether the negligent dereliction of duty in this case was "so grave and weighty" as to amount to a justification for summary dismissal….”

“Since the first of these cases was decided the law as to unfair dismissal has developed. The courts have not yet fully worked out how that legislation which is now embodied in the 1980 Act impinges on the common law. In my view, the tendency of that legislation must make it much more difficult to justify summary dismissal for incompetence.”

“There is the further difficulty in this case that the plaintiff was employed as a chief executive. The degree of skill required of a professional man or a skilled tradesman may be easy to define. Not so where the office is defined only by its title and denotes a job which may vary enormously as between one employer and another. Although the right to dismiss summarily for incompetence still survives, it is difficult to imagine circumstances in which the necessary evidence would be available in the case of a chief executive, who had recently been appointed. The employer would have to show that his continued employment would be quite impracticable because of the harm he was likely to do to the company.”

“it is too facile to say that because the company did badly whilst the plaintiff was chief executive, the plaintiff was incompetent.”

“At the Board meeting, I was asked by one of the attendees whether, at that point in time, the movements of money into the business were sufficient to meet the movements of money out of the business. I confirmed that at that time, they were sufficient. However, I also explained that this was unlikely to continue to be the case going forward given that PLC had a gap in its EBITDA forecast and revenues. I explained that this meant that the business would run out of capital before year end unless steps were taken to bring in capital, and there were plans underway to achieve this. In particular, I explained that the business had received initial notifications of interest from third parties including KeyBanc Capital Markets Inc. and Crayhill Capital Management LP to lend between USD 5 and 7 million secured against PLC's North Carolina assets. However, I explained that nothing had been agreed and there was much wore work to be done in order to secure capital before year end.”

“Our client has been advised by this firm and Leading Counsel that the misconduct allegations that form your clients’ Counterclaim are lacking substance and/or have been misdirected against him. They have also been constructed with the benefit of hindsight. They are, therefore, opportunistic. Further, the quantum that is sought appears to have been exaggerated and is unrealistic. As such, the Counterclaim is very likely to fail at trial as to liability, causation and quantum. Nevertheless, our client is mindful that litigants are expected to try to resolve disputes whenever possible under the Civil Procedure Rules. We are, therefore, authorised to make the following offer which is made pursuant to Part 36 of the Civil Procedure Rules and without any admission of liability (the “Counterclaim Part 36 Offer”). The Counterclaim Part 36 Offer represents a nuisance payment which has been made by our client in consultation with his insurer (under your clients’ Directors and Officers insurance policy) in order to protect their positions by obtaining the automatic costs consequences set out in Part 36 of the Civil Procedure Rules. The nominal amount of the Counterclaim Part 36 Offer reflects the strong view of this firm and Counsel that the Counterclaim will fail in its entirety at trial.”

“I do not accept [counsel for the employee’s] submission that the usual effect of an agreement to settle a particular claim is to prevent a party to the settlement from thereafter relying on factual allegations which formed part of that claim in support or defence of some other claim. In my view, it all depends on the precise terms and context of the agreement.” (Emphasis added).

“Where the company, after its incorporation… has agreed to modify the terms of the original contract, it will be easier to infer the making of a new contract.”

“I have asked Freshfields to stop working on revising this until further notice as I do not want the company to waste lawyer fees on something that is not a basis for a deal.” 259. Dr Comberg said that there was a telephone discussion which he had with Mr Chin on 28 July 2016 agreeing to 2 years followed by a rolling 12-month contract. However, this provoked concerns among Australian investors. 260. By this time, Mr Chin had sought advice in relation to a three-year fixed term and other terms in the draft agreement from Australian lawyers. He says that he was concerned about Australian listing rules on the basis that VivoPower was a putative subsidiary of Arowana (which is ASX listed) and because an ASX listing of VivoPower was a possibility. The advice was passed on by Mr Chin to Dr Comberg on 1 August 2016 at 07:41am (London or Nice time) with an explanation that a 3year fixed term would not “fly with Aussie investors”

“Unfortunately upshot is some of the provisions in draft contract are illegal under ASX listing rules - and furthermore will not fly with Aussie investors– ASX rules relevant because Vivo still a sub of Arowana International – some possible solutions but also some compromises which or may not fly from your perspective – happy to workshop to see if I can solve.” 261. There were calls later that day between Mr Chin and Dr Comberg. Mr Chin then said that there were some possible solutions or compromises in a WhatsApp message on 1 August 2016. On 2 August 2016, HSF proposed a 2-year term terminable at any time by VivoPower on 12 months’ notice. On that day, Mr Chin sent a WhatsApp message to Dr Comberg saying “Forgot to mention this – basically doesn’t matter if company pays – still have to gross it up by 45 per cent!”, and then within a minute “have a creative idea we can talk through in 1 hr and 10 min”. 262. A conversation took place between Mr Chin and Dr Comberg. Dr Comberg said that on 2 August 2016, he took a call in his holiday home in France and that in exchange for his agreeing to the contract term of a rolling 12-month contract, there would be a payment of 1 million US Dollars shortly after PLC listed on NASDAQ. He said as follows in his first witness statement: “77. The call took place and I recall it vividly as I was at my holiday home in France at the time with my family and it provided the breakthrough to the issue which was very much on my mind at the time. I took the call at my desk in my bedroom. Mr Chin suggested a workaround to the issue relating to the contract term whereby, in exchange for me agreeing to the Revised Contract Term, I would be paid USD 1 m shortly after PLC listed on NASDAQ (the "Contract Term Fee"). Mr Chin explained that the Contract Term Fee was just under twice my annual salary of GBP 540,000, so it compensated me for the fact that I would only have a 12 month rather than a three-year contract term. 78. Mr Chin's suggestion was not ideal given that there was every chance that PLC would not list on the NASDAQ. Nonetheless, I agreed to Mr Chin' s proposal as the means of providing me with a degree of security in relocating my family from Germany to the UK.” 263. Dr Comberg says that he relayed this to his wife Mrs Comberg. As noted above, Mrs Comberg provided evidence that this was relayed. Mr Chin denied that this was the agreement and said that the creative idea referred to related to the payment and taxation of relocation costs. This was given limited support by the earlier WhatsApp message preceding the one about the “creative idea”

“Kevin has passed on to us the outcome of his recent discussions with Philip”

“Rolling 12 mth term – fine”

