England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CAMBRIDGE COUNTY COURT
(HIS HONOUR JUDGE SENNITT)

		Royal Courts of Justice The Strand London Monday 29 April 2002

Monday 29 April 2002

1. LORD JUSTICE BUXTON: This is an application for permission to appeal from a judgment of His Honour Judge Sennitt in the Cambridge County Court, dated 14 December 2001. In that case the claimant, Sun Life Unit Services Limited, sought to recover various sums from a former employee, Mr Moore, then the defendant, now the appellant.
2. I do not need to go into the background facts in detail. They are fully set out in the judgment of the judge and in any event are of interest only to Mr Moore and to Sun Life, both of whom are well aware of them.
3. Mr Moore admitted (subject to one or two matters) that the sums in question had indeed been advanced, but said that they had been advanced under a loan agreement and guaranteed option scheme in connection with his employment, and that he had been induced to sign those agreements and to enter into the employ of Sun Life by misrepresentations and breaches of contract committed by his employers.
4. Put very shortly, Mr Moore says that misrepresentations were made as to the amount of support that he would receive from Sun Life in his activities as a self-employed consultant and that Sun Life broke its agreements in not giving him the support that he expected. That failure in particular centred on a failure to put in Mr Moore's way, as promised, a sufficient number of prospective customers, those being persons who had previously been in contact with Sun Life but for one reason or another a contract had not been entered into; and other leads, that is to say persons who were regarded as potential sources of business, those who were particularly promising being known as "warm" leads.
5. A substantial amount of documentation stated to be incorporated in the contract was provided, and in particular the Sun Life Launch Programme for new consultants. This document makes forecasts (not promises) as to the possibilities for a consultant who works in the way that it requires. Under the heading "Warm Leads" it says this:

"The Company has adopted a lead generation programme designed to support new consultants. The programme is centrally co-ordinated and operated by Marketing. The process is described in more detail in the Managers Manual. Those contacted through the programme may already be existing customers of Sun Life, introduced through our sales channels. These prospective customers offer a good opportunity for business.

Some warm leads are intended for new consultants to enable them to establish a customer bank. It is expected that warm leads will be available during the first two years of a consultant's career."

6. Mr Moore says that he was given no warm leads, and indeed generally support dried up very soon after he had joined and had taken out the loans.
7. The person who interviewed Mr Moore for his appointment as a consultant was a Mr Crimmen. By the time that the dispute arose, Mr Crimmen had been made redundant from Sun Life. His evidence was that he warned Mr Moore that because the way in which Sun Life operated and the market in which it operated was somewhat different from that which Mr Moore had encountered in his previous employment, he would be likely to get "cool" leads rather than "warm" leads. He states that he emphasised strongly the need for consultants to develop their business by their own initiative and not through leads from the company.
8. In respect of that interview Mr Moore says that much more solid and defined promises were made by Mr Crimmen: that he would be supplied with as many Sun Life clients as he required, including 100 on the day he started; that he would be given eight to ten warm leads a week; and that he would not be obliged to undertake "cold calling", the latter not being something that Sun Life permitted.
9. There was therefore a severe clash of evidence between these two men as to what had been said at the interview. The judge heard evidence from both of them. He concluded that, although Mr Moore may have believed the matters that he claimed were represented by Mr Crimmen, that was based upon his own assumptions and expectations and not upon anything that Mr Crimmen had said to him. Having heard Mr Crimmen give evidence, the judge thought that as an experienced manager in the insurance field it was wholly unlikely that he would have made the promises or given the indications that Mr Moore asserted. That is a finding of fact by the judge who heard both witnesses. It is not one with which this court will interfere. The major part of the complaint therefore disappears.
10. I have read through the documentation carefully. To the extent that Mr Crimmen gave warnings to Mr Moore that matters in the documentation might not be fulfilled, it seems to me that Mr Moore was not thereafter in a position to rely on the documents. But quite apart from that, the documents are stated in aspirational terms. Even the part under the heading "Warm Leads" is notably cautious. They do not seem to make any promises as to what is actually going to happen. They have to be approached with caution as statements of what the employer expects from his employee rather than promises or assertions as to what the employer will do. That was the view of the judge in looking at the documents, but looking at them in the context of what he had learned about the particular industry in the course of hearing the evidence. That assessment on the part of the judge, in my judgement, is not something with which this court can interfere. In those circumstances, therefore, there is no prospect of the Court of Appeal revisiting this case. This application is refused.
ORDER: Application refused.