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||Neutral Citation Number:  EWHC 2685 (QB)
||Case No: TLQ/13/1462
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||31st July 2014
B e f o r e :
MRS JUSTICE SIMLER
|| MR RUSSELL CHWEIDAN
||- and -
||MISCHCON DE REYA SOLICITORS
Mr Antony Sendall (instructed by Lyons Davidson) for the Claimant
Mr Nigel Porter(instructed by Robin Simon) for the Defendant
Hearing dates: 23, 24, 25 & 26 June 2014
HTML VERSION OF JUDGMENT
Crown Copyright ©
MRS JUSTICE SIMLER DBE :
- This is a claim for damages in contract and tort for professional negligence by Mr Russell Chweidan, the Claimant, against his former solicitors, Mishcon de Reya Solicitors, the Defendant. The claim arises out of underlying employment tribunal claims brought by the Claimant in 2008 against his former employer J P Morgan Europe Ltd ("JP Morgan"). The Claimant retained the Defendant to act on his behalf in those proceedings. Although the Claimant was initially successful in his claim of unlawful direct disability discrimination and unfair dismissal against JP Morgan and was awarded compensation in excess of £500,000, the unlawful discrimination findings were overturned on appeal. The Claimant failed in his claim for unlawful direct and indirect age discrimination and in a claim of disability related discrimination. The ultimate result of the proceedings brought by the Claimant against JP Morgan was an award of £68,000 odd in respect of unfair dismissal and a costs bill that exceeded this sum.
- In these proceedings, the Defendant admits breach in relation to its failure to lodge a cross-appeal to the Employment Appeal Tribunal ("the EAT") in time with the result that the Claimant was not permitted to proceed with that cross-appeal. Further, there are allegations of breach of duty and/or contract arising out of the alleged failure to advise on or explore the possibility of a claim based on failure to make reasonable adjustments under the Disability Discrimination Act 1995 ("the DDA") from the outset or at any other time that would have enabled such a claim to proceed in the employment tribunal. Causation and loss are denied.
- The Claimant has been represented before me by Antony Sendall and the Defendant by Nigel Porter. I am grateful for their cogent and helpful submissions.
- I deal first with the facts and some preliminary points in relation to credibility. Where there are factual disputes I set out my conclusions on those issues. Secondly, I deal with the legal framework. The legal principles that apply in this case are well established and not in dispute. It is their application to the facts that is in issue. Finally I address the question whether or not the disputed breaches of contract or duty have been established and whether any breach of duty has caused loss, and if so, I assess its value.
Witness Credibility and Comment on Documents
- I heard evidence from Russell Chweidan, referred to as the Claimant, and from James Libson and Laura Garner of the Defendant. I was also provided with 10 leaver arch files of documents relating to the underlying employment litigation and to this claim.
- Both sides challenged the credibility of the other side's witnesses. Subject to two points referred to below, I am satisfied that all witnesses were endeavouring to give a truthful account of what occurred. I was particularly impressed by Ms Garner who had the clearest recollection of the development of the Claimant's case and a good understanding of the facts and issues the Claimant was raising at each of the various stages. It is inevitable however, and this was frankly accepted by both Mr Libson and Ms Garner, that their recollection of events was adversely affected by the passage of time. In the Claimant's case, I consider that hindsight has led him to have a recollection of the initial instructions and information he gave to the Defendant that does not altogether accord with what happened at the time; and that he has persuaded himself of the truth of certain matters which I have not found to be the case. Consequently where possible I have placed significant reliance on contemporaneous documents. The two points referred to, concern firstly, suggestions made for the first time in cross examination by the Claimant that Mr Libson and/or Ms Garner had fabricated the content of certain attendance notes of discussions with him during the course of the Employment Tribunal hearing. I am satisfied that those allegations are without foundation and ought not to have been made by him. Secondly, the Claimant denied receiving pessimistic advice on the prospects of his cross-appeal during a telephone conference with Mr Libson and Mr Sheldon, thereby challenging as dishonest the evidence given by Mr Libson to this effect. Once again, I am satisfied that he is wrong about this and I accept that a negative view of the cross-appeal was formed contemporaneously and communicated to him, although it is not clear when this was done, as appears below.
- So far as concerns notes of meetings and attendances on the Claimant which were the subject of much criticism on the Claimant's behalf, I am satisfied that the manuscript notes made by Laura Garner capture broadly the discussions had with the Claimant and the advice he was given. I accept the Defendant's evidence that there would be additional costs to the client for typing up such notes and that this would have been undesirable to the Claimant, who was particularly conscious of costs in circumstances where these were not recoverable even were he to succeed. I am also satisfied that there is nothing unusual or sinister in the fact that attendance notes of discussions during the course of the Employment Tribunal hearing were typed up on 17 December 2008. It is clear that an issue had arisen as to the Claimant miss-recollecting advice he had been given on settlement and in those circumstances, in the heat of tribunal proceedings where advice was being given quickly and reactively, there was nothing unusual or sinister in the Defendant ensuring that such notes of the advice being given on settlement should be carefully recorded. I am sure that before these proceedings were commenced the Claimant accepted that the typed attendance notes reflected advice given at the time. This led him to abandon allegations made in the draft particulars of claim about the failure to advise on bettering the settlement offers from JP Morgan, when the particulars of claim came to be finalised and served. He made no challenge to the validity or accuracy of these documents until he was cross-examined about them.
- The Claimant was employed by Robert Fleming and Co-Ltd in November 1994 and remained employed by that firm until 2000. Following an acquisition followed by a merger in early 2000, the Claimant became an employee of JP Morgan.
- In 2005 he moved to Structured Credit Sales where he worked for Ian Slatter. He was awarded a bonus of $250,000 but was unhappy with this award. He states that he had been led to believe that he would receive between $350,000 and $450,000 by Mr Slatter. He understood from Mr Slatter that generally, the bonus provided would be around 5% of the credit sales made. This could be adjusted downwards where the credits came from the JP Morgan franchise or upwards for business with new clients or new products. When a colleague with whom he worked left in mid-2005, he was replaced by a salesman called Anthony Berger (described by the Claimant as much younger than himself). The Claimant states that Mr Slatter gave all the biggest hedge fund accounts to Mr Berger and when questioned about this, was told that Mr Slatter expected more from Mr Berger than from the Claimant himself. The Claimant states that Mr Berger was expected to produce sales credits of $15 million whereas he was expected to produce $5 million of sales credits for 2006.
- In fact, the Claimant earned $17 million of sales credits during 2006, whilst Mr Berger earned $5 million for that year. In addition he states that his sales were obtained from new accounts and in new business areas. Despite this, for his work in 2006 he was awarded a bonus of $798,000 and once again, felt that this did not reflect his successful sales and achievements in that year. He states that Mr Slatter informed him that the discrepancy in the bonus would be rectified if he could show that it was not a one-off, by achieving the same target in 2007. He was promoted to Executive Director in the Hedge Fund Sales Team soon after his bonus award.
- The Claimant's appraisals for 2005 and 2006 identified the need for product development as a key area and, in particular in 2006, an over dependency on client P and the need to diversify his revenue base.
- On 25 March 2007 the Claimant was involved in an accident on a work skiing trip which resulted in serious injury to his thoracic spine. He spent two weeks in hospital but throughout that period was available for contact with clients and his employer via email and telephone. He spent a month recuperating at home following his release from hospital, working from home as far as possible during this period. The Claimant returned to work on 24 April 2007, on a phased return basis. Initially he worked mornings only but by the end of 2007 he was able to work at the office from 8am until around 3 or 4pm. While at work he wore a back brace and was often in severe pain, taking regular medication. Once at home in the late afternoon he would continue working as far as possible.
- Two occupational health assessments were conducted by JP Morgan during this period: the first in August 2007, and the second in January 2008. The initial assessment dated 7 August 2007 stated that the Claimant was expected to make a full recovery and was not considered a disabled person for the purposes of the DDA. It suggested that the Claimant work reduced hours and that the employer continue to provide a taxi for him. The later assessment, dated 22 January 2008, conducted by Dr Jill Hazlehurst, informed JP Morgan that the Claimant was "now" disabled within the meaning of the DDA; that his condition substantially affected his day-to-day activities; and he was likely to experience discomfort for the foreseeable future. Dr Hazlehurst made a recommendation that the Claimant be given flexibility in relation to his finishing time at work but made no other recommendations for adjustments to be afforded him by his employer.
- In spite of continuing pain and discomfort experienced following the accident and the fact that he was working reduced hours, the Claimant was nevertheless able to generate a total of $24.6 million sales credit which was a significant increase on the previous year. He states that during 2007 there were several reorganisations of account coverage between salespeople on the desk. He identifies three accounts transferred to him as a consequence, but states that only one, client R, was a good prospect.
- The Claimant had a meeting with James Hayward, Managing Director and Head of Hedge Fund Credit Sales, on 22 January 2008, to discuss bonus awards. Mr Hayward told the Claimant that JP Morgan intended to "look after the junior guys" and that discretionary bonus awards would be "skewed towards the more junior members of the team".
- On 23 January 2008 the Claimant was informed of his bonus award for the year 2007. The award announced to him was for $450,000 which was some $348,000 less than the previous year. He was not given a detailed explanation for the bonus level and was disappointed with it. On 8 February 2008, Mr Hayward sent an email to the Hedge Fund Sales Team setting out a reallocation of accounts within the team. The reallocation resulted in the Claimant losing an account and gaining no new accounts. On 18 February 2008, the Claimant attended a meeting to discuss the accounts allocation issue.
- On 19 February 2008 the Claimant was called to a meeting with James Hayward and was informed that he was at risk of redundancy. He was not told the basis for his selection and the letter from JP Morgan confirming the fact that he was at risk simply refers to a reorganisation of the Hedge Fund Credit Sales Team within the Europe Sales business. Later that day in a meeting with Mr Slatter and Mr Hayward, the Claimant states that Mr Slatter told him `that JP Morgan was "looking forward, not backward" and that he would be taking a bet on the "younger, more junior" employees. The Claimant was put on garden leave at the end of the day as standard procedure.
- On about 26 February 2008 the Claimant instructed the Defendant in relation to his employment with JP Morgan, and he attended a meeting at the Defendant's offices on 27 February 2008. There are manuscript attendance notes of that meeting which set out the Claimant's account of his employment with JP Morgan since early 2005. Whilst not a verbatim note, I am satisfied that it accurately reflects the main points made by all attendees. In particular, the Claimant gave an account of his employment history, and career progression. He described his skiing accident and the phased return to work that followed and that his award for 2007 had gone down despite having finished the year with in excess of $20 million to his name. He was told that sales credits did not matter and that the bank was focusing on "looking after juniors".
