Harrington Scott Limited v Coupe Bradbury Solicitors Limited

This is my reserved judgment on an application by the defendant solicitors, Coupe Bradbury Solicitors Limited, issued as long ago as 30 March 2021, to strike out (pursuant to CPR 3.4 (2) (a), (b) and/or (c) and/or the court’s inherent jurisdiction), and/or for summary judgment (under CPR 24.2) on, all or part of a Part 7 claim issued by the claimant, Harrington Scott Limited, on 8 November 2019 seeking damages for professional negligence by the defendant whilst acting as the claimant’s litigation solicitors. One of the bases for the strike out application is that it would be an affront to the court to allow this claim to proceed to trial. In addition to this overarching issue, however, there are no less than 11 individual (but, in some instances, related) issues which the court is required to consider.

The application is supported by a witness statement from the defendant’s litigation solicitor, Ms Karen Morrish (of RPC), dated 30 March 2021 (and extending to some 94 pages). Evidence in answer to the application is provided by Mr Trevor Vickers in the form of a witness statement (of some 85 pages) dated 22 October 2021. Mr Vickers is the sole director of the claimant (Harrington Scott Limited) and also of a company registered in the British Virgin Islands (the BVI company) bearing a similar name (Harrington Scott Ltd) and apparently dissolved in November 2017, after having been struck off the register of companies for non-payment of registration fees. Mr Vickers variously describes himself as either the sole, or the majority, shareholder of both companies: contrast paragraph 1 with paragraphs 25 and 57 of Mr Vickers’s first witness statement. Mr Vickers states that the only other person who has ever been a director of the claimant is Mr Mike Williams, who was a director until he resigned in October 2009 (although he is said to have continued working as the claimant’s accountant until he sadly passed away in 2019). There is a short (13 page) witness statement in reply, dated 3 December 2021, from Mr Paul Lever who had the conduct of the claimant’s litigation whilst employed by the defendant as an assistant solicitor. Mr Vickers has responded to this in a second witness statement (of some 8 pages) dated 10 December 2021. Mr Vickers was present in court throughout the five days of this application.

At paragraph 30 of his first witness statement, Mr Vickers explains that the claimant

This application was first listed for hearing before Deputy Master Arkush on 13 December 2021. The defendant (and applicant) was represented by Mr Thomas Grant QC, leading Ms Emily Gailey (of counsel). The claimant (and respondent) was represented by Mr Richard Bowles (of counsel). The Deputy Master took the view that the time allotted to the case (of 2 ½ days) was insufficient, and that the issues raised on the application were suitable to be heard by a High Court Judge. He therefore adjourned the application and transferred it for hearing by a High Court Judge, to be relisted at the first available date, with a time estimate of 4 to 5 days, to include 1 day of judicial pre-reading, and with additional time of at least one day required for preparation of the judgment. The costs were reserved.

In the event, the matter was re-listed before me and was heard (after one day’s pre-reading) at an attended hearing extending over some five days, on 13 to 15, and 19 and 20 July 2022. Ms Rebecca Page (of counsel) now appeared for the defendant (in place of Mr Grant QC), leading Ms Gailey. Mr Richard Bowles again appeared for the claimant. Counsel addressed me on an issue-by-issue basis (with certain related issues being addressed together). The hearing bundle extended to some 2,500 pages. This had been assembled by reproducing the contents of the original, and lengthy, exhibits to the witness statements, without any attempt to reduce these to any chronological order, so it was frequently necessary to traverse many hundreds of pages to follow a sequence of emails and related documents chronologically. This has made the task of counsel (and the court) unnecessarily complicated. The combined authorities bundle extended to almost 1,400 pages, and several additional authorities were placed before the court as the hearing progressed.

I have been considerably assisted by counsel’s lengthy and detailed skeleton arguments (extending to some 66 pages for the defendant and 79 pages for the claimant), supplemented by their oral submissions. Both the written and the oral arguments focussed on the relevant issues and represent advocacy of a very high order. Ms Page wishes the court to acknowledge the part played by Mr Grant QC in co-authoring the defendant’s skeleton argument prepared for last December’s hearing, much of which she has adopted for the purposes of the present hearing. I am happy to do so.

Since these are applications for strike out and/or summary judgment, I do not propose to recount or address all of the many individual points raised, or submissions advanced, before me. Rather I will focus upon those points that are essential to my decision on each of the issues addressed by counsel. But that does not mean that I have overlooked any of the other submissions advanced before me.

