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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Collidge v Freeport Plc [2007] EWCA Civ 1140 (05 October 2007)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2007/1140.html
Cite as: [2007] EWCA Civ 1140
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MR JUSTICE JACK)
Strand, London, WC2A 2LL |
||
B e f o r e :
and
LORD JUSTICE GAGE
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| SEAN MERVYN COLLIDGE |
Appellant |
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| - and - |
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FREEPORT PLC |
Respondent |
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Mr P Nicholls (instructed by Messrs Dechert LLP) appeared on behalf of the Respondent.
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Crown Copyright ©
- This is the renewed application by the claimant, Sean Collidge, for permission to appeal against Jack J's dismissal of his claim by an order of 25 May 2007. Rix LJ has already given Mr Collidge permission on the papers to appeal on grounds limited to the construction of a compromise agreement and to ancillary issues of law consequential on that issue. He refused permission to appeal in relation to the judge's factual findings, expressing the view that there was no realistic prospect of success in relation to them. Despite Rix LJ's express discouragement, Mr Collidge has now renewed his application in that respect. Rix LJ directed that any such renewed application should be on notice to the respondent, Freeport Plc. Notice was given, and we have had the benefit of a skeleton argument in opposition to this application from Mr Nicholls, who also appears before us today, although in the event we have not thought it necessary to hear from Mr Nicholls.
- Mr Collidge is a former chief executive of Freeport, a company he founded and which was in the business of creating and managing so-called "retailer outlet villages". However, following a board meeting held on 29 March 2006, Mr Collidge and Freeport entered into an agreement dated 31 March 2006 directed at severing Mr Collidge's relationship with Freeport. The agreement entitled Mr Collidge to receive various benefits from Freeport, including a payment of some £445,000 said by Mr Collidge to have become due on 27 April 2006. By his claim, he sued for payment and other entitlements he claimed under the agreement. Freeport's defence included the assertion that Mr Collidge was not entitled to the relief he claimed because a condition of his entitlement to it was not satisfied, namely, the truth of a warranty he had given in clause 7(b) that there were no circumstances of which he was or should have been aware constituting a repudiatory breach of his contract of employment which would have entitled Freeport to terminate it without notice. The judge accepted that the effect of clause 7(b) was to make the truth of that warranty a condition of Mr Collidge's right to the claimed relief, and he found on the facts that the warranty was untrue. He therefore dismissed the claim.
- The issue on which Rix LJ gave permission relates to the construction of clause 7(b), Mr Collidge's case being that the judge was wrong to interpret the truth of the warranty as constituting a condition precedent of his claimed entitlements. The obligation of clause 7(b) was, it is said, no more than a warranty upon which Freeport could sue if it was breached. Freeport, even if entitled to do so, did not treat any breach of it as entitling it to repudiate the agreement, so that once the due date for payment arose Mr Collidge had an accrued right to it, which any subsequent acceptance of a repudiation could not defeat. Mr Collidge's case is that he was entitled to the benefits contracted for even if, contrary to his case, the warranted facts were untrue. The judge found that they were. If he was wrong on that it would follow that, even if he was correct on the construction of clause 7(b), there would still be no defence to Mr Collidge's claim. The application before us is for permission to appeal against the judge's conclusions of fact.
- The judge considered a number of allegations against Mr Collidge, which were said to demonstrate fundamental breaches of duty he owed Freeport under his contract of employment, including breaches entitling Freeport to terminate it without notice. Certain of them concerned Mr Bradshaw, a driver employed by Freeport -- his main duty being to drive Mr Collidge. The complaints included allegations that Mr Collidge had engaged Mr Bradshaw to do private work in company time in the nature of works of repair and decoration to properties owned by Mr Collidge, in particular, a house known as Greta Side, the Castle Hotel, and a villa in France at Vallauris, near Cannes. They further included allegations of the removal of items from West Calder without paying for them, the misuse of a Freeport credit card for Mr Collidge's personal benefit, and his dishonest charging to Freeport of various heads of private expenditure. The judge found that virtually all the allegations were established.