- The Claimant told Mr Libson and Ms Garner that he had been targeted for redundancy once he had been identified as a disabled person and that this was also the reason for his low level of bonus. In particular he said words to the effect that he had only been marked down for bonus because he was vulnerable to it in the sense that he could not leave to get another job because he was unable to work full-time. It was not therefore necessary for the employer to pay him at a higher level in order to retain him. The Claimant made the point that he had performed extremely well during 2007 despite his being disabled.
- Although the Claimant has complained in evidence that he was not provided with advice on any potential failure to make reasonable adjustments and nor was he advised to raise the possibility of further adjustments being made, I am satisfied that there is nothing in the notes of the meeting to suggest that he told the Defendant that his performance at work was hampered or that he was disadvantaged in relation to his performance and targets by his injury or inability to work full hours. Rather, his view was that the reverse was the case, and that is what he told Mr Libson and Ms Garner.
- Mr Libson set out the options for the Claimant and he was told (as was the case) that he would have to submit a written grievance to JP Morgan if he was thinking of bringing a legal claim in the Employment Tribunal. This was because at the time the Statutory Grievance Procedure pursuant to the Employment Act 2002 (Dispute Resolution) Regulations 2004 were in force. These required a potential claim to be the subject of a statutory grievance prior to any complaint being advanced in the Employment Tribunal and meant that an Employment Tribunal would have no jurisdiction and no discretion to hear a complaint that had not previously been the subject of a grievance.
- The following day, by letter dated 28 February 2008 from the Defendant to the Claimant, Mr Libson recorded his understanding of the Claimant's position consistently with the information he had been given in that meeting. In particular Mr Libson recorded his understanding that the Claimant had performed extremely well in 2007 despite his injury but was awarded a bonus of only $450,000. JP Morgan had said that this was due to various factors; mainly that the traders had had a bad year and that the Company had decided to focus on junior members of staff. In his 2007 review, he had been ranked lower than in 2006 despite his strong performance. However he had agreed with his manager that it may be better to focus on a certain type of account. Instead of switching accounts amongst colleagues as had been agreed, the manager had arranged for accounts to be taken away from the Claimant. When he queried this the Claimant was told that he had been placed at risk of redundancy. The letter explains that the Claimant's "biggest potential claims against the company were for Disability Discrimination and possibly Age Discrimination" because there was no cap on compensation for either of these claims. However he was advised that the costs incurred in pursuing a tribunal claim are substantial and irrecoverable. The letter records that the Claimant was not averse to the idea of pursuing a claim but would prefer to use this threat to persuade the Company to negotiate over a suitable exit package. Mr Libson advised drafting an email asking questions about the procedure used to select the Claimant for redundancy and suggested that he should then raise a grievance with the Company raising various complaints in connection with his treatment. The Claimant had been advised in the meeting that he would have to bring a grievance prior to bringing any legal claim.
- With the assistance of the Defendant, a number of emails were drafted seeking information why the Claimant had been selected above others and what criteria were used to select him for redundancy. By 6 March 2008 he had asked JP Morgan three times for written answers to these questions and had been refused three times.
- On 6 March 2008 the Claimant met with Mr Slatter and Mr Hayward. He emailed Mr Libson and Ms Garner soon after that meeting setting out what he had been told. So far as the need for redundancies was concerned, Mr Hayward was looking at the whole of the Northern European Sales Team. Looking forward and judging the business prospects overall he had decided it was the right thing to make some positions redundant given the business opportunities going forward. So far as criteria for selection were concerned the Claimant recorded being told that there were less experienced, lower titled people that could do the Claimant's job as well, if not better than him, and that they were resourcing appropriately for the opportunity and balancing the perceived technical skill set and breadth and depth of client relationships against seniority. In answer to the question why his position had been selected above others, the Claimant said he was told that his accounts were being covered by associate/analyst level salespeople who had better technical skills than him.
- The Claimant instructed the Defendant to prepare a written grievance on his behalf. A letter was accordingly drafted and its accuracy was checked by the Claimant. A final version dated 14 March 2008 was sent to Ian Slatter. The letter is consistent with the position adopted by the Claimant. It said that despite the effect that the injury had had on his ability physically to attend work, he had tried his utmost to ensure that it had not impacted any more than necessary on the work carried out for the bank. His sales credits were an improvement on his 2006 performance; and he stated expressly that his performance in 2007 was even stronger than the year before. As a result of this he was both surprised and disappointed that his role was potentially redundant. The letter goes on that the answers he had been given in the meeting on 6 March 2008 had done little to ease his concerns that both his age and disability had counted against him during the selection process; "in fact they convinced me that this was the case, since your answers seemed to revolve around the fact that more junior employees were valued more highly in the bank than I was. (I note that in this meeting they were described as lesser-titled salespeople.)"
- A grievance meeting was held on 7 April 2008, attended by the Claimant. A non-verbatim summary of that meeting was subsequently provided to him and approved by him as an accurate note. The following points of significance made during the meeting are recorded:
- During 2007 RC said he had tried to increase his hours as quickly as he could and by year end he was leaving the office between 4 and 5 PM, albeit some days he still left at three if he had a medical appointment
- RC said he was able to maintain client accounts, he found prospecting new accounts more difficult due to the reduced hours he was working.
- During his appraisal discussion in early 2008 RC said it was discussed that he needed to diversify his client base away from client P and he acknowledged this.
- With regards to his discretionary bonus award in 2007 RC said "he had made the following assumptions; that he had not been working a full day, that he did not consider himself to be 'very marketable', that he thought he was an easy way to save money, the market conditions had not been favourable and that it was 'easy to pay him less'.
- RC said he was surprised to be asked to attend an OH assessment in January 2008 because he was working full-time by then. "RC said that he had agreed with OH that the only reasonable adjustments necessary were already in place; flexibility with his working hours to attend medical appointments.
- In relation to his selection for redundancy, RC said he was advised "the bank was not making as much money, the business needed to reduce headcount, RC's accounts could be covered by other members of the team and that he would not be replaced."
By letter dated 21 April 2008 JP Morgan offered the Claimant compensation of £120,316 in respect of redundancy. This was a standard redundancy offer by reference to the Claimant's length of service. The Claimant told me that he was advised to reject this offer on this basis and was given the impression that he would be getting a lot more as a result of his claims.
- "RC said he thought his discretionary bonus award was related to age and his disability. RC said that he believed that this "same mix" contributed to the decision to place his role "at risk". RC said that he thinks that when he did not leave the bank following the communication of his discretionary bonus award that his role was placed "at risk". RC said that he did have less accounts than his colleagues and he wasn't always there to be able to close trades at 7pm at night. RC said that he understands the logic and he thinks this was applied to his situation and in part agrees."
By letter dated 2 June 2008 the Claimant's grievance was not upheld by Stephen Dulake of JP Morgan. The letter explained that discretionary bonus awards could vary significantly from year to year, dependent upon certain factors. Given the extreme market conditions during 2007, the discretionary bonus pool across JP Morgan was significantly down compared with 2006. The letter identified broad factors relevant to the assessment of discretionary bonus: reviewing historical client revenues, future client revenue potential, the diversity of client base and the quality of client revenues, individual contribution and relative performance versus peer group derived from the year-end evaluation committee, management and peer feedback. It explained that whilst the Claimant met expectations during the performance year 2007 in terms of sales credits, these were predominantly generated from one client and that the Claimant had been consistently advised to diversify his client base in order to diversify his client revenue stream; but remained over reliant on a small number of clients producing high revenues and was viewed as a "one account sales person". The letter continued:
"You also explained during our meeting that following your return to work, you were able to maintain client accounts but found prospecting new ones more difficult due to the phased return to work hours that you were working. Having spoken at length with Ian and James, I believe that you had the opportunity to prospect new clients whilst you were working reduced hours. I also find that you were told on a number of occasions to delegate the more time intensive and less technical tasks (e.g. the basket breaking lists) associated with [client P] to more junior members of the team to enable you to spend the time managing the client relationship and diversifying your client base. In our meeting you advised me that during your year end review with James he had given you the feedback that as an ED you should not be doing lists of the [client P] account and that you were told to give this task to other team members. You also said during our meeting that you had advised James that these types of tasks could not be delegated to more junior members of the team which I find not to be the case".
So far as redundancy was concerned the letter stated that there was a genuine business reason for placing the Claimant's role at risk of redundancy, namely the significant downturn in the credit markets. This meant the business was looking for sales coverage to focus on the broad range of credit products rather than specialise in certain credit products within the credit market. Mr Dulake understood that the Claimant's role within Hedge Funds Credit Sales specialised predominantly in Structured Credit products reflecting his skill and experience, but considered that a need for a more generalist approach, selling the broad range of credit products within the markets to clients was required.
The letter made direct reference to the bank's obligation to consider reasonable adjustments in facilitating a disabled employee's return to work. In this context the letter stated that both the OH reports on the Claimant's case had confirmed that he was able to continue his current role by working reduced hours and that for a period of 10 months the bank had paid for taxi transport to and from work. The letter recorded that during the meeting the Claimant had acknowledged that he agreed with the OH recommendation that no other reasonable adjustments apart from to working hours were necessary.
The Claimant appealed the grievance decision by letter dated 6 June 2008. Although the letter was drafted by Ms Garner, I am quite sure that there was significant input from the Claimant and that the letter reflected his ongoing instructions and view of the case. In that letter, he identified several factual inaccuracies in Mr Dulake's findings. In particular:
- In relation to 2007 bonus he stated "I was asked to diversify my revenues and I did so, increasing my non-client P revenues by over 50%…"
Notably he did not seek to challenge Mr Dulake's finding that he had had the opportunity to prospect new clients even whilst working reduced hours; and had been told to delegate the more time intensive and less technical tasks associated with [client P] to more junior members of the team to enable him to spend time managing the client relationship and diversifying his client base.
- In relation to selection for redundancy he stated "Stephen states that I was selected for redundancy primarily because of a desire to have salespeople selling a broader range of products. A rudimentary analysis will show that I did indeed sell a broad range of products (and not just to client P).
The concluding paragraphs of the appeal letter state: "I believe that, as an older employee in a young environment, and one who cannot currently work the same long hours in the office as I used to because of my disability, I was seen as a prime candidate for redundancy selection. In conclusion, from the treatment I have received from JP Morgan in the last year, I am led to believe that the intention was to force me out of the business because of my age and my disability, firstly by underpaying me in my IC (discretionary bonus) and then by selecting me for redundancy."
