Neutral Citation Number: [2025] EWHC 1390 (Ch)
CLAIM NUMBER BL-2023-MAN-000102
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN MANCHESTER
BUSINESS LIST (ChD)
Manchester Civil Justice Centre
1, Bridge Street West
Manchester M60 9DJ
Date: 28 February 2025
BEFORE
HIS HONOUR JUDGE BEVER
SITTING AS A JUDGE OF THE HIGH COURT
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BETWEEN:-
(1) J LEVISON SERVICES LTD
(2) J H LEVISON (HOLDINGS) LTD
Claimants
and
MEDIVET GROUP LTD
Defendants
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Paul Chaisty KC and Andrew Latimer of Counsel and FS Legal, Solicitors for the Claimants.
Daniel Oudkerk KC and Daniel Fox of Counsel and Gannons Commercial Law Limited, Solicitors for the Defendant.
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JUDGMENT
1. This is my judgment following the trial of this action on 11, 12, 13 and 14 February 2025.
The Parties
2. John Levison (Mr Levison) qualified as a veterinary surgeon in 1988 and subsequently established a veterinary practice, known as Swanbridge Veterinary Group (Swanbridge), which was incorporated in 2010.
3. The First Claimant is a company through which Mr Levison provided his professional services as a veterinary surgeon after the sale of Swanbridge in 2021. He has been the sole director and shareholder of the company since its incorporation on 31 May 2021.
4. The First Claimant is a wholly owned subsidiary of the Second Claimant.
5. The Defendant (Medivet) provides veterinary services to the public. In part, its business model involves the acquisition of veterinary practices. It operates more than 400 practices across the United Kingdom.
6. As recorded later in this judgment, Medivet purchased Swanbridge from the Second Defendant in June 2021 and Mr Levison became an employee of Medivet in October 2021. The principal, and the only factual, issue for me to determine is whether Mr Levison remained in that employment on 31 May 2022. It is common ground that, if he did, he is contractually entitled to a payment of £1,018,434 (plus any applicable interest) from Medivet.
Background Facts
(i) The sale of Swanbridge
7. In March 2021, Mr Levison had a meeting with Ben Hanning (Mr Hanning), another veterinary surgeon with whom he had worked previously and who had become the Acquisitions Director of Medivet. Mr Hanning was seeking to establish whether Mr Levison was interested in selling Swanbridge to Medivet. At that point, Swanbridge had 8 practices in Yorkshire and Lincolnshire, approximately 50 employees and, according to Mr Levison, an annual profit in the region of £2 million.
8. Medivet was expanding rapidly at that time. It acquired 86 practices in the year ending 30 April 2022.
9. Mr Levison confirmed that he was interested in selling Swanbridge to Medivet. Negotiations progressed quickly, an agreement was reached and the sale completed on 2 June 2021.
10. The essential contractual basis of the sale was:-
- Under a Sale and Purchase Agreement dated 2 June 2021 (the SPA) the Second Claimant sold the entire share capital in Swanbridge to Medivet for the headline sum of £28 million (the Purchase Price), subject to a series of adjustments, including additional consideration if Swanbridge exceeded its first year target;
- Medivet and the First Claimant went into partnership together to run Swanbridge under a partnership agreement dated 2 June 2021 (the Partnership Agreement);
- Medivet was to hold an 85% partnership share in Swanbridge;
- The First Claimant was to purchase the remaining 15% partnership share in Swanbridge for £4.2 million, to be satisfied by a retention of that sum from the Purchase Price;
- Mr Levison was to continue to work at Swanbridge as a business partner until he became an employee of Medivet;
11. Medivet resolved to sell its business to a third party, CVC Advisers Limited (CVC) and, pursuant to a written Call Option Agreement dated 10 September 2021 (the Option Agreement), to which the First Claimant, Mr Levison and Medivet were parties and which was subsequently signed by/for them:-
- The equity price of the First Claimant's interest in Swanbridge was confirmed by Medivet on 24 September 2021 to be £5,218,434 and that figure was subsequently approved by Mr Levison;
- The first £4.2 million of that sum was to be paid to the First Claimant on the completion of the sale of Medivet; and
- The balance of £1,018,434 (the Equity Price Balance) was to be paid to the First Claimant within 5 days of 31 May 2022, unless Mr Levison "[ceased] to be employed by Medivet for any reason whatsoever (including his resignation) or if he [had] been provided with notice of the termination of his service agreement [in which case] such amount as [remained] payable [would] be reduced to £nil" (the Employment Condition).
12. On 8 September 2021, Mr Hanning sent an email to his colleague confirming that he was happy for Mr Levison to take time off in lieu (TOIL) instead of payment for additional hours worked under his employment contract.
13. The sale of Medivet to CVC completed on 21 October 2021. The First Claimant was paid £4,200,000 in line with the terms of the Option Agreement.
14. On 22 October 2021, Mr Levison became an employee of Medivet (now owned by CVC) under a service agreement (the Service Agreement), the terms of which had been contained in a schedule to the Option Agreement. At that point, the partnership between the First Claimant and Medivet ended.
(ii) Subsequent events
15. On his case, Mr Levison worked excessive hours for Medivet. He was, therefore, entitled to take TOIL, rather than being paid for his additional work. He also raised invoices for some of his work, as well as being entitled to receive a salary from Medivet.
16. The Claimants say that there were 3 key meetings relevant to this claim and that they took place on 4 November 2021, 19 January 2022 and 29 March 2022.
(iii) The meeting on 4 November 2021
17. The meeting on 4 November 2021 was attended by Mr Levison, Deirdre Burns (Medivet's then CEO) (Ms Burns) and Ciara McCormack (Medivet's then Director of Clinical Operations) (Ms McCormack).
18. It is Medivet's pleaded case that, at the meeting, Mr Levison agreed that his employment would terminate on 17 January 2022 and, in any event, before 31 May 2022.
19. Mr Levison denies this. He says that, at the meeting, there was no talk of his leaving Medivet. He had assured Ms Burns and Ms McCormack at the meeting that he would do everything possible to make his working arrangement with Medivet a success. This involved "soldiering on" with excessive working hours because an insufficient number of vets had been recruited to the business.
20. Neither Ms Burns nor Ms McCormack have provided witness statements for Medivet. Andrew Nethercot (Medivet's Chief Legal Officer) (Mr Nethercot), who made a statement and gave evidence at the trial, told me on cross-examination that Medivet did not ask for Ms Burns' and Ms McCormack's assistance with this litigation.
21. In his trial witness statement, Mr Nethercot refers to the meeting of 4 November 2021:-
"I am aware that there are documents that suggest that Mr Levison had at one point agreed an employment termination date that was even earlier, namely 17 January 2022. For example, I can see that [Ms McCormack] states, in an email to Mr Levison at 10.35 on 30 May 2022, that his leaving date was 17 January 2022 as "discussed on November 4th 2021 when myself and [Ms Burns] visited you in Swanbridge and you expressed your desire to leave clinical practice"... I remember being told about this meeting (I think by [Ms McCormack] on or around 25 May 2022). I was told that Mr Levison had decided that he wanted to stop working at the Swanbridge practice and so [Ms McCormack] [Ms Burns] and Mr Levison had agreed a date in January for him to stop working. I do not recall any mention of time off in lieu... in respect of this meeting."
22. I have not been referred to a file note of the meeting or to any relevant contemporaneous emails or other correspondence.
23. However, there is an email from Marieke Calje (Regional Director of Medivet) (Ms Calje) dated 12 January 2022 sent to Swanbridge employees in which she states:-
"As you all know, John has decided to retire from clinical practice as of Monday 17th January [2022]. I fully appreciate that this might have come as a shock to some of you as John has been the driving force behind Swanbridge and its success in the last 29 years. As John pursues another step in his successful career with Medivet, I would also want to use the opportunity to let you know that both Penny and myself will be here to support each and every one of you as we continue John's legacy...""
