England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		23 July 2007

Mr Justice Davis :

Introduction

1. On 27 December 1995 Mr Tahmassebi, the claimant in these proceedings, was informed by his employer Bank Mellat (accepted, for the purpose of these proceedings only, as being the predecessor of the defendant, Persia International Bank plc) that his employment at its London branch was being terminated on grounds of retirement as from 31 December 1995. He was, and remains, most aggrieved at this decision. On 23 February 1996 he commenced proceedings in the Industrial Tribunal. On 4 October 1996 (the day of the hearing) the proceedings were compromised. Clause 4 of the written Agreement of compromise imposed an obligation on Bank Mellat in these terms:-

"to use its best endeavours to secure payment to Mr Tahmassebi of his lump sum pension payment and continuing pension payments."

2. One might have thought that so innocent a clause (on its face) would not be productive of difficulty or dispute. But it has been at the centre of these entire proceedings. Further, the principal dispute has been as to the meaning and effect of such clause. Again, on such a matter of interpretation, one might have thought no very lengthy hearing would be needed. But the trial, on an estimate of 3-4 days, lasted the best part of 5 days; the great part of which being taken up by oral evidence. Pleas by the Bank of estoppel by representation or convention have been mounted; and a good deal of evidence has been directed at what were the subjective intentions of the parties at the time of the agreement: which is, of course, wholly contrary to the approach otherwise permissible in English law on the interpretation of written commercial contracts.
3. The case has clearly been regarded as of considerable importance by both sides. I would wish to acknowledge the care and thoroughness with which the case has been presented at trial by Mr Dyer (on behalf of Mr Tahmassebi) and Mr Samek (on behalf of the Bank) and those instructing them.

The Background Facts

4. Many of the background facts relevant to this case are not really in dispute. To the extent matters were in dispute I received oral evidence from Mr Tahmassebi himself; and, for the Bank, from Mr Meskarian, Mr Tarassoli and Mr Haghi.
5. Mr Tahmassebi gave his evidence with courtesy and evidently wished to show respect for the court. Unfortunately, he was frequently unable or disinclined to answer questions directly or concisely; frequently his answers amounted to long, set-piece statements in justification of his claim and position, or in requiring the Bank to explain its own position: which did not advance matters. I have to say that I formed the decided impression that Mr Tahmassebi has wholly persuaded himself of the rightness of his cause and that his evidence as to what happened in the past has in some respects been coloured by his brooding on the matter and on his close study of the documents since: and there were a number of occasions when his answers simply were not capable of being accepted as accurate or reliable.
6. Mr Meskarian I found a reliable and authoritative witness. He is Chief Executive Officer of the defendant Bank and formerly worked at Bank Mellat (or its predecessors) in various positions, being an executive director from 1993 to 2002. Although he had – albeit understandably – formed an erroneous understanding of at least one of the documents in the case, I found his evidence generally impressive. Mr Tarassoli, who in 1995 replaced Mr Tahmassebi as General Manager of the London branch of Bank Mellat, did his best to help the court. I formed the view, however, that, although loyally holding to the defence line in his evidence, his actual recollection of the relevant events of 1996 was limited. As to Mr Haghi, he gave expert evidence on Iranian pension law and practice. It was agreed that he could properly do so (and an agreed Minute of Order had previously been lodged on 18 May 2007 to that effect) although he is not independent of the Bank, being a Personnel Affairs Officer at Bank Mellat. However he gave his evidence in a way that seemed to me even-handed. Mr Haghi is not a qualified lawyer, but has great experience of Iranian pension matters. He gave his evidence in Farsi, with the assistance of an interpreter. Because of the language difficulties and because some of the concepts were technical it was evident to me that between counsel, the interpreter and Mr Haghi full understanding and clarity was not always achieved. Even so, I was assisted by his evidence. No other expert evidence on Iranian pension law or practice was adduced.
7. Mr Tahmassebi was born in Iran on 3 September 1939. He obtained a national diploma and studied English at college before studying Trade Finance. He started work in Iran as a clerk with the Irano-British Bank in January 1962. He left that bank and joined the Bank of Tehran in June 1968. His pension contributions which he made in the preceding years were refunded to him at that time: but some years later, as was his evidence and as is borne out by the documents, deductions from his pay were made to restore these pension benefits accrued between 1962 and 1968. This was not disputed by the Bank at trial.
8. Mr Tahmassebi continued to work with the Bank of Tehran as a Manager at several branches in Iran. By 1979 he was Assistant General Manager at the main branch in charge of the Foreign Division. Throughout that time he and the Bank made the relevant employee/employer contributions to the Bank's pension scheme.
9. In July 1979 Mr Tahmassebi took up a post in London as Assistant General Manager of the London branch of the Bank of Tehran. His wife and two young children accompanied him. In 1980 a number of Iranian Banks (including the Bank of Tehran) merged to become Bank Mellat: Mr Tahmassebi continued as Assistant General Manager of Bank Mellat's London Branch, with wide ranging duties.
10. The general position of employees of the Bank seconded abroad was that they would be paid in Tehran a salary and job allowance equivalent to the salary and job allowance they would receive in Iran in accordance with their grade or position, paid in Rials but with additional special allowance payments (in the relevant local currency) to compensate for the additional costs of living abroad. Further, such secondees were entitled to an Iranian pension but not to any foreign pension.
11. During 1980 Mr Tahmassebi (who anticipated working in London on a long term basis and who was finding his salary and allowances insufficient for his living expenses, especially with exchange rate fluctuations) proposed that he be paid an English salary and in fact be employed as though he were a local English employee rather than one seconded from Iran. This was ultimately approved by the Board in Tehran. It was common ground that this put Mr Tahmassebi in a unique position so far as the ordinary practice of Bank Mellat (and its predecessors) was concerned with regard to its Iranian employees.
12. On 29 December 1980 Mr Tahmassebi signed a Contract of Employment with Bank Mellat. By it the Bank engaged him in the position of Assistant General Manager at the London branch as from 1 January 1981. The commencing salary was £14,400 per annum, payable monthly. Amongst other provisions of the Contract was a provision contained in Clause 6 requiring Mr Tahmassebi to become a member of the Bank's Pension and Life Assurance Scheme. Clause 11 provided that no previous employment would count as part of his continuous period of employment with the Bank.
13. The Pension and Life Assurance Scheme there referred to was a generous one. The scheme was operated by Standard Life. It was non-contributory so far as Mr Tahmassebi was concerned: the Bank, as employer, paid the equivalent of 15% of his annual salary into the scheme. The accruing benefits would, of course, be in sterling.
14. This was to be contrasted with the pension scheme operating for a person in the position of Mr Tahmassebi in Iran and which had applied to him until 1981. By Iranian pension law and practice, contributions were made by both employer and employee. As explained by Mr Haghi, the payments would, by 1980, be made to a fund called the Bank Employees' Pension Fund (BEPF), which was a separate legal entity from the Bank itself. The practice would be for the relevant bank to make the entire relevant contribution to the BEPF and then deduct the employee's contribution from his monthly salary. As Mr Haghi said, it was unheard of for an Iranian employee not to make his own contribution towards his pension. Mr Haghi's view (which was not contradicted by any expert or other evidence to the contrary and which I accept) was that it was implicit in the BEPF scheme that employer and employee must make a contribution to the scheme for a retirement pension to be received.
15. Thus I find that until 1 January 1981 Mr Tahmassebi had accrued pension benefits under the Iranian pension scheme for the period from June 1962. But as from 1981 the position changed because, after various medical checks and so on had been concluded, in around October 1981 he joined the Standard Life scheme, backdated with effect from 1 January 1981. Thereafter, as he accepted, he himself made no further contributions to any Iranian pension scheme.
16. Because of this unique situation, the Bank had been considering how to deal with matters. On 4 September 1980 Mr Tahmassebi – in writing to propose that he be paid an English salary – had concluded "obviously the equivalent amount of any pension and other due instalment (sic) will be deducted by the London branch and will be forwarded to the Head Office". This was sent at a time when, I think, he did not know of the potential availability of the Standard Life scheme to him. On 12 December 1980 the Bank resolved (in Tehran) to pay Mr Tahmassebi £1,200 per month and also resolved that his salary, allowances and other payments from Tehran should come to an end (as was later confirmed by a memorandum of the London branch of 19 January 1981). But it was also stated (as translated) "no need to say [this meaning 'needless to say'] that the pension contributions and so on and any payment (debt) of the above named shall as usual be received from him and transferred to Tehran thorough the London branch". That resolution was quite widely circulated, and was also sent to the Retirement Affairs department "in order to collect the pension contributions from London branch". The resolution was notified to the London branch by letter of 13 December 1980.
17. But this was overtaken by Mr Tahmassebi joining the Standard Life scheme under his 1980 Contract of Employment. In consequence, Mr Nayeri, the General Manager of the London branch, and Mr Tahmassebi himself wrote a joint letter on 30 October 1981 to the Bank in Tehran in these terms (as translated):-

