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||Neutral Citation Number:  EWCA Civ 2487
||Case No: A2/2017/2250
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Philip Mott QC (sitting as a Deputy High Court Judge)
 EWHC 2117 (QB)
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HENDERSON
LORD JUSTICE NEWEY
|| JLT SPECIALTY LIMITED
||- and -
Mr Daniel Stilitz QC (instructed by Eversheds Sutherland (International) LLP) for the Appellant
Mr Christopher Stone (instructed by Fox Williams LLP) for the Respondent
Hearing date: 31 October 2018
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Newey:
- The issue in this case is whether the respondent, Mr James Craven, is liable to repay a bonus that he received from the appellant, JLT Specialty Limited ("JLT").
- Mr Craven became an employee of JLT, which carries on business as an insurance broker, under an "Executive Employment Agreement" dated 5 May 2005. This provided that, unless terminated earlier pursuant to clause 10 (which dealt with matters such as incapacity, insolvency and misconduct), Mr Craven's employment was to:
"continue until terminated by either party giving to the other not less than 364 days written notice of its/his wish to terminate this Agreement, always provided that any such written notice given by the Executive [i.e. Mr Craven] shall not expire before the 5th anniversary of the Effective Date [i.e. 5 May 2005] (the Initial Period)".
The agreement further provided for JLT to pay Mr Craven a "Signing Bonus" of £225,000, but by clause 4.4 part of the bonus was to be repaid:
"In the event that before expiry of the Initial Period [i.e. the period up to 5 May 2010] the Executive [i.e. Mr Craven] serves written notice of termination of his employment or otherwise terminates his employment (other than by reason of his death) or if before the expiry of the Initial Period his employment is terminated by [JLT] in circumstances falling within clause 10.1.(c) hereof".
The amount that would be repayable would depend on "the number of working days remaining until the expiry of the Initial Period from the last day of the Executive's employment".
- The Executive Employment Agreement was subsequently varied pursuant to a written addendum dated 8 March 2012 ("the Addendum"). Mr Craven's employment was now to continue, unless terminated earlier pursuant to clause 10, "until terminated by either party giving to the other 52 weeks written notice of its/his wish to terminate the Agreement, always provided that any such notice given by the Executive shall not expire before 31 December 2016 ('Contractual Period')". There was also provision for Mr Craven to receive a "Bonus Advance" of £500,000. By point 2.2, the Bonus Advance was to be "expunged on an amortised basis over the contract period" as the first call on a specified bonus pool, subject to "the Bad Leaver provisions in point 2.3 below". Point 2.3 was in these terms:
"In the event that the Executive [i.e. Mr Craven] is a Bad Leaver (The Executive's employment ends for any reason other than redundancy, ill health, early retirement, or arranging consultancy agreement with JLT. An example of a Bad Leaver would be going to work for a competitor) or resigns on or before 31 December 2016, then the Bonus Advance will be repayable in full as follows:
2.3.1 If the Bonus Advance was awarded as a Cash Payment or as Staged Cash Advances then the gross value of the Bonus Advance paid to the Executive as at the date of resignation will be repayable by the Executive within 7 days of the Executive's employment ending…".
- The Bonus Advance was paid to Mr Craven as a "Cash Payment" in August 2012.
- On 23 September 2015, Mr Craven wrote to JLT asking that his letter be accepted as his "notice to resign with effect from today's date". JLT replied on 29 September, stating:
"I am writing following receipt of your letter dated 23 September 2015 giving formal notice of your resignation from JLT …. I can confirm your resignation is accepted and your employment with [JLT] will end on 1 January 2017 ('the Termination Date').
As you are still an employee of [JLT] until the Termination Date, I would point out that you continue to owe [JLT] all those duties owed by an employee to [JLT] under your Contract of Employment ….
With immediate effect we would like you to serve your notice period up until the Termination Date on garden leave in accordance with clause 2.28 of the Employee Handbook …."
- JLT wrote to Mr Craven again on 5 August 2016. The letter was stated to be "further to your resignation from [JLT] on 23 September 2015 and our confirmation to you that your final day of employment is 31 December 2016". The letter went on to say that JLT expected repayment of the Bonus Advance by no later than 7 January 2017 and also to offer Mr Craven "mutual termination" of his employment with effect from 1 September 2016 on the basis that the Bonus Advance would be repaid by 7 September.
- Mr Craven responded by email on 25 August 2016, stating:
"Please note that I have decided not to take up the offer of early release and will stick with my 12 month notice period."
Replying that same day, JLT said:
"I thought I should point out that your notice period is currently longer than 12 months in accordance with the 'contractual period' agreed within the letter to you dated 8 March 2012 and your final day of employment with JLT will be 31st December 2016. I am sure you are aware of this but given your comment in the email below I thought I should just clarify that again to you."