24. There was also a post on Medivet Swanland's Facebook page on 14 January 2022, announcing Mr Levison's retirement and describing him as "Swanbridge's legend."
(iv) The meeting on 19 January 2022
25. The Claimants' case is that there was a meeting on 19 January 2022 which was attended by Mr Levison, Mr Hanning and Ms McCormack.
26. Mr Levison recalls that the purpose of the meeting was to discuss what his future role in Medivet would be. He recalls that the meeting lasted for 3 hours, that "it was very positive and forward looking in its tone and content" and that Mr Hanning "felt [that Mr Levison's] "hands-on" knowledge and experience was invaluable to Medivet and wanted it to continue."
27. Neither Mr Hanning nor (as noted above) Ms Burns have been called by Medivet to give evidence. Medivet's witnesses (including Mr Nethercot) do not refer to this meeting in their trial witness statements.
28. Again, I am aware of no contemporaneous emails, other correspondence or file notes which might shed light on what happened at the meeting on 19 January 2022.
(v) The meeting on 29 March 2022
29. On 28 March 2022, Nick Player (Medivet's Head of Central Operations) (Mr Player) sent an email to Mr Levison, copying in Ms Calje, in the following terms:-
"Hi John
Look forward to catching up tomorrow.
Regarding calculating your final leaving date, please see below which we can collectively agree tomorrow:
- Northstar [reference of the sale of Medivet to CVC] Completion 21st October = Employee from that date (Standard vet contract, £65K salary, as per rota)
- Early leave date agreed (use TOIL to bring forward)
- Last working date 16th January
- 52 days of TOIL worked (October & January) = 12 weeks
- 16th January + 12 weeks = 8th April (Leave date/pay up to) +
- Approx holiday entitlement = 12 days pro rata
- Holiday taken = 8 days
- Days owed = 4 days (to be confirmed/paid in final pay check)
I will drop you a text with a picture of this in case you don't see the email so you have a copy in advance.
Kind regards
Nick"
30. The meeting took place at Swanbridge the following day, as planned. In attendance were Mr Levison, Liz Lucas (Mr Levison's partner) (Ms Lucas), Lynne Stanford (Mr Levison's long-time colleague) (Ms Stanford), Mr Player and Ms Calje.
31. Mr Levison recalls that, in preparation for the meeting, Ms Lucas, Ms Stanford and he looked at Mr Player's email of 28 March 2022 and realised that the proposed leaving date of 8 April 2022 was wrong. Mr Player had substantially underestimated the amount of TOIL to which Mr Levison was entitled. At the meeting, Mr Levison told Mr Player that his calculation was incorrect on that basis and also that he was entitled to 7 days' holiday. He, Ms Lucas and Ms Stanford took Mr Player through detailed rotas and a planning chart and explained to him that the correct position was that he had already worked sufficient days to carry him beyond the qualifying date of 31 May 2022. Mr Levison recalls the rotas being on the floor during the meeting and Ms Lucas and Ms Stanford pointing to them. Ms Lucas had produced a handwritten calculation several weeks earlier on which she had worked backwards from 8 June 2022 to show that, as at 17 January 2022, Mr Levison had achieved the required leaving date. In his live evidence, Mr Levison told me that he had had "a ding dong" with Ms Lucas with her insisting on working back from the later date of 8 June whilst he had preferred to work back from 31 May. Ms Lucas confirmed this when she was in the witness box, telling me that she has a tendency to be mistrustful of people and that she had wanted to be on the safe side when calculating Mr Levison's leaving date.
32. Mr Levison recalls that the meeting was good-natured and that Mr Player agreed that he had "done more than enough." It became apparent during the meeting that Mr Levison had not received any pay from Medivet since he commenced his employment in October 2021, although he had not noticed this. Mr Levison recalls Mr Player saying that "no one in Medivet's administration really knew what was going on because they had been focused upon acquisitions and then the sale of the Medivet Group."
33. Ms Lucas' evidence was that she was aware that Mr Levison had to work until the end of May 2022, which was the minimum tie-in period to qualify for payment under the Employment Condition. She calculated from the rotas the level of TOIL which he had accrued, as well as the holiday entitlement which he had built up. She was satisfied that, as at 17 January 2022, he had exceeded his minimum contracted hours up to 31 May 2022.
34. In her trial witness statement, Ms Lucas records that, after Ms Calje's announcement that Mr Levison was to cease working as a veterinary surgeon for Medivet, there was a presentation to the staff at Swanbridge, who were aware that, whilst he was no longer working in general practice on a full-time basis, he would still be coming into the practice to provide ongoing assistance. Indeed, he continued to work out of hours, largely covering for the shortage of qualified staff.
35. Ms Lucas recalls that, at the meeting on 29 March 2022, she, Ms Stanford and Mr Player went through the rotas and the planner together. She and Ms Stanford explained to Mr Player how they had arrived at their calculations. She recalls Mr Player agreeing with their calculations and saying that Mr Levison had "done more than enough."
36. Ms Stanford had worked with Mr Levison for 19 years, initially as a bookkeeper and later in other roles. She agrees with Ms Lucas' recollection of the meeting on 29 March 2022. She says that she counted the various entitlement days in front of Mr Player to show that Mr Levison's "last day" was 17 January 2022. She remembers that Mr Player agreed with that calculation and that Mr Levison should be treated as working up to and including the end of May 2022.
37. Ms Stanford says that she knew from her discussions with Mr Levison and Ms Lucas that they were always working towards a minimum period of employment to take Mr Levison to 31 May 2022, although she says that he continued to provide veterinary services up to the end of June 2022.
38. Both parties' solicitors engaged with, and produced (conflicting) witness summaries for, Mr Player but he did not sign a witness statement. The Claimants' solicitors issued and served a witness summons requiring his attendance at trial, but Mr Chaisty KC indicated to me at the end of the first day of the trial that he did not propose to call him to give evidence. It was then agreed between Counsel that Mr Oudkerk KC would call Mr Player as his client's witness and that Mr Chaisty KC would then cross-examine him.
39. In his live evidence, Mr Player recalled that Mr Levison, Ms Lucas and Ms Stanford were present at the meeting on 29 March 2022. He did not remember Ms Calje being there. He had come up from London for the meeting but he could not remember how long it lasted. He left Medivet in May 2022.
40. Mr Player acknowledged that an agreement had been reached at the meeting, that all parties appeared to be content with the outcome, that the emails which he sent appeared to indicate that Mr Levison's leaving date was to be 22 April 2022, but that he could not recall that particular date having been agreed. When asked by Mr Chaisty KC whether the Medivet organisation was dysfunctional, he acknowledged that "it was certainly a challenge." He also accepted that Mr Levison was putting in "a huge amount of hours and extra shifts around that time" and that Medivet was trying to recruit vets to assist him. He could not recall whether he had been aware of the specific date to which Mr Levison had to work in order to achieve the additional payment. He did not remember whether he took notes of the meeting but he said that, if he had done, he would have used his personal notebook. He remembered Ms Lucas having a large wall planner on the floor during the meeting and that there were handwritten notes. He also remembered using words to the effect of Mr Levison having done "more than enough."
41. On re-examination, he said that Mr Levison would have been paid up to, and employed until, 22 April 2022, based on the emails which he had been shown.
42. Ms Calje did not provide a statement in this litigation nor did she give evidence at the trial.
(vi) Emails after the meeting on 29 March 2022
43. On 8 April 2022, Mr Player sent an email to Ms Calje:-
"Hi Marieke
Hope you are well and have had a good week.
Re John...Have got back all the details we require.
Please can you process a change of roles for John on OpenHR:
BP [Business Partner] leave date: 21st October
Vet start date:
22nd October (Northstar) from a BP to an employee
Salary £65K
Standard 5 weeks holidays
Leave date 22nd April..."
