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Cite as: [2005] EWHC 1099 (QB)

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Neutral Citation Number: [2005] EWHC 1099 (QB)
Case No: TLQ/05/361

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

St. Dunstan's House
Fetter Lane, London
20th May 2005

B e f o r e :

HIS HONOUR JUDGE COULSON QC
(Sitting as a Judge of the High Court)

____________________

MAHMOUD ASSI Claimant
- v -
DINA FOODS LIMITED Defendant

____________________

Transcribed by BEVERLEY F. NUNNERY & CO
Official Shorthand Writers and Tape Transcribers
Quality House, Quality Court, Chancery Lane, London WC2A 1HP
Tel: 020 7831 5627 Fax: 020 7831 7737

____________________

MR. R. DEVEREUX-COOKE (instructed by J R Jones, Ealing) appeared on behalf of the Claimant.
MR. S. ATKINS (instructed by Arnold George & Co., Ilford) appeared on behalf of the Defendant.

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    HIS HONOUR JUDGE COULSON QC:

    A. INTRODUCTION

  1. Pursuant to a Claim Form dated 14th June 2004 the Claimant, Mr. Mahmoud Assi, claims sums allegedly due to him from the Defendant, his previous employers, Dina Foods Limited. The Claimant makes two seperate claims in these proceedings. First, there is a claim for unpaid commission, put at 10% of the value of all the sales which, in his role as national sales manager, he achieved for the Defendants. The commission claim is presently pleaded in the approximate sum of 192,000, although the Claimant has previously estimated that it may be worth as much as 300,000. Secondly, there is a claim for 4,000 said to be due by way of a bonus as a result of a specific promise made by the Defendant's managing director, Mr. Souheil Haddad. Liability for both claims is denied.
  2. By an Order of Master Eyre, dated 8th October 2004, the trial before me was concerned only with the issue of the Defendant's liability to the Claimant. Each side adduced extensive factual evidence, much of which was either peripheral to the main issues between the parties or went solely to questions of credit. I therefore set out in Section B below an outline of the undisputed elements of this story, before going on to analyse in Section C the documents in the case, and in Sections D and E the oral evidence which I heard. Section F contains my conclusions in respect of the commission claim, and Section G my conclusions in respect of the bonus claim. It will be seen that, save for one small point of law relevant to the bonus claim, the issues between the parties were all matters of fact.
  3. B. BACKGROUND

  4. The Claimant and Mr. Haddad are both members of the Lebanese business community in London and had first met in the 1980's. Mr. Haddad was then involved in a number of business ventures, including a restaurant, Fakrhdine, in Knightsbridge; a delicatessen also in Knightsbridge, called Noura Foods; and a bakery and confectionary business producing Middle Eastern delicacies and Middle Eastern bread. This was, and is, Dina Foods Limited which, I am told, is now the only business operated by Mr. Haddad and his family.
  5. In October 1997 Mr. Haddad and the Claimant had a meeting which resulted in the Claimant taking up a job with the Defendants as national sales manager. Both the circumstances of this meeting, and many of the matters which were discussed during the meeting, are keenly disputed. However, it is common ground that at this meeting was agreed that:
  6. (a) the Claimant's job would be part-time and he would be employed for 12 hours a week;
    (b) the Claimant would be paid 5.77 per hour. The Claimant agreed in cross-examination that this very precise figure was calculated in order to ensure that he could continue to collect a JobSeeker's Allowance from his local benefits agency.

  7. Of course, the most important dispute arising out of the oral agreement between the two men concerned the question of commission. The Claimant claims, in paragraph 3(c) of the Particulars of Claim, that Mr. Haddad agreed to pay him, in addition to his hourly wage, "a commission payment of 10% of the value of all sales which he brought into the [Defendant] company". Mr. Haddad denies that there was ever any such agreement.
  8. The Claimant started work for the Defendant in December 1997. He was based at their premises in Hackney. It was clear that these premises were old and unsuitable, and there were ongoing problems with damp and rats. Mr. Lindeman, one of the Defendant's witnesses, called it "the pits". The Defendant company was already planning to move at this time, but it was not until April 1999 that they moved into new premises in Park Royal. This move was undertaken with the help of a DTI loan of 1 million.
  9. One of the unfortunate consequences of this litigation has been the tendency on the part of Mr. Haddad, and others giving evidence on behalf of the Defendant, to play down the Claimant's achievements as a salesman. It is clear to me that, from the outset, the Claimant began to obtain orders for the Defendant's products, including orders from a number of well-known supermarkets, which were of a type and in a quantity that had not been achieved by the Defendant before. Between 1998 and 2001 the Defendant's turnover steadily increased, and I have no doubt at all that that was due, at least in part, to the Claimant's hard work and forceful personality as the Defendant's national sales manager.
  10. During 1998 the Claimant was just paid his weekly salary, based on a 12 hour week at 5.77 an hour. He also continued to draw his JobSeeker's Allowance through this period. However, on two occasions in 1998, at Easter and Christmas, the Claimant was also paid 500 in cash by the Defendant. It was the Claimant's case that these two payments were on account of his accrued commission. It was the Defendant's case that they were simply ex gratia payments made at the Claimant's request at times of particular personal financial difficulty.
  11. It should also be noted that at about Easter 1998 the Claimant was in trouble with the police following an alleged assault on his wife in a hair salon. A letter from the Claimant, dated 16th March 1998 and dealing with his wife's forthcoming court case against him, seems to have been written from prison. The Claimant, in his evidence, accepted that he was imprisoned as a result of this incident. The letter is important in another context and I return to it later.
  12. After this incident the Claimant went on to work successfully for the Defendant throughout 1999 and into 2000. In about March or April 2000 the Claimant reached a sales agreement with Waitrose, whereby a large number of Waitrose Supermarkets were obliged to take the Defendant's Baklava bread. There can be no doubt that this was an excellent development for the Defendant's business. The Claimant alleges that in consequence of this deal Mr. Haddad promised to pay him the sum of 4,000, effectively by way of a bonus. Mr. Haddad denies making any such promise.
  13. By the summer of 2000 the Claimant wanted a full-time job with the Defendant, but Mr. Haddad was reluctant to agree. To make matters worse, in the autumn the Defendant engaged Mr. David Parker as a sales manager on a full-time basis. On 5th October the Claimant and Mr. Haddad had a further meeting to discuss the possibility of the Claimant working full-time. Mr. Haddad again refused to agree to this. This time it appears that the Claimant had had enough. The following day, 6th October 2000, he sent a letter to the Defendant resigning his position as national sales manager with effect from 31st October. Mr. Haddad did not try and persuade him to stay during the period when the Claimant was working out his notice.
  14. On 1st November 2000, the first day after the Claimant's notice period had expired, there was a further meeting between the Claimant and Mr. Haddad. Again the circumstances and nature of this discussion are disputed, but I find that on this occasion Mr. Haddad did not offer the Claimant a new job or even his old job back. The Claimant visited the Park Royal premises for the last time the following day, 2nd November 2000, to collect outstanding holiday pay. On 18th January 2001 the Claimant wrote to Mr. Haddad and set out a claim for his unpaid commission at 10% on the sales that he had achieved, together with his claim for the 4,000 bonus. He accepted in cross-examination that this was the first time that he had put either claim in writing.
  15. C. THE DOCUMENTS

