Dr Markus Boettcher v XIO (UK) LLP ((in Liquidation))
| Jurisdiction | England & Wales |
| Judge | Peter MacDonald Eggers |
| Judgment Date | 05 April 2023 |
| Neutral Citation | [2023] EWHC 801 (Comm) |
| Docket Number | Case No: CL-2021-000556 |
| Court | Queen's Bench Division (Commercial Court) |
[2023] EWHC 801 (Comm)
Peter MacDonald Eggers KC
(sitting as a Deputy Judge of the High Court)
Case No: CL-2021-000556
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT (KBD)
Royal Courts of Justice
Strand, London, WC2A 2LL
William Day and Anca Bunda (instructed by Stewarts Law LLP) for the Claimant
Paul Lowenstein KC and Maria Kennedy (instructed by Willkie Farr & Gallagher (UK) LLP) for the Second and Third Defendants
Hearing date: 1st and 2nd February 2023
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Peter MacDonald Eggers KC
This judgment was handed down by the judge remotely by circulation to the parties' representatives by email and released to The National Archives. The date and time for hand-down is deemed to be 5 April 2023 at 10:00am
Peter MacDonald Eggers KC:
Introduction
On 1st October 2021, the Claimant, Dr Boettcher, served a Claim Form in these proceedings within the jurisdiction on the Defendants, including the Second Defendant (Mr Geyer) and the Third Defendant (Mr Pacini). Dr Boettcher claims damages for misrepresentations allegedly made to induce him to enter into a contract of employment with the First Defendant (“Xio UK”). The claim is made in deceit, under the Misrepresentation Act 1967 and for breach of a duty of care.
On 19th October 2021, Mr Geyer and Mr Pacini both acknowledged service and indicated that they intended to contest jurisdiction. On 26th October 2021, Waksman, J made an order permitting Dr Boettcher (on his without notice application) to serve the proceedings on Mr Geyer and Mr Pacini outside the jurisdiction.
Mr Geyer and Mr Pacini dispute that the Court has or should exercise jurisdiction over Dr Boettcher's claims against them.
The Parties
Dr Boettcher was employed by Xio UK as the “ Global Head of Value Creation” from 1st January 2016 to 31st October 2016. Xio UK was the UK arm of the Xio Group, a global alternative investments firm, which was described as being headquartered in London, with operations in Germany, Switzerland, Hong Kong and China.
The Claimant has commenced the present proceedings against Xio UK and four individuals all of whom had significant roles within Xio UK or the Xio Group being senior executives or partners.
(1) The Second Defendant (Mr Carsten Geyer) was Head of Europe and is a German national and has residency in Switzerland.
(2) The Third Defendant (Mr Joseph Pacini) was the Chief Executive Officer and is an Italian national.
(3) The Fourth Defendant (Ms Athene Li) was Chairperson and is a Chinese national resident in the People's Republic of China. Ms Li and the Claimant have agreed a confidential settlement and Ms Li is no longer a defendant in these proceedings.
(4) The Fifth Defendant (Mr Murphy Qiao) was Head of China and is a Chinese national. Mr Qiao has not taken an active part in these proceedings to date.
After he left Xio UK's employment, Dr Boettcher maintains that he was unemployed until 1st June 2019, when he was appointed a partner at EY-Parthenon in Germany.
From 15th February 2021, Xio UK has been in liquidation.
Mr Geyer and Mr Pacini are now co-managing partners at SGT Capital Group, an alternative investments firm which was founded with other former colleagues from the Xio Group. SGT Capital is registered in the Cayman Islands and operates out of Germany and Singapore.
The Claim
Prior to his employment with Xio UK, Dr Boettcher was until 2015 a partner at Bain & Company Germany, Inc (“Bain”) based in Munich, Germany and had substantial experience in the private equity industry.
From September to November 2015, Dr Boettcher negotiated for employment by Xio UK. These negotiations involved a number of meetings and conference calls. In particular,
(1) On 29th September 2015, Dr Boettcher attended a meeting at the Sheraton Hotel in Munich, where he was interviewed by the Xio Group's managing director, Mr Marcel Normann.
(2) On 20th October 2015, Dr Boettcher attended a meeting at Xio UK's offices at The Shard in London, where he was interviewed by Mr Tim Robson, who was also a managing director of the Xio Group.
(3) On 4th November 2015, Dr Boettcher attended a meeting at Maritim Hotel at Düsseldorf Airport, Germany, where he was interviewed by Mr Geyer.
(4) On 6th November 2015, Dr Boettcher attended a conference call with Ms Li. Dr Boettcher participated in the call from Germany and Ms Li participated in the call from Hong Kong or elsewhere in China.
(5) On 6th November 2015, Dr Boettcher alleges that he attended a conference call from Germany with Mr Pacini. Mr Pacini disputes this and maintains that this call was rescheduled to 17th November 2015.