44. On 13 April 2022, Mr Player emailed HR and Payroll noting that Mr Levison "became an employee on a [full time contract] with a leave date of 22nd April 2022" and that "he was never changed to become an employee and as such hasn't received any salary since then and needs to be processed as a leaver. Any holiday allowance showing will not be needed to be paid as it has been taken."
45. On 27 April 2022, Ms Calje wrote to Mr Player:-
"I have lost track of who is doing what with regards to getting [Mr Levison] on OpenHR and processing him as a leaver. I received this email this afternoon but I can't find him on my OpenHR. Has he been processed as a leaver or is this still something they need me to do?"
46. Mr Player replied to her the following day saying that Mr Levison "has now left (as of 22nd April)."
47. On 5 May 2022, Medivet sent an automatically generated exit questionnaire to Mr Levison by email, requesting feedback on his decision to leave the company. Mr Levison replied to that email (erroneously by emailing himself), noting, "I believe I am still employed by Medivet until 22/5/2022. Please can you look into this as a matter of urgency. Thank you for your help..."
48. On 10 May 2022, Mr Player emailed Ms Stanford (copying in Mr Levison) confirming that a salary payment would be made into Mr Levison's bank account and that "this will be pro rata'd £65K for the period 22/10/21 to 22/04/22."
49. Ms Stanford replied (on behalf of, and copying in, Mr Levison), asking Mr Player to confirm Mr Levison's start date as 1 October 2021, but not challenging the leaving date of 22 April 2022.
50. On 17 May 2022, Mr Levison received an email from Medivet beginning "Welcome to Medivet!".
51. Penny Hiles (Medivet's then Area manager) (Ms Hiles) sent an email to Mr Levison's then personal assistant, Nicky Fraser (Ms Fraser) on 17 May 2022 stating that Mr Levison could invoice Medivet for the period 1 October 2021 to 22 April 2022 whilst he was in employment.
52. There is an email from Medivet's Payroll email address to Ms Calje, the text of which is set out below. On 20 May 2022, Ms Calje replied to that email to (not copying in Mr Player) repeating the questions put to her and setting out her responses (in bold below):-
- "[Mr Levison] told us that he should be being paid up until 22nd May, but all correspondence that payroll can see states that he should be paid up to 22nd April. Can you please discuss with John and confirm with us the correct leave date? It is 22nd of April. Nick Player has looked in detail into this and has informed John that this is his leaving date, not 22nd of May.
- We were told by Locums that 2 invoices were paid to him on 1st and 9th March- Julie Tomlin has provided one which I have attached here. Can you please confirm that these payments are separate to his salary due for the period 22nd October- 22nd April/May? Yes these payments are separate.
- He is also chasing details of his payment from the Northstar agreement. He is said that he is expecting this on 22nd May. Do you have details of this? No, I don't unfortunately. Again, [Mr Player] looked into this and should have sorted and finalised all this.
(vii) Other emails and documents highlighted by the parties
53. Mr Levison's professional indemnity insurance proposal form to the Veterinary Defence Society (VDS) dated 19 May 2022 stated that he was "now no longer employed by Medivet." He later emailed VDS on 24 May 2022 confirming that he had "ceased working for Medivet". His insurance with VDS for his own horses then commenced on 23 May 2022.
54. On 1 June 2022, Medivet payroll sent an automatically generated email to Mr Levison, attaching his P45, which referred to a leaving date of 17 January 2022.
55. There is a clinical record in the trial bundle relating to an animal treated by Mr Levison on 1 July 2022, demonstrating that he was still undertaking some veterinary work for Swanbridge at that date.
56. On 9 January 2023, Mr Levison emailed the Veterinary Medicines Directorate saying, "...The form automatically says I am Medivet Swanland. This is no longer the case. I left a year ago..."
(viii) Mr Levison's and the Claimants' solicitors' requests for payment of sums due
57. On 24 May 2022 at 10.43, Mr Levison sent an email to Bart Borms, CFO of Medivet, (Mr Borms), copying in his accountant, Richard Lacey (Mr Lacey) requesting payment of the Equity Price Balance:-
" Dear Mr Borms please ring me re this payment (part of North Star agreement). This was due on 22/5 however has not been paid."
58. Mr Borms responded the following morning at 08.15, acknowledging receipt of the email, confirming that the matter was being looked into and copying in Mr Nethercot.
59. Mr Nethercot replied to Mr Levison the following day at 09.58:-
"... I note that you left employment at Medivet on 22 April 2022. Accordingly, as per paragraph 3 of Schedule 2 to [the Option Agreement], you are not entitled to receive any additional amounts by way of balance of the Equity Price because you are not going to be employed by Medivet on 31 May 2022."
60. Mr Levison replied on 18 June 2022, after taking legal advice:-
"Dear Andrew
Thank you for your email.
Sorry for the delay in replying however I was shocked at the response and sought advice.
I did not leave employment in April and remained in employment until 31st May as per the contract. I took time off in lieu.
I have continued working for Medivet, have fully supported your organisation and had a good working relationship.
Please phone me to discuss as I feel there is some misunderstanding..."
61. There were separate monies due to the First Claimant under the Partnership Agreement for its share of the profits of the partnership (the Partnership Monies) and to the Second Claimant under the SPA (the Retention Monies). The amounts of those principal sums are agreed - the Partnership Monies at £135,524 and the Retention Monies at £325,442.
62. On 4 March 2023, Mr Levison sent an email to Mr Nethercot, requesting payment of the Partnership Monies and the Retention Monies and pointing out that "the retention figure was agreed last year and my payment details were requested by Medivet however no money was sent" and that "the partnership figures have been agreed (your calculations)...As Medivet's legal adviser please provide your reasoning for not paying or sending the outstanding monies."
63. Mr Nethercot replied on 8 March 2023:-
"My understanding is that you remain in dispute with Medivet regarding monies that you claim should have been payable to you pursuant to [the Option Agreement] from 2021.
If you confirm you have no disputes with Medivet, then we can progress this promptly."
64. Mr Levison replied the following week, pointing out that the outstanding Retention Monies and Partnership Monies were separate from the Equity Price Balance.
65. Mr Nethercot wrote back to Mr Levison on 23 March 2023, saying that "our counsel wrote an open letter to your lawyer on 20 October 2022 explaining why you have no claim against us. However, no response has been forthcoming from your lawyers and we would appreciate clarity on this matter from you."
66. The correspondence ended at that point and the issue was later addressed by the parties' solicitors.
67. The Claimants' solicitors (FS Legal) sent a letter of claim to the Defendant's solicitors (Gannons) dated 29 September 2023. That letter principally focussed on the Equity Price Balance, although it also demanded payment of the Partnership Monies and the Retention Monies.
68. Gannons wrote to FS Legal on 5 November 2023 responding to the substance of the claim for the Equity Price Balance, and also stating:-
" As to the [Retention Monies] sought under [the SPA] and the [Partnership Monies] sought under the Partnership Agreement, Medivet is prepared to pay the relevant sums to your client (i.e. £325,442 and £135,254).
Further, Medivet accepts, in principle, its obligation to pay interest on the [Retention Monies] under clause 2.12 of [the SPA]. However, the amount of interest is unclear. Please identify the date on which you say that there was an "agreement in writing of the Completion Accounts" within the meaning of clause 2.4 of [the SPA], and the document(s) evidencing that agreement in writing....
As for the claim to interest on the [Partnership Monies], there is no provision for interest in the Partnership Agreement. No claim in law for interest, therefore, arises and the claim for interest by analogy is rejected. Please let us have bank details for payment of the sums. That disposes of this aspect of the dispute."
69. The letter then went on to propose Alternative Dispute Resolution (ADR). I am told that ADR was later attempted, without success.
