Christopher James Briggs and Others v Alexander Clay

JurisdictionEngland & Wales
JudgeMr Justice Fancourt
Judgment Date25 February 2019
Neutral Citation[2019] EWHC 102 (Ch)
Docket NumberCase No: HC-2016-003089
CourtChancery Division
Date25 February 2019

[2019] EWHC 102 (Ch)

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

BUSINESS LIST (ChD)

The Rolls Building, 7 Rolls Buildings

Fetter Lane, London, EC4A 1NL

Before:

Mr Justice Fancourt

Case No: HC-2016-003089

Between:
Christopher James Briggs and Others
Claimants
and
(1) Alexander Clay
(2) Aon Consulting Financial Services Limited
(3) Aon Consulting Limited
(4) Aon UK Limited
(5) Gowling Wlg (UK) LLP
(6) Paul Newman QC
Defendants

Patrick Lawrence QC and David E Grant (instructed by Burges Salmon LLP) for the Claimants

Ben Hubble QC and Saaman Pourghadiri (instructed by Mayer Brown International LLP) for the First, Second, Third and Fourth Defendants

Nicolas Stallworthy QC and Victoria Brown (instructed by Clyde and Co LLP) for the Fifth Defendant

Joanna Smith QC and James Walmsley (instructed by Withers LLP) for the Sixth Defendant

Hearing dates: 4, 5, 7 December 2018

Approved Judgment

Mr Justice Fancourt

Introduction

1

The First to Fourth Defendants in this action (to whom I shall refer collectively as “Aon”) apply for a determination that the fact and content of “without prejudice” correspondence between May 2014 and October 2016 and a meeting on 2 July 2014 between lawyers acting for the Claimants and lawyers acting for Aon is inadmissible in these proceedings.

2

Substantial parts of the content of those communications have been pleaded by the Fifth and Sixth Defendants (“Gowling” and “Counsel” respectively) in their Defences, filed on 3 August 2018. The same material is now referred to by the Claimants in their Amended Reply dated 12 October 2018. Gowling and Counsel contend that they are entitled to deploy this material because of the nature of the allegations that have been made against them by the Claimants and Aon.

3

Other draft amended statements of case (including a re-amended defence of Aon, re-re-amended particulars of claim and a contribution notice to be issued by Aon) have been prepared but have not yet been formally served. It was agreed that, as there would be no objection in principle to the proposed amendments and the contribution notice, I should make my decision on the basis that they will be served and that they accurately represent the parties' cases.

The Part 8 Proceedings and this Claim

4

This claim is brought by a number of participating employer partnerships and companies and the trustees of the Gleeds pension scheme (“the Scheme”) against Aon and the Claimants' previous lawyers for damages for professional negligence. Aon were the Scheme administrators and its professional advisors for many years. The claim follows a decision of Newey J. in separate Part 8 proceedings, Briggs v Gleeds [2014] EWHC 1178 (Ch); [2015] Ch 212, in which it was held that various deeds prepared by Aon for the Scheme and executed between 1991 and 2010 were invalidly executed and of no effect. Gowling and Counsel acted for the participating employers on the Part 8 claim and on the agreed compromise of the employers' appeal against the order of Newey J.

5

Some of the ineffective deeds were intended to limit benefits accruing to members and so reduce the burden on the participating employers of financing the non-contributory Scheme. Since these deeds were ineffective, the financial burden was not reduced as intended. Five other deeds (which were not in issue in the Part 8 Proceedings) were so-called deeds of adherence, by which certain associated or service companies in the Gleeds group were intended to become participating employers and bound by the rules of the Scheme, for the benefit of their employees. The effect on these deeds of the court's decision is a matter with which the current proceedings are concerned.

6

The potential invalidity of the deeds was first identified in 2010. Before the Part 8 proceedings were issued, the Claimants sent a pre-action letter to Aon alleging negligence in the preparation and execution of the deeds. In the usual way, agreement was reached that time would be deemed not to run against the Claimants for limitation purposes while the potential claim was being evaluated. The trustees brought the Part 8 claim against the participating employers and representative beneficiaries of the Scheme in order to determine whether any of the deeds were valid or otherwise effective according to their terms. It was at all times clear that, following this attempt to mitigate losses, the Claimants would seek to hold Aon liable for any loss suffered resulting from defective execution of the deeds.

7

The decision of Newey J. was not the decision that the participating employers and Aon were hoping to receive. They had to decide whether to appeal it. As anyone familiar with such proceedings and any judge trying this claim would be unsurprised to learn, there was discussion on a without prejudice basis between the lawyers acting for the Claimants (Gowling) and the lawyers acting for Aon, who at the time were CMS Cameron McKenna LLP (“CMS”).

8

Apart from the question of an appeal and subject to the outcome of any such appeal, the Claimants and their professional advisors had to evaluate the practical and financial consequences of the judgment. This involved assessing which employees were members of the Scheme and on what terms, the likely future funding cost of the Scheme as it stood in the light of the judgment, and also comparing that cost with the future funding cost of the Scheme that the employers had expected. The difference between those two sums plus all the consequential expenses of the litigation would be likely to be the alleged quantum of the claim brought against Aon. Without prejudice communications took place between Gowling and CMS following the judgment.