After circulating this judgment in draft, and inviting counsel to submit a list of any typing corrections, or other obvious errors, in the usual way, Ms Page submitted a written note (by email dated 8 September 2022), at a time when I was not sitting. In addition to suggesting certain corrections and clarifications to the draft judgment, Ms Page advances the submission that no claim with any, or any real, prospect of success survives the findings in my draft judgment; and that the appropriate form of relief must be for the whole claim to be struck out and/or summarily dismissed (with costs). Ms Page does so pursuant to counsel’s positive duty, as endorsed by the Court of Appeal (Sir Mark Potter P, Arden and Wall LJJ) in Re ZM v JM (Children) [2008] EWCA Civ 1261 at [38], to raise with the judge any alleged deficiency in their reasoning process, or any genuine query or ambiguity arising on their draft judgment. Ms Page followed this up with a further email, dated 13 September, inviting the court, should it accede to her submission, to re-consider its decision not to make any final findings on issue three in light of its decision that there is a triable issue on issue four. Having considered this written note, I thought it appropriate to give Mr Bowles an opportunity to respond by way of written representations. This he did by way of a written note dated 16 September. Having considered this document, I concluded that I should allow Ms Page a final opportunity to reply, which she did by way of a further note to the court dated 20 September 2022. In the interests of transparency, albeit possibly with some resulting loss of continuity and clarity, I will address these further consequential submissions by way of postscript to this judgment in section 16 below. To the extent that there is any inconsistency between them, the contents of section 16 of this judgment supersede the provisional conclusions which I have set out at section 15.

This judgment is divided into 16 sections, as follows:

The claimant is a recruitment agency which contends that due to defaults on the part of the defendant, as its litigation solicitors, it lost the opportunity to pursue claims against two entities within the Kinross mining group (Kinross) for breaches of three recruitment contracts (the underlying claim). It now claims the full, undiscounted, value of the underlying claim, explicitly on the basis that this would have succeeded in full. The defendant denies both liability and quantum in their entirety.

This application is brought on no less than 11 grounds, in addition to an overarching strike-out ground founded upon the asserted impossibility of a fair trial. The defendant refers the court to a table summarising the various grounds at appendix A to Ms Morrish’s witness statement, which sets out the amounts and proportions of the claim (by value) which would be disposed of if the defendant were to succeed on each of these grounds (apart from the overarching point concerning the impossibility of a fair trial which, if successful, would result in the entire claim being struck out). Both the statements of case, and the witness statements filed in relation to this application are lengthy documents; but the touchstone of the defendant’s case on this application is essentially very simple: it is said that the underlying claim had no value or, alternatively, that such value as it may have had has been hugely exaggerated, such that in reality, irrespective of any breach on the part of the defendant (which is denied), the claimant suffered either no loss, or materially less loss than is currently pleaded in the claim.

Aside from the overarching argument about the impossibility of the defendant obtaining a fair trial, there is no single ground for the striking out of, or summary judgment on, the whole of the claim. Instead, there are numerous different elements of the claim which the defendant says are susceptible to strike out and/or summary judgment which, collectively, account for the entirety of the claim. Importantly, however, even if (contrary to the defendant’s primary position) the court were not to accede to this application in its entirety, the defendant maintains that it is still a proper use of court time to consider and (even if the defendant only succeeds in part) put the claim on a more realistic footing. Even partial success in the application will still materially reduce the pleaded value of the claim: for example, some US $3,749,096.24 is claimed by way of contractual interest as damages (up to 11 December 2015, after which interest is claimed under statute), at a rate which the defendant says is obviously penal. To put this into perspective, the claimant originally said that it had claims for fees and other sums due under the three Kinross contracts totalling only about $2,736,453.64; and since a claim for the costs of a non-existent Moscow office has now been abandoned (albeit only informally, and by way of concession in the claimant’s skeleton argument), the current figure is about $1,948,424.64.

Moreover, the defendant relies upon the fact that this is a complicated dispute, where the claimant’s case has continually evolved, and the current trial estimate is either some two weeks (on the claimant’s case) or three weeks (on the defendant’s). The parties’ combined costs budgets up to trial are well over £2m. The defendant maintains that narrowing the scope, and the value, of the issues in dispute would be entirely in line with the overriding objective, by reducing the future burden on court time and the projected expenditure of legal costs.