70. On 8 November 2023, Gannons confirmed that they were instructed to accept service of proceedings on behalf of Medivet.
71. On 14 November 2023, FS Legal sent an email to Gannons in which they did not engage with Gannons' proposal relating to the Retention Monies and the Partnership Monies.
72. On 16 November 2023, Gannons wrote to FS Legal again, reminding them that their client had accepted its liability to pay the Retention Monies and the Partnership Monies and that they had asked for their bank details for payment, asserting that "it would be an abuse of process to issue a claim in respect of these sums. We await also your response on the issue of interest."
73. FS Legal did not respond to that email and issued proceedings on the Claimants' behalf on 22 November 2023. The Claim Form and the Particulars of Claim were then served on the Claimants' solicitors on 24 November 2023. The claim included claims for the Retention Monies and the Partnership Monies.
74. In its Defence dated 10 January 2024, Medivet pleaded that the claims for the Retention Monies and the Partnership Monies amounted to an abuse of process on the basis that it had offered unconditionally to pay the sums in question.
75. Medivet paid £135,254 into Court on 11 January 2024 in relation to the Partnership Monies. That sum was paid out of Court to the Claimants' solicitors on 24 February 2024 pursuant to a Consent Order filed by the parties.
76. In respect of the Retention Monies, Medivet paid £325,442 (plus £37,365.65 by way of contractual interest up to 5 November 2023, being the date of their offer) to the Second Claimant on 19 December 2023. Medivet's position is that it did not pay the monies into Court because FS Legal had threatened to present a Winding Up Petition against it if the liability was not discharged immediately (and that, in any event, it was not able to do so until its Defence had been filed).
The Claimants' claims
77. There are 3 claims advanced by the Claimants.
78. The First Claimant seeks payment of the Equity Price Balance (Claim 1) which turns on whether Mr Levison remained employed by Medivet on 31 May 2022. If he did, then the claim succeeds. If he did not, it fails.
79. The Claimants also litigated for payment of the Partnership Monies (Claim 2) (First Claimant) and the Retention Monies (Claim 3) (Second Claimant).
80. As I have already noted, the Partnership Monies and the Retention Monies been paid by Medivet. However, the Claimants (respectively) seek interest on the sums paid. The First Claimant seeks interest on the Partnership Monies up to 24 February 2024, being the date on which they were paid out of Court. The Second Claimant seeks interest on the Retention Monies from 6 November 2023 (interest already having been paid up to 5 November 2023) to 19 December 2023 (the date on which payment of the monies and interest was received by FS Legal).
81. Medivet opposes those claims for interest and seeks an Order that the claims are dismissed.
Procedural background
82. This claim was issued on 21 November 2023.
83. In its original Defence, Medivet took a construction point relating to the Option Agreement, which it subsequently abandoned in its Amended Defence dated 21 May 2024.
84. There was a Costs and Case Management Conference before me on 15 April 2024 at which the parties were represented by Mr Latimer and Mr Fox, respectively.
85. I made an Order at that hearing, giving the parties permission to amend their respective Statements of Case and providing for disclosure in accordance with Practice Direction 57AD of the Civil Procedure Rules and for the exchange of witness statements. Subsequently, a Pre-Trial Review (PTR) was listed on 13 December 2024 and the trial dates were fixed.
86. By agreement of the parties, the PTR was vacated, on the basis that they considered it unnecessary.
87. On the morning of the first day of the trial, Mr Oudkerk KC made an application in the face of the Court to amend Medivet's Re-amended Defence, without prejudice to his contention that it was pleaded adequately. Mr Chaisty KC resisted the application. The contentious issue was whether the Defendant's pleaded case reflected its main allegation that, at the meeting on 29 March 2022, it had been agreed that Mr Levison's employment would end on 22 April 2022. Mr Oudkerk KC proposed the following amendment (in bold type):-
""...If, contrary to the Defendant's primary case Mr Levison's employment did not terminate on 17 January 2023, Mr Levison's service agreement terminated... on ...alternatively (by agreement at a meeting with Nick Player on 29 March 2022) 22 April 2022 ..."
88. I allowed the application and I reserved the determination of the costs associated with it until after judgment had been handed down.
89. The trial proceeded and there was sufficient time for Counsel to make their closing submissions orally, supplemented by written submissions.
Approach to the witnesses' evidence
90. I have read the witnesses' statements and I have listened carefully to their live evidence. I have reflected on that evidence, and I have taken full account of the written and oral submissions made by the parties' Counsel.
91. The events concerning which the witnesses have given evidence date back up to 4 years and some of the witnesses, in particular Mr Nethercot and Mr Player, appeared to have limited memory of some of the issues about which they were questioned.
92. Leggatt J sounded a warning in Gestmin SGPS v Credit Suisse (UK) Ltd [2013] EWHC 3560 about the interpretation of evidence, especially in the context of the passage of time. He observed that
"...an obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory."
93. He went on to say:-
- "[there is] a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten when retrieved"
- "memory is especially unreliable when it comes to recalling past beliefs"
- "civil litigation itself subjects the memories of witnesses to powerful biases... [which is] obvious where the witness is a party or has a tie of loyalty"
- "[a party's witness statement] is made after the witness's memory has been "refreshed" by reading documents."
94. Mr Chaisty KC submits that the guidance given in Gestmin does not amount to a rule of law or binding precedent. He says that, whilst the judgment is helpful in commercial litigation involving extensive documentation, I must consider the totality of the evidence. His concern appears to be that I might be inclined to determine the contentious issues primarily on the basis of the documentary evidence alone, rather than considering all the strands of the evidence which has been adduced.
95. I do not think that Mr Oudkerk KC necessarily disagrees with Mr Chaisty KC on this point. Whilst he stresses what he considers to be the potency of the documentary evidence which he says undermines the Claimants' case, he acknowledges that I must consider the evidence in its entirety.
96. I agree with the submissions made and find support in Floyd LJ's helpful observations in Martin v Kogan [2019] EWCA Civ 1645, at paragraph 88:-
"...as has very recently been noted by HHJ Gore QC in CXB v North West Anglia NHS Trust [2019] EWHC 2053 (QB), Gestmin is not to be taken as laying down any general principle for the assessment of evidence. It is one of a line of distinguished judicial observations that emphasise the fallibility of human memory and the need to assess witness evidence in its proper place alongside contemporaneous documentary evidence and evidence upon which undoubted or probable reliance can be placed...But a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all of the evidence. Heuristics or mental short cuts are no substitute for this essential judicial function."
97. I find it useful to reflect on the helpful guidance given in Phipson on Evidence 20th Ed at 45.18, namely that, when assessing the reliability of a witness's evidence, I should take account of:-
(1) the consistency or otherwise of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred;
(2) the internal consistency of the witness's evidence;
(3) consistency with what the witness has said or deposed on other occasions;
(4) the credit of the witness in relation to matters not germane to the litigation;
(5) lies established in evidence or in the context of proceedings;
(6) the demeanour of the witness; and
(7) the inherent probability of the witness's account being true.
98. I remind myself to be cautious about the witnesses' oral testimony and to only make findings of fact, after considering all the evidence, both oral and documentary, and after reflecting on the inherent probability of what I have been told.
99. I also remind myself that, when making findings of fact, I must only find a fact proven if I am satisfied on the evidence that I have heard and read that it is more likely than not to be true. In other words, each such fact must be established on the balance of probabilities. The burden of proof rests with the party asserting the allegation.
The witnesses
100. I should begin by making observations about my impression of the witnesses' evidence.
101. I heard live evidence from Mr Levison, Ms Lucas, Mr Lacey and Ms Stanford (on behalf of the Claimants) and from Mr Player, Ms Hannell and Mr Nethercot (on behalf of Medivet).