"30 October 1981

The Office of Internal Affairs

Re: Mr Parviz Tahmassebi's Salary & Benefits

Respectfully, with reference to the letter No 24480 dated 13 December 1980, we inform you that since 1^st January 1981 Mr Parviz Tahmassebi has been included in the monthly salary list of staff of London branch and pension contributions made on his behalf have been paid into the retirement pension fund and life assurance scheme of the branch, therefore please note that transferring the said amount to Tehran via this branch is impossible."

18. Pausing there, the resulting position would then seem to be both clear-cut and fair. Mr Tahmassebi would retain his Iran pension benefits accrued between 1962 and 1981 and in respect of which he had duly made contributions. But from 1981 he would cease to accumulate further Iranian pension benefits (and would make no contributions to any Iranian pension scheme) and instead would accrue pension benefits under the Standard Life Scheme.
19. But what happened was that the Bank in Tehran did not give effect to the notification of 30 October 1981. Instead it continued itself to make the entire pension contribution (both employer and employee) in respect of Mr Tahmassebi to BEPF in Iran. However, and as is common ground, it sought and made no deductions from Mr Tahmassebi in respect of the employee's contribution. Indeed Mr Tahmassebi frankly stated that he had no idea the Bank was making such payments and the first he knew of it was when this present dispute arose. It is said by Mr Meskarian that such action on the part of the Bank was "by mistake" (he himself had no personal knowledge at the time of the matter). Not much detail on that was forthcoming. The impression I rather got was that no one at the Bank really knew how to deal with this unique position of an Iranian employee receiving an English salary and benefits and simply adopted a position in Iran, analogous to that of an Iranian employee or secondee, as best they thought appropriate in the circumstances. But this in no way, of course, was unfair to Mr Tahmassebi – on the contrary it could be said to have been an uncovenanted windfall. I should add that in paragraph 9 of his 3^rd witness statement in these proceedings Mr Tahmassebi said "Bank Mellat agreed to continue its contributions to my pension fund". However, as Mr Tahmassebi accepted in oral evidence, there was no agreement of any kind between him and the Bank that the Bank should continue to make pension contributions in Iran: on the contrary his expectation was that it would not and, as I have said, he at that time had no knowledge that in the event it did.
20. In 1983 Mr Tahmassebi was granted a staff mortgage loan facility by the London branch of £50,000 to buy a house in St Albans. The term was 17 years and was on the footing he remained employed at the Bank. In May 1987 the loan was increased to £85,000 and the repayment term was extended to 3 September 2004 (when Mr Tahmassebi would be 65 and when he, as he told me, intended to retire).
21. In 1988 Mr Tahmassebi was promoted to General Manager of the London branch of Bank Mellat. In 1991 he became a naturalised British citizen.
22. By letter of 17 May 1990 Mr Tahmassebi was awarded a further sterling salary increase (there had been others in the meantime); he was also required to sign an amendment to his Contract of Employment dated 29 December 1980. The amendment was to this effect:-

"The contract is subject to the current banking employment rules of Islamic Republic of Iran and internal rules and regulations of Bank Mellat incorporated in Tehran, Islamic Republic of Iran."

It did not emerge clearly in the evidence why he was required to sign such an amendment; but sign it he did, he not thinking that it could have any effect on the security of his employment.

23. In May 1995 Mr Tahmassebi was summoned to Tehran. He was informed that he was being removed as General Manager of the London branch, to be replaced by his assistant Mr Tarassoli. Why this was decided on did not need to be, and was not, much explored in evidence – I was certainly unpersuaded, however, that it was anything to do with Mr Tahmassebi's wife being Jewish, as he claims he was subsequently told. Nevertheless Mr Tahmassebi was retained as Advisor and Consultant at the London branch on the same salary and terms. At about the end of November 1995 he was made aware of a memorandum dated 26 November 1995 which referred in general terms to his having an Iranian pension "pot"; by letter of 18 December 1995 he dismissed this as "not relevant to my employment circumstances". Then by letter dated 27 December 1995 sent to the London branch from Tehran he was informed, on 4 days' notice, that he was being retired with effect from 31 December 2005; and that "for the establishment of retirement salary and other official processes he should introduce himself in person to the above-mentioned office in Tehran, Iran no later than [a specified date in Farsi]". (Mr Haghi said, and I accept, that this last requirement was essentially ceremonial and not obligatory and had no real significance).
24. Mr Dyer described this retirement notice, given at minimal notice and without explanation, and indeed the Bank's conduct in the aftermath, as "disgraceful". But that is not really now relevant to what I have to decide in this case: save only that I am sure that the procedure adopted left Mr Tahmassebi with a burning sense of grievance, continuing to this day, at what he considered and considers to be the unexplained and unjustified dismissal of a long-serving and loyal employee. However, I should record that ultimately I did not get the impression of any vindictiveness, let alone bad faith, on the part of the Bank: on the contrary, senior officers such as Mr Meskarian and Mr Tarassoli were sympathetic towards, and supportive of, Mr Tahmassebi.

