Mr Colin Christie v Canaccord Genuity Ltd
| Jurisdiction | England & Wales |
| Judge | Bruce Carr |
| Judgment Date | 16 May 2022 |
| Neutral Citation | [2022] EWHC 1130 (QB) |
| Docket Number | Case No: QB-2019-001481 |
| Year | 2022 |
| Court | Queen's Bench Division |
[2022] EWHC 1130 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Bruce Carr QC
(Sitting as a Deputy Judge of the High Court)
Case No: QB-2019-001481
Mr Gavin Mansfield QC (instructed by Gardner Leader LLP) for the Claimant
Mr Thomas Croxford QC (instructed by Mishcon de Reya LLP) for the Defendant
Hearing dates: 18–21 January 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Bruce Carr QC
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30am on Monday 16 May 2022.
Bruce Carr QC:
Introduction
The Claimant in this case, Mr Colin Christie is a seasoned investment banker who with effect from 1 February 2011 was employed by Hawkpoint Partners Limited (“ Hawkpoint”), a corporate finance advisory company. Hawkpoint was acquired by a Canadian investment company, Canaccord Genuity Group Inc (“ CGG”) in 2012 following which the Claimant's employment transferred to the Defendant (which operates CGG's investment banking division) pursuant to the provisions of the Transfer of Undertakings Regulations 2006. The Claimant's employment with the Defendant began on 1 March 2013 and continued until its termination on 10 June 2016. Following that termination, the Claimant brought proceedings against the Defendant in both the High Court and in the Employment Tribunal (“ ET”) claiming that his dismissal was unfair within the scope of section 98(4) Employment Rights Act 1996 (“ ERA”). His claims in the ET were resolved through a consent judgment issued by the ET on 9 May 2017 pursuant to which his dismissal was declared to be unfair and compensation awarded in the sum of £82,554.50 (plus issue and hearing fees totaling £1,200).
In the High Court he brought claims based on:
a. An assertion that, as regards his bonus for 2015 (“ the 2015 Bonus Claim”), he was entitled to rely on the terms of a letter dated 24 January 2011 (“ the Bonus Letter”), either as a matter of contract or by way of an estoppel, the effect of which was that the Defendant was prevented from denying that the terms of the Bonus Letter were to be applied in calculating his entitlement. The Bonus Letter had been written by Mr Paul Baines, the Executive Chairman of Hawkpoint and was, on its face at least, intended to provide (in advance of the Claimant commencing employment with them):
“indicative guidance as to our likely approach to determining annual discretionary bonus following your joining us.”
b. Alternatively, his bonus for 2015 was said to be outside the scope of permissible contractual discretion available to the Defendant and/or amounted to a breach of the implied term of trust and confidence;
c. A claim that the split between cash and equity (in the form of restricted share units (“ RSUs”) was outside the scope of permissible discretion as was the application of “cliff vesting” to the RSUs, the effect of the award being that the entirety of the shares which were awarded would vest on a single date in June 2018;
d. A claim to an entitlement to a bonus for the 2016 financial year (“ the 2016 Bonus Claim”), again based on a failure to apply the terms of the Bonus Letter and/or the award of zero being outside the scope of the permissible contractual discretion and/or a failure by the Defendant to follow its own processes;
e. An entitlement to a “retention award” to the value of £1 million (“ the Retention Award”), based on a discussion which had taken place between the Claimant and Mr Alexis de Rosnay, the Defendant's CEO, on 16 July 2015. The Claimant alleged that a “binding contract” had been made that day based on the conversation that he had had with Mr de Rosnay. In the alternative, he alleged that the Defendant was “estopped, by proprietary estoppel” from denying that the Claimant was entitled to the Retention Award.
In its Defence, the Defendant robustly rejected all of the claims brought by the Claimant and flagged up its intention to apply for summary judgment and/or a strike out of all of them. Such an application was duly made and ruled on by Charles Bourne QC (at that point in his judicial career sitting as a Deputy High Court Judge). Mr Bourne ruled that the 2015 and 2016 Bonus Claims had no reasonable prospect of success but that as far as the Retention Award was concerned, he did not believe that he could:
“…fairly and safely decide the Retention Award issue in the Defendant's favour on this application. There is a critical issue of fact, namely what was said by Mr de Rosnay at the meeting on 16 July 2015……The Claimant's version of events has not been examined in oral evidence. There has been no full disclosure process.