“11. The Revised Contract Term was unacceptable to Dr Comberg for the reasons stated in paragraph 10 above. Mr Chin, therefore, agreed to compensate Dr Comberg for surrendering the three-year fixed term in exchange for the lesser benefit of a one-year notice period. In early August 2016, therefore, and before Dr Comberg's service agreement with VivoPower was executed, in a telephone call with Dr Comberg, Mr Chin offered (and Dr Comberg agreed) that, in lieu of the three year fixed term, VivoPower and/or PLC would pay Dr Comberg a fee of USD 1,000,000 (the "Contract Term Fee") shortly after PLC listed on the NASDAQ (the "Contract Term Agreement"). 12. The purpose of the Contract Term Agreement was to provide contractual entitlement [amended from “consideration” to “contractual entitlement”] for Dr Comberg so as to facilitate his agreement [amended from “agreeing” to “so as to facilitate his agreement”] to the Revised Contract Term, which was significantly to his detriment.” (2) Discussion 272. The evidence of Dr Comberg and Mr Chin is fundamentally at odds: an agreement to pay $1 million per Dr Comberg, and an agreement to pay some relocation expenses in a tax efficient manner per Mr Chin. It does not suffice in order for Dr Comberg to prove this part of the case if the Court prefers Dr Comberg’s account to the extent of finding that there was a discussion about a $1 million payment. The question is whether he has proven that there was a binding agreement for VivoPower to pay this sum following a listing. In my judgment, Dr Comberg has failed to prove that VivoPower and Dr Comberg entered into the Contract Term Agreement. 273. The Court has had particular regard to various matters which appear to assist Dr Comberg’s case including (1) The corroboration of Mrs Comberg who came over as a self-assured witness. She herself is admitted to the German bar and has practised law in Germany. She also describes herself as a self-employed entrepreneur. She could therefore be expected to understand the subject matter. However, she was not a party to the conversation with Mr Chin. Her relevant evidence relating to the telephone conversation with her husband was hearsay. In view of the many matters which are inconsistent with the making of an agreement, there are significant doubts about what was discussed in the course of this conversation. Assuming for this purpose that it was a conversation about $1 million, then at best Mrs Comberg was relating whatever Dr Comberg’s interpretation of the conversation was. She could not be expected to have been privy to the nuances of the conversation, and in particular about whether it was the seeds of an idea for negotiating an agreement for such a payment as opposed to an agreement there and then between VivoPower and Dr Comberg. (2) There was an impasse between the parties at the end of July/early August 2016, and so the inference is that something significant led to its being broken such as enabled an agreement to be made on 4 August 2016. Mr Chin and Dr Comberg gave radically different accounts of what that was. Dr Comberg’s account is a very substantial matter addressing directly the 3- year/1-year impasse. Mr Chin’s evidence that the discussion was about removal expenses which broke the impasse, and that was given some limited support by the WhatsApp messages, but it was not explained with any clarity how that would have been sufficient to have broken the impasse about the contract term. (3) There is support to some million-dollar agreement by reference to the subsequent ICA which was signed by Ms Gillespie of Arowana. Ms Gillespie could be expected to have given evidence, particularly given the number of witnesses who did give evidence for VivoPower, yet she did not. The spreadsheet also provided some after the event confirmation, but there was a disagreement as to whether Mr Chin had or had not accepted the spreadsheet. 274. Despite these points, in my judgment, Dr Comberg, who bears the burden of proof, has not satisfied the Court that there was an agreement in the terms for which he contends. There is whole battery of points to contrary effect which makes it more likely than not that there was no Contract Term Agreement. The matters to which the Court has had regard include the following: (1) In circumstances where a shareholder approval was regarded as not likely to come to a 3-year contract, the inference is that there would also be a problem if there was an obligation of VivoPower to pay $1 million after the listing. In view of the points about Australian shareholder disapproval being likely to a 3-year contract, the same is likely in respect of this package. It was not explained how that could be acceptable to shareholders. If a 3-year term could not be agreed without shareholder approval, it is not apparent how the $1 million clause could have been agreed without shareholder approval. On Dr Comberg’s evidence, this would give rise almost to the equivalent of three years of basic salary payable in one-year subject to the listing taking place. There is no evidence of Mr Chin taking steps to check with his Australian lawyers whether the payment of $1 million would work with Australian investors. In short, such an arrangement, if made, would not have brought to an end the shareholder approval problem. (2) There is no contemporaneous documentary evidence to support the case of Dr Comberg. There was nothing in the Service Agreement itself. There was no side agreement. Given how meticulous Dr Comberg has shown himself to be as a witness, and how important this issue was, it is difficult to understand why there was not at least a confirmatory WhatsApp message or text or email indicating something about it. There was not even an internal memorandum about it, or at least no such document has been produced. If Dr Comberg informed his solicitors about a deal in the terms which he describes, it seems unlikely that the deal would have gone through without something to protect Dr Comberg. If he did not inform his solicitors, it seems unlikely that he would have let it go without something in writing to protect himself at the time. The absence of any contemporaneous documentary evidence is a significant indicator against Dr Comberg’s case. (4) The cross-examination referred to above contains answers which are at variance with Dr Comberg’s pleaded case. The reason why there was no document provided and why Freshfields was not asked to draw up something was because there were matters to be discussed, and this would happen in Australia later in the month: see [T3/362/8-T363/10] quotedat paragraph 265 above. The details were to be presented by Mr Chin and to be discussed. That begs the question as to whether there was a completed agreement made on 2 August 2017. The details were not specified. Indeed, he said that he did not disclose this transaction to his fellow directors because he was waiting for details from Mr Chin [T3/365/19T3/366/17]. This appears to indicate that the details had yet to be agreed. If there had been an agreement with some additional details to be agreed, there was no reason not to make that disclosure to the other directors. Yet there was no disclosure to them, which indicates that these were not mere details and that the agreement as a whole had still to be negotiated. There is no indication that there was any further meeting to discuss these matters or as to the outcome. (5) If there was a discussion about a million dollars being payable to Dr Comberg rather than some arrangement in respect of the removal, in my judgment, it is more likely than not that it was couched in some terms falling short of a binding agreement. The timing of when the money would be payable other than after the listing was not stated. It could have been that it would depend on a successful listing, which might need to be defined. What other conditions would have applied? It is unlikely to have been a promise from VivoPower given the position taken by HSF in the UK and by lawyers in Australia as regards the legal difficulty about shareholder approval. If there was a promise at all, it is more likely to have come from the Arowana group, perhaps Arowana Singapore (as reflected in the ICA) in order to keep the matter away from VivoPower. However, here again, the absence of a term of the Service Agreement or a side letter or an email or message or WhatsApp or internal memo makes it unlikely that there was a contractual commitment whether from VivoPower or at all. (6) Likewise, Dr Comberg did not inform PwC (who were providing him with tax advice at the expense of Arowana) about the fact that he would be receiving a payment of $1 million. He emailed PwC on 2 August 2016 at 17.35 to update them on his preparations to move to London, but there was no reference to the $1 million agreement in that email. If there was an agreement or to be an agreement, it would be expected that Dr Comberg would have referred it to PwC. (7) When there were documents created thereafter, they were in significant respects inconsistent with the case now put forward by Dr Comberg. Those other documents as have been disclosed such as the Term Sheets and the ICAs do not contain confirmation which makes the point that there was an obligation of VivoPower to pay the sum of $1 million to Dr Comberg. There was no Term Sheet for $1 million dollars. It was subject to a written agreement being prepared, the services provided were about education in Asia, and there was no reference to the Contract Term Agreement. Further, in March 2017, the parties to the ICA were different as discussed above, and given the matters in the preceding paragraphs, this cannot be explained easily as if those were simply vehicles for the contracting parties in the current litigation. The services to be provided under each of the ICAs bore no relationship to the matters which were the subject of the alleged fee agreements. The spreadsheet on any view is a statement of Dr Comberg’s case months later. Contrary to the submission on behalf of Dr Comberg, Mr Chin did not make any admissions in respect of the spreadsheet. (8) There were no public documents evidencing that VivoPower agreed to pay Dr Comberg the sum of $1 million. The agreement has not been reflected in other public filing documents such as the Form-20F, the Annual Report or the financial statements. 275. It is not for the Court to determine what exactly occurred. It suffices to find, as I do, that Dr Comberg has not proven the Contract Term Agreement. It is more likely than not that there was no Contract Term Agreement. The totality of the points in the preceding paragraphs make it improbable that the impasse referred to above was solved by an oral agreement of VivoPower to pay to Dr Comberg the sum of $1 million after the listing. It is more likely that Dr Comberg agreed to “get on the bus” not only without the benefit of a three-year contract, but without a contractual promise in the nature of the alleged Contract Term Agreement. 276. If in fact it is true that Dr Comberg anticipated a $1 million arrangement, then at highest this was to be negotiated and until either a written contract or much more had been agreed, there was no agreement. It is unlikely that there was any agreement involving VivoPower because of the difficulty about shareholder approval. If there had been, then this would have been likely to have been evidenced by documents at or before the time of the execution of the Service Agreement, but there were none. The subsequent agreements e.g. term sheets, ICAs and the like provide fictitious agreements, and the reason for the fictions have not been explained. It follows that they do not provide sensible payment mechanisms. The oral evidence of Dr Comberg in cross-examination led to answers inconsistent with his case at trial that there was an agreement to pay him $1 million after the listing. 277. Evidentially and legally, the entire agreement clause presents a further problem to a collateral agreement. One would expect that it would be a matter of concern to Dr Comberg, himself a man with a legal background, and who has shown himself to be a careful man throughout the trial. It seems more likely than not that whatever broke the impasse was not an agreement between Dr Comberg and VivoPower in the terms described or at all. Had it been, one would expect that Dr Comberg would have taken steps to get around the entire agreement clause. He did not. Leaving aside the legal analysis below of the entire agreement clause, this provides further factual evidence that there was no Contract Term Agreement. 278. Taking into account all these matters, the Court finds that there was no Contract Term Agreement. (3) The legal effect of the entire agreement clause 279. The above is not the end of it. Even if there was an agreement between Dr Comberg and VivoPower, which has been rejected, the Court moves on to consider Clause 22, the entire agreement clause, which is set out above. This is in summary that the Service Agreement represents the entire understanding and constitutes the whole agreement in relation to its subject matter and supersedes any previous agreement with respect thereto. 280. In its submissions, VivoPower has submitted that the Contract Term Agreement was defeated by the above entire agreement clause. Such clauses, it was said preclude a contracting party from relying on a collateral contract. This was stated by Lightman J in Inntrepreneur Pub Co v East Crown [2002] 2 Lloyd’s Rep 611 who observed at 614 (paragraph 7): “7. The purpose of an entire agreement clause is to preclude a party to a written agreement from threshing through the undergrowth and finding in the course of negotiations some (chance) remark or statement (often long forgotten or difficult to recall or explain) on which to found a claim such as the present to the existence of a collateral warranty. The entire agreement clause obviates the occasion for any such search and the peril to the contracting parties posed by the need which may arise in its absence to conduct such a search. For such a clause constitutes a binding agreement between the parties that the full contractual terms are to be found in the document containing the clause and not elsewhere, and that accordingly any promises or assurances made in the course of the negotiations (which in the absence of such a clause might have effect as a collateral warranty) shall have no contractual force, save insofar as they are reflected and given effect in that document. The operation of the clause is not to render evidence of the collateral warranty inadmissible in evidence as is suggested in Chitty on Contract 28th ed. Vol 1 para 12–102: it is to denude what would otherwise constitute a collateral warranty of legal effect.” 281. Lightman J at paragraph 8 followed Deepak v. ICI [1998] 2 Lloyds Rep 140, 138 (Rix J), affirmed [1999] 1 Lloyds Rep 387 where “Rix J and the Court of Appeal held in that case (in particular focusing on the words “promises or conditions”) that this language was apt to exclude all liability for a collateral warranty. In Alman & Benson v. Associated Newspapers Group Ltd 20 June 1980 (cited by Rix J at p. 168), Browne-Wilkinson J reached the same conclusion where the clause provided that the written contract “constituted the entire agreement and understanding between the parties with respect to all matters therein referred to” focusing on the word “understanding”