- To a material extent, the allegations, in particular those relating to work on Mr Collidge's properties, were proved, or were at least corroborated, by the evidence of Mr Bradshaw contained in documents, including a so-called "bullet points" document, and a statement he gave to Freeport at the end of March and in early April 2006. On 20 April 2006, however, Mr Bradshaw faxed to Freeport a retraction of his earlier statement, asserting that it was made under Freeport's duress and was untrue. The judge's finding was that the retraction of that statement was induced by a promise by Mr Collidge on the night of 19 /20 April to make a payment of £20,000 to Mr Bradshaw's former partner, Miss Smith, with whom his relationship had just broken down, an event which plainly caused Mr Bradshaw considerable anguish. Mr Bradshaw owed money to Miss Smith at the time. Mr Collidge did in fact pay Miss Smith £20,000 on or about 25 April.
- The challenge to the judge's findings that the clause 7(b) warranty was untrue is based on a detailed rehearsal of Mr Collidge's factual case at trial, covering some 27 pages of skeleton argument. The starting point to the exercise is that it is said that the judge was wrong to find that Mr Collidge had induced Mr Bradshaw's retraction of his statement, and wrong also to find, as he did, that Mr Collidge had forged a loan agreement in favour of Mr Bradshaw directed at providing an ostensibly innocent explanation for the £20,000 payment. It is said these findings wrongly coloured his whole approach to Mr Collidge's evidence in relation to the various alleged breaches of his employment contract. It meant that the judge failed to find, as he should have done, that Mr Bradshaw's retraction of his statement meant that it was all complete fiction and should be ignored as evidence proving or supporting various of the alleged breaches. Mr Bradshaw committed suicide on 26 May 2006, and the judge did not therefore have the benefit of any oral evidence from him.
- A slightly more detailed background relating to this challenge to the judge's findings is as follows. In March 2006, Mr Collidge required Bradshaw to work in France and it was during this month that Mr Bradshaw was said, so found by the judge, to have worked on Mr Collidge's villa at Vallauris. On 30 March Mr Bradshaw ceased working for Freeport and returned to England. At about that time Miss Smith terminated their relationship. On 31 March and in early April, in the course of meetings with Freeport, Mr Bradshaw provided Freeport with information relating to what he had been doing for Mr Collidge in company time by way of working on the Vallauris villa and other private activities. The judge found that the meetings were also, in part, in the context of a consideration of what Mr Bradshaw wanted from Freeport, saying in paragraph 29 of his judgment that Mr Bradshaw wanted money and Freeport wanted his evidence. Further exchanges in April related to Freeport's proposal to make Bradshaw redundant. On 18 April, Mr Woolley of Freeport faxed a letter to Mr Bradshaw setting out the offered terms, and Mr Bradshaw responded by fax on the same day asking that £20,000 of the offered package be paid to Miss Smith. A compromise agreement was prepared, and Mr Bradshaw signed his part on 19 April, subject to an initialled change to which Freeport objected.
- On the morning of 20 April, however, Freeport received from Mr Bradshaw two faxed letters dated 19 April withdrawing from the proposed agreement, and also withdrawing the statement he had earlier given as having been made under duress and as being untrue. On about 25 April, Mr Collidge paid Miss Smith £20,000, and later claimed that he was asked to do so by Mr Bradshaw, using the £20,000 which had been the subject of a written loan agreement he had entered into with Mr Bradshaw at the Vallauris villa on 21 March. Freeport, however, claimed that it was in fact a payment promised by Mr Bradshaw on the night of 19/20 April to induce Mr Bradshaw to withdraw his allegations; and they further asserted that the loan agreement was a subsequent forgery, its function being to provide an innocent explanation for the payment to Miss Smith. Freeport's case that the £20,000 was paid in consideration of Mr Bradshaw's agreement to retract his statement received support from Mr Bradshaw's e-mail to Miss Smith on 6 May, in which he said just that. Darren Shaw, a friend of Mr Bradshaw's, also gave evidence that Mr Bradshaw told him that he had gone to Mr Collidge's house on 19 April, when Mr Collidge had offered him £23,000 to retract his statements, as well as offering him certain further advantages, including a room at The Castle Hotel and employment. Mr Shaw said that Mr Bradshaw had accepted this offer. Mr Shaw's evidence was not challenged by Mr Collidge at the trial. Mr Collidge's case was that Mr Bradshaw had invented this story so as to keep from Miss Smith that he had borrowed more money.