The appeal meeting had not taken place by the time the first originating application (which had to be issued within three months of the 2007 bonus award, announced on 23 January and paid on 1 February 2008) was drafted and lodged on the Claimant's behalf in the employment tribunal.
The originating application (or ET1) was drafted by Ms Garner and approved by Mr Libson and the Claimant. It was lodged on 20 June 2008. Before that, there was a meeting on 16 June 2008 (reflected in the timesheets of Laura Garner and James Libson) between Mr Libson, Ms Garner and the Claimant. There is no note of the meeting and none of the witnesses had any specific recollection of this meeting but it is likely that the draft ET1 was discussed. Mr Libson accepted that the claims advanced in the ET1, namely unfair dismissal, unlawful direct age and disability discrimination, and disability related discrimination were each properly arguable.
The pleading made no claim based on any asserted failure to make reasonable adjustments contrary to the DDA. The Claimant told me that he had by that stage received no advice in relation to any such claim. With hindsight he finds that position surprising. Had the Defendant concluded that it could not be certain that a reasonable adjustments claim would succeed he would have expected such a claim to have been at least pleaded given the low risk of costs in employment tribunal proceedings. In any event he says, it was a claim that should have been included as demonstrated by the fact that an application to include such a claim was made subsequently. I return to this point in my conclusions, but observe that the Claimant's response to the grievance outcome is inconsistent with any factual basis for a reasonable adjustments claim.
The grievance appeal meeting took place on 24 June 2008. Once again a non-verbatim summary of that meeting was produced and approved by the Claimant. The following passages from the note are of particular relevance:
- RC said he had a couple of extra accounts in 2007 and his production had increased from about 17,000,000 to 25,000,000 and became more broad. Client P was a lower percentage… RC said that in his reviews in 2007 JH stated that he wanted to see RC pushing more new clients.
- RC said he was unable to work the typical 7am to 6/6.30pm that he was doing before his accident.
- Asked about his development areas and whether he had increased his account breadth, "RC said he was getting his other accounts to do more so he did feel he met expectations". RC went on to say that if he had been selected for redundancy because it was thought he had focused too much on one client account, this should have been mentioned to him at some point through the process as being a massively important point, but it had not been mentioned to him.
- Asked about whether diversifying his revenues had come up in his reviews, RC said that it had come up, and "he had made a dramatic increase in his other accounts and that he was managing to do that as well as making sure that any money they had on the table from client P was used".
On 25 June 2008 there was an important development in the law relating to disability related discrimination. The House of Lords judgment in Mayor and Burgesses of the London Borough of Lewisham v Malcolm  UKHL 43 was promulgated. Although this was not an employment case, the House of Lords held by a majority that the Court of Appeal had been wrong in their analysis of disability related discrimination in Clark v Novocold Ltd  IRLR 318. The HL held that if the employer would have treated a non-disabled person in the same way as the disabled complainant, there could be no disability related discrimination. Disability related discrimination could only be established if a non-disabled person would have been more favourably treated in the circumstances. If a non-disabled person would be treated differently and more favourably then that is also direct disability discrimination. Accordingly, the effect of Malcolm was virtually to eliminate the concept of disability related discrimination as a free-standing ground of discrimination. Although some commentators doubted that the reasoning in Malcolm applied equally to disputes in the employment field, the better view (adopted by a significant body of employment lawyers) was that there was no basis for a contrary conclusion (as was subsequently established).
- In relation to 2007 bonus the Claimant said he "had a big business going forward and said that some other areas did not. ….RC said that this was the second year that he had still not received what he felt he deserved and had been led to believe he would receive. RC said he believes they plan to underpay him to see if he would leave as this would be cheaper than making him redundant. RC then said when he fail to leave he now feels that they had no choice to make him redundant and this led to him being put at risk on 19 February 2008."
The Claimant became aware of the judgment in Malcolm as a result of reading an article published on 9 July 2009 on the Defendant's website. At some point between 9 July 2008 and December 2008, the Claimant spoke to Ms Garner and asked her whether Malcolm posed any difficulty in relation to his claims. Ms Garner recalls two separate telephone calls in relation to the article. In the first, the Claimant was annoyed that he had not been told about the Malcolm case. Ms Garner read and considered the article. Her understanding was that his primary claim was a claim based on unlawful direct discrimination and that it had not previously been suggested that he was being disadvantaged in the context of bonus or selection for redundancy in a way that would give rise to a claim based on failure to make reasonable adjustments, but it was appropriate to reconsider the position and she did so. From what she had been told, JP Morgan had done much to accommodate the Claimant at work after his accident and he appeared to have had no complaints about that. She was not able to identify anything else that the employer ought to have done but had failed to do in this context. Ms Garner spoke to Mr Libson about the situation because the Claimant seemed annoyed. She explained the situation and her view. Mr Libson told her to call the Claimant back to say that they had thought about the Malcolm case but that it did not affect the strategy and that they would tell the Claimant if there was anything he needed to know. As a consequence, there was a second call in which Ms Garner told him this without going into any detail and sought to reassure him.
It is unsatisfactory that there is no telephone attendance note of either conversation. Nevertheless, I accept that this is broadly what occurred because it is consistent with the understanding both |Ms Garner and Mr Libson had of the Claimant's case at the time. It reflects what he was telling them and what he told JP Morgan during the grievance process.
The Claimant's dismissal on the grounds of redundancy took effect on 14 July 2008. The Claimant was not advised to raise a further grievance and no further grievance was discussed with him at that stage.
By letter dated 2 September 2008, JP Morgan wrote rejecting the Claimant's grievance appeal. There was little or no new information provided by JP Morgan in relation to the selection criteria and factors relevant to assessment of 2007 bonus. So far as concerned redundancy selection, Mr Lee Cook, Managing Director, stated that he had looked at further analysis of the Claimant's client coverage and noted that he was heavily reliant on one account, the other accounts making up a very small percentage of revenue, which differentiated him from his peer group. Further, in reviewing the needs of the business going forward, management was looking for sales coverage across the broad range of credit products; the Claimant specialised in structured credit products; and generalists with wider skills were considered more appropriate for the business going forward. So far as concerned 2007 bonus, Mr Cook stated that in addition to quantitative aspects of individual performance, qualitative elements are just as important and these include the diversity of the individual's client base. He understood from comments made by the Claimant and from speaking to his managers that he had been advised on several occasions to diversify his client base and client revenue stream. It was therefore his view that the Claimant's client mix and over reliance on one account was legitimately factored into the determination of his 2007 bonus award. The appeal was rejected.
By a further ET1 dated 16 September 2008, again drafted by Laura Garner and approved by the Claimant, a further claim was raised on his behalf complaining of unlawful age and disability discrimination in relation to dismissal on the same basis as had been raised in relation to bonus. The claim of unfair dismissal was also made. Again all claims were regarded as properly arguable by the Defendant. Once again there was no allegation of any failure to make reasonable adjustments contrary to section 4A DDA in relation to the Claimant's selection for redundancy and dismissal on that basis.
A questionnaire was prepared at the same time, again approved by the Claimant. At paragraph 5.33 it recorded the Claimant's belief that Ian Slatter and James Hayward decided jointly that the Claimant's age and disability were a hindrance to the team; that the future lay purely with younger more junior sales people being brought up through the ranks in their eyes; the Claimant's sales credits were strong and his clients approved strongly of him; the Claimant acted as product spokesperson on new products and yet was made redundant and underpaid. It concluded: "I therefore believe that JP Morgan tried to get me to leave by underpaying me my bonus in 2007 and when I didn't leave, they decided to make me redundant despite my performance in 2007." This reflected the Claimant's continuing belief, no doubt communicated to the Defendant, that his performance in 2007 had been extremely good. The questions asked of JP Morgan were targeted at identifying factors relevant to the assessment of bonus and his selection for redundancy. The Claimant accepted that relevant information on these important issues had still not been provided by JP Morgan.
There was a case management hearing in the employment tribunal on 17 October 2008 when directions for future conduct of the claim were given and the hearing was listed to commence on 8 December 2008. This was an unexpectedly tight timetable, given that disclosure had not yet been given. The list of issues drafted by counsel instructed on behalf of the Claimant on that occasion was agreed between the parties. There is no dispute that counsel did not flag up any need to amend the claim to advance a claim based on failure to make reasonable adjustments; but nor was she instructed to review the pleadings to identify whether all possible claims had been pleaded.
On 20 October 2008 there was a meeting between the Claimant and Mr Libson and Ms Garner. Mr Libson expressed the view that the pleadings served by JP Morgan were hopeless. He explained that the case would depend on who was believed and that the Claimant's account was supported by contemporaneous notes. His view as expressed was that the position on liability had improved and the case was winnable. However, on quantum the position was worse because the market had collapsed. The desired strategy was still to engineer a settlement but JP Morgan was showing no inclination to engage and Mr Libson felt that the Claimant would have to take the initiative. So far as likely settlement was concerned the note recorded that the current offer was a standard offer based on length of service and that they were hoping for two years' compensation. I accept Ms Garner's evidence that this was not an indication of the value of the claim or even an indication of what might be achieved. Rather this was based on what the Claimant had said he hoped to achieve.
On 24 October 2008 JP Morgan's solicitors wrote to the Defendant stating that they did not wish to participate in a judicial mediation in relation to the Claimant's claim.
The Claimant served a schedule of loss in the employment proceedings on 31 October 2008. Mr Libson gave the Claimant guidance on what information was needed in order to prepare the schedule and a formulaic spreadsheet by reference to which he could produce a draft. The draft schedule produced on 30 October 2008 identified a loss of £15 million. This was regarded by both Mr Libson and Ms Garner as a vast over-estimate and, as Ms Garner said in the email at the time, "far in excess of what [the Claimant] could hope to achieve even in your best case scenario". Ms Garner warned him that putting forward such a high figure could harm his chances of obtaining a reasonable settlement offer. A further version emailed on 31 October 2008 by the Claimant to Ms Garner suggested a total loss before uplift of £3.9 million. Once again this was regarded as substantially too high by Ms Garner and the schedule ultimately served on 31 October 2008, identified a figure for total loss just in excess of £1.1 million. At that stage Ms Garner said, and I accept that there was no material by reference to which an assessment of loss in relation to bonus (which was likely to be the largest component in any award if successful) could be made – there was no comparator information in relation to bonus awards made for 2007.