“The true position is that if the collateral agreement is capable of operating as an independent agreement, and is supported by its own consideration, then most standard forms of entire agreement clause will not prevent its enforcement: see Business Environment Bow Lane Ltd v Deanwater Estates Ltd [2007] L & TR 26 (CA), at para 43, and North Eastern Properties Ltd v Coleman [2010] 1 WLR 2715 at paras 57 (Briggs J), 82-83 (Longmore LJ). But if the clause is relied upon as modifying what would otherwise be the effect of the agreement which contains it, the courts will apply it according to its terms and decline to give effect to the collateral agreement.” 284. This begs a question of construction as to whether the collateral agreement will be construed as operating as an independent agreement or relied upon as modifying what would otherwise be the agreement which contains it. 285. In my judgment, the Contract Term Agreement was not capable of operating as an independent agreement. It was on Dr Comberg’s case an agreement which was collateral to the Service Agreement. The consideration for the service agreement was entering into the Service Agreement. It was said that the parties were at odds over the duration of the length of the Service Agreement. It is alleged that Dr Comberg threatened to walk away if there was not a three-year term, and then the dispute was resolved on the basis that there would be a one-year rolling contract, but instead the contract term fee would be paid by VivoPower to Dr Comberg following a listing of PLC. The consideration for that was said to be that in consideration for entering into a Service Agreement with the more limited contract term, it is alleged that VivoPower agreed to make the payment of $1 million following the listing. 286. It is then a question of construction of the entire agreement clause. In my judgment, the words in Clause 22 are wide saying both that (a) this was the entire agreement or understanding, and (b) it superseded any previous agreement with respect to the Service Agreement. It follows that any collateral agreement, in the words of Lightman J in Inntrepreneur became denuded of legal effect. 287. Mr Brown on behalf of Dr Comberg submitted that VivoPower is giving too wide a meaning to the words “with respect thereto”

“Stipulation for the execution of a formal document” in which the usual position is stated first: “The effect of a stipulation that an agreement is to be embodied in a formal written document depends on its purpose. One possibility is that the agreement is regarded by the parties as incomplete, or as not intended to be legally binding, until the terms of the formal document are agreed and the document is duly executed in accordance with the terms of the preliminary agreement (e.g. by signature). This is generally the position where “solicitors are involved on both sides; formal written agreements are to be produced and arrangements are made for their execution”

“… [t]he more complicated the subject matter, the more likely the parties are to want to enshrine their contract in a written document, thereby enabling them to review all the terms before being committed to any of them.”

“In common with the Contract Term Fee, the Listing Fee was simply another remuneration incentive offered by Mr Chin to Dr Comberg in order to deliver a particular outcome that was in VivoPower’s interest, namely listing.”

"...there are four essential ingredients to a claim in restitution: (i) a benefit must have been gained by the defendant; (ii) the benefit must have been obtained at the claimant's expense; (iii) it must be legally unjust, that is to say there must exist a factor (referred to as an unjust fact) rendering it unjust, for the defendant to retain the benefit; (iv) there must be no defence available to extinguish or reduce the defendant's liability to make restitution."