- Mr Collidge's account of the April events was that Mr Bradshaw visited him over the Easter weekend of 14 to 17 April and told him that he had made the statements he had under duress and that they were untrue. He said they did not meet again after this, and therefore his case was that there was no meeting on 19/20 April, but that they did speak on the phone because Mr Bradshaw needed to give Mr Collidge details of Miss Smith's bank account so as to pay the £20,000 to her pursuant to the loan agreement entered into about a month before.
- In addition to the March loan agreement, there was also in evidence an earlier 2003 loan agreement for an advance to Mr Bradshaw by Mr Collidge, which Mr Bradshaw is said to have repaid. The expert evidence of David Browne at the trial was that there was "very strong evidence" that Mr Bradshaw's purported signature on the 2003 loan agreement was not written by him, and that there was "strong evidence" that his purported signature on the 2006 loan agreement was not written by him either, the latter standard being said to fall somewhere between the criminal and civil standard of proof. It was because the expert only had a copy of the relevant part of the 2006 agreement that he was less certain of the position as to the truth of that document. Mr Collidge adduced no expert evidence as to the authenticity of the two agreements. In paragraph 47, the judge listed five factors further undermining the genuineness of the 2006 loan agreement and the evidence relating to its making.
- The judge found that Mr Bradshaw agreed to retract his statements made to Freeport in exchange for Mr Collidge's agreement to pay him £20,000, which Mr Collidge paid to Miss Smith at Bradshaw's request, because he owed her money. Save for a text message at 1.28am on 20 April from Mr Bradshaw to Mr Collidge, which does not fit in with that account and which the judge could not explain, save for suggesting that it may have been a mistake and was intended for somebody else, the judge said that the evidence for this conclusion was very strong and that there was in his view no doubt about it. The point about the text message was that, on its face, it pointed away from Freeport's case that Mr Bradshaw had a long meeting with Mr Bradshaw on the night of 19/20 April. The judge found that the two loan agreements were forgeries, their origin being referable to Mr Collidge's need to explain why he had paid £20,000 in late April to Miss Smith. They were either created by Mr Collidge or under his instructions. The 2003 agreement was produced in an attempt to give credibility to the 2006 agreement. The judge said that this left Mr Collidge's credibility in tatters, but he also made it plain that his evidence on each point had to be considered on its merits.
- In his challenge to the judge's conclusions, Mr David Reade QC submitted that Mr Bradshaw's faxed letter of retraction could not stand with his earlier "bullet points" document and his earlier statement. The judge's implicit finding was that the assertions in the letter of retraction were untrue, and that the earlier statements were true. Mr Reade's submission was that the judge should have made a finding to the reverse effect, which he said was in accordance with the probabilities. Had the judge so found, that would have been likely to have had a material effect on the judge's assessment of Mr Collidge's evidence as a whole and in relation to all the various allegations of breach that Freeport levelled against him.
- A key point in support of the challenge to the judge's findings of fact is that it is said that his conclusion that the retraction was induced by a promise on the night of 19/20 April by Mr Collidge to make the £20,000 payment to Miss Smith does not stand with the evidence that, as the judge found in paragraph 34, on the afternoon of 19 April Mr Bradshaw had already told Mr Brownstein of Freeport, over the telephone, that he did not want Freeport's money, and he also sent a text message to Mr Woolley of Freeport asking them to keep it. It is said, therefore, that Mr Bradshaw had already resolved to send his two letters of 19 April, and so he cannot have been later induced by Mr Collidge on the night of 19/20 April to write his retraction letter. It is said that the judge should have read Mr Bradshaw's two faxes as consistent with a decision that had already been made before the meeting which the judge found Mr Bradshaw to have had with Mr Collidge on the evening of 19/20 April. Criticism is further made of the judge's handling, in paragraph 36, of the contradictory accounts of Mr Brownstein and Mr Woolley as to the receipt on 20 April of Mr Bradshaw's letters; and the point is made that the judge should have found they had appreciated the day before that Mr Bradshaw had already resolved to reject Freeport's payment and retract his statement. I am not convinced, any more than was the judge, that this particular difference between these two witnesses was obviously critical to the resolution of the factual issues. The judge had found that Mr Bradshaw had already told both Mr Woolley and Mr Brownstein the afternoon before that he wanted nothing more to do with Freeport and its money. It does not, however, appear that there was any evidence that Mr Bradshaw had, on the afternoon of 19 April, also made any decision to retract his earlier statement before he had the meeting that the judge found had taken place with Mr Collidge on the night of 19/20 April.
