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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Collidge v Freeport Plc [2007] EWHC 1216 (QB) (25 May 2007)
URL: http://www.bailii.org/ew/cases/EWHC/QB/2007/1216.html
Cite as: [2007] EWHC 1216 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
| SEAN MERVYN COLLIDGE |
Claimant |
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| - and - |
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| FREEPORT PLC |
Defendant |
____________________
Paul Nicholls (instructed by Dechert) for the Defendant
Hearing dates: 1-4 May, 8-10 May & 15 May 2007
____________________
Crown Copyright ©
- By a letter dated 31 March 2006 from the defendants, signed in acceptance by the claimant, terms were agreed for the termination of the employment of the claimant, Mr Sean Collidge, by the defendant, Freeport plc. Mr Collidge was the chief executive of Freeport, and until 6 December 2005 had also been its chairman. He had founded the company in 1993. Its business is the creation and management of what are called 'retailer outlet villages', which are in effect shopping precincts containing designer outlets where clothing and other products may be purchased at discount prices. These were initially in England and Scotland, but the six sites have since been sold or closed down. The company now has four European sites, in France, Sweden, the Czech Republic and Portugal. In December 2005 it relocated its offices from London to Monaco.
- The termination agreement of 31 March 2006 followed a board meeting of Freeport on 29 March at which allegations made against Mr Collidge were considered by the board. The agreement provided for Mr Collidge to resign on 31 March 2006. In this action Mr Collidge claims payments which the agreement provided that Freeport should make to him. Freeport alleges that it is not obliged to make any payments under the terms of the agreement because there existed at its date breaches of his contract of employment entitling Freeport to dismiss Mr Collidge summarily. There are two broad issues. The first is a discrete issue as to the construction of the term of the agreement relied on by Freeport, namely clause 7(b). The second is whether there existed at the date of the agreement circumstances entitling Freeport to dismiss Mr Collidge summarily. The matters there relied on by Freeport are the following:
- I will set out the whole of the termination agreement of 31 March 2006 with some of its provisions summarised in square brackets, so that the form and nature of all the obligations it contained can be seen. It stated at its start that:
- In accordance with clause 9 payment of £445,680 was due, if it was due at all, on 27 April 2006. On 26 April Freeport's solicitors, Dechert, wrote to Mr Collidge's solicitors, Mayer, Brown, Rowe & Maw ('MBR&M'), saying that Freeport had conducted an investigation into a number of matters. The letter stated that there were matters which, in the absence of explanation, showed that Mr Collidge was in breach of the warranty given in clause 7(b). The matters which I have listed were referred to. It was stated that the investigations were continuing, and that the board was in no position to authorise payment. Mr Collidge was given an opportunity to explain his position before further action was taken. On 27 April MBR&M wrote saying that payment was due and that they and their client were unaware of any investigation. Proceedings were begun by Mr Collidge on 19 May.
- In Freeport's defence served on 22 June 2006 it was alleged that the obligation to make payment was 'subject to and conditional upon the Claimant's warranty given by clause 7 of the Compromise Agreement being accurate.' paragraph 3, and that 'The Defendant was not obliged to [pay] because the warranty which the Claimant had given pursuant to clause 7 was untrue. Accordingly a condition precedent to payment was not satisfied and the Defendant was under no obligation to make payment' paragraph 5. Paragraph 49 stated that by reason of Mr Collidge's repudiatory breaches of his contract of employment Freeport was not obliged to make payment. Freeport's case is thus that the agreement is to be construed as providing that Freeport was not obliged to pay if there were circumstances of which Mr Collidge was aware or should have been aware, which would have amounted to a repudiatory breach of his contract of employment entitling Freeport to dismiss him summarily.
- The submissions made by Mr David Reade QC on behalf of Mr Collidge were to this effect. Clause 7(b) was not a contingent condition in the sense that its performance was a pre-condition to the enforceability of the agreement or to the enforceability of its payment provisions. But if it was any sort of pre-condition, the condition had been met by the giving of the warranty. He submitted that clause 7 provided conditions in the sense that they were terms whose breach would entitle Freeport to accept the breach as a repudiation of the agreement and to bringing it to an end. If repudiation was not accepted, the agreement remained in being for the benefit of both parties and Freeport would have a claim for damages for the breach of the clause.
- The main dispute is thus as to the nature of clause 7 as a 'condition' of the agreement. There are two subsidiary matters. If the clause has effect as a clause the breach of which is a repudiation, has any repudiation been accepted by Freeport? If it has not, can Freeport nonetheless reclaim any sum which it may have to pay Mr Collidge, as damages for breach of the clause? Mr Paul Nicholls accepted on behalf of Freeport that such a claim was not pleaded, and he sought permission to amend if Freeport needed to rely on it.
- In my judgment, the effect of the introductory words to Freeport's obligation to pay, 'Subject to and conditional upon the terms set out below' and of the introductory words to clause 7, 'You warrant as a strict condition of this agreement', is that if the facts are not as set out in sub-clauses (a) to (d) of clause 7, Freeport is under no obligation to pay. In short, it is a condition, a sine qua non, of the obligation to pay that the facts shall be as warranted. That is plainly the sense of 'conditional' in the introductory words to the obligation to pay. I consider that 'strict condition' in the introductory words to clause 7 is to be construed in the same way. I consider that warranty is used in the sense that it is sometimes used in insurance contracts as being a condition in the sense of a sine qua non of the insurer's liability: see, for example, Chitty on Contracts, 29th edition, volume 2, paragraph 41-054. That is consistent with the use of both warranty and condition in the same phrase. If they are used in the Sale of Goods Act sense of conditions and warranties as Mr Reade contends, it would be contradictory. It is also consistent with what, in my view, the intention of the parties may be presumed to be. That intention might have been more simply expressed as "Freeport do not have to pay if 7(a), (b), (c) or (d) are not so". On Mr Reade's construction, if any one or more of them are not so, it is a breach of the agreement which entitles Freeport to terminate the agreement, that is the whole agreement. It is unlikely that would be the intention. An example of illustrating that in fact occurred, because by letter of 7 November 2006 Dechert requested Mr Collidge to attend a court hearing in Lisbon pursuant to clause 4(d) of the agreement.
- If, contrary to my view, Mr Reade's construction of clause 7 is correct, once the date for payment arrived, it became an accrued right. It would not be lost by a subsequent acceptance of a breach of clause 7 as terminating the contract. For, although both parties to a contract are discharged from its further performance when it is terminated by the acceptance of a repudiation, rights which have already been unconditionally acquired are not divested: see Chitty, op. cit., volume 1, paragraph 24-051. If the contract is to be construed as Mr Reade submits, I would hold that Freeport's defence should be taken as an acceptance of any repudiation because it is a denial of the obligation to pay even if, on this view, it does so on an incorrect basis. But that would not assist Freeport. In this situation Freeport would be thrown back on Mr Nicholls' proposed counterclaim for what it may have otherwise to pay Mr Collidge. Mr Reade submitted that such a claim would fail because it followed from Freeport's voluntary act in failing to accept the alleged repudiation. But, if Mr Reade is right as to construction and repudiation, I do not see why Freeport should not keep the agreement in being, and claim damages. I find this complex analysis a further reason for concluding that the construction which I have preferred is correct. But should I be wrong, I would have given permission to amend and allowed the defence to proceed on that basis. Mr Reade did not say that permission should not be given but pointed to the costs consequences.
- I take the villa first because the evidence relating to Mr Bradshaw's work at the villa overlaps with some of the evidence relating to the loan agreement dated 21 March 2006. That in turn is related to the issues arising in connection with Mr Bradshaw's retraction of his statements provided to Freeport. The retraction is also relevant to the weight to be given to what Mr Bradshaw said about his work at the villa. So it is convenient to deal with all these inter-connected issues together under the one head at the start.
- Mr Paul Bradshaw was first employed by Freeport as a driver between 13 January and 25 July 2003. His salary was £20,000. It was later increased to £21,000. His job description was 'driver'. He mainly drove Mr Collidge. That employment was terminated by his resignation. He was re-employed on 5 March 2004 at a salary of £15,000. His job description was stated as 'driver/ handyman'. He continued mainly to drive Mr Collidge. Mr Bradshaw lived in Lancashire where Mr Collidge's home was until Mr Collidge moved to Monaco in December 2005. Mr Bradshaw had a partner, Susan Smith. By March 2006 their relationship was in difficulty. Mr Bradshaw was required by Mr Collidge to work in France between 13 and 24 March. According to Mr Collidge, on 21 March he agreed to lend Mr Bradshaw £20,000 in accordance with the terms of a written agreement drawn up by Mr Collidge and signed by both men on the afternoon of that day at the villa owned by Mr Collidge's wife and daughter at Vallauris near Cannes. Freeport asserts that the document was created subsequently and that Mr Bradshaw's signature on it is a forgery. Mr Collidge asserts that he had previously lent Mr Bradshaw £4,000 on 17 June 2003, which had been repaid. Freeport asserts that Mr Bradshaw's signature on the document recording that loan is also a forgery. On 30 March Mr Bradshaw returned his car keys to Mrs Collidge, and he did no further work for Freeport. Following Mr Bradshaw's return from France, very much contrary to his wish, Miss Smith had terminated their relationship. Between 31 March and 19 April there were meetings and communications between representatives of Freeport and Mr Bradshaw, and Mr Bradshaw gave Freeport various statements concerning his activities for Mr Collidge. An agreement was also drawn up for the termination of Mr Bradshaw's employment whereby he was to receive £1,192.31 in lieu of notice, £840 as a statutory redundancy payment and £17,500 as an ex gratia payment in settlement of any claims he had against the company. On 20 April Freeport received two faxed letters from Mr Bradshaw dated 19 April. In one he withdrew his agreement to the settlement with Freeport and the ex gratia payment of £17,500. In the other he stated that he withdrew all the statements he had given stating that they were inaccurate and untrue. On 25 April Miss Smith received £20,000 from Mr Collidge. Mr Collidge asserts that he was asked to pay the money to her by Mr Bradshaw and the money was that which he had agreed to loan Mr Bradshaw under the agreement of 21 March 2006. Freeport's case is that the payment was made in consideration for Mr Bradshaw agreeing to withdraw the statements he had made to Freeport about Mr Collidge. On 26 May 2006 Mr Bradshaw committed suicide. This history is part of the background to the allegations which Freeport makes concerning Mr Bradshaw's work for Mr Collidge.