The Industrial Tribunal Proceedings

25. Mr Tahmassebi commenced unfair dismissal proceedings on 23 February 1996. He retained Clyde & Co as his solicitors. The Bank defended those proceedings. Its solicitors were Cameron Markby Hewitt. The position of the Bank was that Mr Tahmassebi's employment was subject to Iranian rules and conditions of employment; that his cumulative and continuous period of employment under Iranian rules was to be assessed from 1962; that under Iranian rules he had no entitlement to continue in employment after 30 years continuous service; and thus he had reached normal retiring age. Mr Tahmassebi denied this, contending (among other things) that his employment was subject only to English law. On 29 March 1996 Mr Tahmassebi included a further claim of pension discrimination, asserting that if the Bank was entitled to retire him then that was by reference to a discriminatory retirement age contrary to English law.
26. In early 1996 Mr Tahmassebi had been notified of the benefits he stood to receive under the Standard Life scheme, based on a final average pensionable salary of nearly £86,000. This was confirmed by a letter from the Bank's London branch of 28 May 1996 which plainly (although Mr Tahmassebi in his oral evidence most implausibly would not accept it) is referring to the Standard Life pension. Under that scheme Mr Tahmassebi stood to receive a quite substantial lump sum, of over £48,000, and a pension calculated, on averaged final salary, by reference to the number of years in the scheme (that is, in his case, 15) divided by a factor of 60: which came to over £9,000 per annum. I add that, as I understood the evidence of Mr Tarassoli and Mr Haghi, no lump sum, as such, was at the time payable to any pensioner by BEPF under Iranian pension rules, though "bonuses" may be.
27. In the meantime, the parties were putting in evidence in the Industrial Tribunal proceedings, including evidence of Iranian law. In his signed statement of 19 July 1996 Mr Tahmassebi denied that his Contract of Employment was subject to Iranian law or rules. Amongst other points, he made the point that under Iranian law it was compulsory for an employee to have an Iranian pension and that employees must make their own contributions to the Iranian pension scheme. He contrasted that with his own position whilst he was employed at the London branch. After various other matters were raised by him, he said this in paragraph 27: "I was not required to, and have not, made any contributions. I do not have an Iranian pension."
28. This is in some respects a puzzling statement. In his 3^rd witness statement made in these present proceedings Mr Tahmassebi said he made that statement just because he had no knowledge of an entitlement to an Iranian pension. One can understand why Mr Tahmassebi, for the purposes of his case in the Industrial Tribunal, would wish to advance such a point. But it does not cover the fact that at least between 1962 and 1981 he had accrued an Iranian pension. When I asked him about this his answers were somewhat vague and diffuse. At one stage, he said he thought that that element of his pension had been confiscated – but he could have had no real reason to think that at the time and I reject that evidence. A more revealing answer was to refer to the relative modesty of Iranian Rial pensions set in the context of massive intervening inflation and exchange rate depreciation: I suspect Mr Tahmassebi had in effect discounted the Iranian pension for that period as having become insignificant. It may be also that Mr Tahmassebi was focusing in his statement in the Industrial Tribunal proceedings on the period 1981 to 1996 when he was employed under the written Contract of Employment dated 29 December 1980: during which time he did not know Bank Mellat was, whether or not "by mistake", continuing to make pension contributions on his account in Iran. But at all events that was his assertion in his statement.
29. On 23 July 1996 Bank Mellat served its evidence in answer. There was a report of a Mr Taleghany on Iranian law. Among other things, he said this:-

"It should also be noted that the pension schemes in Iran are usually very generous and give full pension to those employees who have completed 30 years of service, every year of service counted as a day's salary".

(I add that in Iran salary is payable monthly and for annual pension purposes the calculation thus also involves multiplying by 12.) Mr Tarassoli also made a witness statement, dated 23 July 1996. Among other things, it was said that Mr Tahmassebi had no legal entitlement, under Iranian rules, to the Standard Life pension although the Bank did not wish to deprive him of the benefit accrued to him with regard to Standard Life through contributions made.

30. Mr Tahmassebi's evidence to me was that it was only on receipt of this evidence served by the Bank that he realised he could be entitled to an Iranian pension. I will come back to this later.
31. On 3 October 1996 Mr Tahmassebi served his own expert report, that of Mr Sabi. That advanced the argument that Iranian law and rules did not apply to Mr Tahmassebi's contract of employment or thus to his pension entitlement. It is to be noted that Mr Sabi said in paragraph 15:-

"Article 31 [of the Iranian Labour Act 1990] provides that in the case of retirement the employer should pay a lump sum equal to 30 days for each year of service on the basis of the last salary of the employee. The Act clearly specifies that this payment is in addition to the pension that the employee would receive from the Social Security Organisation as a consequence of making a contribution to the Retirement Fund."

Mr Haghi did not seem to agree with this, as I understood him, when it was put to him in evidence. But I think there may have been misunderstanding in the interpretation process here and in any case Mr Sabi strictly seems to have been referring to payment of a lump sum by the employer, rather than BEPF.