- Further criticism is made of the judge's implicit acceptance as true of Mr Bradshaw's account to Mr Shaw of the alleged events of that night, including the offer by Mr Collidge of £23,000 to retract his statements. Mr Shaw's evidence was that he told Mr Bradshaw not to trust Mr Collidge, but to take Freeport's money. Whilst Mr Collidge does not, as I say, challenge the truth of Mr Shaw's evidence, Mr Reade makes the same point that, as by the afternoon of 19 April Mr Bradshaw had already resolved to turn the Freeport offer down, and had done so by 20 April, it makes no sense that Mr Bradshaw was seeking Mr Shaw's advice on 20 April as to what to do, and it is urged that he cannot therefore have been telling Mr Shaw the truth. It is, I suppose, possible that Mr Bradshaw might have had in mind the re-opening of a dialogue with Freeport, but it is fair to acknowledge that the advice apparently sought of Mr Shaw does not fully square with what had actually happened. Yet further, it is said that the sending by Mr Bradshaw of a text message to Mr Collidge at 1:28am on the morning of 20 April, at a time when on Freeport's case he was actually at Mr Collidge's house, points away from the truth of the assertion that he was. The judge could only explain that message as having been a mistake. If there was no meeting with Mr Collidge that night, that of course undermines the conclusion that Mr Collidge offered the alleged inducement for the retraction of the statements. Against that, however, Mr Bradshaw had sent Miss Smith an e-mail on 6 May saying that Mr Collidge had rung him at 11.30pm on 19 April and invited him over, and that Mr Bradshaw had accepted and had stayed until 5am. That was the e-mail in which Mr Bradshaw admitted that Mr Collidge had induced him to retract his earlier statement in exchange for £20,000 to be paid to Miss Smith. That explanation, of course, is also inconsistent with the text message at 1:28am that same night. However, the judge found that other aspects of Mr Bradshaw's e-mail were untrue, so it does not follow that this part of it was true.
- In my judgment, whilst acknowledging, as the judge was aware, that the evidence did not all point unerringly in one direction, Mr Collidge's challenge to the judge's finding as to the circumstances in which the letter of retraction came to be made, and as to the two loan agreements being forgeries, stands no prospect of success on appeal. The judge's judgment is a careful and detailed one, and his review of the evidence shows that he was amply entitled to make the findings of fact which he did, and that there is no basis for any assertion that his findings were unsupported by evidence or against the weight of the evidence, or were perverse, or were simply plainly wrong.
- It follows that I am of the view that there is no arguable basis for opening the hoped-for gateway to the wider challenge to the judge's finding of fact in relation to the various alleged breaches of Mr Collidge's employment contract. The judge further found that even if the retraction letter was written for some reason other than Mr Collidge's inducement, an observation reflecting that he would in that event have attached less weight to Mr Bradshaw's earlier statement, he would still have found that Mr Bradshaw worked for Mr Collidge in France, that work having been amply corroborated by other evidence. The work that Mr Bradshaw did at The Castle Hotel was also corroborated by the evidence of Ms Calvert, Mr Renwick, and Mr Shaw, and the work he had to do at Greta Side was corroborated by Mr Liyanarachchi, Mr Shaw, and Ms Calvert.
- Mr Reade's skeleton argument engaged in a detailed criticism of the judge's findings in relation to all issues, usually to the effect that the evidence in relation to the various issues was not all one way, and that, by implication, the judge ought to have preferred the Collidge version of events. But the evidence in contested cases does not always go the same way. This case was no exception, and the judge was fully aware that the evidence in this case did not do so. His job, however, was to make findings of fact on the issues before him, having heard the witnesses and seen the documents, and he did so. Again, it cannot be said that his findings were unsupported by evidence, were against its weight, or were perverse. Certain of the findings, in particular those in relation to Mr Collidge's misuse of the Freeport credit card and the charging to Freeport of Mr Collidge's private expenses anyway had nothing to do with Mr Bradshaw and in no manner depended on his evidence. In my judgment, an appeal against the judge's careful findings of fact would have no real prospect of success. I would therefore refuse any permission to appeal.
- I agree.
Lord Justice Rimer:
Lord Justice Gage:
Order: Application refused.