- One of the allegations made by Freeport is that when Mr Bradshaw was in France between 13 and 24 March 2006 he was required by Mr Collidge to work on the villa at Vallauris. This is denied by Mr Collidge. The evidence that Mr Bradshaw did work on the villa is as follows.
- At the first meeting with Mr Yates on 31 March 2006 Mr Bradshaw gave Mr Yates four pages of manuscript, 'rotas' as Mr Bradshaw called them, written by Mr Collidge and headed 'Paul'. It is Freeport's case that they set out the tasks that Mr Collidge required Mr Bradshaw to perform both as a driver and for Mr Collidge's own personal benefit. Mr Collidge's case is that the sheets were sheets he prepared for his own use to remind himself of what he was doing and what work was properly being done by others to the properties with which he was connected, namely his home in Lancashire called Greta Side, the villa at Vallauris, and the Castle Hotel in Lancashire, which he owned. One of the four documents which Mr Bradshaw handed over was evidently prepared when Mr Collidge's intention was that Mr Bradshaw should spend a shorter time in France, namely 6 to 10 March. It has an entry for 7, 8 and 9 March 'painting French house'. The later rota has '14 23 March work France: Cannes/Monaco (separate list)'. The separate list was not given to Mr Yates by Mr Bradshaw and is not available. Cannes must be a reference to the villa. It is wholly clear from the content of the four sheets that they are job sheets given to Mr Bradshaw to tell him what he was to do and that they are not reminders for Mr Collidge of his own programme including work being properly done to properties by others. Mr Collidge's evidence on this was a lie.
- At a meeting with Mr Yates on 3 April Mr Bradshaw provided a document which he had prepared in advance of the meeting headed 'Bullet Points'. In it he stated that following his arrival in France, on 14 March he tried to fix a leak in Mr Collidge's Monaco apartment provided by Freeport. He stated that on 15 March he followed Mr Collidge to the villa where he was required to reverse a casement door, to paint a bathroom, to paint twelve louvered shutters, to paint four panelled doors, to fit various bathroom fittings and to stain the outside beams to the villa and garage, the stain being purchased with Freeport's Visa card. He had to work every day and finished at 5 pm on 23 March. He did not go to the Monaco office. At the meeting a statement was prepared which was signed by Mr Bradshaw. It was based on the 'Bullet Points' and repeated what was there said about work to the villa.
- The relevant credit card statement shows that on 21 March 2006 Mr Bradshaw made purchases on two occasions from a glass, paint and wallpaper store in Antibes named Castorama costing 136.16 and 95, and that there was a credit from the same store on the same day for 59.80. He also made purchases in the amount of 140.17 from a plumbing and heating equipment supplier named Balitrand in Cannes. Mr Collidge said in evidence that he was curious to know what Mr Bradshaw was doing in making these transactions.
- Ines de Lovinfosse is a French national who speaks fluent English. She works in the office of Freeport in Monaco. Her evidence was that on 21 March she spoke to Mr Bradshaw when he telephoned the office. He was in a shop called Castorama and wanted help in the purchase of a stain for the beams of the villa, because he did not speak French. After getting help from her brother Mme Lovinfosse telephoned Mr Bradshaw and she spoke on his mobile to an employee in the shop to tell him what was required. About an hour later Mr Bradshaw telephoned her again. He said that Mr Collidge was not happy with the stain and wanted a darker colour. They agreed that he should go back to Castorama and she would again speak on his behalf. She did so and was told that the darker colour was not in stock. The shop agreed to make a refund. She advised Mr Bradshaw to try Balitrand in Cannes. He telephoned about an hour later and again she spoke to the shop. About 15 minutes later Mr Bradshaw telephoned again to say all was well and to thank her. Mme de Lovinfosse said that she did not recollect Mr Collidge being in the office that day. Her evidence as to calls from Mr Bradshaw to the office is supported by the telephone records. I accept Mme de Lovinfosse's evidence as truthful and accurate. It is clear that Mme Lovinfosse is right, and that while this was going on Mr Collidge was not at Freeport's office. He must have been at the villa, where he was when Mr Bradshaw returned and he told Mr Bradshaw that the colour was too dark. Mr Collidge stated that he spent the morning in the office and in the early afternoon Mr Bradshaw drove him first to an internet cafι on the road between Golfe Juan and Antibes where they prepared the loan agreement. He said Mr Bradshaw then drove him to the villa where they signed the agreement. The records for Mr Bradshaw's mobile phone make it very unlikely that he can have driven Mr Collidge, gone to the internet cafι with him, and then had a meeting with him at the villa during the course of that afternoon. Mr Bradshaw was using his telephone too much. It is clear that Mr Collidge's evidence as to being at the office throughout the morning of 21 March and being collected from there in the afternoon by Mr Bradshaw is a lie. It is an important lie because it is essential to Mr Collidge's evidence as to how the loan agreement was entered into.
- Mr Susiji Liyanarachchi is employed by Freeport as the Group IT Manager. He flew to Nice on 20 March 2006 returning on 23 March. His evidence was as follows. He was met at the airport by Mr Bradshaw (whom he knew) driving Mr Collidge's Range Rover. Mr Bradshaw was wearing paint splashed overalls. He told Mr Liyanarachchi that he was painting Mr Collidge's villa. Mr Bradshaw also said that before he had left England he had been painting Mr Collidge's house there. (That is confirmed on the relevant rota covering 6 and 8 March 2006). They drove to the villa where the internet connection was not functioning. Later Mr Bradshaw drove him to the company flat in Monaco. On the journey Mr Bradshaw told him that he was worried about losing his job and that when he had finished painting the villa there would be nothing for him to do. Mr Liyanarachchi returned to the villa on 22 March between 9.30 and 10.00 am. Mr Bradshaw was painting the shutters. Mr Liyanarachchi left between 2 and 3 pm. While he was there, Mr Bradshaw continued painting. I accept Mr Liyabarachchi's evidence as honest and accurate save possibly in one respect. In addition to what I have set out Mr Liyanarachchi said that he saw Mr Collidge in the office in Monaco on 21 March where he was then working. Unless this relates to the first part of the morning, this is inconsistent with the incontrovertible evidence about Mr Collidge's rejection of the stain from Castorama which Mr Bradshaw had purchased: Mr Collidge must have been back at the villa when Mr Bradshaw returned with it.
- Mr Darren Shaw was a close friend of Mr Bradshaw and was in close touch with him between his return from France and his death. Mr Bradshaw told him that 'he had worked solidly for about a week painting and revamping [Mr Collidge's] villa and getting it shipshape'. He remembered Mr Bradshaw telling him that he had done no chauffeuring work while he was in France. He did in fact do some chauffeuring because he drove Mr Liyanarachchi. It may be that on occasion he also drove Mr Collidge. However it is apparent that Mr Collidge had a vehicle in France besides the Range Rover driven out by Mr Bradshaw. For Mr Bradshaw "followed" Mr Collidge to the villa from Monaco.
- M. Alain Francois is self-employed in the business of garden maintenance from an address in Antibes. He was called on behalf of Mr Collidge. His witness statement referred to work that had been done to the villa by professionals, including the replacement of shutters and doors, changing a door, installing new accessories in bathrooms. It said that apart from Mr Collidge, himself, and professionals no one had done work to the villa. M. Francois evidence should be considered with the invoices which Mr Collidge has produced covering work done to the villa. Those are not inconsistent with the work which Mr Bradshaw claimed to have done. M. Francois said that he attended at the villa for one afternoon a week. In the light of the other evidence of Mr Bradshaw's work M. Francois' evidence can carry little weight.
- It is convenient to refer at this point to something which Mr Collidge was alleged to have said at a meeting in October 2005 to discuss redundancies of UK staff in the light of the pending move to Monaco. The others present were Mr Gary Russell, the commercial director, and Mr Peter Woolley, the finance director. They said that there would be no role for Mr Bradshaw who lived in Lancashire near Mr Collidge's then home, and that he should be let go. Mr Collidge aggressively vetoed the redundancy and refused to discuss it. He said that Mr Bradshaw was a perk given to him by the non-executive directors and he was not going to move to Monaco and be worse off. In evidence Mr Collidge denied that he had used the word "perk". I am satisfied that he did.
- At the board meeting on 29 March 2006, in the absence of the company secretary contemporaneous notes of the meeting were made by Mr Woolley who later prepared the minutes. One part of his note reads:
- Before leaving this Board meeting it is convenient to make further findings of fact relating to it. Sometime after the meeting Mr Collidge went through the minutes prepared by Mr Woolley and amended them. Mr Collidge had not made any notes at the meeting. I accept Mr Woolley's minutes as being a broadly accurate record. I say 'broadly' simply because they do not purport to record every word that was said, and I have not heard evidence as to parts of the meeting. In particular, I accept that there was a vote carried on a show of hands to suspend Mr Collidge pending an investigation. Following that he left the meeting. I do not accept that he closed the meeting before he left. Mr Jones then went out and spoke to Mr Collidge. Mr Collidge told Mr Jones (who has since died) that subject to the agreement of a suitable settlement agreement he would prefer to resign. Mr Jones told him that there would have to be an investigation. Mr Collidge acknowledged that. Mr Jones returned to the meeting and reported the conversation. Contrary to his evidence, Mr Collidge also then returned to the meeting. It was agreed to postpone the suspension pending the agreement of a settlement agreement hopefully to be signed on 31 March. Mr Collidge then left the meeting. The remaining directors agreed that an investigation would still have to proceed. Following the meeting the investigation was put in train. Mr Collidge denies that he knew following the board meeting that Freeport intended to pursue an investigation of the allegations against him, something which surprised me. The significance of that denial might be that, if Mr Collidge did not know that a investigation was going on, he would have no reason to buy off Mr Bradshaw's evidence.