Ms Garner spoke to the Claimant to obtain instructions from him as to the level at which she was prepared to settle. The Claimant indicated that he was willing to accept £1 million in compensation together with legal costs and unvested stock. Having obtained these instructions, Ms Garner contacted JP Morgan's solicitors to discuss settlement. The response to her offer was that there was "no way they will pay a million or anything like it".
There was a telephone call between Mr Libson and the Claimant on 13 November 2008 but no note was made of that call. Mr Libson has no independent recollection of what was discussed and Ms Garner was unable to assist.
By letter dated 17 November 2008 JP Morgan served a response to the questionnaire. The following day, on 18 November 2008 disclosure was given by JP Morgan. On 19 November the Claimant attended the Defendant's offices in order to consider the material provided by JP Morgan. I am satisfied that Ms Garner met him initially in the morning and then left him to go through the material. Later that evening at 7:17 pm the Claimant set out in an email to Mr Libson and Ms Garner the significant matters he had found in the disclosure and questionnaire response. Nothing in that email identifies a factual basis for a reasonable adjustments claim.
By letter dated 19 November 2008, a without prejudice offer of £120,000 together with a payment of legal fees up to £20,000 and permission to retain restricted stock was made by solicitors acting on behalf of JP Morgan. The Claimant's case that he would have received a bonus of $1 million absent the alleged discrimination was described in the letter as "fanciful". The Claimant complained in evidence that there was a failure to provide him with sufficient advice in relation to this offer. In particular, he was not advised of the difficulty he faced in establishing direct and/or disability related discrimination and of the merits of the offer in that context. In fact what happened is that a draft without prejudice letter to JP Morgan was prepared in response, also dated 19 November. The letter referred to a number of documents produced on disclosure that were helpful to the Claimant's case – described in these proceedings as the "smoking gun emails" – and invited a sensible settlement offer. Secondly, a telephone conference with the Claimant took place on 21 November 2008, attended by Mr Libson and Ms Garner. Mr Libson explained that there would be no progress with without prejudice discussions until trial and that the only thing they could do was to show that they were committed to the process. There is nothing in the note of that telephone conference to indicate that the Claimant had any interest in accepting an offer at that level; nor did he ask for specific advice on the merits of that offer in the context of his case as it was then viewed. This is unsurprising in the circumstances: disclosure had just been provided and was being considered; there had been no exchange of witness statements; and no material relating to comparator bonus awards had yet been provided.
On 21 November 2008 Ms Garner sent specialist employment counsel the papers in the Claimant's case, together with the questionnaire response and disclosure material in order that he could prepare a first draft of the Claimant's witness statement. A first draft was produced by him as a starting point for further work and sent to Ms Garner by email dated 25 November 2008. Counsel set out a number of points that he thought should be brought to Ms Garner's attention including gaps in the available information and other areas where further information was necessary. Having had the opportunity to consider the disclosure material closely, together no doubt with the pleadings in the case, it is significant that he did not identify a glaring omission in relation to a reasonable adjustments claim.
The Claimant met with Ms Garner and Mr Libson on 27 November 2008 (although the note of the meeting is dated 26 November). Mr Libson gave the Claimant general advice on the prospects of success. He said that there was a prima facie case sufficient to establish age and disability discrimination. He said there had been helpful disclosure and that it was to the Claimant's advantage that he really believed in the truth of what he was saying. Nevertheless he warned that even with these advantages cases of discrimination are hard to win. Mr Libson said his understanding was that the Claimant was not interested in the offer made by JP Morgan. Ms Garner stated in evidence, and I accept that even at that stage they did not feel that they had all the necessary information to form a view about quantum because they did not have the bonus figures that others had achieved for 2007.
By email dated 30 November 2008 addressed to Mr Libson and Ms Garner, Mr Clive Sheldon (now Queen's Counsel) who had been instructed on behalf of the Claimant, and had been sent the Claimant's draft witness statement and disclosure material, said that his "general feeling is that the disability aspect of the case has more documentation to support Russell's argument, and it is worth emphasising…" Further specific disclosure requests were identified in relation to the redundancy decision; but nothing was said about reasonable adjustments.
On 1 December 2008 there was a telephone attendance with Ms Garner and Mr Libson, before exchange of witness statements due to take place that day. Disclosure in relation to the redundancy process remained thin and JP Morgan had still failed to provide information regarding bonuses on the desk. There was a discussion about seeking an order from the tribunal in relation to specific information that remained outstanding.
The Defendant received copies of JP Morgan's witness statements after 8pm that evening, and these were sent on to the Claimant. The Claimant agreed that these statements provided much more information regarding the basis of assessment of the discretionary bonus for 2007 and in relation to his redundancy selection. Of significance was the fact that Mr Slatter explained at paragraphs 123-124 that the Claimant was 'clearly not performing as well as colleagues' within both Hedge Funds Credit Sales teams because he was not generating new client relationships and widening his client base, but was focused on one client and personal CV generation. Others, including Mr Cormier and Ms Massolo, had longer sales experience and were generating substantially more and higher quality CV than him. Mr Hayward stated (at paragraphs 103 to 105) that the Claimant was noticeably the least effective in terms of the diversity of his client base, did not possess the generalist sales skills that others had but equally, nor did he possess the technical expertise and specialist marketing skills of yet others. Overall, he compared unfavourably with the others referred to by Mr Slatter, who were generating good quality business from a number of clients, adapting to the changing market and building new client relationships. Consequently the Claimant's skills did not reflect the needs of the business going forward. The Claimant agreed in cross examination that this was new information neither he nor the Defendant had had before.
On 3 December 2008 Ms Garner, Mr Libson and the Claimant had a conference with Mr Sheldon, who had considered the disclosure and the JP Morgan witness statements by then. Ms Garner's notes record that Mr Sheldon advised at the beginning of the conference that an application to amend the claim should be made to include an allegation that the employer failed to make reasonable adjustments in relation to his redundancy selection, and that this should be done on the back of the 'smoking gun' emails produced on disclosure. The note records Mr Sheldon explaining that JP Morgan should have made a further accommodation for the Claimant's inability to work full hours; that they would need permission to make this amendment; but that he felt they should get it. Mr Sheldon is recorded as stating that "other than that, assessment not changed - difficulties". The Claimant maintained that this section of the conference took place before he joined and that he was not present for this discussion. I do not accept that his recollection is accurate in this regard. This was an important part of the discussion and I am quite sure that the Claimant was present for it; indeed there is nothing in the note to suggest otherwise and his assertion to this effect was made for the very first time in cross examination in circumstances where this note has been relied upon by him throughout these proceedings. The Claimant also stated that although he was advised of the strengths and weaknesses and therefore the risks in relation to his claim, the advice was not as stark as the conference note suggests. Again I do not accept that his recollection is accurate in this regard. Perhaps because he was hearing what he wanted to hear, rather than what was being said, his recollection is different now. I am sure however that he was made aware of the difficulties by Mr Sheldon, given the nature of the claim and the evidence advanced by JP Morgan.
There was also a significant discussion about quantum during this conference. JP Morgan was arguing that the Claimant would have been made redundant by the end of 2008 in any event, which would put a cap on any recoverable compensation. Moreover the risk that had been foreseen in relation to client P had materialised and client P was no longer doing business with JP Morgan. The note records Mr Sheldon referring to the difficulty in convincing a tribunal in relation to the difference between what would have happened and what has happened as a "danger" point for the Claimant. The Claimant denied that this word was used but I am satisfied that it was. The note records that Mr Sheldon warned the Claimant about the limit of recoverable compensation even if unlawful discrimination was established; and that if he succeeded only on his unfair dismissal claim, compensation would be capped at £63,000 and he would lose his unvested stock. Mr Sheldon is also recorded as highlighting the possibility of spending more in legal costs than he might recover and that he should also consider the effect of taking the proceedings further which would not be a pleasant experience. The note records Mr Sheldon stating that he could not come to a decision on quantum because he had not been provided with the critical comparator figures and that although a counter offer should be made, that was not possible until the figures had been provided. The note records Mr Sheldon stating that JP Morgan had taken a hard line in negotiations giving rise to a "pretence of invulnerability" but that that did not mean there was no further money on the table. Finally, the note records a reasonably detailed conversation about the age discrimination aspect of the claim, described by Mr Sheldon as "difficult".
Following the conference, by letter dated 4 December 2008, the Defendant applied to amend both claims to include allegations based on failure to make reasonable adjustments, and enclosed proposed amendments drafted by Mr Sheldon. The letter refers to recent disclosure; to the case of Malcolm and suggests that the amendment was not anticipated to cause any injustice or hardship to JP Morgan as it was in essence, a re-labelling exercise. It is clear from the letter of application, and the Claimant accepted, that a critical trigger for the application was the recent disclosure of the 'smoking gun' emails. The amendment relating to bonus alleged that a practice of requiring employees to be capable of working long hours, including time for entertaining clients and prospective clients, placed the Claimant, as a disabled person, at a substantial disadvantage in comparison with people who were not disabled, and that JP Morgan had failed to take such steps as were reasonable in the circumstances, to prevent that practice from having that effect. It went on to argue that it would have been reasonable for JP Morgan to have made its bonus decision on the basis of how well the Claimant had performed and how well he was likely to perform in future in spite of significant periods of absence resulting from the accident and/or his inability to work long hours. A similar amendment was proposed in relation to redundancy selection.
The tribunal hearing started on 8 December 2008, and the amendment application was dealt with at the outset of the hearing. The notes of that part of the hearing make clear that at the heart of Mr Sheldon's application to amend, were the recently disclosed emails which had raised the question whether reasonable adjustments ought to have been made. The application was refused. At paragraph 2.4 of its Reasons, the tribunal referred to the fact that there had been no grievance in relation to the bonus aspect of the complaint; and so far as dismissal was concerned, the tribunal concluded that there was greater prejudice to JP Morgan in allowing the amendment so late, than to the Claimant in not allowing the amendment, since the Claimant could pursue other DDA complaints.
