Lighthousecarrwood Ltd v Philip L. Luckett
| Jurisdiction | England & Wales |
| Judge | His Honour Judge MacDuff QC |
| Judgment Date | 09 November 2007 |
| Neutral Citation | [2007] EWHC 2866 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: TLQ/06/0763 |
| Date | 09 November 2007 |
[2007] EWHC 2866 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Macduff Qc
(sitting As A Judge Of The High Court)
Case No: TLQ/06/0763
Mr Nicholas de Marco (instructed by Messrs Faegre & Benson LLP) for the Claimant.
Mr Paul Reed (instructed by Messrs Mishcon de Reya) for the Defendant.
Approved Judgment
This is an application made by the Defendant. In fact, it is a series of applications. I need to say something about the background facts.
This case was listed on Monday, 5th November 2007 for a trial on liability and quantum, with a time estimate of eight days. For various reasons, it did not start until Wednesday morning. There was a short hearing on Monday, but, partly because I had another application to deal with on Tuesday and partly because we all agreed that there was a significant amount of reading which we could all do, the matter was adjourned to start on Wednesday morning. There had been late delivery on both sides of skeletons and of bundles. There were counter-allegations about that, but they are of no significance.
At the hearing on Monday, Mr Reed on behalf of the Defendant, put down a marker that he might be making an application for various rulings at the opening of the trial on Wednesday. This marker had been foreshadowed by a letter which his clients had written to the Claimant a few days earlier on 31st October 2007. Mr Reed had only had a short time to consider the Claimant's opening skeleton. In the event, he did make that application, and I heard that matter all day on Wednesday and going into Thursday morning. This is the judgment on that application. It is necessary to set it in its context.
The claim is for breach of contract arising out of the Defendant's contract of employment with the Claimant, LighthouseCarrwood Ltd. Mr Luckett was a financial adviser and a director of Carrwood Moorgate Limited. As a financial adviser, he provided financial advice to his employer's customers. He also provided financial advice to the customers of relevant introducers, and particularly a relevant introducer, Murphy Salisbury. There were different commission arrangements, so that Murphy Salisbury, or other relevant introducers, took a percentage of the commission otherwise payable to Carrwood Moorgate, that portion of the commission being known as a “pay-away”. But, in effect, Mr Luckett's job was to earn commission for his employer.
His former employer, Carrwood Moorgate, was acquired by the Claimant at the end of 2005, the Claimant now known as LighthouseCarrwood. The events at, surrounding and leading up to that acquisition led to conflict (for want of a better word) between Mr Luckett, his former colleagues and his employer, his contract of employment being transferred to the Claimant at the end of 200Within his contract of employment were various restrictive covenants and, of course, other terms. There was a 12 months notice term. There were provisions about “gardening leave” during notice and there was a six months non-soliciting of customers clause (the six months reducing by the amount of gardening leave) during which time, after cessation of employment, Mr Luckett was prevented under the terms of the contract from soliciting customers or relevant introducers.
On 11th November 2005, Mr Luckett delivered a letter of resignation to his employer. On 30th November he was placed on gardening leave. There then followed various grievance procedures and other discussions before, on 18th February 2006, he furnished a second letter of resignation, this time claiming that he had been constructively dismissed. Shortly thereafter, he began new employment with Cavanagh Financial Management Limited. It is not disputed that some customers followed him. Nor is it disputed that prima facie he is in breach of the covenants in the contract of employment, or some of them. His Defence to the claim is that he was constructively dismissed, that he responded to a repudiatory breach of his contract by his employers and that their conduct effectively drove him out. That would be the issue, were I to determine it, upon liability. There is no question but that the case is ready and prepared on both sides for the trial of that issue.
The problem arises out of the quantification of the case. Broadly speaking, Mr Luckett's submission is that the Claimant is not in a position, on the evidence it has put before the court, to prove any loss at all and, if it were to win its case on liability, it could not establish any claim for damages. Thus all it could achieve from the case would be effectively a decision that there had been a breach of contract coupled with perhaps nominal damages. Supplemental to this submission and overlapping with it is that there has been no pleaded claim for loss. There is no schedule. The Defendant does not know what case it has to meet and is thereby prejudiced. It is submitted that the Claimant should not be allowed to pursue a claim which is unparticularised and unspecified. The prejudice arises because it is inherently unfair that a party should not know the case it has to meet until deep into the Claimant's opening, if at all; and, secondly that its evidence would, if it had known what that case was, be tailored to meet the case. It may be, if the Claimant were able to establish some form of case, the Defendant would not be in a position to meet it because it had not been able to prepare for it.
