Simpkin v The Berkeley Group Holdings Plc
| Jurisdiction | England & Wales |
| Judge | Mr Justice Garnham |
| Judgment Date | 22 June 2017 |
| Neutral Citation | [2017] EWHC 1472 (QB) |
| Docket Number | Case No: TLQ16/1008 |
| Court | Queen's Bench Division |
| Date | 22 June 2017 |
[2017] EWHC 1472 (QB)
Mr Justice Garnham
Case No: TLQ16/1008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Martin Griffiths QC and Iain Quirk and Rachel Barrett (instructed by Slater & Gordon) for the Claimant
Andrew Clarke QC and Hodge Malek QC and David Lascelles and James Potts (instructed by Gibson Dunn & Crutcher LLP) for the Defendant
Hearing dates: 22nd & 24th May 2017
Introduction
On 1 September 2014 the claimant was asked to resign from his position as Group Finance Director of the Berkeley Group and statutory director of The Berkeley Group Holdings PLC. On 22 and 24 September 2014 the remuneration committee and the board of the defendant company reached decisions, the effect of which was that, on the termination of his employment, the claimant would not be treated as a "good leaver" for the purposes of two Long Term Incentive Plans ("LTIPs") and a bonus scheme operated by the company. He was removed as director on 8 September 2014 and given notice of termination of his employment on 24 September 2014.
A summary of the background to the case was set out by Mr Justice Foskett in his judgment of 24 June 2016. It is not necessary to repeat that background here. In the order which followed, Foskett J directed that there would be a trial of a preliminary issue and identified the matters that would be addressed in that trial.
On 22 and 24 May 2017 I heard a series of applications by the parties relevant to trial of the preliminary issue. At the conclusion of the hearing on 24 May 2017 I gave an ex tempore judgment on the first and fifth applications. I granted the claimant's application to strike-out significant passages in the defendant's witness statements on the grounds that their inclusion was inconsistent with the terms of Foskett J's Order of 29 June 2016. I also made an order on the defendant's application for disclosure and inspection of documents produced in the claimant's divorce proceedings.
That left three applications to be determined. First, the claimant applied for an order restraining the defendant from referring, in its witness statements or elsewhere, to the contents of a document that has been called the claimant's "Synopsis". Second, the defendant applied for inspection of two emails, dated 6 August 2014 and 11 August 2014 respectively, which it said were relevant to the claim for privilege in the Synopsis. Third, the claimant applied for inspection of redacted passages of the minutes of the two meetings of 22 and 24 September 2014.
It is also necessary for me to deal with one sub-issue arising out of the application by the claimant to strike-out parts of the defendant's witness statement. It is convenient to deal with that matter first.
The Whistleblowing Allegation
The claimant points out that he has a "whistleblowing" claim in the Employment Tribunal, which has exclusive jurisdiction over such claims. The defendant sought to address the whistleblowing claims in these proceedings in paragraphs 175–216 of the re-amended defence. The defendant's evidence in reply to that of the claimant sets out in some detail the defendant's case on those claims.
The whistleblowing allegations in themselves were excluded from the preliminary issue which is to be heard by this court in July. The defendant explains the fact that their evidence addresses this issue by pointing to paragraph 135 of the claimant's first witness statement. In that paragraph the claimant refers to the allegations which form the subject matter of the Employment Tribunal claim. A summary of those allegations is set out which include allegations of serious financial wrong-doing by some of the defendant's witnesses. The claimant also made reference to those allegations in paragraph 136 of his first statement and paragraph 35 of his responsive statement.
The Argument
The defendant argued that the claimant should not have included this material in his witness statement. They say that the second witness statements of Mr Glyn Barker and Sir John Armitt, respond to those allegations with a view to explaining why the claimant's position as set out in his witness statement is, in this regard, untenable. The defendant says that they have made clear in correspondence that they are prepared not to rely upon those statements if the claimant removes the relevant references from his statement.
The claimant has responded by proposing to remove some of the relevant material, but not all of it.