…….
Although there may yet be significant obstacles to this part of the claim (whether based on contract or on proprietary estoppel, the detail of which was not argued before me), I am not persuaded that it cannot succeed.”
The Retention Award therefore remained to be determined on both bases on which it was advanced by the Claimant, namely contract and estoppel. Those issues came before me but solely on the question of liability and not quantum, a split trial having been ordered by the court on 17 December 2021.
The issues for determination
Subject to one point, the parties agreed that the list of issues for determination were as follows:
a. As to the claim based on contract:
i. What were the terms of any offer made by Mr Alexis de Rosnay (the Defendant's CEO) on 16 July 2015 on behalf of the Defendant?
ii. Was what was said sufficiently certain to give rise to a contract?
iii. Was what was said, assessed objectively, intended, without more, to create legal relations?
iv. Was it objectively apparent that any Retention Award was subject to further confirmation, consideration or approval with the Defendant or its parent company, CGG and/or would only be granted by way of an award agreement in writing subject to terms and conditions?
v. Was any such agreement confirmed or ratified in subsequent correspondence?
b. As to the estoppel claim – did a proprietary estoppel arise in the Claimant's favour as to a proprietary interest in RSUs in the Defendant to the value of £1m? In particular:
i. Did the Defendant make sufficiently clear representations orally on 16 July 2015 and in writing on 24 September 2015, 6 November 2015 and 20 December 2015 that the Defendant would make a Retention Award of a value of £1 million?
ii. Did the Defendant intend the Claimant to rely on them to his detriment?
iii. Did the Claimant rely on those representations?
iv. Would it be inequitable for the Defendant to resile from any such representations?
c. There was one remedy issue also raised in relation to the estoppel claim, namely whether the Claimant was entitled to damages for the Defendant's failure to make the Retention Award.
The one issue that appears not to have been agreed between the parties is one of acceptance with the Defendant asserting that it is necessary to consider the question of the means by which the Claimant accepted any offer that was made to him. In addition, the reference in the estoppel claim to a proprietary interest in RSUs in the Defendant appears to have been agreed prior to an amendment having been made to the Claimant's Particulars of Claim (in November 2021) so as to plead that the entitlement in respect of RSUs was to shares in the parent company, CGG rather than to any shares in the Defendant. Mr Croxford QC, on behalf of the Defendant, attaches a high level of significance to this amendment whereas Mr Mansfield QC, on behalf of the Claimant, characterises it simply as a drafting error, an obvious mistake which was corrected once it had been identified.
In addition to the issues as outlined above, Mr Mansfield put the matter slightly differently in opening in suggesting that, as far as his case in contract was concerned, he put it two ways (the second of which is perhaps not entirely apparent from the List of Issues): first that a contract was concluded on 16 July 2015 and secondly, if not, there was a contract based on an email sent by Mr de Rosnay on 24 September 2015, in the light of the discussion on 16 July. The ‘fallback’ case was predicated on the basis that, if there were any ‘loose ends’ to tie up post-July, this was done by reference to the subsequent correspondence.
Legal Principles
The primary question of law relates to the approach to be applied when a court is asked to rule on the existence of an oral contract. The relevant principles have been usefully summarised in the judgment of Leggatt J (as he then was) in Blue v Ashley [2017] EWHC 1928 (Comm) at paragraphs 49–64. I will not repeat the entirety of those passages in this judgment but do make reference in particular to the following observation in paragraph 64:
“What is accepted by counsel on both sides is that where, as here, the court is concerned with an oral agreement, the test remains objective but evidence of the subjective understanding of the parties is admissible in so far as it tends to show whether, objectively, an agreement was reached and, if so, what its terms were and whether it was intended to be legally binding. Evidence of subsequent conduct is admissible on the same basis. In the case of an oral agreement, unless a recording was made, the court cannot know the exact words spoken nor the tone in which they were spoken, nor the facial expressions and body language of those involved. In these circumstances, the parties' subjective understanding may be a good guide to how, in their...
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Be Careful What You Promise: The Court's Approach To An Alleged Oral Contract
...v Canaccord Genuity Ltd [2022] EWHC 1130 (QB), the High Court has dismissed a claim brought by a former employee for a £1 million "retention award" based on an alleged oral A former investment banker, Mr Colin Christie, brought several claims against his former employer, Canaccord Genuity L......