It is also submitted that, even if the court were to deal with liability first and put quantum over to another day, there would be prejudice to the Defendant. The Claimant is a large public company, able to afford further legal costs, the costs of delay, further expenditure on lawyers and others, evidence-gathering and so on. The Defendant is an individual who is not in so fortunate a position. But, in any event, says the Defendant, it is too late for that. Only last week the Claimant at the eleventh hour (nay the eleventh hour and 59th minute) applied to the court for permission to adduce new evidence on quantum; alternatively to have the quantum issue adjourned and have the case treated as a split trial. Those two applications were refused. There has been no appeal against them. Accordingly, this case must go ahead this week on its listing on both liability and quantum.
I have a series of rulings to make, but, in broad terms, there are three options. First, I could accede to the Defendant's submission that the Claimant's claim on quantum cannot be made out on the evidence which the Claimant has put before the court (or on the evidence which the Claimant should be allowed to put before the court) and should not be allowed to pursue a claim for damages allegedly not pleaded or particularised.
The second option is that I could allow the Claimant to try to prove its case on quantum, which would (as the Claimant itself admits through counsel) involve allowing it to adduce additional evidence which is not apparent on the face of the papers. It would involve allowing Mr Stephenson to give evidence about matters which are not in his current witness statement at all, and upon which no proposed additional witness statement has been provided. I can note that last week an application was made to Judge Seymour asking for permission to adduce additional evidence on quantum; and that application was refused. That would have been different additional evidence to that which it is now proposed to call.
The third option is this. There may be some middle course. I could grant a short adjournment; I could make the Claimant serve some particulars and a supplemental statement from Mr Stephenson; I could give some costs protection to the Defendant, and also give the Defendant some latitude in producing additional evidence to deal with the new position. Time, service of evidence and costs protection.
Those are the three broad options. Each of them is an imperfect solution. I am not only between the devil and the deep blue sea, but there is a third unattractive option as well. In making my decision, I have to balance a whole raft of considerations and apply my discretion. Before doing so, however, I make this bald observation.
The fact that we are here today with these three imperfect options is entirely the fault of the Claimant. The Defendant cannot be blamed at all for that, although, in some modest way, the Claimant sought to suggest that the Defendant was himself in default either in not acceding to the application last week for the additional evidence, or for acceding to the application for an adjournment, or in making this application at an earlier stage. In all those three respects, for reasons which I will give later, I absolve the Defendant from blame entirely. I repeat, the fault lies entirely with the Claimant for placing us in the position in which we are today.
In balancing those considerations, I have of course to have in the forefront of my mind the overriding objective. It is right that I should consider that now. The overriding objective begins with a statement which in times of old it would have been thought perhaps unnecessary to put into writing: “The court should deal with cases justly”. Had it been suggested to judges before the Civil Procedure Rules that they did not deal with cases justly and that there was a need to spell it out in a new rule, many would have been surprised. But dealing with a case “justly”, as I have had to say on other occasions, is not...
To continue reading
Request your trial
-
Youprint Productions Pte Ltd v Mak Sook Ling
...claim for an account of profits. As for the question of nominal damages, I am guided by the LighthouseCarrwood Ltd v Philip L.Luckett [2007] EWHC 2866 (“LighthouseCarrwood”) which was recently cited in Phua Seng Hua v Kwee Seng Chio Peter [2022] SGHC(A) 11 at [46]. LighthouseCarrwood concer......
-
Phua Seng Hua v Kwee Seng Chio Peter
...at [60]. Case(s) referred to JES International Holdings Ltd v Yang Shushan [2016] 3 SLR 193 (refd) LighthouseCarrwood Ltd v Luckett [2007] EWHC 2866 (QB) (refd) Noor Azlin bte Abdul Rahman v Changi General Hospital Pte Ltd [2022] 1 SLR 689 (folld) Turf Club Auto Emporium Pte Ltd v Yeo Boong......
-
Phua Seng Hua and others v Kwee Seng Chio Peter and another
...– although compensatory in nature, are special damages (at [261]). We refer to the view expressed in LighthouseCarrwood Ltd v Luckett [2007] EWHC 2866 (QB) at [57] and [58]: [57] What of the Wrotham Park point? Upon this, I received long and detailed submissions. I am asked to rule that Wro......
-
Nominal Damages For Breach Of Contract
...not award nominal damages to the appellant, but instead dismissed the appellant's claim, relying on LighthouseCarrwood Ltd v Luckett [2007] EWHC 2866 (QB) ('LighthouseCarrwood') (at The appeal. On appeal, Chua Lee Ming J ('Chua J') agreed with the appellant that the District Judge's decisio......