- The last matter which I must deal with in connection with the topic of the work allegedly done by Mr Bradshaw in France is the retraction by letter dated 19 April 2006, faxed on 20 April, of his statements provided to Freeport. This is a substantial topic in its own right not least because it is bound up with Freeport's allegation that the two loan agreements produced by Mr Collidge purporting to show loans by Mr Collidge to Mr Bradshaw are forgeries.
- As I have stated Mr Collidge's evidence was that the loan agreement dated 21 March 2006 was prepared at an internet cafι on the road between Golfe Juan and Antibes when Mr Bradshaw was driving him back from Monaco to Vallauris in the early afternoon. He stated that when they arrived at the villa he went through the agreement with Mr Bradshaw. It was then signed by both of them. Mr Bradshaw left to get it copied and returned with the copy the same afternoon. Mr Bradshaw took the original. Mr Collidge retained the copy. While they were going through the agreement Mr Dellar appeared. Mr Collidge said hello to him, and Mr Dellar waited until Mr Collidge and Mr Bradshaw had finished. Mr Dellar asked him what they were doing and he said that he was making a loan to Paul. The background to this, Mr Collidge said, was that he had previously learnt from Mr Bradshaw that he had financial problems, and that Mr Bradshaw had asked for a loan. Mr Collidge had been reluctant at first but he had been persuaded when Mr Bradshaw said he was in serious debt and on the verge of breaking up with Susan Smith. Mr Bradshaw said that he could repay the money from his earnings repairing computers. Mr Bradshaw asked for the money in cash, which Mr Collidge declined. Mr Bradshaw said that if the money went into his bank account he would never see it. It was apparently left on the basis that Mr Bradshaw would tell Mr Collidge what he wanted done with the money.
- Mr Peter Dellar was called to give evidence on behalf of Mr Collidge. He is a close neighbour of Mr Collidge in Vallauris. The two are also friends. Mr Dellar knew Mr Bradshaw. He recalled an occasion in 2006 which he could only date by saying it was during the annual plague of caterpillars which is normally over by the end of March. He walked up to see Mr Collidge. It was afternoon or early evening. Mr Collidge and Mr Bradshaw were sitting at a table with some papers. He said in cross-examination that: 'I do have a recollection of Mr Bradshaw and Mr Collidge having a meeting discussing things. That is as far as I can go. I cannot remember what we spoke about after Mr Bradshaw left.' His statement was made only on 24 April 2007 and he gave evidence on 1 May. The statement went a good deal further than he went in evidence. I should accept what he said in evidence as the limit of what he can contribute. I do not think that it is of much assistance.
- The next event that is relevant to this aspect of the case is that Mr Bob Yates, Freeport's security and site maintenance manager, spoke to Mr Bradshaw when Mr Bradshaw telephoned him on 30 March. It is clear that at this time Freeport wished to speak to Mr Bradshaw to find out what he had been doing for Mr Collidge. They arranged to meet the next day. Mr Yates asked Mr Bradshaw to bring any paperwork relating to his duties. On 31 March they met at Manchester Airport and Mr Bradshaw provided the four rota sheets which I have previously considered. Mr Bradshaw was very emotional. He was antagonistic to Mr Collidge. He did not wish to be contacted by him. Having been asked to leave by Miss Smith he was living in his car and had no money. Mr Yates purchased a new sim card for Mr Bradshaw's mobile telephone and bought £50 credit for it. He bought him petrol and gave him £50. He arranged for him to stay in a Travelodge hotel. Mr Bradshaw was very grateful. Mr Yates asked him if over the weekend he would write down his recollection of what had happened with Mr Collidge. Mr Bradshaw agreed. They agreed to meet on Monday, 3 April, with Mr Ian Brownstein, the company secretary, for Mr Bradshaw to make a statement.
- On 3 April the three men met at the Holiday Inn, Lichfield. Mr Bradshaw provided the 'Bullet Points' document which I have mentioned which he had prepared in advance. Mr Bradshaw also handed over a letter to the board of Freeport in which he blamed Mr Collidge for his accumulated debt and the break up with Miss Smith, which he said was due to the debt and the long time he had been obliged to stay in France. The statement which I have also mentioned was prepared. It took a long time to prepare the statement, in part because of the emotional state of Mr Bradshaw. I do not consider that there was any pressure put on Mr Bradshaw by Mr Yates or Mr Brownstein.
- Mr Yates next met Mr Bradshaw on 5 April at Macdonalds in Morecombe. Mr Bradshaw handed him a document headed 'To all concerned'. It began by thanking Mr Yates, Mr Brownstein and Mr Woolley for their support. It continued: 'I have been asked to think things over as to a financial settlement in the aftermath of what has happened.' He then spent a page on the difficulties which had arisen through Mr Collidge, and he referred to a loan of £17,000 taken out by Miss Smith and one of £15,000 taken out by him. I should make it clear that those loans were not from Mr Collidge. He next said: 'The rest is now really down to you? I have been very honest with you all and I will help the company with whatever is required in the ongoing situation regarding Sean Collidge.' He said that he desperately needed help: but no amount of money could bring back his partner and her young child. With this document was a page headed 'Points to consider'. Its purpose is to set out why Freeport should pay him a substantial sum of money by reason of his treatment by Mr Collidge.
- It was submitted by Mr Reade that these pages showed that Freeport was agreeing to provide a cash settlement against statements by Mr Bradshaw against Mr Collidge. None of the relevant Freeport witnesses could say what Mr Bradshaw was referring to when he wrote 'I have been asked to think things over as to a financial settlement '. I consider that the terms of the documents and of the attached 'Points to consider' are such that somebody must have asked Mr Bradshaw to think what he wanted. I think it very likely that, before anything was said to him by Freeport, Mr Bradshaw had decided that he had a large claim against Freeport and that this might be the solution to his financial difficulties. (I should insert that because those difficulties were apparently one of the reasons why Miss Smith had terminated their relationship, Mr Bradshaw appears to have thought that, if he could resolve his finances, the relationship might be restored. He very much wanted that to happen.) I conclude that it was in the context of that claim which Mr Bradshaw thought he had, that somebody, probably Mr Yates or Mr Brownstein, told Mr Bradshaw that, if he wished to pursue a claim, he had better set out what he wanted. I do not consider that anything improper was said or that any pressure was put on Mr Bradshaw to say anything other than the truth about Mr Collidge. The situation was nonetheless inevitably a sensitive one, because Mr Bradshaw wanted money and Freeport wanted his evidence.
- On 8 April Mr Yates gave Mr Bradshaw a further £50 and filled up his car.
- On 12 April 2006 Mr Yates wrote Mr Bradshaw a formal letter which was designed to start the process of making Mr Bradshaw redundant. The letter asked for a meeting the following day at the Travelodge hotel where Mr Bradshaw was staying at Freeport's expense. The letter took the form that is required in this situation, and this evidently and perhaps unsurprisingly upset Mr Bradshaw. He said he could not carry on like this and said he just wanted the money so he could disappear. He was very forthright. Mr Yates decided that he should take the position forward by disclosing figures which he, Mr Brownstein and Mr Woolley had discussed the previous day. Those were probably the figures which I have previously set out as constituting Freeport's offer to Mr Bradshaw, and included £17,500 in satisfaction of Mr Bradshaw's claim against Freeport. Mr Bradshaw said he wanted £30,000, and his language became rich. He said that he wanted the money paid to Miss Smith and he provided the details of her account. Mr Yates told him that for any compromise agreement to be legally enforceable Mr Bradshaw would need to be advised by a solicitor. Before Mr Yates left he advised him that he should see a doctor. That was no doubt by reason of his mental state. That night Mr Bradshaw sent Mr Yates an abusive text message alleging that Freeport were only paying what it was legally obliged to pay rather than what was morally right.
- On 14 April Mr Bradshaw sent Mr Yates a text message asking why he needed a solicitor. He later sent him a further message apologising for his behaviour the day before.
- On 17 April Mr Yates and Mr Bradshaw met again in the car park of the Travel Inn at Lancaster. Mr Yates explained the financial package totalling £20,044. Mr Bradshaw said that he had been stitched up and asked whether his life was only worth that much. Mr Yates again asked him to see a doctor.
- On 18 April Mr Woolley wrote to Mr Bradshaw setting out the terms Freeport was offering. Mr Bradshaw asked that a copy should be sent to Miss Smith, which it was. Mr Bradshaw wrote the same day asking that £20,000 should be paid to Miss Smith. These letters between Mr Woolley and Mr Bradshaw were by fax. Mr Woolley also agreed that Mr Bradshaw might continue to stay in the hotel for some further days. A compromise agreement between Freeport and Mr Bradshaw was then prepared. Mr Bradshaw had a meeting with a firm of solicitors on 19 April at which they advised him as to the agreement. Between 9.07 am and 1.13 pm on 19 April there were a number of text messages between Mr Woolley and Mr Bradshaw that suggested all was going well. The last one complained of the solicitors' bill which Freeport were paying. The solicitors made a change to the agreement. Mr Bradshaw signed the agreement and initialled the change. It was then faxed to Mr Woolley. Freeport were not happy with the change. Mr Brownstein telephoned Mr Bradshaw's solicitors who said that they had no means of contacting him. Mr Brownstein then telephoned Mr Bradshaw. Mr Bradshaw became very agitated and said he had enough of Freeport and did not want the money: he hung up. Mr Bradshaw sent Mr Woolley a text message asking them to keep their money and to leave him alone. Mr Brownstein and Mr Woolley (who were in Monaco) thought that Mr Bradshaw would calm down over night.