The Settlement Agreement of 4 October 1996

32. The 4 October 1996 was the date of the hearing. Mr Tahmassebi attended with his Counsel and Solicitor. The Bank was represented by its Solicitor and Mr Tarassoli also attended. Prospective witnesses also attended.
33. In the event there was no effective hearing. There were protracted negotiations that morning between the parties which resulted in a manuscript settlement agreement being concluded. It reads as follows:-

" AGREEMENT

In consideration of the Applicant, Mr Parviz Tahmassebi, withdrawing the following claims in the Industrial Tribunal:

(i) unfair dismissal; (ii) declaration of written particulars of employment; (iii) pension and/or sex discrimination;

AND In consideration of the Plaintiff, Mr Parviz Tahmassebi, withdrawing his claim for accrued holiday pay in the County Court

AND In consideration of Mr Parviz Tahmassebi promising that he will not bring any other claims in the United Kingdom and European Court of Justice against Bank Mellat in respect of the course of his employment and the termination thereof,

Bank Mellat, the Respondent in the Industrial Tribunal proceedings and the Defendant in the County Court action, agrees:

1. to pay, within 14 days, to Clyde & Co direct its fees and disbursements arising out of its representation of Mr Tahmassebi; and

2. to pay, within 14 days, Mr Tahmassebi a sum equivalent to:

(i) £30,000; and

(ii) 76% of the difference between £70,000 and the sum at 1. above.

for the avoidance of doubt the withholding of 24% of the figure at 2.(ii) is for the purposes of payment of tax by Bank Mellat in respect of Mr Tahmassebi's termination of employment; and

3. to use its best endeavours to facilitate an instalment arrangement in respect of the repayment by Mr Tahmassebi of the following:

(i) personal loan; and

(ii) season ticket; and

(iii) mortgage arrears,

in any event, Mr Tahmassebi will pay these arrears and loans by September 30^th 1997. In the event that Bank Mellat is unable to secure an instalment arrangement in respect of 3.(i)-(iii), Bank Mellat will deduct the total amounts outstanding from 2. above; and

4. to use its best endeavours to secure payment to Mr Tahmassebi of his lump sum pension payment and continuing pension payments; and

5. that the Mortgage Agreement with Mr Tahmassebi will continue on the same payment terms, notwithstanding the cessation of his employment; and

6. to structure the payment at 2. and at 3. in the most tax efficient fashion for Mr Tahmassebi.

SIGNED BY SIGNED BY

CLYDE & CO CAMERON MARKBY HEWITT

Solicitors for Solicitors for Bank Mellat

Mr. Parviz Tahmassebi"

34. Although the language in some respects (eg. Clause 3) indicates that the parties may have had an eye on the position of the London branch of Bank Mellat, Mr Samek ultimately accepted, in my view rightly, that the legal entity bound by that Agreement was Bank Mellat.
35. Mr Dyer, citing authority, submitted – and Mr Samek accepted – that use of "best" endeavours connoted a higher degree of obligation and endeavour than use of "reasonable" endeavours.

Events following the Settlement Agreement

36. It is evident that when the settlement was reported back to Tehran the Board was unhappy: it had considered the proceedings unseemly, and it would appear that it had also not been pleased that it had not specifically been asked for its authority for the settlement, especially when a total sum of £100,000 was, it can be inferred, perceived to be an enormous sum to be paid to an employee of the Bank. The Board discussed the position on 17 October 1996. It accepted the position, but decided that "no other payment would be made in any circumstances". It was also decided that "Mr Tahmassebi will forfeit all rights towards receiving a retirement pension in Iran". This last point was, I am satisfied, not a high-handed act of expropriation. Mr Meskarian accepted in oral evidence that such "forfeiture" could only take place with the consent of the employee: and he explained (in a way I found at least understandable from the Iranian Board perspective) how the Board had at the time understood the settlement agreement to have had that effect. But the point is that thereafter the Bank did not in fact seek to forfeit Mr Tahmassebi's Iranian pension rights – on the contrary these were calculated and retained on his behalf.
37. In the event the Bank did not pay to Mr Tahmassebi the amount due to him under clause 1 of the Agreement within the prescribed 14 days. In consequence Mr Tahmassebi speedily commenced further proceedings, in the Mayor's and City of London Court on 24 October 1996 and received judgment for the sum due on 18 December 1996 (varied on 20 January 1997), which sum was then paid.
38. Unfortunately this still did not resolve matters. Mr Tahmassebi in early 1997 failed to make payment of instalments due under his Loan Agreement with the Bank. Correspondence ensued. By letter of 4 April 1997 Mr Tahmassebi referred to what he called his "pension salary" under paragraph 4 of the Agreement and asserted that under paragraph 5 the Bank had agreed "to deduct the mortgage loan instalments from my pension salary". He asked for a procedure for the remittance of his pension salary to be adopted.
39. On 19 September 1997 Mr Tarassoli wrote to the Bank in Tehran. He did so because, as he told me and I accept, he had been asked for assistance by Mr Tahmassebi and he wanted to help him. The letter was, as translated, in these terms:-

"Office of International Affairs

Subject: Residential Mortgage Mr Tahmasebi

Further to your letter reference 8734 dated 1 September 1997 relating to mortgage repayments by Mr Parviz Tahmasebi the ex manager of the London branch, we hereby notify you that further to the deed of compromise of the bank with Mr Tahmasebi, Bank Mellat London Branch is under obligation to seek the approval of the Bank's Board of Directors as regards the payment of the pension owed to Mr Tahmasebi in Iran. In its investigation on the arrears in payment relating to Mr Tahmasebi's mortgage, we have been informed by Mr Tahmasebi that since his pension benefits in Iran are not being paid, he is unable to make the required mortgage repayments. With reference to the decision of the Board of Directors relating to the deed of compromise which precludes any payments of retirement benefit for Mr Tahmasebi in Iran, would you please inform this branch of your position in order to avoid any misunderstanding on the part of Mr Tahmasebi and his nominated attorney and in order to show that the branch had done everything in its power in this case.

In any event in view of the mortgage agreement, it is thought that the situation will be settled amicably and this branch is pursuing the matter."

This request was rejected by Tehran by letter of 1 December 1997, in effect continuing the stance taken by the Bank on 17 October 1996. On 8 April 1998 Mr Tarassoli wrote to Mr Tahmassebi saying "this branch subsequently and in execution of paragraph No.4 of the above mentioned Agreement has made the necessary efforts"; and that the Internal Divisions Office "have expressed their disagreement with the payment of your pension salary".