102. All I know of the witnesses comes from their presentation in the witness box, the manner in which they responded to questions on cross-examination and the witness statements to which they put their names.
103. I found Mr Levison to be a persuasive, impressive and patently honest witness. He came across as a self-effacing, dedicated professional who was passionate about his veterinary work and the practice which he had established and developed. He gave his evidence with care. He did not prevaricate or obfuscate. He was neither defensive nor evasive. He was very fair and straightforward in his responses to Mr Oudkerk KC's cross examination.
104. Mr Levison struck me to be a person of integrity. This was clear from his evidence as a whole and from his responses to questions, as well as from the evidence given about him by other witnesses, not only from those closest to him (Ms Lucas and Ms Stanford) but also from those with whom he did business (Mr Player and Mr Lacey).
105. I think it highly unlikely that he would have deliberately misled me on any issue. I am very confident that he came to Court with the intention of telling me the truth as he recalled it.
106. At one point, he became rather distressed when he was giving me an overview of his perspective of how he had been treated by Medivet. That in no way undermined my confidence in his evidence. Far from it. In fact, it reinforced my impression of him as a candid and plain speaking person.
107. Mr Levison made concessions where it was appropriate to do so and he stood his ground when challenged. He accepted that he was not able to assist me with some of the detail relating to the calculation of his leave date. He also acknowledged his limitations in terms of IT and the use of email.
108. I am satisfied that Mr Levison was unfamiliar with email and technology generally. That is apparent from the limited number of emails which he appears to have sent whilst working for Medivet. It seems that he effectively delegated his email account to Ms Stanford. His lack of familiarity with technological advances was amply illustrated when he told me that he had not used debit or credit cards until the last couple of years.
109. However, I am also satisfied that he is a shrewd and very capable businessman. That is clear from the fact that he set up and expanded a highly successful business which he went on to sell to Medivet for tens of millions of pounds. His lack of technological knowledge evidently did not stand in the way of that huge achievement.
110. Ms Lucas was a straightforward and truthful witness. She also became upset at one stage during cross examination. That reflected her frustration at Medivet's resistance to Mr Levison's claim.
111. I had every confidence in her evidence, especially in her detailed recollection of the meeting on 29 March 2022.
112. Ms Stanford was also a good and helpful witness. In particular, she was able to assist me by providing me with details of what she remembered of the meeting on 29 March 2022.
113. Mr Lacey was not able to provide evidence in relation to the key issues, but I am satisfied that what he did tell me was honest and truthful.
114. Mr Player was not able to shed any light on what was discussed at the meeting on 29 March 2022.
115. However, of course, he has engaged with both parties' solicitors to such an extent that they felt in a position to produce witness summaries apparently reflecting what he told them.
116. Mr Player's evidence was that he now has no recollection of the matters referred to in the emails to which he was a party and that he has no appreciable recall of Mr Levison's agreed leaving date.
117. I have no doubt that Mr Player was entirely honest in his responses to the questions which were put to him.
118. However, I was somewhat surprised that he had such a limited recollection of the meeting on 29 March 2002. I recognise that the meeting took place almost 3 years ago, but he had travelled to Yorkshire from London to attend it and it was not a short meeting. I might have expected him to have retained more of the detail, or at least the gist, of what was discussed. I also note that he was unable to recall that Ms Calje was at the meeting.
119. Mr Levison told me that Mr Player was an honourable and decent colleague and I have no reason to think otherwise. However, given his limited recollection of the key issues and his conflicting witness summaries, I have decided to treat his evidence with a degree of caution.
120. Ms Hannell was an engaging witness, who was keen to explain to me the workings of the payroll department at Medivet. I was grateful to her for those explanations and for attending court to assist me. I am satisfied that she gave her evidence truthfully and accurately, although it did not necessarily take matters much further.
121. I had reservations about Mr Nethercot's evidence.
122. I accept that he was in a difficult position in that he was giving evidence on behalf of his employer to whom he inevitably will have a tie of loyalty.
123. However, there were two aspects of his evidence in particular which caused me concern.
124. Firstly, his account of the events leading up to his email of 25 May 2022. Mr Levison sent an email to Mr Borms the previous day requesting payment of the Equity Price Balance, and Mr Nethercot rejected that demand within less than 24 hours. He told me that he does not recall discussing this issue with any of his colleagues, although he accepts that he may have spoken to Mr Borms about it on 24 or 25 May 2022.
125. The rejection of the claim was very swift indeed and, in my judgment, that timescale neither fits with Mr Nethercot's evidence that he had to justify key issues to the Board (such as the defence of this claim) nor with the relaxed pace at which Medivet has dealt with other matters. Moreover, I would be very surprised if, within that timescale, he managed to speak to all his colleagues who had been involved in the matter, to access the relevant email correspondence and to fully investigate the issue.
126. I, therefore, think that it is likely that this issue was known to, and discussed by, senior Medivet personnel well before Mr Nethercot refused Mr Levison's claim on 25 May 2022.
127. My impression was that Mr Nethercot was unsure of his answers to my questions on this point. It may be that little turns on those responses, but I should record that they tended to undermine my confidence in his evidence generally.
128. Secondly, it surprised me that Mr Nethercot did not accept that he had indicated that Medivet would pay the Retention Monies and the Partnership Monies if Mr Levison abandoned his claim for the Equity Price Balance. In my judgment, on any fair reading of the emails, it is evident that that was the case. Those sums were clearly not in dispute. The emails suggest that Mr Nethercot, on Medivet's behalf, was using them as leverage against the main claim. I found it difficult to understand why Mr Nethercot would not acknowledge that in the witness box.
129. For those reasons, I have limited confidence in Mr Nethercot's evidence. I was also surprised by the brevity of his trial witness statement and by its failure to engage in any detail with the issues which it was intended to address.
130. However, leaving aside my concerns about Mr Nethercot's evidence, he was not at the meeting on 29 March 2022 and he was not the author of any of the key emails which have been drawn to my attention by Medivet. Therefore, his evidence takes matters little further.
Claim 1
(i) The parties' respective broad positions
131. Mr Chaisty KC says that it is inherently improbable that Mr Levison would have deliberately or carelessly given up his right to receive in excess of £1 million by agreeing to terminate his employment prematurely.
132. He complains that Medivet's approach to Claim 1 has been far from consistent. At the outset, it ran a technical contractual construction defence which it later abandoned. Its primary case is that Mr Levison's employment ended in January 2022, but that position is no longer actively advanced. Termination dates of 8 April 2022 and 22 May 2022 are also pleaded, but not now pursued with any enthusiasm.
133. Mr Chaisty KC considers his witnesses to have performed strongly in giving their live evidence, but he criticises as disingenuous Mr Nethercot's evidence relating to the lead up to his email dated 25 May 2022 and, in any event, he says that his evidence was of little relevance or consequence. He notes that many of the key witnesses whom Medivet could have relied on were not called to give evidence. He accepts that Mr Player was an honest witness and argues that his evidence supported the Claimants' case on Claim 1.
134. Mr Chaisty argues that little can be read into the emails on which Medivet relies. They are inconsistent in pointing to a termination date and they are not supported by witness evidence.
135. Mr Oudkerk KC notes that the Claimants' witness statements were prepared 2 years after the events which they address and that they contradict the contemporaneous documentation. He says that I should favour the documents which were created at the time and, in particular the emails suggesting that Mr Levison's leaving date was 22 April 2022, which he says can only realistically refer to the date on which his employment with Medivet ended.
136. He argues that Mr Levison's repeated references to 22 May 2022 undermine his stated case that he always had the date of 31 May 2022 at the forefront of his mind.
137. Mr Oudkerk KC maintains that Mr Levison was an unreliable witness and points out that his statement and those of Ms Lucas and Ms Stanford were produced after discussions between them. He suggests that Mr Nethercot's evidence was balanced and clear and that he had no interest in the proceedings one way or the other.