It is necessary to put this dispute in a little context. In paragraph 134 of his first statement the claimant said this:
"I did not sleep on the night of the 1 September 2014 at all. The following day, 2 September 2014, I telephoned Mr Perrins at approximately 10am and spoke to him briefly. I told him I was distressed and extremely anxious. I asked him how we were going to resolve the situation. I said something along the lines of "you and I both know that the allegations I have made are potentially serious and at best embarrassing."
Paragraph 135 begins with this sentence:
"I was referring to whistle-blowing concerns that I had raised recently (these are the subject of separate Employment Tribunal proceedings)".
He then provides further details.
In the course of argument, Mr Martin Griffiths QC for the claimant, repeated the open offer he had made previously to delete the passage that follows the first sentence of paragraph 135. But he says he is not willing to concede the deletion of that first sentence, which he said was necessary in order to explain the preceding observation recorded in paragraph 134 to the effect that he had made allegations that were "embarrassing". Mr Griffiths said that it would "simply not be fair" for the reference to "embarrassing allegations" to be left in the claimant's statement, but the explanation that these amounted to whistleblowing concerns to be removed.
In response, Mr Andrew Clarke QC for the defendant argued that it would be unfair to the defendant to deny them the chance to rebut the suggestion that the "embarrassing" allegations to which Mr Simpkin referred were whistleblowing claims.
Discussion
In my judgment, and consistent with the Order of Foskett J and the demands of fairness, it would be appropriate to strike out the whole of paragraph 135, 136 and 137 of the claimant's first statement, with the exception of the first sentence of 135, unless those are removed by the claimant. As the claimant concedes, other than the first sentence, those extracts relate to the substance of the whistleblowing allegation and are outside the scope of the preliminary issue as defined by Foskett J. The first sentence, in my judgment, is properly and reasonably included; excluding it would leave an incomplete and unfair impression of the claimant's account of the 2 September 2014 conversation.
However, it is also right to direct that defendant is not entitled to rely on either the second statement of Sir John Armitt or the second statement of Mr Barker. Neither of those two witnesses were party to the conversation to which the claimant refers in paragraph 134 and those two statements are directed to the substance of the whistleblowing allegations, which is excluded from the scope of the preliminary issue trial.
The defendant's concern was that its case, to the effect that the conversation between the claimant and Mr Perrins did not relate to whistleblowing, would not properly be articulated if such an order was made. But that concern is met by the witness evidence that will remain: at paragraph 147 of his second statement, Mr Perrins himself asserts that Mr Simpkin "did not mention whistleblowing and I had no reason to believe he could be referring to that, the point never having been raised previously." In my judgment that paragraph and the first sentence of paragraph 135 of the claimant's first statement suffice to set out the disagreement between the parties on a subject that will be of only passing relevance to the determination of the issues identified for decision at the forthcoming hearing.
The effect of my Order will be that the two witnesses who were party to the conversation on 2 September 2014 can speak to whether it amounted to "whistleblowing", but, in compliance with the Order of Foskett J, neither they nor other witnesses will be entitled to develop their contentions about the whistleblowing issues.
The Synopsis Document
On 3 March 2017 the defendant's solicitors wrote a lengthy letter to the claimant's solicitors. In the course of that letter they referred to disclosure of two additional documents. The claimant maintains that those two documents were private, confidential and privileged. His solicitors made that point in a letter dated 23 March 2017. The following day the defendant served witness statements which referred to the allegedly privileged documents.
In those circumstances the claimant seeks an order striking out those parts of the witness statements and an order that the documents should not be relied upon further.
I was shown the documents in question, the parties having agreed that that action did not of itself waive privilege. The first document was document DL530 in the defendant's list. It is a copy of an email from the claimant's email account at his place of work with the defendant to his private email account. The email itself had no content other than a footer which read "This email including attachments is confidential, may be covered by legal professional privilege and is intended for the addressee only. If you are not the intended recipient you are prohibited from printing, copying or distributing it."
The second document was the...
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