“Dr Comberg claims £540,000 in respect of salary, £54,000 pension contributions in lieu under clause 6.1 and £22,600 private healthcare contributions under clause 6.3.2. Dr Comberg gives credit of $322,500 by way of successful mitigation. VivoPower of course bears the burden on mitigation and there is no suggestion that Dr Comberg has failed to take reasonable steps to mitigate.”

“It should be noted, in any event, that the "irrationality" test was applied by Burton J in considering whether an actual decision to refuse a bonus (at a time when Mr Clark was still employed) involved a breach of contract. In the present case there was no decision; breach of contract has been established and the sole issue is the amount of damages. In that context the emphasis is slightly different. As Burton J said [2000] IRLR 766, 775 … the court's task then is: "to ... assess, without unrealistic assumptions, what position the employee would have been in had the employer performed its obligation. That will involve the court in assessing the employee's bonus, on the basis of the evidence before it, and thus to that extent putting itself in the position of the employer ..." In that passage, he was summarising the approach adopted by Timothy Walker J in Clark v BET plc [1997] IRLR 348 (himself following Bankes LJ in Abrahams v Herbert Reiach Ltd [1922] 1 KB 477). In my view, the court is not required to undertake the unattractive task of setting a threshold of irrationality. If the company's obligation was to make a fair and rational assessment, the court's task is to decide how in practice it would have fulfilled that obligation…”

“Where a court decides that there has been a breach of the implied term of trust and confidence (e.g. because no reasonable employer would have exercised its discretion in this way), how should damages be assessed? This question was considered by the Court of Appeal in Horkulak v Cantor Fitzgerald International[2004] EWCA Civ 1287,[2004] IRLR 942,[2005] ICR 402. The CA dismissed the argument that the court's approach should be to assess the damages on the basis of the lowest level of bonus that could have legitimately been awarded. Although this argument was said to derive support from the well-known decision of Lavarack v Woods of Colchester[1967] 1 QB 278,[1966] 3 All ER 683, the Court of Appeal refused to accept such an approach in this context. Instead, the court concluded that when dealing with such cases the court was not obliged to assess the lowest bonus on a reasonable scale but was required to make an assessment, on reasonable assumptions, as to what level of bonus would actually have been awarded if the employer had complied with its good faith obligation. In so finding the Court of Appeal approved the approach to this question which had been taken by the High Court in both Clark v BET plc [1997] IRLR 348, QBD and Clark v Nomura, above. As Burton J pointed out in Clark v Nomura this means that the court's approach to the questions of liability and remedy are radically different. When considering liability – at least when applying the irrationality/perversity test – the court must not substitute its view for that of the employer. However, when assessing the level of damages, the court is required to place itself in the shoes of the employer and assess what would have happened if a bona fide exercise of discretion had taken place. (In Nomura an award of £1.35 million was made.)”

“Mr Chin explained that ‘Key Performance Indicators’ (“KPIs”) would need to be included in the employment contract. I said to Mr Chin that it was too early to set realistic KPIs given that the new business was in its infancy and, amongst other things, it was not clear if and when it would list or the exact amount that it would receive from the listing. I, therefore, said that it was premature to set KPIs which could only be developed once the fundamentals of the business had become clearer. Mr Chin said that he appreciated this problem and that it was necessary to include KPIs in my contract as shareholders would expect to see them there. In a call on 27 July 2016, we therefore agreed that KPIs should be included on an indicative basis but would not be relied upon for setting my bonus. In an email on the same date to Mr Chin, I noted that, “as discussed on the phone today [...] [the KPIs are] an indication and things may change over time as defined between Chairman/board and CEO and as everybody sees need and fit”

“In the present case, the fact of percentage assessments are built into the KPIs in the Service Agreement upon which the discretion falls to be exercised. Another way of putting the point, the Court can simply decide, on the balance of probabilities, that the bonus would have been awarded at any percentage level up to 150% pursuant to the KPIs. That is not the same exercise as reaching percentage assessment representing a lost chance.”

“Judge: Then, employers are used to applying key performance indicators, what is the court supposed to do? MR. BROWN: The court has to do the best it can on the evidence. So, look at the key performance indicators. Assuming you are against me and you are not persuaded that the performance is itself strong, nevertheless, has Rockefeller Habits been rolled out, 2% of bonus, answer, yes. I do not have time to go through all of them. You do it in a broad brush fashion, but ultimately you say, "Doing the best I can, I am satisfied that the bonus would be X." It is a rough and ready exercise as damages quantifications are. It is not loss of a chance exercise. It is really somehow the court exercising the decision that the employer has failed to on the evidence it has.”

“Q. …E11, 3212. If you can look at the second paragraph on the bottom, in the directors' remuneration report, it records there: "The remuneration committee shall have discretion to determine the maximum value of an award that may be made under the Plan", and that is a reference to the Equity Incentive Plan, is it not? A. Yes. Q. "It is currently expected that the maximum value that may be awarded under the plan will be 100% of salary." Do you see that? A. Yes. Q. You need to go back to E10, 2811. So that I can identify this document for you, 2810 is the front page, this is the Pearl Meyer Equity Incentive Plan design final, this is the document 23 that you approved. Do you see that? A. Yes. Q. If we look, please, at 2811, you see in the sixth bullet point: "There will be 16 participants split into four tiers 3 ...(reads to the words)... 100% base salary." Do you see that? A. Yes. Q. If you can turn, please, to 2814, and you see there that Philip Comberg CEO is a tier 1, is he not? A. Yes. Q. We know that Dr. Comberg's allocation, had he received one 10 under this plan, would have been shares to the value of 100% of his salary; that is right, is it not? A. That is correct, RSUs and PSUs.” 396. In re-examination at [T6/870/22-T6/871/16], Mr Chin said: “Q. Can we look in E19…5534…you were asked about the share scheme this morning. This is the written resolution of the remuneration committee, in relation to the shares scheme. …if you look at 5536, the date of that is 6th August 2018. You were not on the remuneration committee by this time. A. Correct. Q. Can I direct you to the bottom of 5534, you can see tier 1, which in your evidence earlier you had said would have included Dr. Comberg, 100% of base salary. But if you go over the page, the final bullet point, says the number of shares granted in 2017 will be calculated using the IPO share price of US$10.20. What does that actually mean, in terms of the bonus you get; are you able to help us with that? A. It means two things: one is obviously that is the price of the IPO; two is from an economic perspective. These are effectively deeply out of the money options; so, not worth anything.” 397. In the course of writing this judgment, assistance was sought as to what was being said. This has led to more specificity, but there have been challenges that this ought to have been in the form of the pleadings and the evidence. 398. Dr Comberg and VivoPower are critical of each other. VivoPower says that it was for Dr Comberg to prove his case. If the position is not clear, that is his fault for not pleading the case and having detailed evidence to prove it. Dr Comberg says that VivoPower should refute the claim because it had the knowledge of how the scheme worked. VivoPower knows what would have been awarded in the period when he would have continued in the employ of VivoPower but for the wrongful dismissal, that is to 4 October 2018. It was submitted for Dr Comberg that the evidence of Mr Chin at paragraph 211 of his first witness statement barely grapples with this claim. The Court would have been in a better position to consider this material if it had been more specifically addressed by both sides in the pleadings and/or the witness statements. (3). The submissions of Dr Comberg 399. Dr Comberg relies first on VivoPower’s Annual Report for the year ended 31 March 2017 which states that “the Remuneration Committee shall have discretion to determine the maximum value of an award that may be made under the Plan. It is currently expected that the maximum value that may be awarded under the Plan will be 100% of salary” [E11/3212]. At that stage, it was said that awards may require the participant to pay a price for the shares or enable the participant to receive the shares for nil cost. It was suggested then that the Remuneration Committee may determine that awards should be subject to various performance measures. Further “the Remuneration Committee shall have discretion to determine the length of the performance period that shall apply to any performance conditions.” 400. In June 2017, Pearl Meyer made an equity recommendation of 25% RSUs and 75% PSUs. There was to be an annual grant of RSUs to 'step vest' over a 4-year period, 25% per annum, no performance conditions beyond still being employed by VivoPower. There was to be an annual grant of PSUs to 'cliff vest' at the end of a 4-year period. The PSUs would be subject to EBITDA Growth per annum and Return on Invested Capital per annum over a four-year period. At threshold, 40% of shares will vest, with full vesting occurring at stretch performance. It appears that the actual allocation of 100% was made in June 2017 (prior to Dr Comberg’s dismissal). A Pearl Meyer ‘Equity Incentive Plan Design – Final’ presentation dated June 2017 [E10/2810-2815] states that “The 2017 share grant for each tier will be as follows: - Tier 1 – 100% base salary”