- A further letter to Mr Craven from JLT dated 12 September 2016 included this:
"For the purposes of clarification and to ensure that there is no misunderstanding please be reminded that your final day of employment with [JLT] is 31st December 2016 and you remain on garden leave until and including that date. You are released from your notice period with effect from 1st January 2017 and are bound by your contract of employment during that time."
In a similar vein, JLT said in a letter to Mr Craven dated 21 December 2016:
"as you did not choose to accept our early release terms we confirm that your contract of employment with [JLT] will cease on 31st December 2016 …."
On 5 January 2017, however, solicitors acting for Mr Craven told JLT that they had advised him that "the terms of the Bonus Repayment and the purported variation [i.e. the relevant provisions of the Addendum] are not enforceable and amount to a penalty in law".
- The Bonus Advance not having been repaid, JLT issued the present proceedings on 5 May 2017, and on 9 June it applied for summary judgment. On 26 July, the application came before Mr Philip Mott QC, sitting as a Deputy High Court Judge, who dismissed it, taking the view that there were "very real prospects of [Mr Craven] succeeding in his primary defence that the repayment provisions have not, in fact, been triggered". JLT, however, now challenges the Judge's decision in this Court.
- It is JLT's contention that, contrary to the Judge's view, Mr Craven can be seen to have triggered the repayment obligation by "resign[ing] on or before 31 December 2016" within the meaning of point 2.3 of the Addendum. Mr Daniel Stilitz QC, who appeared for JLT, put his case in two ways. First, he submitted that the word "resigns" in point 2.3 refers to the act of resignation, so that Mr Craven "resign[ed]" when he sent his letter of 23 September 2015, which, of course, was long before the date specified in point 2.3, viz. 31 December 2016. Secondly, he argued that, regardless of whether "resigns" is to be construed as he suggested, point 2.3 will have bitten if Mr Craven's employment came to an end no later than 31 December 2016, and it did.
- For his part, Mr Christopher Stone, who appeared for Mr Craven, supported the Judge's conclusion. Echoing the Judge, he maintained that it is at least strongly arguable that "resigns", as used in point 2.3 of the Addendum, looks to the date on which employment is in fact terminated instead of that on which notice of resignation is given; on that basis, the fact that Mr Craven gave "notice to resign" on 23 September 2015 would be of no significance. As for the other way in which Mr Stilitz put his case, Mr Stone said, first, that point 2.3 should be (or at least arguably should be) interpreted as applying only to a resignation that took effect before 31 December 2016, and not to a cessation of employment on that very day; and, secondly, that there is scope for argument that Mr Craven's employment came to an end on 1 January 2017 rather than 31 December 2016.
- I find it convenient to take first the last of Mr Stone's points. That raises this issue: is there a real prospect of the Court finding at trial that Mr Craven's employment continued until 1 January 2017?
- Mr Stilitz said not. When, he argued, JLT received Mr Craven's letter of 23 September 2015, it had two choices open to it. It could treat the letter as repudiatory (on the footing that Mr Craven was purporting to resign with immediate effect when he had no right to do so), accept the repudiation and bring the contract to an end at once. Alternatively, it could hold Mr Craven to his contract up to the earliest date that he was entitled to bring it to an end, namely, 31 December 2016. In the event, JLT opted not to terminate the contract there and then, with the consequence that Mr Craven's employment continued until 31 December 2016, but not (so Mr Stilitz said) beyond that.
- Mr Stone's argument to the contrary was founded on JLT's letter of 29 September 2015. He pointed out that JLT referred in that letter to Mr Craven's employment "end[ing] on 1 January 2017". This, Mr Stone submitted, amounted to an offer to Mr Craven to vary the date on which his employment was to cease, and Mr Craven accepted that offer (or at any rate arguably did so) by his failure to dissent and his continuing receipt of payments from JLT.
- In my view, however, this contention faces insuperable obstacles. In the first place, JLT cannot be considered to have made an offer in its letter of 29 September 2015. An offer is "an expression of willingness to contract on specified terms made with the intention that it is to become binding as soon as it is accepted by the person to whom it is addressed" (Chitty on Contracts, 33rd ed., at [2-003]). No such "expression of willingness" is, as it seems to me, to be found in the 29 September 2015 letter. JLT was not purporting to put forward any proposal of its own, but just to "confirm that [Mr Craven's] resignation is accepted". With regard to the reference to "1 January 2017", a reasonable recipient would have inferred that JLT was unwilling for the contract to terminate any earlier than was possible under the Addendum, not that JLT was proposing a variation in the termination date. On that basis, the reference to 1 January might reasonably have been understood as denoting the first day on which Mr Craven would be free to work for somebody else, rather than the day on which his existing employment would come to an end.