(6) On 7th November 2015, Dr Boettcher attended a further conference call from Germany during which he was interviewed by Mr Qiao, who participated in the call from China.
(7) On 13th November 2015, Dr Boettcher (as alleged by him) participated in a conference call with Mr Pacini. Mr Pacini maintains that he has no recollection of this conference call and that he was in Israel at this time.
(8) On 17th November 2015, Dr Boettcher emailed Mr Pacini stating that he — Dr Boettcher — could not travel to London that day because of tonsillitis and suggested “ that we just use the scheduled time to have a call instead to discuss next steps regarding on-boarding at Xio … during my remaining time at Bain”. Dr Boettcher's case is that, during their call on 17 November 2015, Mr Pacini confirmed the alleged representations made during earlier meetings and calls. Mr Pacini maintains that this conference call was the rescheduled call which had been arranged to take place on 6th November 2015. It is unclear on the evidence whether Mr Pacini accepts that the call on 17 November 2015 in fact took place, but in any event he stated that he had no recollection of what was said during this call (Mr Pacini's first witness statement, paragraphs 7 and 18).
Interposed within these meetings and conference calls were the following events:
(1) On 11th November 2015, Xio UK sent an offer letter to Dr Boettcher setting out the key terms of Dr Boettcher's employment (“the Offer Letter”). The Offer Letter provided that a further service agreement would be entered into in due course. It stated: “ You should signify your acceptance of these terms by signing and returning to me one copy of the letter by that date”.
(2) On 16th November 2015, at 1414 hours UTC, Dr Marcel Normann, a managing director at the Xio Group, informed other Xio partners that Dr Boettcher “ has accepted our offer and will join starting Jan 1st 2016 as Head of Value Creation”. Soon afterwards (at 1418 hours UTC), Dr Boettcher returned a pdf of the countersigned Offer Letter to Mr Normann on behalf of Xio UK, stating that he was very much looking forward to joining Xio UK (although the counter-signature is dated 17th November 2015). That day, 16th November 2015, Dr Boettcher gave notice of his resignation from his position at Bain.
(3) On 24th November 2015, Dr Boettcher signed a separation agreement with Bain, having tendered his resignation on 16th November 2015.
On 1st January 2016, Dr Boettcher commenced his employment with Xio UK.
While the Offer Letter envisaged that a service agreement would be entered into by Dr Boettcher, no such service agreement was in fact agreed, although a draft service agreement had been received by Dr Boettcher in March 2016.
On 1st October 2016, Dr Boettcher gave Xio UK notice of his resignation and his employment was terminated on 31st October 2016.
Dr Boettcher alleges that he was induced to leave his employment at Bain in 2015 and to join Xio UK by a series of alleged misrepresentations that the Xio Group was a private equity fund with funds of committed capital under management of US$3 billion from a diversified investor base. Dr Boettcher's case is that these representations were false because the Xio Group was set up as a vehicle for anonymous investment by or on behalf of a single Chinese billionaire, Mr Xie Zhikun, who committed capital to the Xio Group of less than US$900 million. Dr Boettcher's claim for damages is based on these alleged misrepresentations.
On 22nd December 2017, Dr Boettcher sent a letter of claim addressed only to Xio UK, setting out his claims against Xio UK, but making the allegations in substance which are now made by Dr Boettcher in the current proceedings.
In February 2021, Xio UK was placed into creditors' voluntary liquidation.
On 20th May 2021, Dr Boettcher's solicitors (Stewarts Law) wrote to the liquidators of Xio UK enclosing a draft Particulars of Claim and proof of debt.
On 15th June 2021, Dr Boettcher's solicitors sent a letter of claim by email to Mr Geyer and Mr Pacini. The letter of claim referred to Mr Geyer's address as (1) “ Flat 10, Savile Row, London, W1S 3PZ”, and (2) 16 Ennismore Gardens, London SW7 1AA.
On 16th June 2021, Dr Boettcher's solicitors sent a letter of claim to the liquidators of Xio UK, enclosing draft Particulars of Claim.
On 18th June 2021, Dr Boettcher's solicitors sent the letter of claim to Mr Geyer at two addresses, one in Savile Row and the other in Ennismore Gardens. However, the address referred to in the letter of claim did not record the full address, including the building number, but merely stated “ Flat 10, Savile Row, London W1S 3PZ”.
On 22nd June 2021, the letter of claim sent to “ Flat 10, Savile Row, London W1S 3PZ” was returned with the note “ Address incomplete”.
On 16th July 2021, Xio UK's solicitors informed...
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The Dekagram 2nd May 2023
...find universally bothersome. Service, Jurisdiction and Related Matters In Dr Markus Boettcher v XIO (UK) LLP (In Liquidation) & Ors [2023] EWHC 801, Peter Macdonal Eggers KC, sitting as a Deputy High Court Judge (the "Judge"), considered a host of issues relevant to service of proceedings b......