(ii) Analysis and Decision
138. Medivet's primary pleaded case is that, at the meeting on 4 November 2021, it was agreed that Mr Levison's Service Agreement would be terminated on 17 January 2022 or, alternatively, on a date prior to 31 May 2022. It is said on the Claimants' behalf that the meeting was attended by Mr Levison, Ms McCormack and Ms Burns.
139. It appears that Medivet has now abandoned its case that 17 January 2022 was the date on which Mr Levison's employment ended. Certainly, Mr Oudkerk KC did not press the point in his closing submissions.
140. Even if he had done, I would have had no hesitation in rejecting it.
141. The basis of Medivet's case on this issue is that the date (or indeed a date) for the termination of Mr Levison's employment was agreed at the meeting on 4 November 2021 which two of their senior employees, Ms Burns and Ms McCormack, attended. However, neither of them produced a witness statement or was called to give evidence. Medivet's only witness to give evidence about the meeting was Mr Nethercot. He was not at the meeting. He relies on what he was apparently told about it by Ms McCormack more than 6 months later.
142. When set against Mr Levison's evidence on the point, there is no contest. Mr Levison was at the meeting. I have already noted that he was an excellent witness. I have no hesitation in preferring his evidence on the point to the second-hand evidence on the issue given by Mr Nethercot.
143. I also note that I have been shown no relevant contemporaneous documentation or correspondence. This is surprising. Ms McCormack and Ms Burns travelled a considerable distance to see Mr Levison and the meeting was not a short one. Medivet no doubt sees itself as running a professional business operation. Mr Levison's departure date was a matter of some consequence. If it had been agreed, I would have expected it to have been documented in one way or another at the time of the meeting to ensure that there was a record of it.
144. The only possible record of the alleged agreement is contained in Ms Calje's email to Swanbridge's staff on 12 January 2022 and in Ms McCormack's email to Mr Levison on 30 May 2022.
145. Ms Calje was not at the meeting on 4 November 2021 and nor has she given evidence to support the position set out in her email. In any event, that email refers to Mr Levison pursuing "another step in his successful career with Medivet" which suggests that it was not intended that his employment with Medivet would be brought to an end at that stage. Moreover, it is inconsistent with Mr Levison's account of the meeting on 19 January 2022, which I accept to be accurate.
146. Ms McCormack's email was sent after it had become apparent that there was a dispute between Mr Levison and Medivet about his agreed departure date. It was far from contemporaneous. In any event, Ms McCormack has not given evidence to support that email.
147. I entirely accept Mr Levison's evidence that there was no talk of his departure at the meeting. There is no credible evidence to the contrary.
148. For all those reasons, I accept that there was no agreement reached at the meeting on 4 November 2021 that Mr Levison's agreed departure date was to be 17 January 2022, or any other date for that matter.
149. As I have indicated, I also accept Mr Levison's account of the meeting on 19 January 2022. There is no evidence, documentary or otherwise, to the contrary and, as I have already noted more than once, I was very impressed by his evidence.
150. I, therefore, accept and find that the meeting on 19 January 2022 was "positive and forward-looking" and that Mr Hanning expressed that he was keen that Medivet should continue to benefit from Mr Levison's considerable knowledge and experience.
151. Medivet's remaining key contention is that, at the meeting on 29 March 2022, it was agreed by Mr Levison that his departure date would be 22 April 2022.
152. I reject that assertion for the following reasons.
153. Firstly, in my judgment, it is inherently highly improbable that, on 29 March 2022, Mr Levison would have agreed to forego in excess of £1 million when he would have been entitled to receive that very substantial sum for remaining in Medivet's employment for a matter of another 9 weeks or so.
154. There would have to be a very good reason for him to do so. In my judgment, no such good reason became apparent during the trial.
155. It certainly was not because he wanted to be free of his work as a vet. The evidence suggests that he was working into June and July 2022, and even over the long bank holiday weekend for the late Queen's Platinum Jubilee.
156. Mr Oudkerk KC reminded me that Mr Levison received a very substantial sum of money when he sold his business to Medivet and that, in all probability, he is, therefore, now a very wealthy man. However, it does not follow that he would be reckless in his financial dealings. In fact, the evidence points in a different direction.
157. Mr Levison told me that he had plans for the money:-
"No. That was our-- if you want to know, that money was in my-- I apportion things and I think the best way to describe it in my brain, that was our enjoyment money. That was the extra that I wouldn't feel guilty about spending on the family and enjoying."
158. In my view, that comment is entirely credible and reflected the impression I have formed of Mr Levison. I accept his evidence that he had ringfenced the money in his mind.
159. Ms Stanford, who knows Mr Levison very well both personally and professionally, was asked by Mr Chaisty KC whether Mr Levison had ever told her that he had decided to relinquish his entitlement to the additional sums to which he was entitled. Her reply was:-
"He wouldn't lose money; he wouldn't give up on money... He's a businessman."
160. Therefore, I am not able to accept that Mr Levison's approach to his entitlement to the Equity Price Balance was relaxed or affected by the fact that he had already received a very sizeable sum of money from Medivet.
161. Mr Levison is clearly a competent businessman who established and developed a highly successful enterprise which he later sold for a very substantial amount of money. I would be very surprised if such an accomplished person would forego the additional consideration which he had negotiated or would overlook his entitlement to it. After all, he had only signed the Service Agreement a matter of months before the meeting on 29 March 2022.
162. There is no evidence that Mr Levison is a reckless or careless person. Quite the contrary. The evidence from those who know him best, Ms Lucas and Ms Stanford, is that he was dedicated to his work and to the success of his business.
163. Furthermore, I have not lost sight of the fact that Ms Lucas took a very keen interest in Mr Levison's business activities. Even if Mr Levison had overlooked his entitlement to the additional monies (which I do not accept), I do not think for one moment that Ms Lucas would have done. She spent considerable time and effort calculating his TOIL and other entitlements ahead of the meeting on 29 March 2022. At that meeting, out of caution, she worked backwards from 8 June 2022. She struck me to be a cautious person in matters of business, as well as a dedicated life and business partner to Mr Levison.
164. In my judgment, it is very unlikely that she would have overlooked his entitlement to the Equity Price Balance.
165. Secondly, whilst Medivet relies heavily on email and other documentation, it has called very few witnesses to give evidence and the witnesses on whom it has relied have not been able to address the key issues in the litigation.
166. Ms Calje, who attended the meeting on 29 March 2022, has not produced a witness statement and was not called to give evidence at the trial. She would have been the obvious person to call to tell me what was discussed and agreed at the meeting. Mr Nethercot told me that Medivet "reached out" to Ms Calje but that she declined to give evidence.
167. With the exception of Mr Player, even the authors of the various emails which are said by Medivet to be of particular significance have not been called to give evidence. Mr Hanning, Ms Burns and Ms McCormack were not at the trial.
168. Medivet principally relies on Mr Nethercot, who was not at the meeting on 29 March 2022 and who apparently had no involvement in the matter until 24 or 25 May 2022. His evidence was limited and largely focused on events of which he had no personal knowledge.
169. Whilst Mr Player was called to give evidence by Medivet, its solicitors did not manage to obtain a signed witness statement from him. He was only at Court to give evidence because he had been served with a witness summons by Mr Levison's solicitors.
170. Even so, Mr Player did not remember much about the key issues in the litigation. He had, of course, attended the meeting on 29 March 2022, but he was not able to tell me what was agreed at the meeting (and specifically when it was agreed that Mr Levison would cease to be employed by Medivet), nor did he have any real recollection of the matters referred to in the emails which he had sent at around that time.
171. Whilst Ms Hannell did her best to assist me, her evidence was, in large part, of little consequence in relation to the key issues.