On the second day of the hearing, 9 December 2008, disclosure was belatedly provided by JP Morgan, of bonus awards made to other members of the Claimant's team for 2007. That disclosure led to a discussion in conference with the Claimant, Mr Libson, Ms Garner and Mr Sheldon after the hearing had finished that afternoon, about the possibility and level of settlement. Although some parts of the attendance note of this discussion are accepted as accurately reflecting what was said, the Claimant challenges as fabrications other parts of the note. He accepted that he had never made this allegation before cross-examination. There is no doubt that these attendance notes were in the possession of the Claimant's new solicitors since he terminated the Defendant's retainer on 4 August 2009. Moreover these notes were relied on in detail in the Defendant's pre-action protocol response to allegations that there had been a failure to advise on settlement, and subsequently allegations based on negligent failure to advise on settlement did not feature in the particulars of claim as served. Accordingly I do not accept the suggestion of fabrication. I consider once again that the Claimant heard what he wanted to hear during this meeting and his recollection of it has been affected by hindsight. I am satisfied that the note accurately reflects the gist of what was said during the meeting and so far as figures are concerned, I am satisfied that the note accurately reflects figures mentioned during that meeting.
During the meeting Mr Sheldon explained that it had been hinted by JP Morgan's counsel that they may be able to find an extra £100,000 to add to the settlement figure (of £100,000 odd already offered). Mr Libson explained that the bonus awards disclosure meant that for the first time the lawyers were able to deduce what it would have been reasonable for the Claimant to receive by way of 2007 bonus. The Claimant was expressly asked what he felt it would have been reasonable for him to receive by way of further 2007 bonus and (though he denies this) responded that he thought £200,000 by way of additional bonus would have been reasonable. Mr Libson stated that JP Morgan would probably be able to argue successfully that the Claimant would have been made redundant in a later redundancy exercise in any event. On that basis he could realistically have hoped for an additional three months' salary together with his redundancy entitlement of £120,000. This produced a maximum of £350,000 on the basis of a successful discrimination claim in relation to bonus and dismissal. There remained uncertainty as to the treatment of his unvested stock. Against that the Claimant was told that there was potentially £200,000 plus stock on the table, and he was reminded about the possibility of losing altogether or losing all but his unfair dismissal claim, thereby losing his stock. The Claimant expressed concern that the lawyers were less confident about what he could achieve from the case than they had previously been. Mr Libson acknowledged this and explained that they had for the first time seen disclosure of the relevant bonus figures.
As the tribunal hearing progressed there were further discussions with Mr Sheldon, the gist of which are accurately summarised in attendance notes made by Ms Garner. Although the case was seen as going well, Mr Sheldon explained that there was a 50-50 chance on direct disability discrimination relating to redundancy, he was more confident on unfair dismissal, but that there was not much chance with discrimination relating to bonus. Age discrimination was not referred to at all in these discussions. The risk of winning on unfair dismissal only and therefore losing his stock was discussed once again and the note of a discussion on 12 December 2008 between Mr Sheldon and the Claimant records the Claimant stating that he had now accepted this risk and would not have let things get this far if he had not accepted it. The notes of the various discussions reflect Mr Sheldon repeatedly seeking instructions to explore settlement and the Claimant refusing to give such instructions. During his cross-examination the Claimant explained that he thought, at the time, that consistently with the previous year he should have been awarded £1.25 million by way of bonus. He said this was his view even after disclosure of comparator bonus figures and reflects what he thought he should have been awarded absent discrimination. If this was his view, it was not shared by his lawyers and appears to have been an unrealistic one on the basis of the bonus award disclosure material.
During a telephone call between Ms Garner, Mr Libson and the Claimant on 15 December 2008, the Claimant accepted that so much would come down to who was believed and made clear that he did not wish to go below the £1 million settlement offer made originally.
By a unanimous judgment dated 18 December 2008, the tribunal found that the Claimant had been unfairly dismissed and that JP Morgan had unlawfully discriminated against him on the ground of his disability in respect of 2007 bonus award and by dismissing him. His other complaints failed and were dismissed. The Reasons for that judgment were substantially delayed by serious ill-health on the part of the Employment Judge, and when finally promulgated on 22 April 2009, paragraph 3.7 of the Reasons makes clear that the Judge was prevented by illness from promulgating them. It may be inferred in the circumstances that the Reasons were produced by the lay members of the tribunal.
Thereafter preparations commenced to address the issue of remedy reserved for the remedies hearing on 14 May 2009. During a conference with Mr Sheldon on 13 May 2009, he explained that the Reasons were vulnerable to appeal in relation to bonus. Mr Sheldon also stated: "we could also appeal age discrimination, but counter appeal give some credence to the idea that the judgment is flawed." Significantly, Mr Sheldon did not suggest that an appeal against the age discrimination findings was hopeless on its merits.
By email at 12.23pm on 13 May 2009 JP Morgan's solicitors offered $350,000 in final settlement in advance of the remedies hearing. At 6.24pm Mr Sheldon emailed Ms Garner, copying in the Claimant and Mr Libson identifying a further point that might form part of an appeal against the decision by JP Morgan. Mr Sheldon identified the finding of unlawful direct disability discrimination in relation to dismissal as problematic because the tribunal's reasoning appeared to be based on the fact that the Claimant was prevented from broadening his client base because of the limitations regarding working in the evening and the difficulties therefore of entertaining new clients. Although the tribunal characterised this as his disability being a factor in the decision to dismiss, Mr Sheldon said it was a factor related to the Claimant's disability and not disability itself amounting to direct discrimination. Post Malcolm that finding would be difficult to sustain and indeed, had been expressly rejected by the tribunal in the context of the "disability-related" claim. (This was, of course, the basis on which JP Morgan subsequently succeeded in its appeal). Mr Sheldon suggested that the Claimant should consider the vulnerability here when considering his options. Notwithstanding the risks identified by Mr Sheldon, the Claimant did not wish to accept the final settlement offer made; and gave no instructions to make a counter offer. He explained that he had spent £80,000 in fees by then and did not think that the bank would appeal or that he would lose an appeal. Nevertheless he accepted that he had been advised of vulnerabilities in relation to appeal. He also accepted that his age discrimination claim was always the weaker of his claims.
The remedies hearing took place on 14 and 15 May 2009. The Defendant received notice from the EAT dated 4 June 2009 that JP Morgan had appealed the decision of the employment tribunal, challenging inter-alia, the finding of unlawful direct disability discrimination and relying on the tribunal's rejection of the disability related discrimination claim in this context.
By a judgment with reasons promulgated on 1 July 2009 the tribunal (comprised of the same lay members as before but with Tribunal Judge Dr Auerbach) awarded total gross compensation of £191,935 in respect of the 2007 bonus award; £383,000 in respect of direct disability discrimination for dismissal; nothing further by way of unfair dismissal award save for £4950 basic award; £11,000 by way of interest; and the foregoing all calculated on the footing that they would be fully taxable save for the first £30,000 of the award relating to dismissal, and that related to injury to feelings.
Mr Sheldon drafted a notice of cross appeal with gaps that required further information and emailed this to Mr Libson and Ms Garner at 9.12am on 6 July 2009. This was sent to the Claimant at 6.44pm the same day, asking for his comments. The Claimant was unable to speak to Ms Garner about the draft cross-appeal notice until early evening on 7 July 2009. He was largely happy with the document, as is recorded in an email from Ms Garner to Mr Sheldon at 6.58pm on 7 July 2009. There was sufficient time to enable the cross-appeal to be lodged with the EAT before the deadline of 4pm on 8 July 2009. Ms Garner's email to Mr Sheldon contains the following paragraph
"With regard to the duration of the hearing, Russell would like to know the likelihood of a costs order being made against him if he requests the extra half day and loses his appeals. If it is very likely, I think he is inclined to leave it at 1 day.
The Claimant accepted that costs orders in the employment tribunal and EAT were rare, as he had been advised. It was suggested to him in cross examination that he had been given negative advice about the prospects of his cross-appeal and that this had prompted his question – in other words, he was seeking to minimise his exposure to JP Morgan's costs in the event of his cross-appeal failing. The Claimant did not accept that he had been advised that the cross-appeal was doomed to fail or been given anything like as negative advice as that. He accepted that he had been told that the grounds relating to the 'reasonable adjustment' amendment were weak, but so far as age discrimination was concerned, tactical advice had been given about this because such a challenge would call the tribunal's reasoning into question more generally.
Mr Sheldon responded to the Claimant's question regarding costs by email later that evening, timed at 11.46pm. His email included the following paragraph:
"As for costs against us – there is a real prospect here that costs could be awarded against Russell. I don't think much of any of the appeal points that we are raising and I expect that the EAT will be none too impressed with most of them [if not all of them]. We could therefore see Russell, realistically, being asked to pay the costs of JP Morgan preparing for that part of the appeal, and attending on that part of the appeal."
Mr Sheldon did not explain why he took such a negative view of the prospects of the cross appeal; and neither Ms Garner nor Mr Libson did so either. Whilst the cross-appeal in relation to the refusal of the amendment application might have been regarded as extremely weak, I am not persuaded that the same could be said for the other grounds.
When Ms Garner received Mr Sheldon's email the next morning, she was concerned that Mr Sheldon's advice was too blunt and that he would not have expected it to be forwarded in those terms to the Claimant. She therefore forwarded Mr Sheldon's email to the Claimant later that afternoon, at 4.34pm, having redacted the paragraph addressing costs. She did that without explaining to the Claimant that the email was a redacted version and without summarising the advice given in relation to costs. Ms Garner stated that it was quicker and easier to deal with the matter as she had done and that it would only have been misleading if the advice given by Mr Sheldon in relation to costs had not been given at all. She explained that she tried to speak to Mr Libson during the day but was unable to do so. She was shown her timesheet entry for 8 July 2009 which reflected: perusal email from CS, discussion with JL, email to RC. This suggested a discussion with Mr Libson before the onward forwarding of the email to the Claimant, but Ms Garner maintained that the sequence reflected by the timesheet was incorrect.
At some point, although the timing was unclear and there is no attendance note reflecting either Ms Garner's discussion with Mr Libson on 8 July or the discussion between the Claimant, Mr Libson and Mr Sheldon that he told her about (a most unsatisfactory situation), Ms Garner said she was told by Mr Libson that frank advice had been given the previous week on the poor prospects of the cross-appeal and the costs risk associated with it. On balance, I consider it likely that the sequence recorded in Ms Garner's timesheet at the time is accurate. I infer that Ms Garner spoke to Mr Libson about Mr Sheldon's email during the day on 8 July 2009, but cannot be sure that she discussed the possibility of redacting the final paragraph relating to costs. I do not consider that Ms Garner's action in removing the paragraph was an appropriate course to take. The email was Mr Sheldon's email, and contained advice to his lay client. Either the email should have been sent as a whole without redaction, or the document should not have been forwarded at all, but rather its content summarised. Alternatively, Mr Sheldon could have been asked to reword the email for his lay client's consumption. To do what Ms Garner did was misleading, even if done with the best of intentions, and should not have occurred.