“These are the agreed 2017 grant sizes for each tier of participants: Tier 1 100%”. 401. The terms of the Omnibus Incentive Plan are set out in Appendix A to the Second Defendant’s Notice of AGM to be held on 5 September 2017 [E11/32923319]. The Omnibus Incentive Plan was adopted and approved at that AGM as confirmed by the Written Resolutions of the Remuneration Committee of the Second Defendant dated 6 August 2018 [E19/5535]. Dr Comberg claims damages reflecting PLC’s Omnibus Equity Incentive Plan (“EIP”), either as the “carried interest arrangement” referred to in clause 5.6 or an “other incentive arrangement” within the meaning of clause 5.5. 402. Dr Comberg then says that the reason why he was not notified of an Award was because of the wrongful repudiation of his service agreement. The suggestion that he would not have been entitled to an Award because of his breaches has been shown to be wrong by the fact that he was not in breach. He is therefore entitled to the value of the Award as damages. 403. The amount claimed is £540,000 by reference to VivoPower’s Annual Report for the year ended 31 March 2017 and the actual allocation made in June 2017, namely 100% of salary. It was submitted in the schedule on behalf of Dr Comberg that there is sufficient evidence to discharge the burden of proof in respect of Dr Comberg’s entitlement to shares representing 100% of salary (£540,000). It was submitted that VivoPower’s position is only that the shares would not be allocated because of poor performance; however, the documents demonstrate that the allocation decisions had already been made. 404. Dr Comberg said that it would be “wholly unfair” for Dr Comberg’s entitlement to be reduced by reference to the matters referred to in VivoPower’s closing (e.g. a resolution of the Remuneration Committee in August 2018: see Closing paragraph 175). This evidence appears, in his submission, to be “contrived” to reduce the claim, but was not pleaded, or referred to in opening or addressed by any of the Defendant’s witnesses (including the Remuneration Committee witnesses) or in documentary evidence and could not be tested in cross-examination. As the prima facie entitlement to shares corresponding to 100% of salary is clear, the burden shifted to D to demonstrate why that sum should not be paid and that burden has not been discharged. (4) The submissions of VivoPower 405. VivoPower says the following: (1) There was no binding carried interest arrangement or other incentive arrangement whilst Dr Comberg was an employee. (2) He was not entitled to any award because of his breaches of contract, and VivoPower would have and would have been entitled as a result not to make an award. (3) No award was made in respect of the other executives until February 2019, which was after the period when his 12 months’ notice would have expired, that is to say after 4 October 2018. (4) The arrangement was only discretionary, and it would not have been awarded to him because he was on a notice period and there was no reason to give it to him. Some parallel is made to the claim to a loss of a bonus. (5) It has not been demonstrated that he had any right to participate in the scheme. The Remuneration Committee has never resolved to award him any shares and he has never entered into an Award agreement with PLC. 406. In any event, if there was an entitlement, the amount of damages is not £540,000, but is much less for the following reasons: (1) The 100% of salary was a starting point in the calculations for Band 1 employees. However, the same was subject to detailed agreements, as can be seen from those relating to Mr Weatherley-White. The award agreements for Mr Weatherley-White and Mr Russell (CEO after Mr Weatherley-White) were disclosed on 2 March 2020 ([E19/5496], [E19/5522], and [E19/5543]. (2) Assuming that Dr Comberg had been entitled to participate in the scheme, he would only have done so on the terms specified in the Remuneration Committee’s August 2018 resolution. The Remuneration Committee resolved to make various awards of Restricted Stock Units (“RSUs”) and Performance Stock Units (“PSUs”)by a written resolution dated 6 August 2018 [E19/5534]. (3) That resolution specified that: (i) the Awards were divided into PSUs and RSUs (split 75%-25%) – (see Resolution 1 on [E19/5535] and the breakdown of the various Awards in Schedule B to the Resolution [E19/5538]); (ii) the PSUs were to vest at the end of the four fiscal years ending 31 March 2021, provided that the participant had been continuously employed by VivoPower during this period [E19/5538]; and (iii) the share awards were to be made against the 2016 stock listing price [E19/5534], Note 5 (and see [E19/5538]: “Price per share for award $10.20”). 407. More fully, Schedule B contained the following notes: “¼ (one quarter) of the RSUs granted shall vest on each of the following dates: (i) 1 June 2018, (ii) 1 June 2019, (iii) 1 June 2020, (iv) 1 June 2021, in each case subject to the terms and conditions of the Incentive Plan and the Restricted Stock Unit Award Agreement. The PSUs granted shall vest in their entirety at the end of the four fiscal years of the Company commencing on 1 April 2017 and ending 31 March 2021, provided that the participant has been continuously employed by the Company during such period and subject to the other terms and conditions of the Performance Stock Unit Award Agreement.” 408. On this basis, Dr Comberg’s entitlement to Omnibus Shares would not have vested prior to the expiry of his notice period save in respect of a quarter of the Restricted Stock Units. VivoPower submits that given the share issue was calculated by reference to the listing price and given the current share price, Dr Comberg’s loss is said to be £3,562.94. (5). Discussion (i). The unsatisfactory evidence 409. The unsatisfactory way in which this aspect of the case has been dealt with by both Dr Comberg and VivoPower has been set out above. Dr Comberg’s case is unsatisfactory because he has not set out how and when and on what terms he says that he ought to have been awarded shares under the EIS. He appears to recognise that in fact his entitlement was only in the year ended 31 March 2019 and following and as a result of the Written Resolutions of the Remuneration Committee of 6 August 2018. 410. They both suggest solutions which are untenable. Dr Comberg says that since VivoPower has not set out in evidence the nature of its case until after the close of the evidence, the Court should operate on the basis that that original plan was implemented and that he would have received an award in shares equal to 100% of his salary. That is unrealistic because his entitlement depended on an exercise of a discretion by the Remuneration Committee, and as he set out in his Reply, it was put into effect in the terms which were awarded to a large number of employees on substantially the same terms in the year ended 31 March 2018. 411. It was then for Dr Comberg as Claimant to prove this case, and he could not do so simply by relying on the position in 2017. His pleaded case was that the time for the exercise of the discretion had not arisen at the time when he left VivoPower (Reply paragraph 50). His second witness statement (paragraph 78) recognises that his entitlement is by reference to the award that was made in the year ended 31 March 2018. 412. Further, by the time of the second witness statement, the parties had been communicating through their respective solicitors as regards the documents which had been granted under the EIP. By the time of trial, in Bundle 19, Dr Comberg had various documents including the Written Resolutions of the Remuneration Committee of 6 August 2018 and the grant of the FSU and the PSU shares to other employees. It was apparent from the Written Resolutions that the entitlements to shares depended upon years of service and that the price per share would be treated as $10.20. 413. There was nothing odd about this. The Resolutions of the Remuneration Committee followed features of the equity recommendation of Pearl Meyer including an equity mix of RSUs and PSUs, a ‘step vest’ in respect of the former over a period of 4 years, and a ‘cliff vest’ at the end of the four year period. It was also from that report that the IPO share price of $10.20 was being used, despite the steep reduction in the value of the shares since the IPO. Further, there were to be 16 participants in different tiers. All of this had consequences that the value of the EIS for an employee being granted the shares in 2018 just before his termination date would be worth little because of (a) the “step vest” in the case of the RSU’s, (b) the absence of any PSUs, and (c) the use of the share price of $10.20. 