40. In the meantime solicitors' letters were passing in England about the mortgage arrears. The Bank was threatening proceedings. On 30 April 1998 Mr Tahmassebi's solicitors wrote saying that if possession proceedings were taken he would defend and counterclaim for the pension monies due to him (put at £145,000 with continuing monthly payments of £5,216.36). On 12 June 1998 his solicitors wrote again pointing out that the Bank's solicitors had in their response of 29 May 1998 not denied that Mr Tahmassebi had an Iranian pension, and further saying that "our client's pension with Standard Life is strictly a matter between himself and Standard Life". As to Iranian pension payments, Mr Tahmassebi adopted a monthly figure of 472,205 Iranian Rials for the period 1962 to 1981. This was based on a calculation of the Bank of 11 August 1996. It is evident from the correspondence that Mr Tamassebi had been made aware (by a letter now lost) of the Iranian pension calculation relating to him made on 11 August 1996: which figures would connote, on conversion into sterling, a pensionable salary of around £100 per month and a pension of £62 per month. But in addition by his solicitors' letter of 12 June 1998 Mr Tahmassebi also claimed an Iranian pension for the period 1981 to 1 January 1996, based on his English earnings. The claim was reasserted by fresh solicitors for Mr Tahmassebi on 10 September 1998, and proceedings were threatened. In the event the correspondence fizzled out. Neither side took proceedings.
41. In the middle of July 2001 Mr Tahmassebi commenced drawing down his Standard Life pension (having deferred doing so in the interim).
42. In the meantime the accrued pensions of various ex-employees, including Mr Tahmassebi, in the absence of a designated savings account provided by them, had been from 1996 credited to a "Sundry Creditors" sub-account at the Bank in Tehran. On 18 July 2002, however, Mr Tahmassebi's pension payments were credited to a sub-account opened in his name. Mr Haghi explained to me why, under Iranian law and practice, that account was not interest-bearing.
43. On 29 April 2002 the London branches of Bank Tejarat and Bank Mellat merged and can, for the purpose of these proceedings, be taken then to represent the defendant Bank.
44. In 2005 Mr Tahmassebi had meetings with various representatives of the Bank. The issue of his pension and mortgage was again discussed. At a meeting on 19 August 2005 with Mr Meskarian, Mr Tahmassebi was told – for the first time -– of the designated account established in Iran containing his Iranian pension money (as calculated by the Bank). Mr Meskarian for his part was requiring repayment of the mortgage loan. On 26 September 2005 Mr Meskarian wrote in response to a letter from Mr Tahmassebi dated 19 August 2005. Mr Meskarian stated that Bank Mellat confirmed that his pension had regularly been credited in Iran to an account "and it is available to you at any time for collection". Mr Meskarian also confirmed the amount outstanding under the mortgage and noted that at the previous meeting of 19 August 2005 "you had also indicated to me that you are not interested in collecting your pension." Mr Meskarian offered to obtain information in relation to the pension and to inquire about having this set off against the loan; but stated that he needed specific authorisation from Mr Tahmassebi. That was not forthcoming; in fact it only was given on 28 February 2007, well after these proceedings were under way. There was further correspondence in 2006: Mr Meskarian queried among other things why Mr Tahmassebi was not taking steps to collect his pension in Iran.
45. In the event the present proceedings were started by Mr Tahmassebi by Claim Form issued on 18 July 2006.

The proceedings

46. The particulars of claim as amended allege that the Bank had failed to make any endeavour to secure payment to Mr Tahmassebi of that part of his lump sum and continuing monthly pension payments in respect of Mr Tahmassebi's Iranian pension. It was further alleged that it had failed to make any endeavour to secure payment of his Iranian pension to Mr Tahmassebi "in England as agreed …". Loss and damage was formulated on the basis of the average of Mr Tahmassebi's pensionable sterling earnings in the last 3 years of his employment, namely £86,070. Loss as at 30 July 2006 was put at some £795,000 with continuing monthly entitlements of £5,288.94 (credit against those figures being given for receipts from Standard Life). In his opening argument, Mr Dyer made some modifications to the sums claimed and indicated that no claim would extend to the period before 18 July 2000.
47. By its amended defence the Bank denied that Clause 4 of the Agreement, on its true interpretation, extended to an Iranian pension. It was further or alternatively said that Mr Tahmassebi was estopped by representation and/or convention from contending that on its true construction Clause 4 of the Agreement "was a reference to any Iranian pension": with particulars then given. It was further pleaded that in any event an accrued Iranian pension had been paid into a bank account in Iran which (and as offered before the claim was issued) Mr Tahmassebi could collect in person or by an attorney; that the best endeavours' obligation had thereby been satisfied; and that at the date of the proceedings there was no loss. Quantification and causation were denied, it being denied, among other things, that any Iranian pension entitlement could be calculated by reference to English (sterling) earnings. In addition, a limitation defence was raised.
48. The Bank also counterclaimed for repayment of the money due under the Mortgage Agreement, being £36,666.28 principal with contractual interest. As to this, an attempt to rebut this by raising the argument mooted in correspondence in 1997 by reference to paragraphs 4 and 5 of the Agreement was raised in the amended Particulars of Claim. But this plea was struck out by Master Foster on 9 February 2007 and judgment on the counterclaim was entered in favour of the Bank, not to be enforced pending trial of the remainder of the claim.
49. Although complaint on behalf of Mr Tahmassebi was made at trial of late or inadequate disclosure by the Bank, no adjournment was sought.

The Issue of Interpretation

50. Logically, the issue of limitation would seem to come first. But both parties dealt with it at last in their arguments and I therefore will also take it last.
51. The principles of interpretation in English law of written contracts are well established and have also helpfully been expounded in a number of relatively recent House of Lords' decisions. The Court's essential task is to ascertain the intention of the parties by reference to the words actually used in the contract, read as a whole, set in the context of the surrounding matrix of facts. Further, the Court will endeavour to construe an agreement so as to give rise to a sensible and commercial result, to the extent that the words of the contract permit. But evidence of subjective belief and intentions is not ordinarily admissible.
52. Mr Dyer submitted that Clause 4 of the Agreement referred and referred only to an Iranian pension payment; alternatively that it extended to both an Iranian pension and an English (i.e. the Standard Life) pension. Mr Samek claimed in reply that the alternative argument was not the case he had come to meet: but in my view it is certainly contained within the Particulars of Claim; has been the subject of the Bank's own evidence (to the extent relevant); and was an issue opened by Mr Dyer at trial. For its part, the Bank says that Clause 4 extends, and extends only, to the English (Standard Life) pension.
53. Mr Dyer made the following points:-

i) It is plain on any view that some matters which were included in the Agreement had not been an actual part of the Industrial Tribunal proceedings: see, for instance, Clauses 3 and 5.

ii) There are internal indications in the Agreement (for example in Clause 3) that reference back to Tehran would be needed: that at least is consistent with Clause 4 extending to an Iranian pension payment.

iii) To confine Clause 4 to the Standard Life pension alone meant the obligation would be if not otiose then at all events of only limited value: since all were agreed that securing payment of the English pension would be a matter between Mr Tahmassebi and Standard Life and need scarcely involve the Bank;

iv) There was no reason why Clause 4 should not extend to the totality of the pension arrangements.

v) The structure and wording of the Agreement shows that this agreement connotes the continuance of endeavours – it was not a one-off "draw the line" agreement.