Nevertheless I am satisfied that the view taken at the time was that the grounds of cross-appeal were not strong and that this advice was communicated to the Claimant by telephone during a call in which Mr Libson, Mr Sheldon and the Claimant participated. To the extent that it was suggested that Ms Garner and Mr Libson had invented that earlier telephone call, I reject that suggestion. I am not however persuaded that the Claimant was advised that the cross-appeal was so weak as to place him at risk of costs. Had such advice being given, I would have expected it to have been recorded in writing. More generally, to the extent that the Claimant suggested that he received no advice on the strength of his cross-appeal, I am satisfied that his recollection is inaccurate (and indeed, that his email dated 31 July 2009, sent after the deadline for cross appealing had been missed, reflected a reconstruction with hindsight in the knowledge of what had happened, of the advice he had been given).
Ms Garner lodged the Claimant's answer and cross-appeal after the 4pm deadline on 8 July 2009, and accordingly it was out of time and an application to extend time was required by the EAT by letter dated 10 July 2009.
Quite properly, on 10 July 2009, Mr Libson contacted the Claimant to explain what had happened and that a barrister would be instructed (at the Defendant's cost) to make the necessary application for an extension of time. Mr Libson explained that the Claimant's and the Defendant's interests were aligned at that stage and that he hoped to persuade the EAT to grant the application, but he informed the Claimant that he might wish to take independent advice on the situation and might wish to do so immediately. That conversation was recorded in an email of 13 July 2009 sent at 10.55am, Mr Libson expressing the hope that the EAT would grant the application and that would be the end of the matter.
It is unnecessary to deal in detail with the application or what followed. In short, the Registrar allowed an extension of time in respect of the answer to JP Morgan's appeal, but dismissed the application for an extension of time in relation to the cross appeal. Consideration was given to appealing the Registrar's decision but both Mr Sheldon and counsel instructed in relation to the extension application, concluded that there was little prospect of successfully appealing the Registrar's decision on the cross-appeal, in part because the grounds of cross-appeal were not strong.
The Claimant terminated his retainer with the Defendant on 4 August 2009 and instructed Leigh Day & Co. The hearing of the appeal took place on 22 April 2010 with new counsel appearing on behalf of the Claimant. By a judgment dated 26 August 2010, the EAT overturned the tribunal's decision that the Claimant had been unlawfully directly discriminated against in relation to his bonus and dismissal on the grounds of his disability; but remitted the direct disability discrimination claims to a fresh tribunal. Once again, JP Morgan appealed by notice dated 14 September 2010; and by a decision dated 27 May 2011 the Court of Appeal allowed JP Morgan's appeal and substituted a finding that the Claimant was not unlawfully directly discriminated against on the ground of his disability in respect of bonus and dismissal.
A pre-action protocol letter was prepared and sent to the Defendant on the Claimant's behalf by Lyons Davidson solicitors, dated 20 April 2012. Draft particulars of claim were attached to the letter. In addition to the claims of professional negligence pursued in connection with the failure to plead a case based on reasonable adjustments and in relation to the failure to lodge the cross-appeal within the deadline, allegations of failure to advise on the prospects of bettering the settlement offer made by JP Morgan or to negotiate a more favourable settlement offer in advance of the employment tribunal liability hearing, were made. A pre-action protocol response was served on the Defendant's behalf by Robin Simon LLP dated 16 August 2012, admitting breach of duty in relation to the failure to lodge the Claimant's cross-appeal before the relevant deadline but maintaining that the Claimant had not lost an opportunity of any value because the grounds of cross-appeal had no more than a negligible prospect of success. The remaining allegations of breach of duty were denied for the detailed reasons set out in that letter.
The particulars of claim dated 21 May 2013 were issued on 24 May 2013. So far as the claim based on failure to pursue a grievance or make allegations concerning JP Morgan's alleged failure to make reasonable adjustments is concerned, in addition to the practice of requiring employees to work long hours including time for entertaining clients and prospective clients (which is different from but bears some relation to the amendment pleaded by Mr Sheldon and advanced on 4 December 2008), four additional PCPs were pleaded:
(i) a practice of reallocating accounts away from the Claimant in February 2008 as the only member of the hedge fund sales team to have accounts for signed away from him;
(ii) a practice of calibrating bonus to the Claimant's individual circumstances and market value which is said to have disadvantaged him - instead JP Morgan should have taken into account in assessing bonus, the fact that the Claimant had not been allocated any new accounts in 2007 when assessing his entitlement;
(iii) a practice in relation to the assessment of redundancy selection criteria and its application to the Claimant which is unexplained but is said to have disadvantaged him to the extent that allowances should have been made for the effect of his disability on the selection criteria applied in his case; and
(iv) the practice of placing the Claimant in a small pool of three people from whom to select one for redundancy was said to heighten the risk of dismissal in his case so that a reasonable adjustment would have been to include significantly more people in the pool for selection.
The Defendant served a defence dated 9 July 2013.
It is common ground that a concurrent contractual and tortious duty to exercise skill and care on behalf of its client was owed by the Defendant to the Claimant in this case. The duty is to exercise the reasonable degree of skill and care to be expected of a competent and reasonably experienced solicitor and the standard the solicitor is to be judged by is what the reasonably competent practitioner would do having regard to the standards normally adopted by his profession. A solicitor is not liable for any error of judgement. Liability only arises for errors that no reasonably well-informed and competent member of the profession with the requisite skill and care reasonably expected of them in their field, could have made. No allowance is made for inexperience.
In Pritchard Joyce & Hinds (A Firm) v Batcup  PNLR 28 the Court of Appeal (Sedley LJ) observed:
"103 …..The law does not, however, demand either omniscience or infallibility in lawyers any more than it does in doctors or architects. The law's standard of reasonable competence means not only that there will be errors which are not compensable but that legal advisers are not expected to divine every claim that a client may theoretically have. In the course of his evidence to the judge Mr Susman said to counsel cross-examining him for the Claimant firm:
"You are suggesting that it was my obligation to tell Mr Fox that he might have an action against somebody who I thought had not been negligent for losing something which I never thought he had. I don't think that was my obligation."
I consider that answer to have been legally and factually sound."
The scope of the duty of care owed by a solicitor to a client depends on the instructions received and the particular circumstances of the case: see Pickersgill v Riley  UKPC 14  Lloyds Rep IR 795:
"It is plain that when a solicitor is instructed by a client to act in a transaction, a duty of care arises. But it is also plain that the scope of that duty of care is variable. It will depend, first and foremost, upon the content of the instructions given to the solicitor by the client. It will depend also on the particular circumstances of the case. It is a duty that it is not helpful to try to describe in the abstract. The scope of the duty may vary depending on the characteristics of the client, in so far as they are apparent to the solicitor. A youthful client, unversed in business affairs, might need explanation and advice from his solicitor before entering into a commercial transaction that it would be pointless, or even sometimes impertinence, for the solicitor to offer to an obviously experienced businessman"
Whether the solicitor failed to attain the proper standard of skill and care depends on how the relevant matters stood at the time he or she advised, and as they were known or ought to have been known and understood. In every case it is important to avoid the benefit of hindsight.
In the present case the Claimant contends that as a result of the admitted failure to lodge the cross-appeal in time and as a result of the other alleged breaches, he lost the opportunity to pursue his appeal and the discrimination claims arising from it, together with his claim based on reasonable adjustments. In those circumstances, the damage the Claimant suffered as a result of any admitted or proven breaches of duty is the loss of that opportunity.
In Kitchen v Royal Air Force Association and others  1 WLR 563, the Court of Appeal upheld an award of damages of £2000 against solicitors whose negligence had resulted in a personal injury claim under the Fatal Accidents Act becoming time barred. The underlying action was neither certain to succeed nor hopeless. In those circumstances Lord Evershed MR said:
"The question is has the plaintiff lost some right of value, some chose in action of reality and substance? In such a case it may be that its value is not easy to determine, but it is the duty of the court to determine that value as best it can"
The proper approach in such a case was considered by the Court of Appeal in Dixon v Clement Jones  EWCA Civ 1005 where Mrs Dixon's solicitors negligently allowed her claim against accountants to be struck out. She had sued the accountants for negligent advice on the prospects for a business project. The trial judge assessed the value of the lost claim at only 30 per cent because although he found the accountants to have been negligent, he considered that Mrs Dixon would probably have proceeded with the scheme even with the correct advice. The Court of Appeal rejected the Defendant solicitors' argument that on this basis the judge should have dismissed the claim against them altogether. Rix LJ stated at :
"None of the loss of struck-out litigation cases which I have considered in this judgment, including cases which are subsequent to and cite Allied Maples, suggest that any causation issue in the underlying litigation is dealt with as a matter of a finding on the balance of probabilities, rather than as merely another issue within the generality of issues in the underlying litigation which have to be assessed for their prospects only; nor should the position, in my judgment, be otherwise. The causation issue is, in truth, just one among a number of issues which, in the underlying litigation, would have had to have been litigated or settled. Provided the underlying claim is of some real value, then the separate causation issue which arises in the instant claim out of the loss of underlying litigation answers itself. In other words, unless the underlying claim is at one or other end of the Kitchen spectrum [i.e. that it was either bound to succeed or bound to fail], it is not possible to say on the findings of fact in this case that every Judge would have regarded the issue in the same way. Ultimately, the value of the underlying litigation did not lie in Mrs Dixon's own hands, but in the hands of the court (or, in the case of settlement, in the hands of bilateral negotiation)."
In Mount v Barker Austin (a firm)  PNLR 493 the Judge at first instance accepted the defendant's solicitors were clearly in breach of their duty as a result of which the plaintiff's action against the bank was dismissed for want of prosecution. Nevertheless he dismissed the claim for professional negligence on the grounds that the action against the bank had no reasonable chance of success. The Court of Appeal dismissed the appeal, Simon Brown LJ identifying four principles at 510D to 511C as follows:
"1. The legal burden lies on the plaintiff to prove that in losing the opportunity to pursue his claim (or defence to counter-claim) he has lost something of value i.e. that his claim (or defence) had a real and substantial rather than merely a negligible prospect of success…
2. The evidential burden lies on the defendants to show that despite their having acted for the plaintiff in the litigation and charged for their services, that litigation was of no value to their client, so that he lost nothing by their negligence in causing it to be struck out. Plainly the burden is heavier in a case where the solicitors have failed to advise their client of the hopelessness of his position… If, of course, the solicitors have advised their client with regard to the merits of his claim (or defence) such advice is likely to be highly relevant.