172. In short, the witnesses called by Medivet were unable to advance its Defence to Claim 1 to any meaningful extent.
173. Thirdly, the witness evidence called on behalf of the Claimants was persuasive, consistent and credible.
174. I have already commented on my impression of the evidence of Mr Levison, Ms Lucas and Ms Stanford. I found them to be very good witnesses. They were at the meeting on 29 March 2022 and they all recalled that it was not agreed that Mr Levison's termination date would be 22 April 2022 (or any date prior to 31 May 2022).
175. Their evidence of the meeting was detailed, coherent and supported by the wall planner and the rota documents. They recalled that those documents were used to agree the last date on which Mr Levison would be required to work so that, taking into account time in lieu, holidays and additional days, the end date for his employment would be on or after 31 May 2022.
176. In my view, there can have been no reason for the wall planner and the rota documents to have been produced at the meeting other than to assist the participants to work out when Mr Levison would be entitled to stop his work at Medivet, consistent with being employed until the end of May 2022.
177. There were aspects of the Claimants' witnesses' evidence which stood out to me as particularly compelling.
178. For example, both Mr Levison and Ms Lucas recalled that they had had a disagreement about the date to which they should calculate Mr Levison's departure from Medivet. Ms Lucas had suggested a later date (8 June) than Mr Levison because she was "playing safe". This is not the type of detail which I would expect witnesses (and especially these witnesses) to manufacture.
179. I am entirely satisfied that Mr Player used words to the effect that Mr Levison had done enough to justify not having to undertake any further technical work before his leaving date on 31 May 2022. That evidence was more than plausible and was given by Mr Levison, Ms Lucas and Ms Stanford. I have already made observations about the quality of their evidence and I accept what they told me on this issue. In any event, Mr Player accepted that he would have said something along those lines.
180. In his trial witness statement, Mr Nethercot suggested that the TOIL calculations made by Ms Lucas and Ms Stanford were inaccurate. I am far from persuaded that that was the case but their accuracy or otherwise is irrelevant. The question is whether Mr Levison's employment termination date was agreed and, if so, what date was agreed.
181. Fourthly, I am far from persuaded that the emails and documents on which Medivet so heavily relies reveal that the parties agreed a leaving date for Mr Levison of 22 April 2022.
182. Those emails were almost all generated by Medivet. They were largely internal emails which were not shared with Mr Levison and, as I have already noted, other than Mr Player, the authors of the emails have not been called to give evidence.
183. They were created at a time of transition for Medivet. Mr Player was leaving the organisation in May 2022. He was clearly handing over his responsibilities to his colleagues. He had no recollection of the date agreed for Mr Levison's departure from Medivet.
184. Other key staff were also leaving Medivet at that time or shortly afterwards. For example, Ms Burns, Ms Calje and Ms McCormack all left the company between February and July 2022. In her email to Mr Player on 27 April 2022, Ms Calje acknowledged that she had "lost track of who is doing what" with regard to Mr Levison's employment records. On cross-examination, Mr Player told me that working at Medivet was "certainly a challenge" at that time.
185. I have limited confidence in the robustness of Medivet's processes and documentation in April/May 2022. For example, it is very surprising that Mr Levison had been employed by the company since October 2021 and yet, as at 29 March 2022, he had not been paid any salary by the company. He also received a "Welcome to Medivet" email in May 2022. Whether that was sent automatically or not is of little consequence. It does give the impression that certain matters were not being managed efficiently by the company at that time.
186. Moreover, I am not necessarily persuaded that the reference in the emails to Mr Levison's leaving date referred to the date on which his employment was to end, rather than when he was to cease front line work for Medivet. In my view, what was intended by the term "leave date" is certainly not obvious from the emails.
187. It is, of course, entirely possible that Mr Player made a mistake in referring in his email correspondence to 22 April 2022 and that it was replicated by him and others.
188. In any event, the emails are inconsistent and suggest a number of alternative leaving dates, namely 17 January 2022, 8 April 2022 and 22 April 2022. This undermines the case for the date on which Medivet now concentrates.
189. I also note that Mr Levison's access to Medivet's case management system did not end on 22 April 2022, and that he was using that system as late as July 2022.
190. Moreover, there are no emails or documents from Mr Levison confirming that his departure date was 22 April 2022.
191. There is a risk in placing too much reliance on documents, which are unsupported by witnesses and are contradicted by very credible witness evidence, especially when those documents are not always consistent with each other.
192. As for the documents created by or on behalf of Mr Levison, I am satisfied that they do not begin to outweigh the reasons which I have set out above for rejecting Medivet's position that Mr Levison's agreed leaving date was 22 April 2022.
193. I have already noted Mr Levison's lack of use of, and familiarity with, email. He rarely sent emails and I read nothing into his lack of response to the emails which he received.
194. I accept his evidence on cross examination that Ms Fraser completed the insurance form and that it was strewn with errors. I am confident that, if he had completed the form, he would have done so with more care. I am, therefore, reluctant to attach any significance to that completed form.
195. I accept that Mr Levison's references to no longer being employed by Medivet probably related to his having ceased to work actively for the company in delivering front line services.
196. I am unsure why Mr Levison refers to 22 May 2022, but I note that nowhere in his emails or other documents does he refer to a leaving date of 22 April 2022.
197. It would be an unjustified leap to suggest that Mr Levison, in fact, intended to refer to 22 April 2022.
198. Even if Mr Levison mistakenly referred to 22 May 2022 on more than one occasion, that cannot form the basis of a finding that that was his agreed date of departure. It is not supported by Medivet's witnesses or indeed by emails or documents generated by the company.
199. In any event, if Mr Levison had agreed an earlier departure date, then it is very unlikely that he would have written to Mr Borms in the terms he did on 24 May 2022.
200. Lastly, whilst it is open to Medivet to advance alternative dates, it has not been assisted by abandoning them after failing to adduce credible evidence to support them.
201. In conclusion, for all the reasons set out above, I accept that Mr Levison remained employed by Medivet on 31 May 2022
Claims 2 and 3
202. I must determine whether the Claimants should be entitled to receive interest on the Partnership Monies and the Retention Monies on the bases sought (recorded at paragraph 80 above).
203. One contentious issue is whether the defence of tender before claim has been properly raised by Medivet. That is the common law defence that, prior to proceedings being issued, the defendant made an unconditional offer to pay the amount due to the claimant.
204. CPR Rule 37 provides:-
"37.2 (1) Where a defendant wishes to rely on a defence of tender before claim he must make a payment into court of the amount he says was tendered.
(2) If the defendant does not make a payment in accordance with paragraph (1), the defence of tender before claim will not be available to him until he does.
(i) The parties' respective positions
205. In relation to Claim 2, Mr Latimer reminds me of the correspondence passing between Mr Levison and Mr Nethercot in March 2023, in which Mr Nethercot indicated that the Retention Monies and the Partnership Monies would be paid promptly if Mr Levison confirmed that he would not pursue his claim for the Equity Price Balance.
206. Mr Latimer notes that Gannons' letter dated 5 November 2023 did nothing to resile from the basis of Mr Nethercot's proposal and failed to mention the condition which he had attached to his offer to pay the Partnership Monies and the Retention Monies. He submits that accepting Gannons' offer to pay the outstanding monies could have resulted in Mr Levison forgoing the Equity Price Balance. The offer was conditional and so it is not open to Medivet to deploy the defence of tender before claim.
207. Mr Latimer also notes that Medivet already had Mr Levison's bank details and so could have made the payment directly to him.
208. He says that the question which I should ask myself is whether, in circumstances where the sum of £135,000 remained outstanding, it was reasonable for the First Claimant to bring proceedings against Medivet for payment of the Partnership Monies on 21 November 2023. He acknowledges that this is a matter for the exercise of my discretion.
