Claim Nos: HQ09X04007 & HQ09X05230
Appeal Refs: A2/2010/1599, A2/2010/1612 & A2/2010/1613
ON APPEAL FROM QUEEN'S BENCH DIVISION
The Hon Mr Justice Simon
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
THE CHANCELLOR OF THE HIGH COURT
LADY JUSTICE SMITH
and
LADY JUSTICE BLACK
Between :
Attrill and others | Claimants |
- and - | |
(1) Dresdner Kleinwort Ltd (2) Commerzbank AG | Defendants |
Nigel Tozzi QC and Kate Livesey (instructed by Stewarts Law LLP) for the Claimants
Jonathan Sumption QC and Martin Chamberlain (instructed by Linklaters LLP) for the Defendants
AND Between :
Fahmi Anar & others | Claimants |
- and - | |
(1) Dresdner Kleinwort Ltd (2) Commerzbank AG (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 190 Fleet Street, London EC4A 2AG Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) | Defendants |
Andrew Hochhauser QC and David Craig (instructed by Mishcon de Reya) for the Claimants
Jonathan Sumption QC and Martin Chamberlain (instructed by Linklaters LLP) for the Defendants
Hearing dates: 16th and 17th February 2011
Judgment
The Chancellor :
Introduction
In early 2008 Dresdner Bank AG (“DBAG”) was a wholly owned subsidiary of Allianz SE until its sale to the second defendant Commerzbank AG announced on 31st August 2008 and completed on 12th January 2009. A division of its business, called Dresdner Kleinwort or DKIB (“DK”) carried on business as a global investment bank. The first defendant, Dresdner Kleinwort Ltd (“DKL”) was a wholly owned subsidiary of DBAG and carried on business as a service company for the other companies in the group. Those who worked in DK were employed by or seconded to DKL. Each of the claimants is such a person. It was the established practice of DK to allocate a bonus pool and individual bonuses in November each year, communicate the allocation to its employees in December and pay the cash element of any such bonus in January the next year provided that the employee was then still employed by DKL and not under notice to leave.
At a board meeting of DBAG held on 12th August 2008 Dr Jentzsch, the chief executive of DK, explained the need to define a 2008 bonus pool for DK to ensure employee stability. The minimum pool of €400m, to be announced the following week, should be guaranteed and allocated on a discretionary basis. On 18th August 2008 there was what was known in DK as a ‘Town Hall’ meeting. This was a pre-arranged meeting of employees in each of the offices of DK in London, Moscow, Frankfurt and New York which was addressed by the Chief Executive or others by means of a conference call or video-link. This meeting was addressed by Dr Jentzsch. He informed those employed in DK that there would be a guaranteed minimum bonus pool of €400m to be allocated to individuals on a discretionary basis according to individual performance. The decision to set up a minimum bonus pool of €400m for those employed in DK was confirmed on a number of occasions including in answers to ‘frequently asked questions’ posted on DBAG’s intranet between 18th August and 12th September 2008.
On 19th December 2008 there was sent to each employee in DK by the Human Resource department of DKL a letter (“the bonus letter”) in the following form:
“Dear [ ]
A discretionary bonus for 2008 under the arrangements given below has been provisionally awarded at