    Introduction:

  16. Although the dispute about commission centres on what was agreed orally at an unminuted meeting in October 1997, there are a number of documents relating to the Claimant's claim which I consider to be of particular relevance to the existence or otherwise of the agreement to pay commission. These documents are the only contemporaneous evidence charting the employment of the Claimant by the Defendant, and therefore what they say, and what they do not say, about the terms of his employment is, in my judgment, highly significant.
  17. No Written Record:

  18. The first critical point to note is that there was no written record of, nor written reference to, the alleged agreement to pay commission made at any time during the Claimant's employment. Not only was there no minute of the October 1997 meeting, but there was also no occasion during the next three years when the Claimant referred in writing to the agreement to pay him commission, or to his alleged entitled to what was, by 2000, a substantial sum by way of unpaid commission. It is very hard to believe that, if the Claimant had, or truly believed that he had, such an entitlement, he would not have made a written claim for or reference to it. I am strengthened in this view by the Claimant's own evidence (first statement, paras.25-27) that he prided himself on his written English and wrote many letters on behalf of Mr. Haddad, whose written English the Claimant regarded as laughable.
  19. The Employment Records/Documents:

  20. I have seen a number of written records and other documents relating to the Claimant's terms of employment. Not one of these records even hinted at an entitlement to the 10% commission. In particular:
  21. (a) The letter from the Defendant to the Benefits Agency Services of 26th March 1998 sets out the Claimant's terms of employment. The 12 hours per week and the 5.77 per hour were both mentioned. There was no reference to commission. A similar letter exists, dated 14th July 1999, noting an increase to 18 hours a week. A later letter, sent to the same address and expressly concerned with the Claimant's JobSeeker's Allowance, dated 7th July 2000, revealed that the hourly rate had gone up to 6.90 and the hours had come down to 15. Again there was no mention of any entitlement to commission. All three of these letters were written by the Defendant's payroll supervisor, Miss Pola Haddad, who was not asked about them in cross-examination.
    (b) The Claimant's payslips referred to his "total gross pay to date". It was agreed that this was calculated by reference to the hourly rate and the hours worked. The payslips made no mention of, and included no sums for, commission.
    (c) The Claimant's P60 form, which was his end of year tax certificate, which also made no mention of, and included no sums for, commission.

  22. The Claimant agreed that he signed the payslips as a receipt of what he was entitled to be paid for the hours he worked. Such payslips should, therefore, have identified any commission if that was what the Claimant was entitled to. At no time during his employment did the Claimant say to anyone that the payslips, or these other documents, were incorrect because they made no reference to his entitlement to 10% commission.
  23. Accordingly, it seems clear that the Claimant's employment records, and the other documents dealing with the terms of his employment, comprise strong evidence that he was employed on a part-time basis at an hourly rate with no entitlement to any additional sums whatsoever.
  24. JobSeeker's Allowance:

  25. There is a further point arising out of these documents which also makes it very difficult, if not impossible, to conclude that the Claimant was entitled to commission. As I have already pointed out, it was common ground that the Claimant's hourly rate was calculated in such a way as to ensure that he could continue to be paid his JobSeeker's Allowance whilst he worked part-time for the Defendant. This was apparently an entirely legitimate arrangement, but it necessitated close liaison between the relevant Benefits Office, the Defendant and the Claimant. That liaison is evidenced by the documents which I have identified above. Not only is there nothing to suggest that the Claimant ever told the Benefit Agency about his alleged entitlement to commission, but it is also plain that any such financial entitlement would have immediately disqualified him from receiving the JobSeeker's Allowance in the first place. It would be absurd to conclude that, on the one hand, the Claimant's agreed hourly rate had been calculated to ensure that he could continue to receive the JobSeeker's Allowance, whilst, on the other, finding that the Claimant and the Defendant had reached an agreement as to commission which made him completely ineligible for that same benefit.
  26. The Claimant's only response to this was to say that he considered that he was entitled to the JobSeeker's Allowance because he was never actually paid the commission. That is, in my judgment, no answer at all to the basic point. Since he did not know at the time of the alleged agreement that he would not be paid his 10% commission, and, on his case, he believed that he had such an entitlement, he must also have known that he had no right to the JobSeeker's Allowance at any time during his employment by the Defendant.
  27. The Claimant also suggested that the Benefits Agency were aware of the commission agreement. As I have said, there is not a single piece of paper that supports such a contention. All the documents that I have seen that were being sent to the Agency made no mention of the alleged agreement. In addition, in my judgment, the Claimant's letter to Job Centre Plus, dated 12th March 2004, makes it clear that he was disclosing the alleged agreement for the first time. This letter was written on the advice of his solicitors, apparently triggered by their proper concerns about the applicability of the Proceeds of Crime Act. But that does not detract one iota from the fact that, when passing on information as to his hours, and his hourly rate, the relevant section of the Claimant's letter begins: "As you are aware ", whilst the information about commission contains no such qualification. On its face, therefore, I find that this letter was the first time the Claimant told the Benefits Agency of the alleged commission agreement, some seven years after it was purportedly made. In my judgment, that is again further evidence, provided by the Claimant's own document, that there was, in truth, no such commission agreement.
  28. Letter of Resignation:

  29. On 6th October the Claimant wrote to Mr. Haddad tendering his resignation. His letter read:
  30. "Dear Mr. Haddad,
    In reference to our meeting on 5th October 2000, I would like to confirm to you my resignation from the work on 31st October 2000. It was pleasure working with you. I wish you and your company all the best".

    Again this letter does not read as if it came from a man who believed that he had an accrued right to three years' worth of commission, estimated at that time to be worth 300,000. This point was put to the Claimant in cross-examination. He said that he felt friendly towards Mr. Haddad at the time and had been brought up to be polite. Whilst I accept that the Claimant did not want to be overly aggressive or difficult in this letter, I find that, if the Claimant had, or really believed that he had, an entitlement to commission, which had been unpaid for three years, he would have made some reference to it, even in polite terms, in this letter. Again, therefore, the resignation letter is further evidence that there was no such agreement in the first place.

    Full and Final Settlement:

  31. On 2nd November 2000 the Claimant went back to the Defendant's premises to collect his outstanding holiday pay. Miss Pola Haddad gave him the following document to sign:
  32. "I, Mahmoud Assi, confirm that I have received my payments in full and final settlement and there is nothing outstanding whatsoever. I also confirm receipt of my P45".

    The Claimant signed this statement. It was, of course, completely at odds with the case now advanced by the Claimant, namely that he was in fact entitled to 10% commission and the 4,000 bonus. Again this point was put to the Claimant in cross-examination. I regard his explanation, that he was somehow "blackmailed" - his word - into signing it by Miss Pola Haddad, the person responsible for the payroll, in order that he could get his holiday pay, as entirely fanciful and I reject it. I should also say that this explanation was not set out in the Claimant's detailed letter of complaint, dated 30th May 2001, where a very different point was made about the meetings on 1st and 2nd November 2000; nor was this explanation put to Miss Pola Haddad in her cross-examination.

  33. Again it seems obvious to me that if, on 2nd November 2000, the Claimant had, or believed he had, an entitlement to commission which he himself thought was worth 300,000, he would not have signed this statement. By doing so, the Claimant has provided yet further written evidence that there was, in truth, no such entitlement to commission.
  34. Conclusion on the Documents:

  35. For the reasons set out above, I have concluded that the contemporaneous documents are wholly at odds with the Claimant's case as now advanced, and point inexorably to the conclusion that Mr. Haddad was right to say that there was no agreement to pay the Claimant a 10% commission. The only remaining question is whether the oral evidence which I heard could somehow overturn the overwhelming impression created by the documents and lead me to a different conclusion. I therefore turn now to the oral evidence.
  36. D. ORAL EVIDENCE/GENERAL

    Introduction:

  37. There was a large amount of oral evidence adduced by both sides. Much of it was adduced with the sole intention of blackening the name and reputation of the Claimant, on the one hand, and Mr. Haddad, on the other. It is a matter of some regret that so many matters were raised in this way. I have no intention of dealing with them all in this judgment. However, there are a number of general, but important, points which arise out of the oral evidence, on which I should set out my conclusions.
  38. Contrast between the Claimant and Mr. Haddad:

  39. There was a marked contrast between the Claimant and Mr. Haddad when they gave their evidence. The Claimant was noisy and aggressive, often interrupting the questions he was being asked by asking questions of his own. He did not listen to the questions and repeatedly gave answers which actually amounted to a simple re-statement of another part of his case altogether. He endeavoured to have an answer for everything, even on matters or events about which he could not have had any first-hand knowledge whatsoever.
  40. Of particular concern was the Claimant's evidence about Mr. Haddad and his family. Not content with alleging breaches of Health & Safety provisions at the Hackney premises, and hinting at widespread frauds operated or sanctioned by Mr. Haddad, against the DHSS, the DTI and the Inland Revenue, the Claimant also stated quite baldly that Mr. Haddad was a thief. On the first page of his second statement the Claimant referred to the Fakrhdine restaurant and went on: "Mr. Haddad was in fact dismissed from this job for theft". In cross-examination he admitted that he had no idea whether or not this was true. It was just something which, so the Claimant said, he had heard. He agreed that it was nothing more than a rumour. Mr. Haddad, when he gave evidence, made plain that it was nonsense. However, the Claimant's elevation of a rumour into what he called, on oath, "a fact", typified what I regard as his cavalier approach to giving evidence on oath to the Court. In another attack he accused Mr. Haddad of "lying and cheating everybody" whilst accepting in the same breath that he had no evidence to support such serious allegations, and admitting that back in 1987 it was he, the Claimant, who had been convicted of blackmail.
  41. Mr. Haddad, by contrast, remained calm and civilised during the vast majority of his cross-examination. He was, I quite accept, by no means a perfect witness, but it seemed to me that if he was vague in relation to some of his answers, this was at least in part because, as the Defendant's managing director, he could not be expected to remember specific events that occurred six or seven years ago. There were minor mistakes in his written statement, some of which he accepted, but there were no major matters on which he was demonstrably wrong. Whilst he was, once or twice, a little evasive and obstructive in giving his answers, I consider that, generally, he endeavoured to tell the truth.
  42. Accordingly, where there is a difference between the version of events put forward by the Claimant and the version put forward by Mr. Haddad, I generally, but not always, prefer Mr. Haddad's evidence. That preference is strengthened by the conclusions which I have reached about the preparation of certain aspects of the Claimant's evidence, set out in paragraphs 30-39 below.
  43. The Preparation of the Claimant's Evidence:

  44. One of the attacks made by the Defendant upon the Claimant's evidence was that the written statements of at least some of the witnesses called to give evidence on his behalf had been drafted by the Claimant himself. This allegation was supported in two ways: by comparing the words used by different witnesses in different statements, and by reference to the evidence of Mr. Mahmood Najjar.
  45. One example of the use of precisely the same words in statements which purported to come from three different people, was identified in Mr. Atkins' cross-examination of the Claimant's witnesses. In Mr. Kasso's statement, at para.5, it said:
  46. "At that time we were in Hackney. On the first week I found out that the company was in financial difficulties and the business was very badly shaken, to the point of collapse".

    In Mr. Najjar's statement, at para.14, it said:

    "After a couple of weeks working with Dina Foods I find out the company was facing big financial difficulties, a major financial disaster, and the business was badly shaken to the point of collapse".

    In Mrs. Klein's statement, at para.6, it said:

    "At the time we were in Hackney. After a couple of weeks I found out that the company was in financial difficulties and the business was badly shaken to the point of collapse".

  47. In looking at the various statements myself, I have found a number of other examples of this tendency. I will just give one further example. At para.12 of his statement Mr. Kasso said:
  48. "I would like to confirm this about Mr. Haddad, when the time comes to ask him his promises, such as increasing salary or holiday, the answer will be: 'I cannot remember I said this or I promised you that'. This is the easy way for Mr. Haddad to get out of it. When you ask Mr. Haddad to confirm it in writing, he will start talking sweet talk and nice words such as: 'I am a respectable man. Respect my word. You should trust me. Papers not between us', and offering me a drink, coffee or tea, and changing the subject completely to make you feel embarrassed and you do not open the subject with him again".

    Mr. Najjar, at para.35 of his statement, said:

    "I would like to confirm this about Mr. Souheil Haddad, when the time come to ask him about his promises, such as increasing salary, commission or holiday, the answer will be: 'I cannot remember I said this or I promised you that'. This is the easy way for Mr. Hadad to get out of it. When you ask Mr. Haddad to confirm it in writing he will start talking a sweet talk, a nice word, such as: 'I am a respectable man. I respect my word. You should trust me. Papers is not between us', offering you a drink (coffee or tea) and changing the subject completely to make you feel embarrassed and you do not open the subject with him again".

    These passages, which are, for all practical purposes, identical, do not seek to paraphrase documents, where similarities of expression may be understandable; instead they constitute two different people purporting to give evidence in what is, for them, a foreign language, but contriving to use exactly the same words in doing so.

  49. It seems to me, therefore, clear beyond doubt that at least some of the witness statements prepared on behalf of the Claimant were written by the same person. Whilst it can sometimes be the case that witness statements are drafted by solicitors, they will always endeavour to speak to the witnesses first and put down their evidence in their own words. That plainly did not happen here, as the wholesale repetition of phrases, sentences and even entire paragraphs, in statement after statement, makes all too clear.
  50. In my judgment, this has reduced, and possibly even extinguished altogether, the reliability of the evidence prepared in this way. It was nothing less than an abuse of the procedure, now habitually adopted in civil cases, whereby, in order to save time and costs, evidence in chief is set out in writing in advance of the trial. Such an abuse is even more inexcusable where, as here, the statements were in English, but where many of the witnesses concerned would not claim to read or write English with any fluency at all. In addition, what made this abuse of the process so much more serious in this case was the identity of the person drafting these identical statements.
  51. I find that it was the Claimant himself who drafted at least some of these other statements, and was therefore purporting to direct what these other witnesses actually said in evidence. I make this finding because on 1st March 2002 Mr. Najjar, who did give evidence on behalf of the Claimant, e-mailed Mr. Haddad a version of his statement, which was very similar to the one that he eventually signed in these proceedings, and therefore also very similar to the statements purporting to come from other of the Claimant's witnesses (see paragraphs 31 and 32 above). The statement was accompanied by a note which read:
  52. "Dear Mr. Haddad, This is the letter Mahmoud Assi prepared for you regarding the suing matter. I'm not going to attend the court because I do not believe what he says".

  53. Mr. Najjar confirmed in cross-examination that the statement which was attached to this e-mail had been written by the Claimant. In any event, it seems to me that the unsolicited e-mail constitutes direct evidence that the Claimant was drafting statements for others to sign, whether or not such statements represented the evidence that the particular witnesses might freely have given. Mr. Najjar confirmed in cross-examination that the document came from his e-mail address. Beyond that he claimed he was simply unable to remember the e-mail or the circumstances in which it was sent. It seems clear to me that this was a genuine e-mail from Mr. Najjar, and the process that it revealed demonstrated a complete lack of credibility at the heart of the evidence adduced on behalf of the Claimant.
  54. Accordingly, I find that many of the written statements provided on behalf of the Claimant are inherently unreliable because they were drafted by the Claimant himself, with scant regard for the evidence that the relevant witnesses might themselves have given if their evidence had been prepared in the conventional way.
  55. Bribery and Threats:

  56. The Defendant also alleges that the Claimant bribed and threatened witnesses in order to get them to give evidence to support his case. These allegations were denied by the Claimant and each of the witnesses who gave evidence on his behalf. The evidence supporting such allegations was, save in one respect, largely circumstantial, and Mr. Shabaan, one of those who suggested it, was not called to give oral evidence. I therefore make no findings on Mr. Shabaan's evidence; indeed, I decline to make any findings on this topic based on any evidence other than that of Mr. Yazbik. Mr. Yazbik was called to give oral evidence. He had been a driver for the Defendant company. He gave what seemed to me to be clear and persuasive evidence that he had been offered 500 by someone over the telephone (who identified himself as Mr. Assi) to say falsely that he received commission when working for the Defendant. Mr. Devereux-Cooke suggested to Mr. Yazbik that he would have had no way of knowing whether or not the person on the phone was actually Mr. Assi. Mr. Yazbik did, however, have an answer to that. He said that originally he had been telephoned by Mr. Fayad, a driver with the Defendant whom Mr. Yazbik knew. It was Mr. Fayad who said that Mr. Assi was there and wanted to speak to him, and it was Mr. Fayad who then handed the phone over to Mr. Assi. The offer of 500 then followed. Mr. Yazbik was an entirely truthful witness with no reason to lie or to invent his evidence as to the telephone call. I therefore conclude, with great regret, that it is more likely than not that the Claimant did offer Mr. Yazbik money to give false evidence on his behalf. Such a finding is, of course, consistent with my conclusions as to the drafting of the statements and the Claimant's attempted control of the evidence adduced on his behalf.
  57. The documents also show that the Claimant has tried in the past to influence the outcome of court proceedings. I have previously referred to the letter, dated 16th March 1998, concerning his domestic difficulties. The whole thrust of that letter was an attempt by the Claimant to get his wife to drop the charges against him, and it asks her nephew to persuade her "to tell the judge that she is waiving the case of her own wish". That point was borne out by the evidence of Mr. Haddad, who said, at para.15 of his statement, that the Claimant had asked him (Mr. Haddad) if he would contact his wife and others to try and convince her to drop her case against him.
  58. Conclusion on General Points about the Oral Evidence:

  59. Accordingly, for the reasons set out in paragraphs 25-39 above, I find that:
  60. (a) the Claimant drafted some of the statements in English in precisely the same terms for a number of the different witnesses called on his behalf, and such evidence is therefore inherently unreliable;

    (b) the Claimant was cavalier in respect of the oath that he took to tell the truth, and at least some of his evidence I consider to be wholly untruthful;

    (c) the Claimant attempted to bribe Mr. Yazbik, to pay him 500 to claim falsely that as a driver for the defendant he received commission,; and that

    (d) the Claimant's evidence contrasted unfavourably with that of Mr. Haddad and that, where there is an evidential conflict between them, I generally prefer the evidence of Mr. Haddad.

  61. These general findings, therefore, far from undermining the impression created by the documents (Section C above), firmly support the conclusion that there was no truth in the suggestion that Mr. Haddad agreed to pay the Claimant 10% commission on sales. However, out of deference to the detailed and careful submissions made by both counsel at the conclusion of the evidence, it is appropriate that I go on to make particular findings of fact in relation to the events that occurred. I should make it clear that I do not intend to deal with, and resolve, every issue between the parties; only those which enable me to decide the principal issues that have arisen on the Claimant's claim and the Defendant's defence to it.
  62. E. THE ORAL EVIDENCE/PARTICULAR POINTS

    The Meeting in October 1997:

  63. Mr. Haddad said that the meeting in October 1997 between himself and the Claimant had been arranged beforehand; that he was considering offering the Claimant a part-time job because he had been asked to help him; that he thought that the Claimant's selling expertise would be useful to the Defendant's business; and that the Claimant had attended the meeting with a copy of his CV. I accept Mr. Haddad's evidence. I reject the Claimant's suggestion that this meeting was coincidental. Mr. Haddad did not strike me as someone who would offer people jobs on the spur of the moment at a chance meeting in the street.
  64. I find that the two men agreed that the Claimant would work 12 hours a week, and that his hourly rate would be 5.77. I find that this rate was deliberately calculated in such a way to allow the claimant to continue to draw his Job Seeker's Allowance.
  65. The 10% Commission:

  66. I find, without hesitation, that the two men did not discuss, let alone agree, that the Claimant would be paid any amount or percentage by way of commission. This is the only possible conclusion given
  67. (a) the contents of the documents analysed in Section C of this judgment;

    (b) my general findings about the oral evidence, set out in Section D of this judgment; and

    (c) the sheer improbability of the alleged commission arrangement, as set out in paragraphs 45-51 below.