54. Mr Samek submitted:-

i) The agreement means what it says: there is no reason to construe Clause 4 as extending to an Iranian pension. Had that been the mutual intention, the clause could and would have said so.

ii) The only pension which was the subject of the Industrial Tribunal proceedings (as recited in the opening introductory section of the Agreement) would be the Standard Life pension.

iii) On 19 July 1996 Mr Tahmassebi had himself made a witness statement stating that he had no Iranian pension. That was part of the matrix of facts in which the Settlement Agreement was made: and connotes that Clause 4 could not have been intended to relate to an Iranian pension. Nor was any mention made of an Iranian pension in the pre-settlement correspondence as disclosed. Further a lump sum (as referred to in Clause 4) will not ordinarily be payable under an Iranian pension.

iv) There could be some prudential value in ensuring (by Clause 4) the co-operation of the Bank with regard to Standard Life: for example, in providing any requested documents relating to earnings or the termination of the employment.

55. In addition a number of points were made which really involved going into the parties' subjective intentions and beliefs, which are not admissible for this purpose.
56. In my judgment, Clause 4, on its true construction, does extend to an Iranian pension.
57. The first point is that on any view Mr Tahmassebi did (objectively) have an Iranian pension, for the period between 1962 and 1981. He may have said in his witness statement that he did not have any Iranian pension payment (whether because he had forgotten it or regarded it as too insignificant). But that, in my view, does not advance matters very much, or at least as much as Mr Samek would have it: given that demonstrably the Bank itself had before 1996 been conducting itself on the footing that Mr Tahmassebi did have an accrued Iranian pension (indeed not just for 1962 to 1981 but for 1981 to 1996 also). Moreover the point of Mr Tahmassebi having an Iranian pension entitlement had been flagged up in the evidence served by the Bank before the Agreement was made (and reference had also been made by Mr Sabi, in his report on behalf of Mr Tahmassebi, to a lump sum payment, albeit from the employer). I find it puzzling that the Bank's argument can focus so heavily on Mr Tahmassebi's allegedly presumed state of mind at the time of the Agreement by reference to what he had said in his earlier witness statement – to the effect that he had no Iranian pension – whilst totally downplaying (on the same basis) the Bank's presumed state of mind by reference to what it had said in its own witness statements – to the effect that Mr Tahmassebi did have an Iranian pension.
58. Moreover, the Bank's submission is that the words mean what they say. But that is a very two-edged argument. If the words mean what they say, why should they not, ordinarily and naturally read, extend to Mr Tahmassebi's entire pension payments (English and Iranian)? There is certainly nothing in Clause 4 expressly to restrict it to the English pension only: and it makes sense for the Clause to extend to all pension payments (English or Iranian) that were or might be available. That is the more so when the Bank itself had been asserting an entitlement to an Iranian pension: it would make sense to cover that in the Agreement. Further the reference in the recitals to the Agreement to "pension discrimination" as one of the heads of claim in the Tribunal proceedings is demonstrably not directed specifically to the Standard Life pension.
59. Moreover such an interpretation not only yields a sensible result it also undoubtedly gives Clause 4 more business efficacy than if it were confined to the English pension only.
60. Thus, while I do not agree with the submission of Mr Dyer that Clause 4 extends only to an Iranian pension, I do not agree either with Mr Samek's submission that it extends only to an English pension. In my view, the Clause, naturally read according to its wording and set in the context of the surrounding circumstances, extends to all aspects of Mr Tahmassebi's pension arising out of his employment with the Bank (including its predecessors in title).
61. I was pressed with some of the pre-contract correspondence (including a selection of those which were privileged or which contained without prejudice proposals) as casting a light on the matter. In some respects this was an inadmissible approach; in others it was positively unhelpful since only part of such (privileged) correspondence was put before me. It is sufficient, I think, for me to say in such circumstances that, having considered that correspondence, I am in no way inclined to reach a view other than the one I have expressed above.
62. So far as concerns the attempt to access the parties' subjective intentions under the guise of pleas of estoppel by convention and/or representation, this in my judgment completely foundered. Indeed whilst the argument featured prominently in Mr Samek's opening written submissions, it was reduced to just one (final) paragraph in his very detailed closing written submission: and was in effect abandoned altogether in his closing oral submissions. I am not surprised. For one thing, as Mr Dyer crisply pointed out, if there was such a convention or representation as alleged the Bank did not act upon it: on the contrary it did (unbeknown to Mr Tahmassebi) exactly the opposite, in continuing to make payment to the BEPF in respect of an Iranian pension at a time when, to its knowledge, it was also making payment to Standard Life in respect of an English pension. That of itself seems fatal to such a plea. Moreover, the plea has no regard to the previous pension accrued between 1962 and 1981. Overall, having regard to the evidence, I am in no doubt that the estoppel plea fails.
63. In my view the present case is almost a paradigm example of an unhelpful, and ultimately fruitless, attempt (in a case where rectification was not pleaded) to explore the parties' alleged subjective intentions, involving attempted recollection and re-construction of what would or might have been in the minds of the parties (or some of them) at the date in question; and, predictably thereby creating a dispute as to what the subjective intentions were with regard to the meaning of a written agreement.
64. Given all this, it is not really necessary to make findings on much of the evidence as to intention which I heard. However, in view of the detail of some of it, I would briefly record the following findings:-

i) I am prepared to accept that, by the time of the Agreement, Mr Tahmassebi did believe – in the light of what the other side was saying – that he might have an Iranian pension payment (as, indeed, as a matter of fact, he did) in addition to his English pension for 1981 to 1996. I consider, all the same, that he did not at the time attach much weight to it: and I do not accept (in the absence of supporting evidence from his solicitor or contemporaneous attendance note, which was not forthcoming) his statement in paragraph 20 of his 3^rd witness statement that, during the course of the settlement discussions at the Tribunal hearing, he told his lawyers expressly that he wanted a reference to his Iranian pension included in the Settlement Agreement. I think that was erroneous reconstruction on the part of Mr Tahmassebi. He was unconvincing on the issue of when he first raised that point with them at all; he said (rather uncertainly) that it was shortly after receipt of the Bank's evidence, but if so there was then no obvious reason for him to raise the point with his own lawyers at the time of the settlement discussions, when they could be taken to have all the various points on board. Conversely, if he had not told them earlier, why should he, for the first time, on 4 October 2006? And, if he did, why should that not be expressly reflected in the drafting of Clause 4? I think, overall, the position was simply that Mr Tahmassebi thought no more than that Clause 4 extended to his pension rights whatever they might be.

ii) I think that is also so in the case of Mr Tarassoli (although as it happens I do not accept the Bank's seeming assumption that Mr Tarassoli's state of mind was the only relevant state of mind on behalf of the Bank to be inquired into). His witness statements were in effect focussed on expressing views as to what could be taken to have been in the parties' minds judging by the documents. Mr Tarassoli certainly understood Mr Tahmassebi to have the Standard Life pension. He himself had no precise knowledge at the time of what the Iranian pension position was (although the Bank in Tehran did). Mr Tarassoli knew of the evidence adduced in the Industrial Tribunal proceedings. In my view Mr Tarassoli had no clear belief or understanding at the time as to what Clause 4 extended to – I think that he in effect (and understandably) left it to the negotiating process and the lawyers. Moreover he too seems not to have applied his mind at all to any Iranian pension accrued between 1962 and 1981. Further, had Mr Tarassoli really thought that Clause 4 applied solely to the Standard Life pension I cannot think he could have written the letters of 19 September 1997 and 8 April 1998 in the form he did, even allowing for his desire to help Mr Tahmassebi and notwithstanding his attempted reconstruction and explanation in paragraph 8 of his first witness statement.

iii) Overall, if it were legitimate to have regard to the parties' state of belief and intention at the time as to what the Agreement meant – and in my view it is not – nothing in the evidence would lead me to a view contrary to the one I have reached as a matter of objective interpretation.