414. It therefore follows in the cross-examination of Mr Chin that there was an entitlement to a sum equivalent to salary was not based on a sound premise if it meant that Dr Comberg would become entitled to shares to the value of his salary. In re-examination, the reference to RSUs and PSUs and to something being worth little was an answer which reflected the points made in the paragraph immediately above. In these circumstances, Dr Comberg is unable to prove his case by reference to an award which was due to be the same as one year’s salary. 415. Likewise, VivoPower is to be criticised by the dismissive way in which the matter was considered in the first witness statement of Mr Chin at paragraph 211 to the effect that no Omnibus shares had been granted. Dr Comberg was right to answer that in paragraph 78 of his second statement to say that EIS replaced Omnibus shares. Further, it was also unsatisfactory to say that Dr Comberg would not have been granted any shares. He ought to have set out the position as it was subsequently set out in the closing submissions of VivoPower at paragraphs 172-175. However, this does not open the door to a submission on the part of Dr Comberg to say that absent properly addressing the matter in evidence, VivoPower “cannot now complain if the damages are calculated by reference to Dr Comberg’s clear entitlement to equity equivalent of 100% of his salary” (paragraph 264 of his closing submissions). There was no such entitlement: it is based on a false premise. It also ignores the fact that it is for Dr Comberg to establish his claim. 416. Despite neither party addressing the matter as ought to have done, the documentary evidence is before the Court from which the level of the entitlement can be reached. The submission of VivoPower is rejected to the effect that since Dr Comberg has not addressed properly the source of his right and the timing and value of it that he ought to be awarded nothing. So too is the submission of Dr Comberg rejected to the effect that he ought to be awarded the equivalent of 100% of salary in default of VivoPower not addressing the matter adequately in pleadings and witness statements. It therefore falls to the Court to evaluate the evidence and to consider the value of the EIS award. (ii) Is Dr Comberg entitled to damages at all under this head? 417. The following arguments of VivoPower are rejected. First the assertion that the entitlement did not accrue until the award and the relevant agreement was made, and in this case in February 2019, when the other relevant employees still at VivoPower received their awards and entered into their agreements. In my judgment, the right accrued at the point of the approval of the Remuneration Committee or within a short period thereafter sufficient to implement it by the making of an award and an agreement. This point was in effect conceded by VivoPower, and rightly so, in the course of the schedule of the respective submissions of the parties prepared after the conclusion of the trial and in response to the Court’s questions. 418. Second, whilst the award was discretionary, there are distinctions from the bonus. The bonus involved money being paid over there and then, whereas this was an award of shares, vesting mainly in the future and in return for the continuation of employment. It therefore follows that the circumstances of financial crisis which militated against a cash bonus did not prevent the grant of shares. Further, in the case of the cash bonus, there is no evidence to show that a bonus was being given to other employees. Here the evidence is that 16 employees in different tiers were getting the share benefit, and on the same terms. There has not been identified any substantial reason for distinguishing Dr Comberg from other employees if he had stayed. 419. Thirdly, the response of Mr Chin at paragraph 211 of his first witness statement does not assist VivoPower. The denial by reference to breaches of contract is answered by the rejection of the assertions that Dr Comberg was in breach of contract. Further, the assertion that it would have been legitimate not to make an award by reason of Dr Comberg’s earlier on-notice resignation has no support in Mr Chin’s evidence or the documents. Indeed, there are provisions preserving the rights under Clauses 5.5 (bonus) and 5.6 (separate carried interest arrangements) during garden leave. The fact that he had given notice to terminate the Service Agreement would affect very substantially the worth of the award (no PSU and only the first quarter of the RSU). However, it did not provide a reason in principle to exclude him altogether. (iii) Valuation 420. It therefore follows from the above that Mr Chin was correct to say that the award would have been relatively small to the sum of £540,000 claimed. It relates only to one quarter of the RSU shares. The number of shares is to be calculated on the basis of being acquired at the listing price of $10.20. VivoPower says that the sum was £3,562.94. It is inadequate for VivoPower to have provided this figure at this stage, and then not to say how it has been calculated. Dr Comberg himself could have worked out a figure based on the information which he had. However, the Court is prepared in principle to consider a calculation by Dr Comberg of a sum arising from the way in which the matter has been calculated. It does not necessarily follow that the sum is to be calculated as at today’s date. There is an argument to the effect that it might be calculated a reasonable time after 6 August 2018, say the time when termination would otherwise have taken place, namely 4 October 2018 or some other time. When providing figures to express the judgment, the parties should express the appropriate finding on the basis of the findings above. (iv) Alleged unfairness/contrivance 421. Despite the criticism of VivoPower, there are various reasons why there has been no ultimate unfairness. Dr Comberg does not have an argument to the effect that the starting point is the sum of £540,000, such that the way in which the matter was presented in the closing of VivoPower is unfairly and belatedly subtracting from what would otherwise be a tenable measure of damages. That simply is not tenable. It ignores the limited entitlement at all times. Dr Comberg has to base any entitlement on the basis of one quarter of the RSU shares alone, and on the basis of the shares being acquired at the listing price. 422. The suggestion is made that this has been contrived to reduce the claim, and that this is a case which could not be put because the matter was not set out in the pleadings, witness statements and the like. In my judgment, this is not an arguable proposition for the following reasons, namely, (1) There has been followed through something in 2018 by the Remuneration Committee along the lines initially proposed by Pearl Meyer. That is not a contrivance. (2) If there was an attempt to avoid having this altogether, then VivoPower might have decided to abandon this altogether until after the court case, or the Written Resolutions of the Remuneration Committee to be postponed until after the time when the notice would have expired, namely after 4 October 2018. The fact that this was not done is inconsistent with a contrivance. (3) VivoPower was not doing this with regard only to Dr Comberg. It was for 16 people, who did not include Dr Comberg because he was no longer an employee. Indeed, it was this feature of a benefit for all these employees who would have included Dr Comberg that leads to the conclusion that it would not have been rational to exclude Dr Comberg if he had still been an employee. However, the value of this right would have been very limited for the reasons set out above. (4) A yet further point against contrivance is that as regards the RSUs, the firstyear end was in June 2018. The reason for this may have been to take the first anniversary of the Pearl Meyer report/the 2017 AGM adopting it. In any event, it was retrospective rather than taking the