- A second point is that, even supposing that the 29 September letter contained an offer, there is no real prospect of a Court concluding that it was accepted. In general, an offer cannot be accepted by silence (see e.g. Chitty on Contracts, 33rd ed., at [2-069]). It might be said that the present case is not one of mere silence because Mr Craven received payments from JLT. However, conduct "will only amount to acceptance if it is clear that the offeree's alleged act of acceptance was done with the intention (ascertained in accordance with the objective principle) of accepting the offer" (Chitty on Contracts, 33rd ed., at [2-029]). No fresh contract can be inferred "if the conduct relied upon is no more consistent with an intention to contract than with an intention not to contract" (per Bingham LJ in The Aramis  1 Lloyd's Rep 213, at 224), and where the parties' conduct "is equally referable to and explicable by their existing rights and obligations …, there is no material from which the court can draw the inference [of a new contract]" (per Stuart-Smith LJ in The Aramis, at 229-230). That is the position here. There is no reason to believe that any conduct on Mr Craven's part was consistent only with his acceptance of any offer made in the 29 September letter rather than his pre-existing contract with JLT. It is not in the least clear that Mr Craven's alleged acts of acceptance were "done with the intention (ascertained in accordance with the objective principle) of accepting the offer".
- A third point is that, were the conclusions I have arrived at thus far wrong, there would be a compelling case for saying that the contract between JLT and Mr Craven was varied once more, to restore the 31 December 2016 termination date. After all, JLT made plain in its letter of 5 August 2016 (as well as in subsequent correspondence) that, so far as it was concerned, Mr Craven's "final day of employment" would be 31 December, and Mr Craven did not demur despite writing back to say that he would "stick with [his] 12 months notice period" and continued to receive payments from JLT.
- In this context, as elsewhere, Mr Stone suggested that additional evidence might cast light on matters and, hence, that we should not reject Mr Craven's defence at this stage. While, however, CPR Part 24 (dealing with summary judgment) "is not meant to dispense with the need for a trial where there are issues which should be investigated at the trial" (as Lord Woolf MR noted in Swain v Hillman  1 All ER 91, at 95), Mr Stone was unable to identify any evidence of any significance that is not already available. That being so, the following passage from the judgment of Moore-Bick LJ in ICI Chemicals & Polymers Ltd v TTE Training Ltd  EWCA Civ 725 (at ) is, to my mind, in point:
"It is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better."
- In the circumstances, I do not consider there to be a real prospect of the Court finding at trial that Mr Craven's employment continued until 1 January 2017. To the contrary, I agree with Mr Stilitz that Mr Craven's employment must have come to an end on 31 December 2016. It follows that Mr Craven's hopes of successfully defending JLT's claim rest on the contention that point 2.3 of the Addendum should be interpreted as applying only to a resignation that took effect before 31 December.
- As to this, Mr Stone submitted that the true agreement between the parties can be seen to have been that Mr Craven was required to make available his service for the five-year period from 1 January 2012 to 31 December 2016. Mr Craven was not to be allowed to give notice of termination expiring before 31 December 2016 and, similarly, he could be called on to repay the Bonus Advance if he brought the contract to an end before that date. If, on the other hand, he remained employed for the full five years up to 31 December, the intention must have been that he need not repay. It is evident, Mr Stone said, that something has gone wrong with the language of point 2.3 of the Addendum, and the solution is to read the provision as if the words "on or" (in "on or before 31 December 2016") were omitted.
- I cannot accept this argument. As I see it, the words "on or" in point 2.3 of the Addendum cannot be ignored. It might possibly be thought to have been more reasonable for the Addendum to provide, as the original Executive Employment Agreement had, for a sliding scale, so that the amount to be repaid reduced over time. That, however, was not the course that the parties took in point 2.3. Instead, they entered into an agreement which, on either side's case, created a cliff edge: there would inevitably come a point at which the whole Bonus Advance fell to be returned one day and none of it the next. Mr Stone would have it that the dividing line was the night of 30-31 December, Mr Stilitz that it was the next night that was key. The wording of point 2.3 plainly supports Mr Stilitz's position, and in my view it is quite impossible to conclude either that it is "clear that something has gone wrong with the language" (to quote from Lord Hoffmann in Chartbrook Ltd v Persimmon Homes Ltd  UKHL 38,  1 AC 1101, at ) or that it is clear that a reasonable person would have understood the parties to have meant that Mr Craven should not be liable to repay if his employment ended on 31 December (see again the Chartbrook case, at ). As Lord Hoffmann himself said in Chartbrook (at ), "It clearly requires a strong case to persuade the court that something must have gone wrong with the language". That requirement is not met here. Point 2.3 must, accordingly, be given effect according to its terms. On that basis, the Bonus Advance was repayable in full if Mr Craven resigned either before 31 December or on 31 December and, even if Mr Stone is right about the meaning of "resigns", Mr Craven will have resigned on 31 December if I am correct in thinking that his employment came to an end that day.
- That makes it unnecessary for me to express any opinion on how "resigns" should be construed. Mr Craven's employment having, as I see it, come to an end on 31 December 2016, he will have become liable to repay the Bonus Advance. JLT is, in the circumstances, entitled to summary judgment in its favour.
- I would allow the appeal.
Lord Justice Henderson:
- I agree.
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