  68. I have already found that it is inherently improbable that the Claimant was to be paid an amount which would disentitle him from ever claiming his Job Seeker's Allowance (paragraphs 18-20 above). In addition, the particular agreement alleged here, that the Claimant would be paid 10% on sales as opposed to, say, 10% on profits, is, in my judgment, also unlikely. That would mean that if the Defendant's profit margin was 10% or less on an order secured by the Claimant, then they would make no profit at all from the order and, indeed, might even make a loss.
  69. On this point I accept the evidence of Mr. Lindeman, the Defendant's financial consultant, that the Defendant would never have traded profitably if it had been liable to pay the Claimant 10% commission on order values. As his second statement made clear, during the Claimant's employment the Defendant never made a net profit that was in excess of 1%. It would therefore have been out of the question for the Defendant to have agreed to give the Claimant 10% of the sales value of the orders he negotiated. In the absence of any other evidence of the Defendant's cost or profit margin, I am bound to conclude that it was extremely unlikely that Mr. Haddad could ever have agreed to pay 10% on order value rather than, say, profit.
  70. In my judgment, it was also inherently unlikely that Mr. Haddad would have agreed to pay commission because he did not reach such an agreement with anyone else on the sales team. Mr. David Parker, whom I have previously mentioned, was paid a fixed salary without commission. Mr. Yousef Benjouda, an area sales manager who has worked for the Defendant for five or six years, has always been paid on a fixed salary with no commission payments.
  71. There was some evidence that some of the Defendant's van drivers might have been paid 5% sales commission, but this evidence was confused given that Mr. Hassan and Mr. Fayad said that they were and Mr. Yazbik said that he was not. Such a contention was, of course, contradicted by the drivers' payslips which made no mention of commission. However, even if the drivers were paid commission, and I make no finding either way, it seems to me that that was irrelevant to the Claimant's position because the drivers did a very different sort of job to the Claimant and their payment terms apparently varied from driver to driver.
  72. There is another piece of evidence upon which Mr. Atkins relied and which, in my judgment, also makes it intrinsically unlikely that a 10% commission arrangement was ever agreed. It was the Claimant's case that when in 2000 he was asking for a full-time job, he said that he was happy to be paid either 36,000 a year or 24,000 a year plus 3% commission on any new sales. Both of these options would have produced a financial result which was significantly worse than an arrangement which paid the Claimant 10% commission. In cross-examination the Claimant accepted that. He said he did not mind working more hours for less money. He said: "I was trying to be flexible".
  73. Accordingly, the fact that the Claimant was happy to be paid for a full-time job, by reference to a remuneration package which was worth less than the 10% commission he said he was getting for a part-time job, only serves to underline still further my conclusion that such an arrangement simply was not in place in 2000.
  74. Finally, I should note that the Claimant's pleaded case at paragraph 3 of the particulars of claim was that in October 1997 Mr. Haddad and the Claimant had agreed that:
  75. "(c) in addition to the salary he would receive a commission payment of 10% of the value of all sales which he brought into the company;

    (d) initially the said commission payments would be made by an advance payment of 500 every six months".

    In cross-examination the Claimant accepted that sub-paragraph (d) was wrong and that no such agreement had been reached at the meeting in October 1997. For all the many reasons which I have now given, I find unequivocally that the alleged agreement at sub-paragraph (c) was likewise wrong and that no such agreement was ever reached.

    The Discussions and Arguments about Commission:

  76. I have already made the point that over the course of the next three years, between December 1997 and December 2000, the Claimant never once made a written claim in respect of his unpaid commission. That only serves to confirm my conclusion that he had no agreement on which to base such a claim. However, the Claimant maintained that he had numerous oral discussions and arguments with Mr. Haddad over this period, in which he tried to get Mr. Haddad to pay him his commission and in which Mr. Haddad repeatedly fobbed him off with expressions of familial affection and pleading that the money would be paid when the sales figures really picked up. Mr. Haddad denies that such conversations took place.
  77. I find that the Claimant did not repeatedly chase Mr. Haddad for unpaid commission, for the reasons set out in Sections C and D above. Again, I also find it inherently unlikely that the Claimant would have repeatedly raised the question of unpaid commission and then allow himself to be fobbed off again and again by Mr. Haddad. The Claimant is a man with a clear view as to his rights and an extremely forthright manner. It simply beggars belief that for three years he raised the issue of commission with Mr. Haddad, only to allow himself meekly to accept Mr. Hadad's repeated prevarication.
  78. There was evidence from both Mrs. Mildred Robbin-Coker and Mrs. Pauline Klein that they had heard such conversations. However, when they were cross-examined, it became apparent that what they had heard were certain conversations between Mr Haddad and the Claimant, sometimes through the walls, in a mixture of English and Arabic, which latter language they did not understand. It was the Claimant who later told them that those discussions were about his demands for commission. Accordingly, neither woman was able to give direct or reliable evidence about the actual content of those conversations. They were simply passing on what the Claimant had told them that the conversations were about. I consider that the evidence of both women can be fairly summed up by reference to the cross-examination of Mrs. Robbin-Coker as follows:
  79. "Q: You said that you had heard arguments, then Mr. Assi came out and told you that it was all about his commission?"
    A: Yes.
    Q: You never heard Mr. Haddad mention commission, is that fair?
    A: No, I never did.
    Q: Your statement has this in direct speech, but you never heard that yourself? This is what Mr. Assi told you?
    A: Yes.
    Q: So that we are clear, this is what he told you, that is correct, isn't it?
    A: Yes.
    Q: So you never heard a conversation about 10%, you just asked Mr. Assi and he said that he had been talking about commission with Mr. Haddad?
    A: Yes".
  80. Much more importantly, neither woman said that at any time had they heard either Mr. Haddad or the Claimant make any reference whatsoever to a pre-existing agreement to pay commission. In other words, even if, which I do not accept, there were regular conversations between Mr. Haddad and the Claimant about commission, it is likely that these were conversations in which the Claimant was seeking Mr. Haddad's agreement to pay commission in the future. They were not conversations that proved, or could possibly prove, that there was such an agreement already in place.
  81. For the avoidance of doubt, Mr. Najjar's evidence, that he had heard similar conversations, I reject in its entirety. In view of the fact that Mr. Najjar himself had e-mailed Mr. Haddad to tell Mr. Haddad that his statement was untrue, I can attach no weight whatsoever to the evidence within that statement.
  82. Furthermore, it seems to me that if the Claimant had, or believed that he had, an entitlement to commission, the other employees who would, or should, have known about it would not have been Mrs. Klein and Mrs. Robbin-Coker. They would have been those employees involved with the financial organisation of the Defendant. Mr. Lindeman, the financial controller, said he had never heard it suggested by anyone that the Claimant had an entitlement to commission, and Miss Pola Haddad, who was Mr. Haddad's niece and was in charge of the payroll, said that if there had been such an arrangement she would have known about it. She said that the Claimant was always quick to point out if he had been underpaid or not been fully reimbursed all his expenses. She regarded it as inconceivable that the Claimant could have had such an entitlement without her knowing about it. I accept her evidence.
  83. The Two Payments of 500:

  84. There seems to be no doubt that in addition to his monthly salary the Claimant was paid two sums of 500 in cash. As I have noted, it was the Claimant's pleaded case that these cash payments were evidence of the agreement alleged in paragraph 3(d) of the particulars of claim, an agreement which the Claimant now accepts was never made. I accept Mr. Haddad's evidence that these payments were gifts, made on an ex gratia basis, and were nothing whatsoever to do with any agreement or entitlement on the part of the Claimant to be paid commission. I am supported in that view by the absence of any reference to these payments in the Claimant's payslips, and the fact that the first one, at Easter 1998, was made at a time when the Claimant was very likely to be in financial difficulties.
  85. The Claimant also said that on another occasion he was given a cheque for 1,000 by Mr. Haddad's brother, Amin. This incident, which is denied by the Defendant, was not pleaded in the particulars of claim, which instead alleged that the two cash payments of 500 each were the only payments made in addition to the Claimant's salary. It was also not mentioned in the letter to Job Centre Plus of 12th March 2004, which was written, so I was told, in order to set out all the relevant financial information for the Benefits Agency. I therefore conclude that there was no such payment.
  86. The Waitrose Deal:

  87. I accept the Claimant's evidence that in March/April 2000 he was responsible for reaching an agreement with Waitrose head office that a large number of their branches would take the Defendant's Baklava bread. It is clear that this was a major achievement for the Claimant and a significant boost to the Defendant's business.
  88. It was the Claimant's evidence that, on returning to the office, Mr. Haddad was so pleased with the news that he promised to pay him 4,000. This promise was apparently made in the presence of both Mrs. Robbin-Coker and Mrs. Klein, who both said it had been made. It was denied by Mr. Haddad.
  89. On the balance of probabilities, I have concluded that Mr. Haddad, on learning of this undoubted good news, did promise to make a gift to the Claimant of 4,000. I also accept the Claimant's evidence that this promise was made once the deal with Waitrose had been concluded. The Claimant's oral evidence in chief on this point was as follows:
  90. "Q: When the promise was made was there any possibility that the deal with Waitrose would not go through?

    A: No. They had given their word.

    Q: So by the end of March was the deal confirmed?

    A: 100%".

  91. His evidence in cross-examination on the same topic was as follows:
  92. "Q: When you say the promise was made, the deal with Waitrose was done?

    A: Yes.

    Q: There was nothing further that you needed to do?

    A: No.

    Q: This was a present to reward you for your efforts?

    A: Yes".

  93. In his closing submissions, for reasons which I address below, Mr. Devereux-Cooke suggested that there was a conflict between the Claimant's evidence, which I have just read out, and the evidence of Mrs. Klein, who, he said, suggested that when the promise to pay the 4,000 was made, the deal with Waitrose was not as final as the Claimant thought. Whilst admiring its ingenuity, I reject that submission. Not only was Mrs. Klein, in my judgment, simply saying that the orders consequent upon the Waitrose deal did not come through until a few weeks later, I am also bound to reject any case which suggests that the Claimant was not the best person to know precisely when the deal with Waitrose was done. The Claimant's evidence on the point was unequivocal and I accept it.
  94. Accordingly, the only remaining issue in respect of the claim for 4,000 is this: was that promise enforceable in law given that it was made after the deal with Waitrose had been concluded? That is, at least in part, a matter of law, with which I deal in Section G at paragraphs 72-77 below.
  95. The Summer of 2000:

  96. By the summer of 2000 I find that the Claimant was beginning to grow disenchanted with the Defendant. He had been working there for nearly three years but was still in a part-time capacity. He had not been paid anything in addition to his modest salary, except the ex gratia payments totalling 1,000 referred to above. His unhappiness increased when, following an interview for which the Claimant had been present for at least part of the time, Mr. Haddad took on Mr. David Parker as a sales manager on a full-time basis. It is difficult not to feel some sympathy with the Claimant at this point. He had worked very successfully with the Defendant for relatively meagre reward and he wanted a full-time job, which, for whatever reason, Mr. Haddad was reluctant to give him.
  97. When describing the conversations between the Claimant and Mr. Haddad during this period, the summer of 2000, the Claimant's own statement, and those of Mrs. Klein and Mrs. Robbin-Coker, repeatedly refer to the request for a full-time job and expressly link it with the question of commission. It seems to me likely that these points were raised together by the Claimant; in other words, the issue of commission was linked by the Claimant with his request for a full-time job. The fact of these conversations did not in any way indicate that, three years earlier, Mr. Haddad had agreed to pay the Claimant commission. This was inadvertently confirmed, I find, by Mr. Najjar, who said that the Claimant had told him on the way to Harrods that his salary was very low but that he was "going onto commission".
  98. The Meeting on 5th October and Thereafter:

  99. On 5th October there was a meeting between the Claimant and Mr. Haddad at which, once again, the prospect of the Claimant's request for a full-time job was raised by the Claimant and turned down by Mr. Haddad. As a result the Claimant wrote his letter of resignation (paragraph 21 above) and worked out his notice period.
  100. There seems no doubt that the two men met again on 1st November. The Claimant suggests that this was after Mr. Haddad had asked him to go to the Asda Super Store in Roehampton to sort out a problem that had arisen with their order. Mr. Haddad denies that. I find that Mr. Haddad was not involved with the minutiae of his company's business to that extent. Accordingly, I find that the Claimant went to the Asda store with Mr. Attat of the Defendant company, at his own instigation, and then decided, not unreasonably, to have another go at Mr. Haddad about making his position full-time. In this he was unsuccessful. The Claimant's case was that the two men parted on bitter terms, with the Claimant saying, as he left: "I'll see you in court". I cannot accept that evidence. Not only is it contradicted by Mr. Hadad, but such a parting is at odds with the written reference that was provided to the Claimant the following week, which said:
  101. "This is to confirm Mr. Mahmoud Assi has been employed by this company since 1997 in the capacity of national sales manager. We confirm that he handed in his notice in early September 2000 and regret that we could not influence him to change his decision to remain amongst us. We wish all the best and success in his career move. Should you require any further information in the future please do not hesitate to contact us".