first anniversary of each award or of the August 2018 Written Resolutions. If VivoPower had wished to use belt and braces to exclude Dr Comberg, that would have done it. The fact that it was backdated to that extent is contrary to the thesis of a contrivance to prevent Dr Comberg from having a share. It might be said that there were other arguments, but by this stage the parties had served statements of case, and if a contrivance was being sought, there was no shortage of advice available to procure a contrivance of this kind. It was not done. 423. If, contrary to the foregoing, there was a point to be taken in this regard, then the point would have had to be developed by Dr Comberg on the basis of the material which it had including the numerous documents in bundle E19 relating to the EIS and the RSUs and PSUs. It was not done. Even now at this stage, it is simply an assertion that it was contrived, but there is nothing in this point, and thus it is not unfair to deal with the matter in this way. (v) Conclusion 424. The VivoPower Annual Report for the year ended 31 March 2017 and the Pearl Meyer report of June 2017 did not give rise to a right in favour of Dr Comberg. However, the position was different once the Omnibus Incentive Plan was adopted and approved at that AGM as confirmed by the Written Resolutions of the Remuneration Committee dated 6 August 2018. 425. The assertion of Dr Comberg that he can ignore what became of these rights by the time that they were adopted by VivoPower is rejected. The assertion by reference to the Pearl Meyer report that the entitlement is to be a year’s salary there and then is fallacious. It is necessary to consider the documents as and when they were awarded in August 2018. The documents show that the rights had to be earned by continued employment. That was not going to happen on the basis that Dr Comberg was then within weeks of leaving, but as regards the RSUs, he was able to take advantage of the first quarter because he was an employee beyond 1 June 2018. However, his entitlement to the full 100% depended upon being in employment until 2021, which was not going to arise since he had given 12 months’ notice of termination to expire on or about 4 October 2018. 426. It follows that there is an entitlement, but the entitlement is limited. Dr Comberg is given the opportunity to say whether he agrees the sum of £3,562.94 in the valuation section, and if he does not, what he says that it should be. This is not an opportunity to re-argue the case, but simply about the computation of the damages under this head. That would then need to be expressed in the draft order. Issue 13. Is Dr Comberg entitled to Accrued Holiday Entitlement (as defined in paragraph 24.7 of the Re-Amended Particulars of Claim) pursuant to clause 9.2 of the Service Agreement? To what payments is Dr Comberg entitled? 427. The claim for holiday pay is unsatisfactory. It would be expected that this head of claim would not be controversial, or, if the subject of an argument, limited to a discrete issue. In fact, each and every day of holiday pay has been argued without the case ever having been properly pleaded and without being addressed at least directly in evidence. 428. The way in which it has developed needs to be set out: (1). there is a claim for the Unpaid Holiday Entitlement, with no particulars of number of days identified: see AmPOC (paragraphs 24.6 (Clause 9.1), 24.7 (Clause 9.2) and 44.9); (2). this claim is denied: see RAMD (paragraph 139); (3). Dr Comberg led no evidence in his witness statements of the details of the holiday entitlement; (4). in the opening submissions dated 24 February 2020, Dr Comberg claimed 19 days of holiday pay, applying the contractual formula in Clause 9.2 and seeking a sum of £39,461.54 comprising £2,076.92 per day. There was no reference to a table now relied upon at E7/2042.1; (5). the 19 days was calculated by reference to a proportion of the number of holidays allowed for the year of termination until the time of termination. Using 17 November 2017 as the termination date, this was 19 days (231/365 days). In fact, that was the termination date on VivoPower’s case, whereas Dr Comberg’s date was 3 November 2017 which would comprise 18 days (217/365 days). The Court has found for Dr Comberg in respect of wrongful dismissal and the primary case that the termination date was 3 November 2017. Further, the 19 days failed to take into account holidays actually used during the current year. Dr Comberg acknowledged that 5 of the 19 days had been used, and so his claim was for 14 days (13 days on the basis of a termination date of 3 November 2017) unused holiday entitlement; (6). in his concluding submissions and without cross-examination, VivoPower raised issues by reference to documents with regard to the number of days of leave which had been used by Dr Comberg such as to deny his claim in part: see closing submissions at paragraph 176. 429. On 16 June 2020, the Court sent a note to the parties asking (among other things) questions about holiday pay in the hope that there would be some common ground and restricting the issues for the Court to consider. In fact, this only led to an expansion of the areas of disagreement. In what appeared at first to be helpful, the parties set out submissions in a schedule form. There were a number of pages from Dr Comberg and many more pages from VivoPower including as regards holiday a day by day response to the days of holiday said by Dr Comberg not to have been taken. This then led to Mr Brown on behalf of Dr Comberg saying the following on 25 June 2020: “The Defendants’ submissions are replete with argument, new factual allegations and submissions which were never made at trial and go far beyond the scope of the Court’s queries (and)…advance substantial new factual and legal submissions…The way that the Defendants have approached this gives rise to unfairness and prejudice to the Claimant.” 430. This only tells a part of the story. The problem is that VivoPower’s response arises out of the unsatisfactory way in which the claim for holiday pay was made without any particularity in the pleadings or evidence in the witness statements. The problem for the Court is having to adjudicate about something which had very limited material only in written trial submissions at the start of the trial and in closing. In these circumstances, Dr Comberg is not in a position to refer to prejudice and unfairness: one way available to the Court was to ignore anything about holiday pay and say that Dr Comberg had not proven his case. 431. However, it is less prejudicial and unfair to receive the information which has been advanced and to do the best with that material insofar as this can be done fairly and always subject to the burden of proof being on Dr Comberg. Thus, when Dr Comberg asked the Court if there was a short-cut so that he might not have to answer the material advanced by VivoPower, the response of the Court was that there was no short-cut. The Court would decide what to do with the totality of the material which it had. 432. Dr Comberg says that since there is a prima facie entitlement to 19 days and it was not suggested by VivoPower that Dr Comberg had taken his annual leave, that VivoPower bears the burden of proof. That is not right. In the closing submissions of VivoPower, the 19 days was agreed mathematically, but VivoPower denied the entitlement to untaken holiday by taking issue with many of the dates. The burden of proof falls on Dr Comberg, and this has been largely ignored by not particularising the same in the pleadings or referring to the same in the witness statements. Dr Comberg’s side cannot escape responsibility for not proving its case by blaming VivoPower who do not have responsibility for this situation. 