9

In the event, the trustees and participating employers did decide to appeal Newey J's order. Permission to appeal was granted on 29 December 2014. Negotiations then ensued between the Claimants and the representative beneficiaries of the Scheme, seeking to reach agreement on a compromise of the appeal. These negotiations were conducted on a without prejudice basis. There were therefore different sets of without prejudice negotiations being carried on at about the same time: negotiations between the Claimants and the representative beneficiaries, and negotiations between the Claimants and Aon. Aon had a proper interest in knowing about the content of the negotiations with the beneficiaries, even though they did not participate in them, and the Claimants kept Aon generally informed.

10

For present purposes, what matters is that the employers and the representative beneficiaries reached agreement on a compromise of the appeal. A settlement was approved by Lewison LJ on 11 October 2016 (“the Approved Settlement”). It had the effect, in very broad terms, that members' benefits were not limited in the way that they would have been if the deeds had been validly executed, and the employees of the associated and service companies that made the deeds of adherence were treated as members of the Scheme. The negotiations with the representative beneficiaries were at all times conducted on behalf of the Claimants by Gowling, with the input of Counsel as and when he was instructed to advise, to draft letters or to attend meetings. Both Gowling and Counsel were also similarly involved in negotiations between the Claimants and Aon.

11

Following the Approved Settlement and in the absence of an agreed settlement between the Claimants and Aon, the Claimants issued their claim form in these proceedings on 31 October 2016, claiming compensation for losses arising from Aon's alleged breaches of duty.

The Statements of Case

12

Particulars of the claim were served on 19 December 2016.

13

The main allegations originally made against Aon were: 31 deeds relating to the Scheme were invalidly executed as a result of defective drafting by Aon; Aon did not advise correctly about the limits to any purportedly retrospective changes to members' benefits, and Aon did not draw to the Claimants' attention at an earlier time the defects in its drafting and advice (the latter allegation calculated to overcome a potential limitation problem arising from the fact that some of the defective deeds date back to the 1990s).

14

The Claimants pleaded that they took reasonable steps to mitigate their losses, including bringing the Part 8 claim and the appeal and entering into the Approved Settlement. The losses set out in a schedule to the Particulars of Claim are alleged to have been caused by the negligence of Aon.

15

In their original Defence, served on 10 March 2017, Aon pleaded that the deeds, although formally defective, nevertheless had effect as intended, by reason of estoppel. This was an issue addressed in the Part 8 claim, but Aon were not parties to or otherwise bound by the decision in that claim. Aon admitted that they owed a duty of care to the trustees but denied that they owed a duty to the participating employers, and denied that they were in breach of any such duty. They pleaded a number of different limitation defences, asserted that the claimed losses include sums referable to employees of the associated or service companies that had not become participating employers, and asserted that the Claimants failed to take reasonable steps to mitigate their losses and that the Approved Settlement was unreasonably generous.

16

In response to a request for further information from Aon, the Claimants later confirmed that most of the intended members of the Scheme were employed by the associated or service companies.

17

Importantly for present purposes, in January 2018 Aon gave notice of its intention to amend its Defence. The amended statement of case raised in some detail an additional defence, denying that Aon were liable in respect of “additional benefits” for employees of associated or service companies. The effect of the...

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6 cases
  • Peter Willers v Elena Joyce
    • United Kingdom
    • Chancery Division
    • 12 April 2019
    ...relevant authorities and the principles to be derived from them is to be found in the recent decision of Fancourt J in Briggs v Clay [2019] EWHC 102 (Ch) at [42] to [74]. I gratefully adopt his masterly analysis without repeating it. For the purposes of this application the following summa......
  • Berkeley Square Holdings Ltd & Others v Lancer Property Asset Management Ltd & Others
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 15 April 2021
    ...existed that overrode the right of the other party to the negotiations. 63 Exception (6) arose for consideration in Briggs v Clay [2019] EWHC 102 (Ch). The without prejudice negotiations in question had taken place between the claimants and some of the defendants (Aon). Other defendants (t......
  • Berkeley Square Holdings and Others v Lancer Property Asset Management Ltd
    • United Kingdom
    • Chancery Division
    • 1 May 2020
    ...that case cannot stand. This was considered in two recent decisions: EMW Law v Halborg [2017] EWHC 1014 (Ch) and Briggs v Clay [2019] EWHC 102 (Ch). 72 In EMW Law, Mr Halborg, a solicitor, acted for his parents and a family company under a conditional fee agreement (“CFA”) on their claim ......
  • Kings Security Systems Ltd v Anthony Douglas King
    • United Kingdom
    • Chancery Division
    • 9 November 2020
    ...The authorities were carefully reviewed by Newey J in EMW Law v Halborg [2017] EWHC 1014 (Ch) (“ EMW”); Fancourt J in Briggs v Clay [2019] EWHC 102 (Ch) (“ Briggs”); Andrews J in Willers v Joyce [2019] EWHC 937 (Ch) (“ Willers”); and Roth J in Berkeley Square Holdings v Lancer [ 2020 EW......
  • Request a trial to view additional results
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