Loss

65. Nevertheless, I cannot see, on the evidence, that Mr Tahmassebi has proved any loss: even if it be accepted that for a period the Bank did not use best endeavours to secure payment to him of his continuing (Iranian) pension payments.
66. There is in these proceedings no dispute – and the Bank has never since the Agreement disputed - that Mr Tahmassebi was entitled to his Standard Life pension. That he has received and receives. There is no complaint of any want of endeavours on the Bank's part in that regard.
67. But so far as the Iranian pension payment is concerned, I find it impossible to accept Mr Tahmassebi's asserted entitlement, whether as put forward in his pre-action correspondence (in 1997/1998) or in his pleaded case or in his 4^th witness statement. It is obvious that Mr Tahmassebi seeks to apply Iranian pension law and practice to the payments he now seeks: but he does so by reference to the annual salary (averaged over the last 3 years of employment) paid to him in England in sterling. There is no precedent in Iranian banking practice for such a calculation. Indeed, as Mr Tahmassebi himself said in paragraph 9 of his 4^th witness statement, "I do not believe that there are any Iranian rules which legislate for the unique situation in which I was". He repeated this in cross-examination.
68. That really exposes this whole claim. If Mr Tahmassebi is to have the claimed entitlement it must have a legal basis. The Agreement and correspondence provide no such basis as advanced by Mr Tahmassebi. Mr Tahmassebi has adduced no expert evidence on Iranian pension law and practice to support his approach: and the expert evidence on the point which I did receive (from Mr Haghi both in his written evidence and in his oral evidence) wholly rejected such an approach. I accept Mr Haghi's evidence; and I reject the points made by Mr Tahmassebi in (for example) paragraph 10 of his 4^th witness statement. These points not only demonstrated the almost random conflation of Iranian and English pension rules but also are based on a misreading of Mr Tarassoli's letter of 28 May 1996, which clearly is solely referring to the Standard Life pension calculation. It is to be noted that on the basis there adopted by Mr Tahmassebi he would seem to accord himself a final annual pension equal to his final average salary of £86,070 (in addition, prospectively, to his Standard Life pension).
69. Pensions payable by BEPF at the time of Mr Tahmassebi's retirement were, as Mr Haghi explained, calculated in accordance with Article 1 of the Operational Procedure for the Harmonised Pension and Annuity Rule ("the Rule") adopted by the Council of Ministers as at 14 March 1995 (as amended). By the provisions of Article 3 of the Harmonised Pension and Annuity Rule ("the Law") of 14 September 1994, employees of organisations such as Bank Mellat are within the ambit of such Law: it is then left to the Rule to implement the provisions of the Law. By Article 1 of the Rule, pension is calculated by reference to the "mean value of related group's basic salary … and related job allowance based on education–certificates, years in service, positions held and past experiences … in the last three years of service …". Certain specific matters are then dealt with in Clauses 1 to 5 of the Article (as explained by Mr Haghi in his oral evidence expanding on and clarifying what he explains in paragraphs 3 and 4 of his 2^nd witness statement). Clauses 2 and 5 provide as follows:-

"CLAUSE 2 - Last three years of service are intended to mean duration of time when the employee was serving and benefiting from salary and job allowance.

CLAUSE 5 – Job allowance for those employees, who spent part or the whole of their last three years in service, on secondments outside the county will be calculated based on their last basic salary of related merit group in their last year of service defined and will be the basis for calculating their pension and disability allowance."

(I have also had regard to the translation offered by Mr Tahmassebi in his 4^th witness statement).

70. It was Mr Haghi's evidence that, for employees who spend their last years in service abroad, their pension is always calculated in Rials by reference to basic salary and job allowance (which is different from special allowances paid to employees for the expenses of living abroad and which are not taken into account for Iranian pension purposes) for an equivalent grade employee in Iran. That appears to accord with the Rule in the translation before me. Mr Haghi knew of no Iranian legal provision, and no example in practice, permitting an employee spending his last years abroad to receive such a pension by reference to any foreign salary. (Mr Meskarian's evidence was to like effect.) Mr Haghi further emphasised that employees must make contributions to the pension scheme to receive a pension.
71. There is nothing to controvert this. I can see no basis in law for Mr Tahmassebi in effect conflating aspects of the Iranian pension rules with aspects of his English pension entitlement. Yet further, Mr Tahmassebi seeks to advance a pension entitlement, on this hybrid approach, based on service from 1962 to 1996. But that cannot be right because:-

i) First, that involves him claiming (by reference to his English earnings) a pension entitlement for the years 1981 to 1996 when he himself, as he admits, made no contributions: and, as Mr Haghi explained, that is contrary to Iranian pension law and practice.

ii) Second, that involves him claiming (by reference to his English earnings) a sterling pension for the period 1962 to 1981 when on any view he was at that time being paid basic salary and job allowance in Rials, not sterling, and was making pension contributions in Rials and accruing a pension in Rials;

iii) Third, that involves him claiming (by reference to his English earnings) a sterling pension for the period 1981 to 1996 when he was already accruing the benefit of the Standard Life pension (paid for by the Bank).