  102. On 2nd November the Claimant signed the Full and Final Settlement document referred to in paragraph 22 above. In January he made his first written claim for the unpaid commission, and the bonus of 4,000. Although I heard quite a lot of evidence about certain events after this, including various concerns about the Claimant's intimidatory behaviour, I decline to make any findings in this judgment in respect of such matters. They are simply not relevant to the issues which I have to, and have, decided.
  103. F. CONCLUSIONS ON THE COMMISSION CLAIM

  104. At paragraph 3(c) of the particulars of claim, the Claimant alleges an oral agreement that in addition to his salary he would receive a commission payment of 10% of the value of all sales which he brought into the Defendant company. For all the many reasons, set out in Sections C, D and E of this judgment, I categorically reject the suggestion that there was any such agreement. It seems to me clear and obvious that, on the contrary, there was no such agreement. The Claimant's claim for unpaid commission therefore fails in its entirety.
  105. G. CONCLUSIONS ON THE BONUS CLAIM

  106. As set out in parasgraphs 60-65 above, I find that:
  107. (a) Mr. Haddad promised the Claimant 4,000 when he learnt of the Waitrose deal;

    (b) The promise was made, on the Claimant's own evidence, after the Waitrose deal had been concluded and there was nothing further for the Claimant to do in respect of it.

    As noted in paragraph 50 above, the remaining issue in respect of the claim for 4,000 is: was that promise enforceable in law? It seems to me clear that it was not.

  108. It is trite law that, in order for a promise of this kind to be enforceable, there has to be consideration. In other words, there must have been some benefit to the Defendant (or the avoidance of a detriment) in exchange for the 4,000. Here I find that there was no such benefit. By the time that the promise was made the Waitrose deal had been done, and there was nothing further for the Claimant to do to secure it. There was no benefit whatsoever to the Defendant flowing from the promise to pay the 4,000. There was therefore no consideration. It was a gratuitous promise, no more and no less. Of course, it was for this reason that Mr Devereux-Cooke tried to argue that the Claimant was wrong to say that nothing remained to be done after the promise was made; he accepted that, if, as I have done, I accepted this part of the Claimant's own evidence, the claim for the 4,000 must fail.
  109. I should note that, at the start of the trial, the Claimant relied on the Court of Appeal decision in Williams v. Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1. In that case the Court of Appeal held that a promise to pay a carpenter more money to complete his existing contractual obligations was enforceable, because the promisor avoided the adverse financial consequences that would result from the carpenter's decision to stop work and the consequential delay to the overall building project. That advantage was capable of constituting consideration, even though the carpenter was contractually obliged to carry out the works in accordance with his existing contract. Lord Justice Glidewell, having reviewed the authorities, said at p.15G:
  110. "Accordingly, following the view of the majority in Ward v. Byham, of the whole court in Williams v Williams, and that of the Privy Council in Pao Ong, the present state of the law on this subject can be expressed in the following proposition:

    (1). If A has entered into a contract with B to do work for or to supply goods or services to B in return for payment by B; and

    (2). At some stage before A has completely performed his obligations under the contract, B has reason to doubt whether A will, or will be able to, complete his side of the bargain; and

    ( 3). B thereupon promises A an additional payment in return for A's promise to perform his contractual obligations on time; and

    ( 4). As a result of giving his promise, B obtains in practice a benefit or obviates a disbenefit; and

    (5). B's promise is not given as a result of economic duress or fraud on the part of A; then,

    ( 6). The benefit to B is capable of being consideration for B's promise, so that the promise will be legally binding".

    However, the learned Lord Justice was at pains to make clear that, in his view, this decision was not to be taken as a departure from long-held principles. At p.19D he said:

    "For my part I wish to make it plain that I do not base my judgment upon any reservation as to the correctness of the law long ago enunciated in Stilk v. Myrick. A gratuitous promise, pure and simple, remains unenforceable unless given under seal. But where, as in this case, a party undertakes to make a payment because by so doing it will gain an advantage, arising out of the continuing relationship with the promisee, the new bargain will not fail for want of consideration".

  111. In my judgment, to the extent that Mr Devereux-Cooke still relied on this decision, it does not assist the Claimant. As already noted, Mr. Haddad did not make his promise in order to "gain an advantage arising out of the continuing relationship" with the Claimant. His was a gratuitous promise, pure and simple, and is therefore not enforceable.
  112. In any event the decision in Williams does not help the Claimant over his principal difficulty, namely the timing of the promise. In Williams the carpenter relied on the promise to pay additional sums by carrying on with work which he otherwise would not have performed. In the present case the Claimant did not, and could not, rely on the promise in any way, because by the time it had been made the Waitrose deal had been concluded.
  113. Accordingly, although I have found that, on the balance of probabilities, Mr. Haddad did promise to pay the 4,000, it was a gratuitous promise made after the Waitrose deal had been concluded. It is therefore unenforceable in law. On the facts which I have found, Mr Devereux-Cooke properly accepts that that is the only conclusion I can reach. Accordingly, the Claimant's claim in respect of the 4,000 must fail in any event.


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