209. He argues that the defence of tender before claim cannot be deployed by Medivet, given that the debt has already been paid. If I am with him on the principle of interest being payable, he contends for a rate of 8% above the base rate of HSBC Bank, being the contractual rate contained in the SPA. He acknowledges that the SPA does not bind the First Claimant because it was not a party to it, but he argues that the contract is a yardstick for what is fair in the circumstances.
210. Turning to Claim 3, Mr Latimer reminds me that the parties are bound by the terms of the SPA, which entitles the Second Claimant to interest on the outstanding Retention Monies up until the date on which they were paid. It is a matter of contract and I am not required to exercise a discretion as to whether interest should be paid. If I award interest, then it must be at the contractual rate agreed in the SPA of 8% above the base rate of HSBC Bank. Again, Mr Latimer's position is that the defence of tender does not apply and he notes that the monies were not paid into Court as would be required under CPR Rule 37.2 (see below).
211. Mr Oudkerk KC says that the first question to be posed in relation to Claims 2 and 3 is whether there was an unconditional offer made by Medivet to pay the outstanding monies. If there was, then it is open to Medivet to rely on the defence of tender before claim and the claims must fail. Its position is that there was such an unconditional offer in that Medivet was prepared to pay the Partnership Monies in full without interest (which was not payable) and the Retention Monies with interest.
212. FS Legal's response to Gannons' letter of 5 November 2023 was silent about the offer to pay Claims 2 and 3.
213. Mr Oudkerk KC recognises that no payment into Court was made in relation to the Retention Monies but he says that the reason for that was that FS Legal was threatening to bring proceedings for the winding up of Medivet if the monies were not paid immediately. On that basis, he argues that the Second Claimant should be estopped from relying on CPR 37.2(2) or that, in any event, I should allow Medivet to rely on the defence of tender before claim because the mischief of that provision is to ensure that a defendant reinforces its pre-proceedings offer by making a payment to or for the benefit of the claimant.
214. Mr Oudkerk KC also refers me to the Practice Direction for Pre-Action Conduct and Protocols at page 2621 WB 2024:-
"Objectives of Pre-Action Conduct and Protocols
3. Before commencing proceedings, the court will expect the parties to have exchanged sufficient information to-
...
(c) try and settle the issues without proceedings;
(e) support the efficient management of those proceedings;
(f) reduce the costs of resolving the dispute"
215. He notes that (at paragraph 8) the Practice Direction goes on to say that "litigation should be a last resort" (page 2622 WB 2024), and (at paragraph 9) that "parties should continue to consider the possibility of reaching a settlement at all times including after proceedings have been started."
216. Paragraph 16 of the Practice Direction provides:-
" The court will consider the effect of any non-compliance when considering whether to impose any sanctions which may include-
...
(c) if the party at fault is the claimant who has been awarded a sum of money, an order depriving that party of interest..."
(ii) Analysis and Decision
217. I have considerable sympathy with Mr Levison's complaint that Medivet ought to have paid the Retention Monies and the Partnership Monies to him when they fell due, or at the very latest, soon after he requested payment of them in May 2023. Those claims were uncontroversial and there was no justification for payment being withheld.
218. It was unfortunate that Mr Nethercot sought to link the payment of those sums with the First Claimant's claim for the Equity Price Balance.
219. It may well have been reasonable for Mr Levison to have litigated his claims for the Retention Monies and the Partnership Monies at that point. However, he did not do so, and his email exchange with Mr Nethercot was superseded by the correspondence between Gannons and FS Legal in November 2023.
220. In that correspondence, Gannons made an unequivocal and unconditional offer to pay the Retention Monies (with interest) and the Partnership Monies (without interest). All that had to be done was for FS Legal to provide their bank details and to confirm the interest calculation relating to the Retention Monies.
221. They did not do so and, rather surprisingly, their letter dated 14 November 2023 ignored Gannons' proposal for payment of the outstanding monies.
222. It would have been inappropriate for Gannons to pay the monies directly into Mr Levison's personal bank account, in the absence of agreement, especially where solicitors were acting for the Claimants and Medivet had not paid money into that account for some time.
223. I reject Mr Latimer's argument that, given the terms of Mr Nethercot's correspondence with Mr Levison earlier in the year, the Claimants could have fallen into a trap by accepting payment of the Retention Monies and the Partnership Monies.
224. On any fair reading, Gannons' letter of 5 November 2023 made an unconditional offer to pay the Retention Monies (with interest) and the Partnership Monies. It made no reference to any pre-condition previously proposed by Mr Nethercot and no such pre-condition was mentioned at any point in correspondence between the parties' solicitors. Moreover, Gannons' letter specifically stated that "this [their proposal to pay the Partnership Monies and the Retention Monies] will dispose of this aspect of the dispute." It then went on to propose ADR (which can only reasonably be interpreted to relate to Claim 1).
225. In my view, the position was clear. However, if there had been any doubt about whether Gannons' proposal was unconditional, it would have been a simple matter for FS Legal to clarify the position in correspondence before providing their bank details. They did not do so.
226. To answer Mr Latimer's question, against that background, in my judgment it was not reasonable for the First Claimant to issue proceedings in relation to Claim 2, when it did so on 21 November 2023. It was not in compliance with, or in the spirit of, the Pre-action protocol Practice Direction to do so.
227. I also note that Medivet made a payment into Court to avail itself of the defence of tender before claim in line with CPR Rule 37.2.
228. Taking these matters into account, I shall not allow the First Claimant's claim for interest on the Partnership Monies.
229. Turning to Claim 3, I do not consider that it was reasonable for the Second Claimant to issue proceedings in light of the clear and unconditional offer made to it. There appears to be no dispute about the calculation of interest to 5 November 2023 made by Medivet when making the payment to the Second Claimant.
230. As noted at paragraphs 213 to 215 above, parties are obliged to attempt to resolve matters without recourse to proceedings and to reduce the costs of resolving disputes and, if they do not do so, it is open to the Court to disallow a claim for interest where it is appropriate to do so. This is in the spirit of the Overriding Objective which requires the Court to deal with matters justly by having regard to proportionality, saving expense, and allotting an appropriate share of the Court's resources to each case. CPR Rule 1.2 sets out the parties' duty to help the Court to further the Overriding Objective.
231. The issue of payment of the Retention Monies could have been resolved quite readily without the need for proceedings to be issued in relation to it, if the Second Claimant had engaged with Medivet's proposal. There was a clear and unconditional offer to which the Second Defendant should have responded. The substance of the claim was not in dispute and was not going to require adjudication on its merits. The Second Claimant had been offered everything to which it was entitled by way of the outstanding Retention Monies and interest.
232. Therefore, I shall not order Medivet to pay any additional interest on the Retention Monies.
233. In light of my decision, I do not need to reach a concluded view on Medivet's arguments relating to CPR Rule 37.2 in the context of Claim 3. However, I would observe that, whilst I appreciate that Medivet maintains that it did not make a payment into court because it was being threatened with a winding up petition, it was still open to it to do so when it filed its Defence and, if it had done so, then any insolvency proceedings would very probably not have materialised.
Disposal
234. I give judgment accordingly and I propose to make an Order in the following terms:-
- Judgment for the First Claimant on Claim 1 in the agreed sum of £1,018,434, together with interest;
- Claim 2 is dismissed;
- Claim 3 is dismissed.
235. I should like to thank the lawyers involved in this litigation for their excellent preparation and presentation of the case. The focussed written submissions of Mr Chaisty KC, Mr Oudkerk KC, Mr Latimer and Mr Fox made my task far more straightforward than it otherwise would have been, as did the oral submissions made on the final day of the trial. The solicitors were very efficient and thorough in their management of this claim and in their preparation of the Court papers. They evidently worked together constructively during the litigation and in advance of the trial.
236. I am also grateful to the witnesses, all of whom travelled some considerable distance to be here, for the dignified and courteous way in which they gave their evidence.