- The next day, 20 April, at 7.30 am there were faxed from Mr Bradshaw's hotel to Freeport in Monaco two letters. They were dated 19 April. One was addressed to Mr Brownstein. It stated that with reference to Mr Bradshaw's telephone to Mr Brownstein he wished to confirm that having thought long and hard about the compromise agreement he was 'withdrawing his signature'. He asked that the redundancy monies (that is the monies apart from the £17,500) should be paid into his account. The second letter was addressed to Mr Woolley. It stated:
- The evidence as to further communications between Mr Bradshaw and Monaco on 20 April is unclear. It was the evidence of Mr Brownstein that Mr Woolley telephoned Mr Bradshaw in his presence during the morning, that they had not then received the two letters, that Mr Bradshaw asked them if they had, that Mr Brownstein then retrieved them from the fax machine, that Mr Bradshaw would not change his mind and that the call terminated with Mr Woolley asking him to be in touch if he did. That conversation seems to have taken place at 11.56 am British time, and 12.56 Monaco time, that being the only call of any length recorded between Mr Woolley's mobile and Mr Bradshaw's mobile on that day. But the record may not include the majority of land line calls to Mr Bradshaw's mobile. Text messages retrieved from Mr Woolley's phone show that Mr Bradshaw asked at 10.29 am (whether Monaco or British time is unknown) whether Mr Woolley had the two letters. At 10.31 am Mr Woolley replied that he had. At 10.32 am Mr Bradshaw thanked him, and at 10.40 am Mr Woolley asked Mr Bradshaw to ring him. So unless Mr Woolley thought that Mr Bradshaw was referring to something else when he said that he had them and it is difficult to find any candidates, Mr Brownstein's recollection must be wrong. The records also show that Mr Woolley telephoned Mr Bradshaw at 11.29, 11.31 and 11.42 am. The calls were between 2 and 4 seconds, and I deduce that Mr Bradshaw terminated them. Mr Reade laid some emphasis on these events, which is why I have set them out. But I do not think that they are significant. Mr Woolley and Mr Brownstein thought that Mr Bradshaw was acting irrationally on 19 April and would calm down and change his mind. On 20 April they were faced with the letters and Mr Woolley was unable to get Mr Bradshaw to consider altering his position. They left it there.
- That sets out the events on Freeport's side. I will now turn to those which relate to Mr Collidge.
- Mr Collidge's evidence was that one evening over the Easter weekend, 14 to 17 April, Mr Bradshaw arrived at his home, Greta Side, and stayed for about 6 hours. Mr Bradshaw was very anxious and emotional. He told Mr Collidge about his discussions with Freeport and the money he had been offered in return for giving a statement. He said that he had effectively been held hostage and was frightened. He said that he had made the statements under duress and they were not true. Mr Collidge said that he did not see Mr Bradshaw again after this. He said they were in contact by telephone because the first instalment of the loan was due to be repaid on 28 April, and because Mr Bradshaw needed to give him the details of Miss Smith's bank account for the £20,000 loan to be paid to her. He said that he obtained copies of Mr Bradshaw's two letters dated 19 April when he found them at Greta Side following his return from Monaco.
- Mr Collidge said that he had previously loaned Mr Bradshaw £4,000 under a loan agreement dated 17 June 2003. In MBR&M's letter of 16 April 2007 it was stated that the loan was made in cash from cash he kept in his house. The same letter stated that Mr Collidge gave instructions to his bank to pay the money under the second loan to Miss Smith by going to the branch in Monaco in person and he had no written confirmation of the instruction. The money was debited to his account on 24 April 2006. It was credited to Miss Smith's account the next day.
- The case of Freeport on this part of the case relies strongly on an e-mail which Mr Bradshaw sent to Miss Smith on 6 May 2006. It begins by saying that he is not sure he wants her to know the full story but as his sister had been saying he had got the £20,000 as a loan, that was making him out a liar. He suggested that Freeport had been collecting evidence against Mr Collidge since September 2004 when he had collected equipment from Freeport's site at West Calder in Scotland worth upwards of £250,000 for the Castle Hotel a vast exaggeration of the value. He said he had been placed in hiding by Freeport to stop Mr Collidge getting access to him and he was kept in a hotel making statements to lawyers and company officials for over a week. (That was not correct). He said that the amount which Freeport had promised to pay him was not forthcoming. He then stated:
- The evidence of Darren Shaw was that he was told by Mr Bradshaw of his discussions with Bob Yates, with whom he had a good relationship and trusted. Mr Bradshaw was hoping the money from Freeport would clear his debts. He later realised that it would not be enough and thought he should receive more: he felt he had been 'shafted'. He did not tell Mr Shaw that he was getting money in return for giving a statement, but said that he was offered a redundancy package. Mr Bradshaw was very depressed at this time. Mr Shaw confirmed the telephone calls referred to in the e-mail to Miss Smith. He said Mr Bradshaw asked him to send a text to Mr Collidge asking him if he wanted to make contact. He said he received a text in reply from Mrs Collidge saying that they would like to meet up with Mr Bradshaw. He then sent Mrs Collidge Mr Bradshaw's new number. He said that Mr Bradshaw had told him he had gone to Mr Collidge's house on the night of 19 April and Mr Collidge had offered him £23,000 to retract the statements: he did not know which way to turn. Mr Collidge had also offered him a room at the Castle Hotel and employment. Mr Bradshaw had told Mr Shaw that Mrs Collidge was present and intervened in the conversation to say to her husband that he must keep the promises he was making and be true to his word. (Mrs Collidge did not give evidence.) Mr Shaw said Mr Bradshaw had told him this when they met on the evening of Thursday 20 April. He had advised Mr Bradshaw not to trust Mr Collidge but to take Freeport's money. Mr Bradshaw had replied he had taken Mr Collidge's offer because it gave him somewhere to live and the prospect of full time employment. He said that Mr Bradshaw had told Miss Smith on more than one occasion where the money had come from. It was not suggested on Mr Collidge's behalf that this evidence from Mr Shaw was dishonest or inaccurate. The suggestion which was made was that Mr Bradshaw had invented this story because he would not want Miss Smith to know that he had borrowed more money.
- Mr Jack Bradshaw is the brother of Paul Bradshaw. He did not wish to give evidence because of the distress which it would cause him. He had provided a statement which was put in evidence on behalf of Mr Collidge without objection on behalf of Freeport. It was not tested or clarified by cross-examination. Much of what Mr Jack Bradshaw says relates to what his brother told him when he was staying with him after he had moved from the Travelodge in which he had been staying. Freeport paid for the Travelodge until 26 April 2006. What Mr Paul Bradshaw said to his brother was said in the context that he had turned down Freeport's offer, and, if Freeport are right, had accepted Mr Collidge's money in return for retracting his statements. Mr Jack Bradshaw's statement included the following. Paul Bradshaw had nothing bad to say about Mr Collidge. He said that he had been put up in a hotel for a few nights by Freeport on condition he provide a statement in relation to Mr Collidge. He had been promised a sum of money in return. But when the time came the sum was less than he had been led to believe he would get. He rejected it. He gave the impression he was very bitter about the way he had been treated by Freeport. He said that he had gone to speak with Mr Collidge about his debts. He said Mr Collidge had agreed to provide him with a sum of money to clear his debts. He had asked Mr Collidge to pay this into Miss Smith's bank account. Mr Collidge had telephoned her to make sure it had been received. The amount was not enough to clear the debts.
- Mr Jack Bradshaw's statement does not say when it was that his brother went to see Mr Collidge and Mr Collidge offered him a sum which was paid to Miss Smith. But the statement reads as if this was after his brother had refused Freeport's offer. It does not read as if his brother had entered a loan agreement with Mr Collidge and that this was in France on 21 March. If Mr Jack Bradshaw had been called it might well have turned out that what his brother had told him better fitted Freeport's version of events than Mr Collidge's. For the dates are crucial.
- I will now examine the telephone record evidence relating to communications between Mr Bradshaw and Mr Collidge, and also Mr Shaw. Mr Shaw's evidence was that he was asked to text Mr Collidge by Mr Bradshaw on the evening of 19 April. His telephone record shows that at 19.33 a text message went from his telephone to the company telephone that was used by Mrs Collidge. A further message was sent at 20.55. There is no complete record of calls made by Mr Collidge on his land line from Greta Side. That is because all that is available from his end is an unitemised British Telecom bill, and because the record of calls to and from Mr Bradshaw's mobile does not generally record incoming calls from land lines. The British Telecom bill for Greta Side states that on "19-20 April" 2006 three calls were made to Mr Bradshaw's mobile with a total time of 1 hour, 29 minutes. The record for Mr Bradshaw's mobile phone does not show any communications with Mr Collidge either way until 1.28 am on 20 April when Mr Bradshaw sent Mr Collidge a text message. At 1.31 am Mr Bradshaw had a conversation lasting 104 seconds to an unknown number. At 4.54 am Mr Bradshaw sent a text message to Mr Shaw. At 4.57 am, 5.36 am and 6.01 am (two) he sent text messages to Mr Collidge. At 8.33 am he spoke to Mr Collidge for 5 minutes. At 9.38 am Mr Collidge telephoned Mr Bradshaw and they spoke for 6 minutes. There were 3 text messages from Mr Collidge later that day, and further messages after that ending with three on 25 May, the day before Mr Bradshaw died.
- Mr Reade submitted that, if Mr Bradshaw sent a text message to Mr Collidge at 1.28 am on 20 April, he cannot have been having a long late night meeting with him. Mr Nicholls suggested that Mr Bradshaw may have arranged to text Mr Collidge on his arrival at Greta Side rather than ringing the bell or knocking. According to Mr Shaw's evidence, Mrs Collidge was involved in the meeting: so there would have been no need to avoid disturbing her. Mr Reade asked why it should have taken so long for Mr Bradshaw to get to Greta Side. But it is not known what telephone conversations preceded any visit. An explanation which has occurred to me is that Mr Bradshaw sent the message to Mr Collidge in error: it was intended for somebody else, such as Mr Shaw.