The claimant asserts that between 2008 and 2009 it entered into three contracts with two companies within the Kinross mining group, namely ‘Kinross Gold’ (a Canadian company) and ‘Kinross Far East’ (a Russian company), and that it has lost entitlements against Kinross under these three contracts. At the relevant time, the claimant provided international recruitment services and the three contracts related to the provision of such services to Kinross. These three contracts are:

The claimant asserts that it had claims against the relevant Kinross company under each of these three contracts for various differing reasons and for differing sums of money. Those claims are set out in the statements of case and the evidence, and it is unnecessary to rehearse them in any detail. The claimant instructed the defendant in November 2013 to prosecute certain of those claims on its behalf in relation to the non-payment of sums allegedly owing under each of the three contracts, interest on those sums, and, in relation to the ERR contract, the ‘wasted costs' of allegedly setting up an office in Moscow to perform the contract. At paragraph 7 of his first witness statement, Mr Vickers relates that:

The underlying claim was duly commenced, in the sole name of the claimant, in the Queen’s Bench Division of the English High Court against Kinross Gold and Kinross Far East on 2 March 2015. By an order made without notice on 5 August 2015, Master Cook gave permission for service out of the jurisdiction on both Kinross Gold and Kinross Far East, and for service on Kinross Far East by the alternative means of service on Kinross Gold in Canada. He also extended the period for service of the claim form. As explained in Master Cook’s later written judgment dated 27 May 2016, after service was effected on both Kinross Gold and Kinross Far East in Canada, those companies successfully applied for an order setting aside that part of the permission order which had extended the period for service, thereby invalidating the service that had been effected. There was a good deal of evidence served in respect of Kinross’s application on both sides; and the bulk of the bundle which was before Master Cook is before this court. After the permission order was set aside, the claimant, the BVI company, and Mr Vickers ultimately entered into a compromise with Kinross Gold and Kinross Far East on about 11 October 2016 in full and final settlement of the underlying claim in consideration for Kinross’s agreement not to enforce the costs order which they had obtained against the claimant.

By this claim, the claimant (but not the BVI company) alleges that breaches of duty on the part of the defendant caused the permission order to be set aside and, consequently, caused the claimant to lose the opportunity to recover sums under the (allegedly valuable) Kinross contractual claims (which the claimant asserts had by then become statute-barred as a matter of English law). The dispute over whether any breach of duty on the part of the defendant resulted in the setting aside of the permission order does not arise on the present application. The defendant considered the particulars of claim (dated 6 March 2020) to be unclear and contradictory so, before serving its defence, the defendant served a detailed request for further information (on 6 April 2020), to which the claimant responded (on 18 May 2020). The defendant filed its defence to these proceedings (on 12 June 2020), denying all liability, and specifically denying any breach of duty on its part. Without prejudice to those denials, or to the other defences which it raises, the defendant denies liability on the further ground that, had the underlying claim proceeded to trial, the claimant would not have succeeded in recovering judgment from Kinross for any sum (or, alternatively, would have recovered judgment for much lower sums than are currently pleaded), so that any breach of duty by the defendant has caused no loss to the claimant or, alternatively, on the claimant's best case (which the defendant also denies), much less loss than is currently pleaded. On 28 August 2020 the claimant served a reply which has not materially changed the position between the parties.

There is no real dispute between counsel as to the applicable law which governs the present applications.

In relation to CPR 3.4 (2) (a) (statement of case discloses no reasonable grounds for bringing the claim), the defendant submits that the touchstone is that a statement of case which raises an unwinnable case is suitable for strike-out. As Sedley LJ noted in Harris v Bolt Burdon [2000] C.P. Rep. 70 (a case where it was similarly argued that the claimant had suffered no loss) at [24]:

In relation to CPR 3. 4 (2) (b) (abuse of process), as set in PD 3A, para 1.5 “A claim may fall within rule 3.4 (2) (b) where it is vexatious, scurrilous or obviously ill-founded.” This has been held to include occasions in which a party, by their conduct, has forfeited the right to take part in a trial, i.e. by a failure to comply with their disclosure obligations such that it is impossible to conduct a fair trial. In the case of Logicrose Ltd v Southend United Football Club Ltd (unrep., The Times 5 March 1988) Millett J had to rule on what he described as “an application of an unprecedented kind”. This was an application, made by the defendants during the trial of the action, and shortly before the conclusion of the plaintiffs' case, for an order that the action be dismissed, that the defence to the counterclaim be struck out, and that judgment on the counterclaim be entered for the defendants. The application was made under RSC Order 24, rule 16 on the ground that the plaintiffs had failed to comply with the requirements for discovery. At page 2 of the approved transcript, Millett J recognised that an order debarring a party from all further part in the proceedings, and giving judgment against him accordingly, might:

In the course of his oral submissions, Mr Bowles referred me to a passage in Millett J’s judgment (at page 9 of the transcript) where he indicated that he would have refused to accede to the application once the missing document had been produced:

The principle identified by Millett J was expanded upon by the Court of Appeal in Arrow Nominees Inc v Blackledge [2001] BCC 591 where Chadwick LJ stated (at [54-5]):

This approach was endorsed by the Court of Appeal in Masood v Zahoor [2009] EWCA Civ 650, [2010] 1 WLR 746 where (at [71]) Mummery LJ, delivering the judgment of the Court, treated the Arrow Nominees case as “… authority for the proposition that, where a claimant is guilty of misconduct in relation to proceedings which is so serious that it would be an affront to the court to permit him to continue to prosecute his claim, then the claim may be struck out for that reason.” At [73] Mummery LJ emphasised that: “One of the objects to be achieved by striking out a claim is to stop the proceedings and prevent the further waste of precious resources on proceedings which the claimant has forfeited the right to have determined.” At [75] Mummery LJ also explained that since, on a defendant’s application to have a claim struck out on the grounds of the claimant’s misconduct, the sole question for the court was whether, by reason of that misconduct, the claimant had forfeited the right to have an adjudication of his claim, the fact that the defendant had himself been guilty of misconduct was irrelevant, and did not justify the judge refusing the application. There was no “exercise of weighing the misconduct of the claimants against that of the defendants. The defendants did not start the proceedings. They did not seek relief from the court. They were merely defending the claims brought by the claimants.” Ms Page submits that Mr Vickers’s evidence for the claimant is irremediably tainted by his own persistent dishonesty.

CPR 24.2 provides that the “court may give summary judgment against a claimant … on the whole of a claim or on a particular issue if – (a) it considers that – (i) that claimant has no real prospect of succeeding on the claim or issue…” The defendant emphasises that: (1) a realistic claim is one that carries some degree of conviction and is more than “merely arguable”; (2) it is open to the court to decide short points of law or construction if it has before it all the evidence necessary for a proper determination, and it is satisfied that the parties have had an adequate opportunity to address the point in argument; and (3) the court should not allow a case to go forward to trial simply because there is a possibility of some further evidence arising. (I understand this latter proposition to relate to a case where the claim is irremediably bad in law: I recognise that in reaching its conclusion on an application for summary judgment, the court must take into account not only the evidence actually placed before it on the application, but also any further evidence that can reasonably be expected to be available at trial, provided the respondent has laid a sufficient evidential foundation for any submission that further evidence can reasonably be expected to be available at trial that would support a credible and legally sustainable claim.)

In her oral submissions, Ms Page reminded me of the following observations of Lord Woolf MR in Swain v Hillman [2001] 1 All ER 91 at 94 A-C:

Ms Page also referred me to observations of Potter LJ (with whom Peter Gibson LJ agreed) in E D & F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472 at [10]:

For the claimant, Mr Bowles emphasises that the court retains a discretion whether to strike out a statement of case pursuant to CPR 3.4 (2), although before the court can exercise that discretion it must be satisfied that one of the grounds set out in paragraphs (a) to (c) is made out. A claim will only be deemed to have no real prospect of success if it is “fanciful” or devoid of reality (as set out in further detail below). Strike out should not be ordered unless the court is certain that the claim is bound to fail, as where the pleadings disclose a case which is unwinnable, such that continuance would only waste all the parties’ resources. Importantly, a court should not strike out a statement of case under CPR 3.4 (2) (a) where there is a serious live issue of fact which can only properly be determined by hearing oral evidence. Whilst, under CPR 3.4 (2) (b), the court has the power to strike out a statement of case where there has been an abuse of process, this sanction must be proportionate and must support the over-riding objective. Strike out should be a last resort, and any appropriate alternative options should be exercised first. There is no limitation on what constitutes an abuse of process. CPR 3.4 (2) (c) gives the court an unqualified discretion to strike out a claim where a party has failed to comply with a rule, practice direction or court order. However, such a breach should only result in the striking out of a claim in circumstances where such a remedy is proportionate; and the court should consider whether there may be more appropriate and proportionate sanctions available to it.