3. If and insofar as the court may now have greater difficulty in discerning the strength of the plaintiff's original claim (or defence) than it would have had at the time of the original action, such difficulty should not count against him, but rather against his negligent solicitors…
4. If and when the court decides that the plaintiff's chances in the original action were more than merely negligible it will then have to evaluate them. That requires the court to make a realistic assessment of what would have been the plaintiff's prospects of success had the original litigation been fought out. Generally speaking one would expect the court to tend towards a generous assessment given that it was the defendants' negligence which lost the plaintiff the opportunity…"
Where there are "separate hurdles" (for example, the need to succeed on appeal, and the need to succeed on the substantive claims in the employment tribunal) to overcome for success in claims in the underlying action, it may be necessary to apply a series of successive discounts in order to value the overall chance that has been lost (as illustrated by Mohammed Hanif v Middleweeks (A Firm)  Lloyd's Rep P.N 920 (CA) at -). However, this is not necessarily a purely mathematical or mechanical exercise. Although the issues may be discrete, success on one may improve the chances of success on another.
In summary in the event of a finding of a relevant breach of duty, the approach I adopt is as follows:
i) The Claimant must prove that the claim had a real and substantial, rather than merely a negligible prospect of success.
ii) If the court decides that the Claimant's chances were more than merely negligible then it will have to evaluate them. That requires the court to make a realistic assessment of what would have been the Claimant's prospects of success had the original litigation been fought out.
iii) This means that the court should assess the likely level of damages which the Claimant would most probably have recovered had the underlying action proceeded to judgment and then apply an appropriate fraction to that sum to reflect the uncertainties of recovering such damages.
iv) In some loss of a chance cases it may be appropriate to view the prospects on a fairly broad brush basis whilst in other cases it may be correct to look at the prospects in greater detail. In my judgment, whilst a broad brush approach is appropriate here the evidence and arguments in relation to the issues that would have arisen in the action have been canvassed extensively and clearly, enabling a more detailed approach than might otherwise be adopted.
v) On the other hand the oral and documentary evidence available is more limited than what would have been available in the employment tribunal action and I have, obviously, not heard from witnesses who would have given evidence in that action. It is also possible that the claim might have settled. These features must be factored into any assessment and it would be wrong in any event, to conduct a trial within a trial or to make any firm findings in those circumstances as to what the EAT or an employment tribunal would have decided.
vi) If there are "separate hurdles", the percentage prospects on each should be multiplied together to give an overall lower percentage prospect.
Against that background the following issues arise:
(1) So far as concerns the claim in respect of JP Morgan's alleged failure to make reasonable adjustments:
a. Was there a failure to advise or assist the Claimant to raise a grievance in compliance with the statutory grievance procedure, in respect of such a claim in relation to his bonus entitlement for 2007 and/or his selection for redundancy;
b. Was there a failure to plead such a claim in either or both employment tribunal claims;
c. Was there a failure to amend either or both employment tribunal claims to plead such a claim within the statutory time limits and in time so as not to cause prejudice to JP Morgan;
d. Was there a failure to advise as to the consequences of Malcolm for the Claimant's existing claims.
(2) If any breach is established, did the Claimant have more than minimal prospects of success in making claims for failure to make reasonable adjustments and if so what were the values of such claims and what were the chances of success.
(3) So far as concerns the admitted failure to lodge the Claimant's cross appeal with the EAT in time:
a. Did the Claimant have a more than minimal prospect of success on appeal in relation to any of his grounds and if so which;
b. If so, did the Claimant have a more than minimal prospect of success in any remitted claim before an employment tribunal, and if so what was the most probable value of the claim and what was the overall chance of success.
The First Issue: was there a breach of duty in relation to the question of reasonable adjustments at any of the stages identified at (a) to (d)
Mr Sendall submits that one of the principal failings by the Defendant in this case was a failure properly to explore the issue of reasonable adjustments. Contrary to the Defendant's case that the relevance of reasonable adjustments only emerged comparatively late in the day, after exchange of witness statements and the provision of late disclosure, he maintains that this was an issue that ought to have been explored from the very beginning of the Defendant's involvement in the Claimant's matter and was not dependent upon those factors. Indeed he submits, it is a point that any competent employment lawyer could and should have spotted.
I do not accept this submission. In my judgment there was nothing in the information and instructions provided by the Claimant on 27 February 2008 to suggest that he was being put at a substantial disadvantage in the workplace by a practice (or criterion or provision) adopted by JP Morgan that ought to have been adjusted for him as a disabled person. Although the Claimant repeatedly suggested in evidence that this is a technical argument best left to the lawyers, it is not an argument that can be made in a vacuum or irrespective of the facts and the client's instructions. As Ms Garner stated, such a claim cannot be made without the information to support it and a basis on which to assert it. So far as her understanding went, the Claimant told them that he had performed incredibly well despite his disability during 2007, and gave no indication of any problems in relation to JP Morgan's practices that were impacting on him, whether in relation to bonus or redundancy selection.
As is clear from the notes of the meeting on 27 February 2008 and the initial advice letter of 28 February 2008, the Claimant told Mr Libson and Ms Garner that he had performed extremely well during 2007 and had earned substantially more by way of sales credit than in the previous year. At that stage it was his view and his instructions that the level of sales credits provided some guide to the level of bonus award reasonably to be expected. Mr Libson and Ms Garner were entirely reliant on the information provided by the Claimant both in relation to the considerations relevant to the assessment of bonus and in relation to the criteria relevant to his selection for redundancy. No other information was available in either respect at that stage (and indeed until much later). Furthermore, there was a discussion in the initial meeting between the Claimant and Mr Libson and Ms Garner, about reasonable adjustments. The Claimant is plainly an intelligent man, and I am sure he understood this practical concept, even if he did not understand the legal ramifications. The Claimant made clear both then and indeed, all the way through the grievance process conducted by his employer, that he was satisfied with the adjustments that had been made to his working hours by reducing them and by the provision of taxis, and could identify no further adjustments necessary in relation to his employment as a result of his disability. That he did not seek to challenge Mr Dulake's findings at the grievance state in relation to new client prospecting is significant.
The statutory grievance procedures require the employee to inform the employer of the basis for the grievance, both where the standard procedure applies and where the modified procedure applies. It was suggested to Ms Garner that a grievance based on the failure to make reasonable adjustments ought to have been raised out of an abundance of caution. It is difficult to see how a basis for such a grievance could have been articulated on a precautionary basis in the absence of information or instructions that would support it.
By the time the first claim was pleaded the grievance hearing had taken place and a decision received. However this did not provide the information necessary to plead a case based on reasonable adjustments. The Claimant's understanding of his treatment remained as it was at the outset: he had performed extremely well despite his disability and had achieved well in excess of his previous year's sales credits and his target for 2007. He did not identify any practice that was disadvantaging him in the course of his employment and nor did he identify any adjustments he felt ought to have been made in relation to his disability. The grievance outcome letter provided little information about the considerations relevant to the assessment of bonus and very limited information in relation to redundancy selection. Although client account diversity was referred to by JP Morgan, the context was that this topic had been raised first during the 2006 midyear appraisal and again at the end of 2006 in the Claimant's appraisal. This was an ongoing issue because the Claimant was seen as over-reliant on client P, but this was apparently seen by everyone (including the Claimant) as unconnected with his disability.
Although by the time the second claim was pleaded the case of Malcolm had been determined by the House of Lords, and led (or should have led) to a greater focus on questions of reasonable adjustments, I am not satisfied that there was sufficient additional information available that should have changed the understanding both Ms Garner and Mr Libson had of the Claimant's case, which was principally directed at unlawful direct disability (and to a lesser extent, age) discrimination. That target was unaffected by Malcolm. So far as reasonable adjustments were concerned, the grievance appeal outcome letter dated 2 September 2008 provided some limited further information about the failure by the Claimant to diversify away from client P. However, this was a criticism raised by JP Morgan in previous years, in appraisals and elsewhere and was not therefore regarded as significant. In any event, the Claimant's position was that JP Morgan had got this wrong: he had increased his account breadth and 'made a dramatic increase in his other accounts' and was 'managing to do that as well as making sure that any money they had on the table from client P was used'. In relation to 2007 bonus the Claimant was saying that he had a big business going forward, whereas others did not; this was the second year that he had not received what he felt he deserved and had been led to believe he would receive. The Claimant was still maintaining that there was a plan to underpay him to see if he would leave (because of his disability and or age), as this would be cheaper than making him redundant; and only when that failed was he placed at risk of redundancy, because JP Morgan had no choice but to make him redundant at that point. Accordingly even the most critical focus on these issues after Malcolm would not have led to a different outcome.
I am satisfied that it was not until disclosure on 18 November 2008 coupled with exchange of witness statements after 8pm on 1 December 2008 that the possibility of a claim based on the alleged failure by JP Morgan to make reasonable adjustments in relation to the assessment of bonus and the selection for redundancy emerged with any clarity. The application to amend was made promptly once these two events occurred.
Standing back from the detail in this case, I remind myself that the question is not whether the understanding Mr Libson and Ms Garner had of the Claimant's complaints against JP Morgan turned out to have been wrong or mistaken; it is whether they fell into an "error that was so blatant as to amount to negligence". The fact that specialist employment counsel, who worked on the Claimant's draft witness statement having received all the disclosure and questionnaire responses, and Mr Sheldon initially, did not identify that any amendment was necessary or appropriate is a pointer to the conclusion that if there was any omission or error on the Defendant's part, it was not so blatant as to amount to negligent professional conduct. In my judgment Mr Libson and Ms Garner were entitled to assume that their client's instructions were correct, unless and until something occurred which would indicate to a prudent solicitor that they should make further enquiries. Something did occur in this case – disclosure of the 'smoking gun' emails and witness statements that dealt for the first time with the detailed considerations relevant to bonus assessment and selection for redundancy – but when it did, it was acted on promptly, and appropriately. Unfortunately for the Claimant, by then it was too late, and the action taken was unsuccessful. This cannot however be laid at the Defendant's door.
The Second Issue: If any breach is established, did the Claimant have more than minimal prospects of success in making claims for failure to make reasonable adjustments and if so what were the values of such claims and what were the chances of success.