- Mr David Browne is an expert in the examination of documents for fraud. He was called on behalf of Freeport to say whether the signatures of Mr Bradshaw on the two loan agreements were forgeries. No expert was called on behalf of Mr Collidge in answer. When he was asked in cross-examination if he had taken any steps to identify the signatures as genuine, Mr Collidge said that he believed that his lawyers had attempted to find an expert. Mr Browne's opinion was that in respect of the 2003 loan agreement there was very strong evidence that the signature was not written by Mr Bradshaw. He defined 'very strong evidence' as evidence which satisfied the criminal standard of proof without the need for corroboration. His opinion in respect of the agreement dated 21 March 2006 was that there was strong evidence that the signature was not written by Mr Bradshaw. He said in respect of 'strong evidence' that it 'does not of itself satisfy the criminal level of proof and will always need corroborative evidence. Moderate evidence satisfies the requirement of the Civil Court, meeting the balance of probabilities.' So his opinion in respect of the 2006 agreement was held with a degree of certainty somewhere between the criminal standard and the balance of probabilities. The 2003 agreement has an original signature. Mr Browne has explained the reasons for his opinion in respect of it in the course of his evidence, and I found them convincing. The 2006 agreement consisted of two pages, each of which were copies. It will be remembered that Mr Collidge's evidence was that after they had signed it at the villa Mr Bradshaw had left to get a copy of it. The first page is a high quality copy, and I had thought it was an original until corrected by Mr Browne. The second page is a copy of noticeably poorer quality. It is the second page which has the signatures. It is because it is a copy and not of good quality that Mr Browne was less certain in respect of the 2006 agreement. Again he explained in evidence why he had formed the view he had. 'Defects' in the signatures were common to each. In the circumstances, the fact that the signature on the first is a forgery, if that be true, must strongly support the other being a forgery. For the only reason to forge the first agreement would be to add credence to the second agreement. Mr Browne was cross-examined at length about his credentials as a forensic examiner of documents. It is true that his ability comes from his long experience rather than any particular scientific or technical qualification. Nothing was put to Mr Browne to suggest that he was not able to carry out the task in this case. The cross-examination as to the signatures on the two documents was brief and did not in the least detract from Mr Browne's conclusions.
- There are further factors which count against the agreement of 21 March 2006 being what it purports to be:
- I should record how the evidence in relation to the loan agreements emerged. They were not included in the lists of documents which were exchanged on 10 November 2006. On 23 November Dechert wrote to MBR&M asking about contact between Mr Collidge and Miss Smith in April 2006 and any payment. The letter stated that Freeport's enquiries suggested that Mr Collidge had refunded Mr Bradshaw's debt to her. On 5 December Dechert threatened an application to the court. On 7 December MBR&M stated that Mr Collidge was travelling abroad until the end of December and they would respond in January. On 12 December Dechert pressed for answers. On 13 December Dechert served a notice of application for further information. On 13 December MBR&M responded that the issues were such that they should be able to discuss them with their client face to face. Dechert's application was due to be heard on 11 January 2007. On 13 December Dechert offered to vacate the application on the basis that the information would be provided in Mr Collidge's witness statement. Statements were to be exchanged on 15 January. On 4 January MBR&B confirmed that the information would be provided in the witness statement. Dechert accepted this on 9 January and agreed to adjourn the application. On 10 January MBR&M stated that they were not ready to exchange witness statements and proposed 16 February. On 11 January Dechert replied, complaining, and said that the application was now returnable on 13 February. It appears that the application was dismissed on the basis that the information would be provided in Mr Collidge's witness statement. On 16 February Dechert disclosed the bank advice of payment from Mr Collidge to Miss Smith. On 20 February Dechert obtained an order for disclosure against Miss Smith. On 21 February orders were made which, inter alia, extended the time for disclosure of witness statements to 21 March. On 9 March MBR&M served a further disclosure list which included the two loan agreements. On 12 March (letter misdated 13 March) MBR&M provided copies of them and of the entry in Mr Collidge's bank statement. Dechert replied that day asking how the documents had been produced, and asking to inspect computers. On 14 March MBR&M stated that they had not been disclosed earlier because it was only following the hearing on 13 February that it became apparent that they were relevant. It will be recalled that Dechert had first raised the issue on 23 November 2006. On 15 March Dechert made it clear that whether the loan agreements were genuine was in issue. On 16 March Dechert asked for disclosure of telephone records for Mrs Collidge and Greta Side. On 19 March MBR&M stated that the first agreement had been produced on a computer at Greta Side which had been replaced, and that the second had been produced at an internet cafι in Antibes. On 19 March Dechert asked the name and precise location of the internet cafι. On 21 March Dechert wrote saying that it was their case that Mrs Collidge was present at and took part in the meeting with Mr Bradshaw on 19/20 April 2006. Disclosure of the telephone records requested on 16 March was refused on 21 March. Witness statements were exchanged on 21 March. This included Mr Collidge's statement dated 17 March. On 30 March Dechert served Mr Browne's first report. They proposed that any report in reply should be served by 13 April. On 3 April MBR&M affirmed the refusal to disclose Mrs Collidge's telephone records. They also stated that Mr Collidge was unable to recollect the name of the internet cafι but that it was on the main road between Antibes and Golfe Juan. On 16 April MBR&M stated, as I have mentioned, that the 2003 loan was advanced in cash from cash Mr Collidge had at home, and that the instructions to pay Miss Smith were given to his bank by Mr Collidge orally.
- I will next set out the conclusions which I draw from this considerable body of evidence.
- First, I find that Mr Bradshaw was instructed by Mr Collidge to work on the villa at Vallauris on and between 15 and 22 March 2006. I am also satisfied from the circumstances of his extended stay in France that a major reason why he was required to go to France was this work. It was certainly the reason why he stayed so long. He was living at the company's expense while he was there.
- Second, I find that the reason why Mr Bradshaw wrote the letter of retraction dated 19 April 2006 faxed by him on 20 April is that over the night of 19/20 April he had agreed with Mr Collidge to retract his statements provided to Freeport in return for a payment of £20,000 by Mr Collidge. That payment was later made by Mr Collidge to Miss Smith at Mr Bradshaw's request because Mr Bradshaw owed money to Miss Smith. Mr Collidge also promised Mr Bradshaw accommodation and employment. The only piece of evidence which does not fit with that conclusion is the text from Mr Bradshaw to Mr Collidge at 1.28 am on 20 April. This is an oddity, and I do not know what the explanation for it is. I do not have Mr Bradshaw's evidence in respect of it. But the rest of the evidence is very strong, and there can be no doubt about the conclusion. It is strongly supported by the conclusion which I will come to next, namely that the loan agreements were each forged.
- Even if the retraction letter had been written for some other reason, for example that Mr Bradshaw wished to have nothing more with the dispute between Freeport and Mr Collidge, I would still be satisfied that what Mr Bradshaw wrote about his work in France was true. For it is amply corroborated.
- It is clear that in April 2006 Mr Bradshaw was in a distressed state of mind. Thus, as an example, Mr Yates twice suggested to him that he should see a doctor. That is a reason why I should be careful in accepting what he has said, and I have taken that approach. It is also the explanation why on 19 April he threw up the compromise agreement whereby he would have received £17,500. He was angry that he was not getting more. He found the whole process of a formal agreement extremely difficult and exasperating. He apologised for his behaviour on 13 April. It is highly probable that if he had not accepted Mr Collidge's offer of £23,000 or £20,000 he would have come back to Freeport soon after 19 April and gone ahead with the compromise agreement: it would have been a most irrational decision not to.
- Third, I am wholly satisfied that the two loan agreements are forgeries, that is to say, they were not created when they purport to have been created, and Mr Bradshaw's signatures were not written by Mr Bradshaw. They came into being when Mr Collidge realised that he had to explain why he had paid Susan Smith £20,000 in late April 2006. They were produced either by him or on his instructions. The 2003 agreement was produced in an attempt to give credibility to the 2006 agreement. For Mr Collidge probably appreciated that he would have been unlikely to lend £20,000 to a man in Mr Bradshaw's financial state. But, because it is so clear that Mr Bradshaw's signature on the 2003 agreement was forged, the 2003 agreement in fact detracts from such credibility as the 2006 agreement might otherwise have.
- Fourth, the first three conclusions leave Mr Collidge's credibility in tatters. That is not to say that his evidence is to be automatically disbelieved on every disputed point. For each point must still be considered on its merits. But where there is a straight clash of witness evidence it must be a powerful factor.
- In his statement provided to Freeport Mr Bradshaw said that at the time he was re-engaged by Freeport in 2004 at £15,000 p.a. rather than at his previous salary of £21,000 p.a., Mr Collidge offered to pay him £100 per week cash in return for work to be done at the Castle Hotel, Hornby The hotel was owned by Mr Collidge and was 4 miles from Mr Bradshaw's home. The hotel was closed in May 2005 and Mr Collidge stopped paying him the £100. The statement listed six rooms or areas on which he had done work, briefly describing the work. Much of it consisted of the refurbishment of rooms.
- The rota sheets prepared by Mr Collidge for Mr Bradshaw show him on 8 February 2006 doing work to the cottage called Klaven which was near to the hotel and occupied by Mr Collidge's daughter. That for 15 February has him doing work around the hotel. That for 7 March has 'roof Castle'. That for 9 March provides 'Castle internal ceilings'. No doubt these instructions were supplemented by Mr Collidge orally. On 10 March he was to take Mrs Collidge to the hotel and to empty freezers.
- Miss Jill Calvert had worked in the hotel under its previous management and continued under Mr Collidge. She worked behind the bar and served at tables. She gave evidence that Mr Bradshaw had carried out work in the hotel very much as he had listed it. She was careful as to what she could remember with certainty and what she was not wholly sure about. She also said that he had decorated a room in Klaven. She said that he used a cherry picker to replace broken bulbs in the lights along the hotel's eaves.
- Mr Graham Renwick was employed as general manager of the hotel between June 2004 and February 2005. He said that Mr Bradshaw would help out in the hotel doing repairing and decorating jobs. He recalled Mr Bradshaw working on room number 1. This was a room which Mr Bradshaw had said he had converted from a storeroom to a lettable bedroom. Mr Renwick also remembered Mr Bradshaw using the cherry picker to replace lights.
- Mr Shaw gave evidence that Mr Bradshaw told him of the £100 a week arrangement at about the time it was entered into. Mr Shaw helped Mr Bradshaw board up the hotel after it had closed, and to move cases of wine etc from the hotel to Greta Side. He also stated that Mr Bradshaw had told him that he had hurt his leg when working on the roof of the hotel towards the end of 2005.