433. In their written closing, Mr Ciumei QC and Mr Lloyd on behalf of VivoPower referred to various dates when Dr Comberg appeared to be on holiday: (1). Attendance at the US Masters on 10 April 2017: however, it appears from his diary that he went to the US Masters for the weekend, but that he returned to New York on Monday 10 April 2017. Remarkably, despite the flight out being identified in the diary, Dr Comberg says that he did not attend the US Masters. The US Masters had finished on 9 April 2017: if he did go, which seems likely from contemporaneous communications, it seems likely that he would have returned to New York on 10 April 2017 for a full day of meetings including a breakfast in New York on 11 April 2017. In communications with Mr Weatherley-White on 10 April 2017, whereas it was intended that he would be in the office in New York in the afternoon, he said that he had gone on a private plane and would be in New York city much earlier. On balance, the probability is that this was not a holiday, even if he did go to the Masters, albeit that the position is not helped by the presentation of the case by Dr Comberg, and the fact that his denial about going to the Masters is against the contemporaneous written evidence; (2). As regards 20 April 2017, it is common ground that Dr Comberg attended a meeting at Behrens. He was permitted to act as a non-executive director with Behrens in his service agreement: see Clause 11. However, time spent on Behrens work must be counted as holiday in the sense that holiday might be time spent on vacation or time spent other than for VivoPower. Dr Comberg’s diary says that this was a day of annual leave (and there is reference also to leave for 21 and 22 April without any business shown in the diary). (3). As regards 28 June 2017, Dr Comberg’s Geschaft calendar shows a meeting in Germany in respect of Behrens. His work calendar shows a board meeting in Germany. (4). As regards 14 July 2017, although Dr Comberg had a meeting in a hotel in California with a company Lucis of which company he was a board director for one hour, the rest of the day was on VivoPower business. Although there was nothing in the diary to indicate this, the Court is prepared to accept that evidence. A one-hour meeting for another company does not make that day into a holiday. Further, Dr Comberg gave evidence that although he was still in California on 17 July 2017, he has identified some of his business on that day for VivoPower: see his first witness statement at paragraph 501.4 (5). In addition, there are identified in Dr Comberg’s diary 10 days of holiday as approved dates of leave taken between 3 August and 25 August 2017 (3, 4, 9-11 and 21-25 August). Dr Comberg admits to 5 days but says that the other days were spent working. The diary entries reveal some weekly meetings of VivoPower, but there is nothing to indicate that Dr Comberg was working for VivoPower substantially during any of those 10 days. The odd email and telephone conversation does not contradict the fact that these were holiday, and there is little evidence of work activities on these days for the reasons set out far more fully in the schedule of responses of VivoPower to the issues of quantum. The closest that Dr Comberg would be able to show that he was working would be 21 August, but those activities are not so substantial that this was not another day of holiday. (6). On this basis, I have come to the view that the ceiling of the claim must be not 19 days, but 18 days (that is to say on the basis of a termination on 3 November 2017 and not 17 November 2017). From that, on his case too there is to be taken away 5 days, so that his claim is for 13 days. Dr Comberg appears on the basis of his work calendar which shows the above 10 days taken as holiday. He has not proven that he has taken only 5 days of holiday, and not 10 days of holidays in August. I find that 20 April 2017 is to be treated as a day of holiday taken in that on that day Dr Comberg carried out work for other companies, and no specific work has been identified for VivoPower. Further, he appears to have taken off 28 June 2017. That then means that of 18 days potential holiday, there have been identified 10 days in August and in addition to that 20 April 2017 and 28 June 2017. This therefore comprises 12 days of holiday taken out of 18 days. It follows that the number of days of holiday not taken during the period in question is 6 days. 434. It is not for the Court to drill even further down to investigate whether, and to what extent, that Dr Comberg was working for VivoPower during these days of holiday. If and to the extent that there was some limited work on these days, that does not render holiday days into a working day. It would not be surprising for a CEO to do limited work during a holiday without the day as a whole becoming a working day. The entitlement to 6 days of holiday is the best that the Court can do on the limited information available and bearing in mind the criticisms on both sides for the way in which they respectively have approached failure of Dr Comberg to lead evidence about the holidays and to plead a case with particularity and the way in which VivoPower has left its detail to the closing submissions. 435. This debate about the number of days of holiday not taken in the year of termination then led to a rather unexpected twist. In Mr Brown’s note in response, for the first time, he formulated a way of expressing holiday pay by reference to the previous year’s holiday entitlement, where he said that he was entitled to 11.5 days of holiday. This was not used additionally to the 14 days previously referred to but was in effect an alternative route to the 14 days. It involved 11.5 days of the prior year plus 2.5 days of holiday from the year of termination. 436. By a note dated 17 July 2020, VivoPower objected that this had not been pleaded, no evidence had been given and it was not the way in which it has previously been put even in the opening and closing arguments. Although its source was a document at [E7/2042.1], which was disclosed by Dr Comberg on 25 February 2020, this document had been also the basis of the 19-day claim, which had been subject to detailed criticism in the submissions of VivoPower. This therefore stimulated a yet further analysis of the previous year. 437. Should the Court allow this at this late stage? A problem here is that since this was not properly pleaded, accrued holiday entitlement could mean the year of termination or the previous year carried forward. It is nonetheless a very different way of putting the claim. It is also very confusing. One might expect that the claim that would be put on the basis of the note of 30 June 2020 would be a revision of the claim from 19 days to 30.5 days. Evidently, the claim is limited to 19 days. It is therefore said that on the basis that VivoPower had said that 14 out of 19 days of holiday had been used, that left a balance of 5 days which VivoPower accepted. Thus, if the 11.5 days from the prior year was added to the 5 days, then there would be in 16.5 days used. It followed that the difference between the two cases of 19 days and 16.5 days was only 2.5 days: see Dr Comberg’s note of 30 June 2020 at paragraphs 28-29. However, this simply begs the question as to what it was that was inhibiting Dr Comberg from increasing his claim to 30.5 days, that is to say 19 days plus 11.5 days. 438. In my judgment, this alternative way of putting the case, should at the end of the day add nothing. The reasons for this are as follows: (1). The Court was inclined to exclude this way of putting the matter on the basis that it is a different way of putting the case and there is no excuse for its not having been put this way. An answer to this is that there has been liberality extended to both parties, to Dr Comberg for being allowed to pursue it when it was not pleaded with particularity and nor was evidence led about it, and to VivoPower in allowing the matter to be developed by the many pages in the supplemental schedule which was not included in any earlier analysis. (2). VivoPower refers to the contractual power to carry forward holiday pay in Clauses 9.1 and 9.2 which state: “9.1 …Holidays may be carried forward from one holiday year to the next where, for work-related reasons the Executive is unable to take holiday during the holiday year. No payment shall be made by the Company (during the continuance of this Agreement) in lieu of holidays not taken except as required by law or as set out under sub-clause 9.2. 9.2 Upon termination of this Agreement for whatever reason the Executive shall be entitled to payment in lieu of such of his holiday entitlement under sub-clause 9.1 as has accrued (on a pro rata basis) in the holiday year in which the Termination Date falls but has not been taken or such holiday the Executive is entitled to under sub-clause 9.1 that has been carried forward in accordance with clause 9.1…”