In light of my conclusions on the first issue, this issue does not arise. I simply observe that it would have taken much to persuade me that the so-called reasonable adjustments contended for in the particulars of claim, which are different to the amendments pleaded by Mr Sheldon during the employment tribunal proceedings, are reasonable and ought to have been pleaded at any stage in the course of the tribunal proceedings. I am even less persuaded that they had more than a negligible prospect of success in circumstances where:
• they are different to be amendments pleaded by Mr Sheldon;
• there is an issue as to what (if anything) JP Morgan could reasonably have been expected to know about the Claimant's disability prior to 21 January 2008;
• JP Morgan no doubt had business reasons for allocating accounts to particular employees with the ability and skill necessary to deal with those accounts;
• paying additional remuneration not warranted by performance is unlikely, save in the most compelling circumstances, to amount to a reasonable adjustment;
• a suggestion that the Claimant should have been in some form of protected position as a result of his disability and exempt from consideration for redundancy is unlikely to be regarded as reasonable;
• similarly, a suggestion that the redundancy selection pool should be artificially altered in order to ensure that the Claimant had a greater chance of not being selected is unlikely to have been regarded as reasonable;
• finally, it is not clear that these proposed adjustments would have made any material difference to the outcome of the quantification of the Claimant's bonus or to his selection for dismissal.
Third Issue: In relation to the cross appeal, did the Claimant have a more than minimal prospect of success in any remitted claim before an employment tribunal and what is the value?
The Defendant admits breach of duty in relation to the lodging of the cross appeal. Although the Claimant was permitted to rely on the answer to the appeal, an extension of time in which to lodge the cross appeal was refused and the Claimant accordingly was deprived of the opportunity to challenge the tribunal's decision on the grounds he wished to raise. Had that failure not occurred, the fate of the cross appeal and the underlying action would have depended on a number of factors: whether or not the cross appeal would have been permitted to proceed beyond the EAT paper sift as raising an arguable point of law; whether or not the appeal would have succeeded and led to a remission of the issues raised to an employment tribunal; the credibility of the Claimant; the witnesses called for JP Morgan and their performance in the witness box; the availability of further disclosure; and ultimately the decision taken by the employment tribunal determining the issues which would then have arisen between the Claimant and his former employer.
There can be no certainty as to the outcome at either stage; that is, at the EAT or at any fresh employment tribunal hearing. Unless, in my view, the prospects of success on appeal and/or the underlying claim are so poor as to be negligible, I must assess the chance of the Claimant ultimately succeeding in recovering an award of compensation in the litigation or by way of a settlement.
Despite Mr Porter's submissions, and his reliance on the contemporaneous, negative assessments of the prospects of success at each stage, I do not consider that this is one of those cases where I can say overall that the prospects of success on both cross appeal and the underlying claims that would then have had to be litigated or settled are negligible. I deal with each stage separately below.
So far as the cross-appeal is concerned, I bear in mind that, as a matter of practice, it is likely that this would have been permitted to proceed to an appeal hearing given that JP Morgan's appeal was already on foot and had been permitted to proceed. Three broad grounds of challenge were raised. The first ground was a challenge to the exercise of the tribunal's discretion in refusing the late amendments (to plead alleged failures to make reasonable adjustments). The Claimant would have had a high hurdle to jump in establishing that the discretion was exercised erroneously in this case. There is no obvious error of law, disregard of principle or misapprehension as to the facts or failure to take account of relevant considerations. The tribunal correctly addressed the absence of any grievance relating to the alleged failure to make reasonable adjustments and considered to the extent it was necessary to do so, the principles referred to in Selkent and in particular the balance of hardship. The reasons, although shortly stated were Meek compliant. In my judgment this ground of appeal was bound to fail.
The second ground of appeal related to a refusal to order specific disclosure and is linked to the third ground of appeal which related to the age discrimination claim. Although described by Mr Porter as pure perversity challenges, I am not sure that this is a fair characterisation of the age grounds. Even if it is, I consider that there was a prospect of perversity being made out in the particular circumstances.
So far as age discrimination was concerned, the tribunal made findings of fact at paragraphs 4.38 and 4.39 about comments made by Mr Hayward to the effect that he was looking after the junior guys and would skew bonus towards the more junior members of the team. Further, at paragraph 4.48 the tribunal found that Mr Slatter told the Claimant that JP Morgan was looking forward not backwards on performance and making bets on younger, more junior members of staff. The comments found to have been made by the tribunal, were made on the basis that the tribunal had preferred the Claimant's account and rejected the denials of both Mr Hayward and Mr Slatter in relation to these comments. This meant that in addition to the comments themselves, the tribunal would have been entitled to rely on the fact that the individuals had denied making them and to consider why they had done so and whether this feature should give rise to any inference. The tribunal does not appear to have considered this aspect. At paragraph 6.9 the tribunal addressed the question of direct age discrimination in relation to bonus as follows:
"The case for age discrimination put forward by the Claimant does not rely on the Claimant personally being picked on because of his age. The tribunal has found that Mr Hayward and Mr Slatter made various comments to suggest that in broad terms they were looking to support more junior members of the team in comparison with more senior members. Accordingly the Claimant has not proved facts from which the tribunal could conclude that the respondent treated him less favourably than others would have been treated on the ground of age."
Mr Sendall submitted that this paragraph (and paragraph 6.16 dealing with direct age discrimination in relation to dismissal) is wholly unsatisfactory and plainly appealable. I agree with him that it is unsatisfactory and does not begin to explain why the burden of proof was not reversed. Paragraph 6.16 is equally unsatisfactory. These points are not answered (as Mr Porter suggested) by reliance on the closing submissions of the parties since it is difficult to identify which submission or what aspect of the submission found favour.
The tribunal dealt with indirect age discrimination (the indirect claim being the stronger of the two age discrimination claims) at paragraph 6.10 and 6.11 in relation to bonus and 6.17 in relation to dismissal. Although the tribunal accepted that a provision had been applied by JP Morgan in deciding to skew the bonus pool towards junior members of the team, it did not consider that this necessarily meant that junior members would receive a higher bonus than the Claimant. The Claimant sought to challenge this conclusion on appeal. Further, the tribunal said that it did not have sufficient information to deal with the question whether the Claimant was at a particular disadvantage and would require data on the ages of those who were Executive Directors, as well as the Claimant. From the limited information available to the tribunal it was not able to conclude that others in the same age group as the Claimant were placed at a particular disadvantage. Similar conclusions were reached in relation to the Claimant's dismissal. The evidence that the tribunal found to be lacking is the evidence that was the subject of an application for specific disclosure at the beginning of the tribunal hearing, but which the tribunal had itself refused. It was also the subject matter of the cross-appeal in relation to disclosure. The inter relationship of these two grounds makes them more tenable than they might otherwise have been.
In assessing the prospects of success of these two grounds of appeal, I agree with Mr Sendall that it is appropriate to bear in mind the unusual circumstances of the tribunal judge's illness and the fact that the lay members appear to have been responsible for producing the tribunal's reasons in this case. It is also relevant that there was a successful challenge to other parts of the tribunal's reasons by JP Morgan. That JP Morgan's appeal was successful might well have increased the prospects of success on these two grounds of the cross-appeal. Doing the best I can on the information now available, in my judgment the Claimant had a slightly less than 50% chance of success on these two grounds of appeal.
So far as the underlying action is concerned, I recognise that different judges (and perhaps more so, different tribunals) will have a different view of the merits of a tribunal case and that it is not possible to say on the findings of fact in this case that every tribunal would have regarded these issues in the same way. It is also not possible to say that if the underlying action had survived, more witnesses or documents might not have been available which might have thrown a different light on the matter. Indeed, it is to be anticipated that additional documents would have been available in light of the specific disclosure application. In any event, I bear in mind that there is always the possibility of settlement in relation to the underlying litigation, albeit that in this case the Claimant showed little if any inclination to settle at any stage no matter what the risk and despite significant pressure to do so by the legal team. Taking all of these matters into account, I consider that the Claimant had, at best, a one third chance of success.
A strictly mathematical approach to these successive percentages would produce an overall percentage chance of success of just under one sixth (say, 15%- 16.%). However, in circumstances where, having succeeded on his appeal the prospects in relation to the underlying litigation may well have been viewed differently by JP Morgan, it is appropriate to reflect this by a slight uplift having multiplied these successive hurdles. Approaching the matter in this way, I assess the overall chance as an 18% chance of success.
An unusual feature of this case in the context of professional negligence is that there was a remedies hearing in respect of the issues of unlawful discrimination initially found to have been substantiated. The remedies decision provides the best indication available of the probable value of the unlawful age discrimination claim, given the similarity of the two claims. The total award in respect of unlawful discrimination suffered was assessed in the sum of £586,059.09. To this sum would have to be added back the sum of £20,000 incorrectly deducted from the award by the employment tribunal when it grossed up for tax purposes. This produces a total of £606,059.09 which was subject to tax and national insurance, and would have left a sum of £357,574.86 in the Claimant's hands net of tax. Since an award of damages for professional negligence against a non-employer is not employment income within the meaning of ITEPA 2003 and not subject to income tax or NIC's; and further is not taxable as a capital gain because below the sum of £500,000 identified in HMRC's Extra Statutory Concession D33 (amended with effect from 27 January 2014), the damages award will not be taxable in the Claimant's hands. Accordingly, the parties are agreed on this basis, that the net figure of £357,574.86 is to be taken. Accordingly the most probable value of the unlawful age discrimination claim is £357,574.86 net.
I have set out my conclusions on the prospects of success of the appeal and the underlying litigation. Although I have found that the chances of success were limited, there was more than a negligible prospect of the Claimant succeeding on appeal and having done so, proving his unlawful age discrimination claims. In those circumstances, the breach of duty was the effective cause of these lost opportunities. The Claimant is accordingly entitled to recover damages for the loss of opportunity suffered as a consequence of the Defendant's breach. I have assessed the loss of that opportunity as a loss of an 18% chance of overall success, either in the litigation or by achieving a settlement. I have assessed the most probable value of the Claimant's claim as £357,574.86. He is therefore entitled to recover damages assessed in the sum of £64,363.47 being 18% of £357,574.86.
In addition to this sum the Claimant seeks a sum to reflect the additional interest that he has been deprived of for the period 1 July 2009 (the Employment Tribunal's remedy judgment) and the notional trial or settlement date. Since there are so many variables to factor into such a calculation, that are unknown and unknowable, the appropriate course to adopt in my judgment is to take a broad brush approach and to identify a sum of £10,000 to reflect additional interest. Applying 18% to that figure (£1,800) produces a total net award of £66,163.47 net.
I will hear the parties on any consequential orders, if these cannot be agreed.
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