- Mr Collidge's evidence was that the work to hotel rooms which Mr Bradshaw said he had carried out had not been necessary because the hotel had been fully refurbished when he took it over. It was also suggested as part of the defence case that Mr Bradshaw was a very helpful man who would help out by doing jobs rather than stand idle, and that there was no evidence to show that he had been instructed by Mr Collidge to do what he did. It was not suggested that Ms Calvert and Mr Renwick were lying, merely that they were mistaken.
- Mr Collidge produced a number of invoices which related to work done at the hotel. They were not inconsistent with the work that Freeport allege that Mr Bradshaw did.
- I accept the evidence given by Ms Calvert, Mr Renwick and Mr Shaw in respect of work done by Mr Bradshaw at the Castle Hotel. I also accept what Mr Bradshaw said in his statement. I am satisfied that Mr Bradshaw worked there regularly while the hotel was open carrying out the refurbishment which had only been partly done when Mr Collidge took it over. If there was any general maintenance to do inside or outside he might be instructed to do it. The suggestion that he did these large tasks voluntarily and without instruction from the hotel's owner, Mr Collidge, is absurd. I also accept that Mr Collidge paid Mr Bradshaw for his work as Mr Bradshaw said in his statement and as he told Mr Shaw at time the arrangement was entered into.
- In his statement Mr Bradshaw said that from the end of May 2005 he was given task sheets each week of jobs to be done at Greta Side. It began with the painting of the whole of the outside of the house. He listed 26 jobs which he had been required to do at Greta Side, some of which jobs were repetitive.
- The surviving rota sheets have six entries relating to work to be done at Greta Side by Mr Bradshaw.
- The evidence of Mr Liyanarachchi, Mr Shaw and Ms Calvert in each case states that Mr Bradshaw told them of work he had to do at Greta Side.
- Mr Collidge denied that Mr Bradshaw had done work for him at Greta Side save repainting some garage doors, one of which, he said, Mr Bradshaw had damaged by driving into it.
- I am satisfied that Mr Collidge used Mr Bradshaw to do work at Greta Side on a regular basis, and that Mr Bradshaw's statement as to what he did is broadly accurate.
- This is a minor allegation in the context of the case. Mr Bradshaw stated that he had to drive Mr Collidge and his family on private journeys. He referred in particular to a journey in 2003 to Wales for a wedding. Mr Collidge said that the journey to Wales was one that Mr Bradshaw wished to make for his own reasons. There is no corroboration for what Mr Bradshaw said. In the context of the other findings which I make it is unnecessary to make any on this point.
- The retail village run by Freeport at West Calder in Scotland contained four restaurants and cafes which by September 2004 had closed. They had been left equipped, and the owners had agreed that Freeport should be entitled to the contents rather than they remove it. On 16 September 2004 Mr Collidge drove to the site from Greta Side with the chef to the Castle Hotel. Mr Bradshaw drove a large box van with another employee from the Castle Hotel as his passenger. Items were put into the van and driven down to the hotel and unloaded. There are issues as to what was taken and whether what was taken was later returned.
- The case of Mr Collidge is that he was invited to go to West Calder by Mr Yates who suggested there might be items of use to him at the hotel, which he could purchase. He took four items, a stainless steel refrigerator, a bread oven, a cardboard compactor, and a microwave. His witness statement included a fifth item, a Gaggia espresso coffee machine, but he said that this had been included by mistake. He sad that the 4 items were found to be of no use when they arrived at the hotel and were returned to West Calder by Mr Bradshaw in January 2005.
- Freeport has listed in its amended defence and counterclaim the items which it asserts Mr Collidge removed and which were never returned. This assertion is based on the recollections of witnesses, on inventories made by staff at West Calder and by a firm named Vennors, and on the auction catalogue. The witnesses were the following. Mr Stuart Gray was the security supervisor at West Calder and with others had made an inventory of items in July 2003 when the three main restaurants were already closed. Mr Allan Calder was maintenance manager. Mr Calder and Mr Gray observed the loading of the van. They made no record of what was taken, but perhaps because they were uneasy at what was happening items stayed in their memories. Mr Renwick assisted with the unloading at the Castle Hotel. Ms Calvert also helped with the unloading: she described the van as large and choc-a-block with stuff. I was shown a DVD in which Ms Calvert went round parts of the hotel identifying items which she said had come from Scotland. Mr Bradshaw's statement related that he had been told by Mr Collidge to hire an 8 ton cargo lorry from Pye Motors in Morecombe on his company credit card. The documents confirm the hiring. Mr Bradshaw listed items which had been taken. Mr Yates stated that he was told by Mr Collidge that he was going to visit West Calder to see if there was any catering equipment which might be of use in his hotel, and, if there was, he 'would square it with Peter' Peter Woolley, the finance director.
- Mr Townley was called on behalf of Mr Collidge. He had been the boy friend of Mr Collidge's daughter. He is an electrician. His evidence in relation to this part of the case was that on the evening of Sunday, 9 January 2005, he arrived at the hotel to deal with an electrical fault in the kitchen and found Mr Bradshaw loading a van with kitchen equipment. He helped him finish the job by loading a fridge. He did not see what else was in it but it was fairly full, may be two thirds or three quarters full. Although it was given in a convincing manner I have come to the conclusion that I should reject this evidence. No paperwork has been found by either side relating to the hiring of the van. It was too late for Mr Bradshaw to drive to Scotland that night. He was due in London the next afternoon. Those at West Calder had no knowledge of a return journey by him. It is impossible that he could have come onto the site and returned items without them knowing. Lastly the auction records do not reflect the return of the items which Mr Collidge says he took and returned.
- There is no need for me to go through every item listed in the amended defence and counterclaim. I am satisfied by the convincing evidence which I heard that a large number of items were taken, approximating to those listed by Freeport and far in excess of those accepted as having been taken by Mr Collidge. They were taken on 16 September 2004. Mr Bradshaw is not alleged to have returned them until January 2005. Nothing was said by Mr Collidge to Mr Woolley in the meantime. I should refer to two items in particular. I am satisfied by the evidence of all the witnesses called on the point by Freeport that a large carvery was taken. In addition to that evidence there is the coincidence that the carvery at the Castle hotel opened very shortly after the trip to West Calder. I am also satisfied by the evidence of Mr Gray that Mr Collidge took the better of the two cardboard compactors at West Calder and that it was the one in poor condition which was sold at auction for £80. I am also satisfied that Mr Collidge took the Gaggia espresso coffee machine.
- I thus conclude that Mr Collidge removed a large quantity of equipment from Freeport's West Calder site to his hotel with no intention of paying for it.
- Freeport's case in respect of the West Calder quad bike starts with Mr Yates. His evidence was that in January 2005 he was contacted by Mr Collidge who said that he wanted to swap the bike for the one he had at Greta Side. Mr Collidge said that he thought the West Calder bike was better. Mr Collidge also wanted the accessories that went with the bike, namely a snow plough, salt gritter, trailer, lawn mower and a chassis which was fixed to the bike. He wanted in addition the pressure washer that was used to clean the bike. Mr Yates instructed Mr Calder to swap the bikes. On 4 February Mr Collidge telephoned Mr Yates. He was angry. He wanted to know who had allowed the West Calder bike to get in such a state. He wanted to re-swap the bikes and to keep the accessories. Mr Yates persuaded Mr Calder to return to Greta Side the next day, Saturday, at double rates, to swap the bikes. He told Mr Woolley what had happened when he was next in London for a board management meeting. Mr Calder's evidence was that on Mr Yates' instruction he hired a van and took the West Calder bike to Greta Side on 31 January 2005. He was helped to load the bike by Mr Gray. He had under-estimated the size of van he needed and he had to make a second trip to Greta Side with the accessories the following day. The paperwork confirms two hirings of a van, which confirms the two journeys necessitated by the accessories. While he was there he swapped over the wheels because, as Mr Yates had told him Mr Collidge had said, the tyres were better on Mr Collidge's bike. On neither occasion was Mr Collidge there. Mr Calder returned on a Saturday to swap the bikes. Mr Collidge was there and his gardener helped to load and unload the bikes. Mr Collidge told Mr Calder that the swap was temporary: he wanted the West Calder bike serviced and brought back. With Mr Gray's help Mr Calder arranged for the bike to be serviced by Mr John Storey. The next week Mr Storey reported that the differential had suffered salt damage and the bike was probably beyond economic repair. He said he could service it and it would be usable, but he was unsure how long it would last. Mr Calder asked him to service it. He told Mr Yates and he later heard from Mr Yates that Mr Collidge did not want the bike back. The auction at West Calder was on 10 February 2005 when the bike was due to be sold. On that day Mr Calder saw Mr Bradshaw who had driven up from Lancashire. Mr Bradshaw swapped the wheels on the bike so Mr Collidge then had his original bike with its original tyres. Mr Gray's evidence confirmed his part in the story as related by Mr Calder. Mr Bradshaw's statement does not refer to the quad bike. The West Calder quad bike was included in the auction. Its accessories were not.
- Mr Collidge's evidence was that the idea of swapping the quad bikes was suggested to him by Mr Yates. He said that when he saw it realised that his bike was better and he instructed the West Calder bike to be serviced so it could be auctioned. He said he had not instructed Mr Bradshaw to swap the wheels. He denied ever seeing the accessories.
- I am satisfied by the detailed evidence which I heard that the Freeport's case in respect of the quad bikes is correct. Without any suggestion from Mr Yates, Mr Collidge decided to take the West Calder bike and it accessories, and put his own into the West Calder auction. When he saw the condition of the West Calder bike he decided to have it serviced at Freeport's expense. When he was told about the condition of the differential he decided against the swap. The accessories were delivered to him and he kept them. He was never paid for them, and I am satisfied that he did not intend to do so.
- Freeport identified six items which Mr Collidge charged to his company credit card allegedly wrongfully.