72. As to this last point, Mr Dyer realistically acknowledged that there could not be double recovery. That is why, he said, Mr Tahmassebi gives credit for his Standard Life monthly pension receipts. But it is noticeable that Mr Dyer could identify no contractual or statutory obligation on Mr Tahmassebi to give credit for the Standard Life payments.
73. Having regard to the evidence adduced before me, and in particular that of Mr Haghi (which I accept), I conclude that Iranian pension law and practice provides for a pension to be calculated solely by reference to the corresponding Iranian salary (including job allowance): there is no legal basis for substituting an English salary paid under an ostensibly English employment contract.
74. Mr Dyer submitted (reflecting, I am sure, Mr Tahmassebi's own firm belief) that it would be "wholly unjust" to ignore Mr Tahmassebi's final salary position in sterling for the purpose of calculating his pension payment. But, no plea of estoppel being raised, a broad appeal to justice cannot controvert the need to establish a legal basis for the asserted entitlement. In any event I do not accept that such a result necessarily is "unjust". Mr Tahmassebi has received, through Standard Life, the applicable English pension benefits for the period 1981 to 1996. Further, he is entitled to receive the applicable Iranian pension benefits for the period of his Iranian employment between 1962 and 1981. It may be very unfortunate for him that the ravages of inflation and currency depreciation render such Iranian pension of insignificant value to him now: but it is not "injustice". Yet further, the Bank confirmed at trial that it will continue to maintain its offer to Mr Tahmassebi of the Iranian pension accrued for the years 1981 to 1996, even though strictly under Iranian law (as Mr Haghi and Mr Meskarian have said) he should have no such Iranian pension for such period, having paid no contributions, and even though he has accrued his English pension in that period.
75. It is true that the Bank did little between 1996 and 2005 to enable Mr Tahmassebi to obtain payment, or know of, his Iranian pension payment. But that is to be set in the context of his having been told (by 1997) of the Iranian pension calculated for him on 19 August 1996 and of his seeming lack of interest in getting payment of it: no doubt, because it was relatively so small compared to his sterling pension claims. But even if it be said that the Bank failed to use "best endeavours" in that time pursuant to Clause 4, it is the case that the relevant designated account was set up in July 2002; and it was confirmed by Mr Meskarian to Mr Tahmassebi that that was available to him in August 2005 (that is, before these proceedings were issued). Thus any past breach was nominal. If it be said that Mr Tahmassebi has lost interest (in the financial sense) on the sum in the intervening years then, first, to a great extent that is attributable to his own disinclination to seek such payment of the sum and, second, such putative loss must be more than covered by the fact that, as Mr Haghi and Mr Meskarian confirmed in evidence, the sum in the Iranian bank account included and includes the accrued Iranian pension not only for the years 1962 to 1981 but also for the years 1981 to 1996: even though Mr Tahmassebi strictly had no entitlement to an Iranian pension for that latter period.
76. Finally, as to payment, Clause 4 of the Agreement imposes no obligation to secure payment in England. Mr Haghi and Mr Meskarian explained (and I accept) that banking controls imposed by the Central Bank of the Islamic Republic of Iran do not permit the Bank simply to remit to Mr Tahmassebi's account in London the sterling equivalent of the Rial amount held in the account in Tehran. Mr Tahmassebi said that in practical terms he could not himself safely get to Iran to collect the money: nor could he appoint an attorney, as he did not now have an Iranian identity card or passport. No evidence on this last point from a consular official or independent lawyer or banker was produced. Mr Meskarian, an authoritative witness, said in evidence that any person of any nationality could appoint an Iranian attorney, and that the process was a simple one: and one of which he himself, in the course of his banking career, had experience. Mr Haghi gave evidence (for example in paragraph 9 of his 1^st witness statement) to similar effect, and indeed he was not challenged on it. I prefer their combined evidence to Mr Tahmassebi's on this: and conclude, on the balance of probabilities, that Mr Tahmassebi could appoint an attorney in Iran to arrange collection of his Iranian pension held in the designated bank account.
77. As to the amount held in the Bank account in Tehran, as I have said, Mr Haghi – although he personally did not, I think, make the relevant calculations – confirmed that it represented Mr Tahmassebi's pension "entitlement" (including the effectively gratuitous element for 1981 to 1996) for the entire period 1962 to 1996. However, the figures produced seem to have varied from time to time; and were by no means the broadly regular and uniform monthly payments, adjusted for annual inflation, which paragraph 7 of Mr Haghi's 1^st written statement would seem to suggest. Mr Haghi sought as best he could in cross examination to explain the various differences (including allowance for deductions and bonuses): but the matter remained rather obscure to me. He did in his first witness statement verify a figure as at March 2007 of 190,307,842 Rials (the current exchange rate being about 18,000 Rials to the pound, as I was told) as being the amount due to Mr Tahmassebi. Even so, I was left in some doubt. But the action before me is not an action for an account; and in any case since the figure includes the "gratuitous" element of the period 1981 to 1996 I cannot readily conceive that, even if there have been some inaccuracies, Mr Tahmassebi would be, in contractual terms, out of pocket. I repeat that, in my view, Mr Tahmassebi has not been particularly interested in the sum held in Tehran: just because it is, relative to the claim he has sought to advance in these proceedings, comparatively a very small amount in sterling terms.

Limitation

78. I will, given my conclusions, as set out above, deal only shortly with the limitation issue.
79. Mr Samek said that the obligation in Clause 4 of the Agreement was a "one-off" obligation, to be implemented within a reasonable time. Such a reasonable time, he submits, must have elapsed well before 6 years before the claim form was issued on 16 July 2006. Accordingly even if the claim were otherwise well-founded, it is limitation barred. He submits that the argument on behalf of Mr Tahmassebi that the obligation is a continuing one by reference to monthly pension payments confuses the nature of the obligation with what it is intended should be achieved by the performance of the obligation. He further submits that the obligation here simply required the initial submission of an application and documents to a third party (the pension scheme): and it is not be expected that ex-employer and ex-employee should be kept in a continuing (and perhaps very long term) contractual relationship by way of such an undertaking. Various authorities were cited, including Vai Industries (UK) Ltd v Bostock & Bramley (CA) [2003] BLR 359.
80. These were powerful arguments: but ultimately they did not persuade me . In my view Clause 4, on its true interpretation, did not simply contemplate a single attempt at satisfying the obligation. In my view it contemplated an ongoing obligation: as is borne out by use of the words "continuing pension payments" in Clause 4. Moreover, where (as to the Iranian pension) Mr Tahmassebi was in England and the state-owned Bank had its Head Office in Iran, that would make business sense. Further, the pension relationship between the Bank and Mr Tahmassebi was itself a continuing one (even though the employment had ended): since, as Mr Haghi said in paragraph 6 of his second witness statement, it is the practice of the BEPF to make the pension payments to the employer Bank for onward crediting to the ex-employee's account.
81. Accordingly I would not have ruled that this entire claim was statute-barred.

Conclusion

82. In the result, however, although I find in favour of Mr Tahmassebi on the issue of interpretation of Clause 4, I conclude on the evidence that he has not proved any breach of contract which has caused loss. This claim therefore fails. I will hear Counsel as to any consequential orders and directions that should be made, including as to costs.

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