- Dechert first raised the question in their letter to MBR&M of 27 September 2006. On 5 February 2007 MBR&M stated 'our client has been able to recall that he met a Mr Davis at Gatwick airport and subsequently went out to dinner with him, in order to discuss acquisitions of property in Portugal, . Our client was obliged to arrive in London a day earlier than originally planned due to the business meeting .' On 7 February Dechert asked a series of questions about 'Mr Davis'. On 6 March MBR&M replied that Mr Collidge was unable to recall Mr Davis' full name, and that Mr Davis was a Portuguese property investor, whom Mr Collidge had met several years ago. On 8 March Dechert asked whether the meeting was with Mr John Davies, whom they understood was a long standing friend of Mr Collidge. On 13 March MBR&M replied that it was Mr John Davies, but he was an acquaintance and not a long standing friend: Mr Collidge had no contact details for him. On 16 March Dechert sent MBR&M two emails between Mr Collidge and Mr Davies showing their close relationship. On 21 March MBR&M replied saying that the business meeting was necessary because Mr Collidge and Mr Davies did not wish to discuss business on holiday.
- Freeport have trawled through the claims for expenses put in by Mr Collidge between 2003 and 2005 and have identified 16 items which it is alleged should not have been claimed. The claims were all accepted by the director who checked them, usually Mr Woolley. If it is clear that a claim should not have been made, that it was not picked up by Mr Woolley does not alter that fact. I will refer to only those claims which it is clear Mr Collidge should not have made.
- There were three claims for expenses totalling £578 incurred in England in January, February and March 2005, two of them being occasions at the Castle Hotel. Mr Collidge said that he did not recollect any of them. I do not accept that. These expenses should not have been claimed.
- On 14 October 2003 Freeport's remuneration committee resolved that instead of Mr Collidge's petrol being reimbursed on a cost basis he should be reimbursed at the Inland Revenue mileage rate. The minute is quite clear. Subsequently a dispute arose between Mr Collidge and Mr Woolley as to whether Mr Collidge was entitled to claim both. Mr Collidge pursued the matter in a high handed and unpleasant manner, which was wholly inappropriate. The detail is set out in Mr Woolley's witness statement and in a contemporaneous note dated 25 June 2004 made by Angela Field, an accounts manager. I accept both as accurate. Mr Woolley was cowed. He agreed that the payment should be made. He made a note that Mr Collidge had said that he would speak to the non-executive directors. But neither he nor Mr Woolley pursued the matter. Both were at fault.
- A little time at the trial was spent in an investigation into the motives of the other directors of Freeport and some of its shareholders. This centred on the actions of Mr Jeffrey Blackburn, former chief executive of Halifax plc among other positions, who was the senior non-executive director of Freeport and had the task of finding a new non-executive chairman following the board meeting of Freeport on 6 December 2005. At that meeting it had been decided that Mr Collidge should no longer be both chairman and chief executive. It was the meetings which Mr Blackburn held in the course of his search for a new chairman, which led to the issue whether to suspend Mr Collidge on 29 March 2006. Mr Blackburn acted entirely properly throughout, and it was not suggested that he did not. My main task in this trial has been to look at the evidence relating to the conduct of Mr Collidge to see if it justified his summary dismissal. The events which led to 29 March were not shown to be irrelevant.
- Paragraph 12.2 of Mr Collidge's service contract dated 7 December 2005 provided:
- Clause 2 made provision as to his duties. It included:
- As to the right to dismiss summarily I was cited Neary v Dean of Westminster [1999] IRLR 228, Briscoe v Lubrizol Ltd [2002] IRLR 607 and Sinclair v Neighbour [1966] 2 QB 279. In Neary Lord Jauncey acting as a special commissioner held that:
- Mr Reade accepted on behalf of Mr Collidge that Mr Collidge would have been in repudiatory breach of his contract of employment entitling Freeport to dismiss Mr Collidge summarily if he had removed items from the West Calder site as Freeport alleged. I have found that he did. Mr Reade similarly accepted that there would be a right to dismiss summarily if Mr Collidge had regularly used Mr Bradshaw to do work for Mr Collidge's personal benefit. I have found that in respect of the villa, the Castle Hotel and Greta Side Mr Collidge did. Mr Reade accepted that, if the purpose of Mr Bradshaw's journey to France and his stay there in March 2006 was to do work on the villa, Freeport would have been entitled to dismiss Mr Collidge summarily. I have found that a major purpose of the visit was to do work on the villa. I would add that regardless of the main purpose of Mr Bradshaw's journey, the time which Mr Bradshaw was required to spent working on the villa in company time and while he was living with his expenses paid by the company was sufficient to justify summary dismissal. I should record that it was plainly right for Mr Reade to make these concessions.
- Where expenses are obtained by an employee from a company which are not properly the expenses of the company, whether by using a company card and failing to reimburse the company, or by claiming them as company expenses, there will commonly be two aspects to be considered in respect of summary dismissal. One is whether a particular expense was obtained dishonestly. I add there may be degrees of dishonesty in such situations. The other is whether there is a pattern of such behaviour or one or two instances. No more latitude should be given to a director than should be given to a more lowly employee such as a salesman but rather the reverse: for a director should set a standard for his employees. But I would accept that issues may arise in relation to entertaining which on occasion may not be clear cut. Each case will turn on its own facts.
- I am satisfied here that Mr Collidge did dishonestly obtain expenses from Freeport on a number of occasions which taken together would have justified his summary dismissal. I single out the claims relating to Trader Vic's, the flight and stay at Sofitel on 30 December 2005, the flights on 26 September 2005, Mr Bradshaw's purchases in France, the cigars, the meal at the Jonque Bleue and the stay at Chateau Tilque. Mr Collidge habitually abused his ability to obtain expenses from Freeport. That amounted to a repudiation of his contract and entitled Freeport to dismiss him summarily.
- These findings are more than sufficient to determine the outcome of Mr Collidge's claim. Applying clause 7(b) of the termination agreement I hold that there were numerous circumstances of which Mr Collidge was aware which constituted repudiatory breaches on his part of his contract of employment, which would have entitled Freeport to terminate his employment without notice. It follows that he is not entitled to the benefits set out at the start of the agreement.
- It was agreed that the financial consequences of my decision should be left to be dealt subsequently. So while Mr Collidge's claim will be dismissed, Freeport's counterclaim must be the subject of further directions.
Mr Justice Jack :
A. Introduction
(a) the alleged use by Mr Collidge of Mr Bradshaw, a driver employed by Freeport, who mainly drove Mr Collidge, to do private work for Mr Collidge in company time;
(b) the alleged misuse by Mr Collidge of his company credit card;
(c) the alleged claiming by Mr Collidge of personal expenses as company expenses;
(d) the allegedly wrongful claiming by Mr Collidge of both mileage allowance and petrol costs;
(e) the alleged wrongful removal of equipment from Freeport's West Calder site in Scotland to the Castle Hotel owned by Mr Collidge.
B. The construction of the termination agreement
'Subject to and conditional upon the terms set out below, the company will:-
(a) pay to you the sum of £445,680 gross as compensation in respect of the termination of your employment; and
(b) pay the maximum sum of £4,500 . in respect of reasonable legal costs ;
(c) allow you to exercise the share options under the company's Executive Share Option Scheme .; and
(d) continue to meet the rental costs of the Monaco flat which you currently occupy until 30 September 2006 ..; and
(e) continue to provide you, . , with the benefit of private health insurance .. [for a period] . .'
The agreement continued:
'The terms on which this offer is made are that you irrevocably agree as follows:-
1. Your employment with the Company shall terminate on the Termination Date [31 March 2006] by way of your resignation.
2. You accept the terms of this agreement in full and final settlement of any claim .. .
3. You shall within 2 working days following the Termination Date return to the Company all .. [Company property] .
4. (a) [no public statements to be made by Mr Collidge regarding the termination save as authorised by the Company or required by law]
(b) [no disparaging statements to be made by Mr Collidge concerning the Company]
(c) [certain provisions of Mr Collidge's service agreement to remain in effect]
(d) [Mr Collidge to assist the Company with litigation]
[The company also undertook an obligation as to statements concerning the termination.]
5. The Company does not give any warranty as to the taxable status of the payments to be made to you pursuant to this agreement.
6. [Mr Collidge to resign from his directorships within the Freeport group]
7. You warrant as a strict condition of this agreement that as at the date hereof:-
(a) you have not failed to disclose any personal injuries of which you are aware (or of which you ought reasonably to be aware) in relation to which you reasonably believe you could claim against the Company or any company in the Group; and
(b) there are no circumstances of which you are aware or of which you ought to be aware which would constitute a repudiatory breach on your part of your contract of employment which would entitle or have entitled the company to terminate your employment without notice; and
(c) [no proceedings issued by Mr Collidge]
(d) You have not at the date of this agreement obtained employment . .
8. You and the Company agree that this agreement constitutes a compromise agreement pursuant to the provisions of [a number of Acts and Regulations] . .
9. The Payment shall be made within 14 days of whichever shall be the later of
10. This Payment shall be made to you in Monaco
11. [The Contracts (Rights of Third Parties) Act 1999]
12. [Entire agreement clause]
13. [English law, non-exclusive English jurisdiction]'
The terms 'subject to and upon' which the obligations at the agreement's start are undertaken by Freeport include terms which place obligations on Freeport. Further the provisions relating to Mr Collidge may not all be of the same nature.
C. The conduct of Mr Collidge
(1) Mr Bradshaw the villa (also retraction and the loan agreements)
'[Mr Blackburn] = constrained legally however was aware that company driver had been used by SMC [Mr Collidge] decorating villa and UK house. SMC that was OK, [Mr Bradshaw] had clause allowing him to do DIY in his down time sensible if not being used by the Company. [Mr Jones] never envisaged. Staggered that SMC thought that was OK this confirmed need for investigation.'
When he wrote up the minutes Mr Woolley followed the sense of his manuscript note. Mr Collidge said in his evidence that when it was raised at the meeting he had denied using Mr Bradshaw to decorate the villa and his house, and he denied saying that it made sense to use him if he was not being used by Freeport. In cross-examination it was put to Mr Woolley that Mr Collidge had denied that he used Mr Bradshaw to decorate his house and the villa. Mr Woolley agreed that he had. Mr Woolley said that he recollected that Mr Collidge had said that Mr Bradshaw could be used for DIY but not that he had used him on the villa or the house. In re-examination Mr Woolley stated that there was no denial. Mr Russell stated in cross-examination that he did not recall a denial, but that there may have been one. Mr Woolley took a reasonably full note of the exchanges but he did not record a denial in his notes or in the minutes that he later prepared. If Mr Collidge was denying that he had used Mr Bradshaw as Mr Blackburn had stated, there was no point in his saying that there was a clause in his contract which permitted it and that it was sensible that Mr Bradshaw was used to do DIY in his down time. Mr Jones' response is also inappropriate if Mr Collidge had denied using Mr Bradshaw as alleged. I consider that the strong probability is that Mr Collidge did not deny what was alleged but tried to excuse it. The only relevant term in Mr Bradshaw's contract of employment is the description of handyman in addition to driver in the job title.
"To whom it may concern
I Paul Trevor Bradshaw state that all Statements made previously by myself during April 2006 at the Holiday Inn Lichfield were given under duress. Whilst in the presence of Ian Brownstein and Bob Yates. Having thought about the length of time I was there, 7 hours, being questioned in detail and myself not being in any physical or mental state to know what I was agreeing to as my only concern was to return to my Partner and my little man.
I wish to add that I had to leave the meeting many times to calm myself down simple to carry on in the wish to get things over with quickly.
Having re-considered the contents of all the statements I have given I withdraw all of them, as I know them to be inaccurate and not a true version of events.
Now take note. I NO longer wish to involve myself any further in this matter and reject all financial inducements offered by Freeport PLC. In plain English leave me alone!"
"By this time I was really very stressed and upset and I met Darren Shaw on the Wednesday 19 April the week before you received the money I discussed things with him then asked Darren that evening to send Sean Collidge anonymously a text from his phone asking him if he was looking for me Sean obviously sent one back saying yes, Darren then sent Sean my Mobile number, Sean rang me at 23.30 on the Wednesday night asking me to go to his house then at that late hour, I went and we talked till 5am Thursday morning he asked me to retract all statements I had made and in return he would transfer £20.000 into your account that day from Geneva not a loan no paying him back just so long as I retracted my statements, the rest you know as you got the money. My one and only concern was that you got the money. Darren will confirm what happened. And also Sean will if you want his number.
It's also why I text you to say ignore the letter from Freeport as it was irrelevant.
Yes I wish I had told you, but I was trying to be protective of you as you had enough on your plate with your work and Jackie's depression I was wrong.
And yes I sold my soul to the Devil and I am not proud of that fact. But it got you the money."
(a) There was no need to go to an internet cafι. Mr Collidge had a computer in the villa which could have been used. All that was wrong with it was the connection with broad band. Mr Collidge said that he did not appreciate that the problem was limited in that way. It seems to me unlikely that he would not have known that it was otherwise working.
(b) There is no explanation for the difference in copy quality of the two pages. Mr Collidge was not, however, asked about that.
(c) The agreement contains a provision that repayments were to be made monthly with interest at 3 per cent over Barclays London base rate. This would have involved a calculation which Mr Bradshaw would have been unlikely to be able to perform, and Mr Collidge would have had to tell him how much was due each month. Mr Collidge accepted the difficulty in his evidence.
(d) Mr Collidge knew that Mr Bradshaw was in financial difficulties and had sought an IVA. He said in evidence that Mr Bradshaw had an ability in addition to his salary to earn money from repairing computers. Mr Collidge came across as a hard headed man who would not lend money that he did not think he would see back. Any one who knew Mr Bradshaw's position and made him a substantial loan would have been taking a severe risk and motivated by charity.
(2) Mr Bradshaw - The Castle Hotel
(3) Mr Bradshaw work at Greta Side
(4) Mr Bradshaw being used to drive Mr Collidge on private journeys
(5) The removal of items from West Calder to the Castle Hotel
(6) The quad bike
(7) The company credit card
(i) Trader Vic's
On 21 March 2005 Mr Collidge incurred a bill for £112.70 at Trader Vic's at the Hilton, Park Lane. This covered drinks for himself and Ms Anne Hall, and food for himself. Ms Hall was legal assistant to Mr Russell. Ms Hall gave evidence. I accept her as a truthful witness. She said that there was no reason related to her work for Mr Collidge to entertain her and that they did not discuss work at Trader Vic's. By letter of 18 October 2006 MBR&M stated that the reason for the occasion was that Mr Collidge was aware that Ms Hall was 'upset over an issue in the workplace'. In his evidence Mr Collidge said that the reason was that he wished to reassure Ms Hall about Freeport's coming move to Monaco. But at this time Ms Hall did not know anything about the move. It was something that was at that point being kept between the directors, and no rumours had reached Ms Hall. I am satisfied that the reason for the visit to Trader Vic's was so Mr Collidge could have the company of Ms Hall. Ms Hall accepted the invitation because Mr Collidge was not somebody that the employees said no to. Mr Collidge should have paid the bill himself.
(ii) Flights Manchester to Gatwick, and Sofitel Hotel
Early on 30 December 2005 Mr and Mrs Collidge flew with their friends, Mr and Mrs Davies, from Gatwick to Antigua on holiday. The afternoon before Mr and Mrs Collidge flew from Manchester to Gatwick. They stayed the night at the Sofitel hotel. Mr Collidge charged £353 for the flights and their hotel to Freeport. Mr Collidge stated in his witness statement that he met Mr Davies, 'a business acquaintance' at the hotel and discussed business with him, and that the costs were appropriately payable by Freeport in the circumstances. In his evidence he said that he and Mr Davies spent 2 hours discussing Portuguese properties which Mr Davies might buy from Freeport. He accepted in cross-examination that he and Mr Davies were friends.
In view of the dishonest way in which Mr Collidge attempted through his solicitors to cover up the friendship between Mr and Mrs Davies and himself and his wife and that they were flying together to Antigua on his holiday. I am satisfied that he knew quite well that he should not have charged these expenses to Freeport. It may be that the two men did discuss the Portuguese properties at the hotel, but I am satisfied that Mr and Mrs Collidge flew to Gatwick and stayed at the hotel meeting their friends before their flight together the next day because it was convenient to do so.
(iii) Flights Nice to London, 26 September 2005
Mr Collidge said that he could not remember the circumstances in which he and his wife had had to fly from Nice to London on that day. He assumed from the high price, £634, the flight must have been arranged at short notice and for a business reason. I would have expected that between them Mr and Mrs Collidge would have some recollection of the circumstances. The matter was raised in the defence and counterclaim served on 22 June 2006 only 9 months later. I conclude that this was not a legitimate business expense and should not have been charged to Freeport.
(iv) Flight Nice to Liverpool 6 March 2006
Mr Collidge now accepts that this was a personal expense. He blamed his secretary on the basis that it arose in 2005 rather than in 2006. In 2006 he was responsible for his own arrangements.
(v) Materials bought by Mr Bradshaw in France
These should not have been charged to Freeport.
(vi) Fuel for the family
Mr Bradshaw's evidence was that he was instructed by Mr Collidge to fill all the family cars using his Freeport credit card. Appendix A to the amended defence and counterclaim sets out 9 dates on which Mr Bradshaw filled two cars. If it is accepted for this purpose that Mr Collidge was entitled to claim petrol for both business and personal use, that did not give him the facility to subsidise his family at Freeport's expense. I am satisfied that on each date one filling was improper. It will best do justice to take an average.
(vii) Withdrawal of cash
It was a company rule that credit cards should not be used for the withdrawal of cash because of the accountability difficulties to which the withdrawing of cash gives rise. Mr Collidge stated that the rule had gone when the majority of company cards were withdrawn. This was wrong: the rule had not been withdrawn. But Mr Collidge's co-directors did nothing to stop him. The circumstances of the withdrawals and what the money might have been spent on were not investigated. A total of £1,426 was withdrawn in cash using his company card between July 2004 and 2006.
(8) Claiming personal expenses from Freeport
(ii) Cigars bought at Le Havane on 8 June 2004, 49. Mr Collidge said that he had assumed that this related to subsistence, but the name is a sufficient reminder that it was not.
(v) Chez Pascal, a fishmonger, 20 August 2004, 90. This should not have been claimed.
(vi) Nounou, a restaurant, 14 August 2004, 485. This was a social occasion and should not have been claimed.
(ix) Philau, a restaurant, 16 July 2005, 785. There is nothing to show that this was a business expense.
(x) Jonque Bleue, a restaurant, 17 July 2005, 413. This was a dinner with Mr Dellar and should not have been claimed.
(xi) Chateau Tilque, a hotel, 6 August 2005, 425.52. Mr and Mrs Collidge stayed in the hotel while driving from England to the South of France. Mr Collidge states that he stayed there at the suggestion of his secretary to see if it was suitable for Freeport's risk management conference. He gave no reason for the thought that it might be suitable. He did not need to stay there with his wife in order to inspect it. He gave no report on it to Freeport. The claim should not have been made.
(9) Claiming both mileage and petrol
(D) The conduct of the directors and shareholders of Freeport prior to 29 March 2006
(E) Outcome
"12.2. The Executive's employment may be terminated forthwith by the Company by summary notice in writing:
(a) if the Executive is guilty of any gross default or gross misconduct in connection with or affecting the business of the Company or any Group Company;
(b) in the event of any serious or repeated breach of or non-observance by the Executive of any of the stipulations contained in this Agreement;
(c) if the Executive becomes bankrupt or makes any composition or enters into any deed of arrangements with his creditors;
(d) if the Executive is convicted of any arrestable criminal offences (other than an offence under road traffic legislation in the United Kingdom or elsewhere for which a fine or non-custodial penalty is imposed);
(e) if the Executive becomes of unsound mind or becomes a patient under the Mental Health Act 1983;
(f) for any other reason permitting summary dismissal at law."
"2.2 The Executive shall faithfully and diligently perform the duties consistent with his position and shall exercise such powers as may from time to time be assigned to or vested in him by and shall obey the reasonable and lawful directions of the Board.
2.3 The Executive shall not at any time during his employment engage in any activities which are or may be harmful to the interests of the Company, financial or otherwise."
' conduct amounting to gross misconduct justifying dismissal must so undermine the trust and confidence which is inherent in the particular contract of employment that the master should no longer be required to retain the servant in his employment.'
This was followed by the court of Appeal in Briscoe v Lubrizol Ltd.