Mr Bowles accepts that the court has a power under its inherent jurisdiction to strike out a claim where the claimant has been guilty of conduct which has put the fairness of any trial in jeopardy, or which is such as to render further proceedings unsatisfactory and prevent the court from doing justice. However, the court should only exercise its inherent jurisdiction to strike out a statement of case in circumstances where there has been an abuse of process which would be such as to render future proceedings unsatisfactory, and where any judgment in favour of the litigant would have to be regarded as unsafe. This is said to set a very high bar for an applicant for such relief to satisfy.

By CPR 24.2 the court may give summary judgment if it considers that the claimant has no real prospect of succeeding on the claim, and there is no other compelling reason why the case should be disposed of at trial. Mr Bowles submits that the courts have provided substantial guidance on how the court should approach the exercise of its discretion to grant summary judgment under CPR 24.2:

Although this particular authority was not cited to me, in determining the defendant’s application for summary judgment I derive particular assistance from the principles identified by Lewison J in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15] (as approved in later decisions of the Court of Appeal) and set out at paragraph 24.2.3 of the current (2022) edition of Volume 1 of Civil Procedure:

I do not understand these principles to differ from any of those advanced before me by either counsel.

In a negligence case, such as the present, where the claimant seeks the value of an underlying claim which has allegedly been lost as a result of a solicitor’s breach of duty, the court is required to apply a two-stage test. First, the claimant will have to prove, on the normal balance of probabilities: (1) that they would have brought the claim in time, and (2) that the claim would be an honest one. A dishonest claim naturally falls outside the category of lost claims for which damages may be claimed in negligence against professional advisors: see, in particular, the observations of Lord Briggs JSC in Perry v Raleys Solicitors [2019] UKSC 5, [2020] AC 352 at [25-27]. Secondly, if the claimant can surmount the first hurdle, then the value of the claim will be assessed on the basis of the loss of a chance. When the court is considering this question (i.e. the value of the lost chance), the court will first require the claimant to prove that the lost claim had a real and substantial, rather than a merely negligible, prospect of success (rather than conduct a trial within a trial of the underlying claim). Only where the claimant establishes this will the court then conduct an evaluation of the prospects of success.

Mr Bowles did not take issue with any of these propositions. Rather, it is his submission that the underlying claim did have a real, rather than a negligible, prospect of success. Mr Bowles began by emphasising that the court’s role is to try to put the claimant back into the position it would have been in had the defendant solicitor not acted in breach of contract or its common law duty of care. At trial, the court will be confronted with the task of trying to determine what loss the claimant has suffered where the opportunity of pursuing a claim has been lost as a result of its solicitor’s breach of duty, and how that loss can be compensated by an award of damages. In order to do this, the court will approach the matter as one of the loss of the opportunity of bringing the claim forward to trial or earlier settlement. In doing so, the court will not require the claimant to prove its underlying claim on the balance of probabilities (as it would have done had the underlying claim gone to trial). Rather, the court will decide whether the claimant has lost something of value, in the sense that its claim had a real and substantial, rather than merely a negligible, prospect of success. Mr Bowles submits that this does not set a high bar: the claimant merely needs to establish that it had a case which was more than fanciful, or negligible, in order to establish its claim for the loss of a chance.

Moreover, the Supreme Court has made it clear, in Perry v Raleys Solicitors (cited above), that in determining whether the underlying claim had real prospects of success, the court will not undertake a “trial within a trial”, or consider the underlying claim on the balance of probabilities (because to do so would be unfair to the claimant whose underlying claim has been lost). However, where the underlying claim turns on the construction of documents, then the court can undertake the process of construing those documents, as it would have done at trial. No prejudice is caused to the party whose claim has been lost by the court undertaking such an analysis. Importantly, in the context of the present case, where the defendant seeks to establish that any negligence on its part has not caused the claimant any loss, the evidential burden rests on the defendant to establish that the claimant has lost nothing,

Mr Bowles submits that since the defendant is not only the applicant but also seeks to assert that, even if it was negligent (which it denies), that negligence would not have caused the claimant any loss. Accordingly, the burden of proof on this application falls squarely on the defendant. It must therefore persuade the court that, in relation to each of the eleven identified issues, the claimant would have had no real prospect of successfully maintaining any claim against Kinross that would have cleared the low summary judgment hurdle. As a result, in order to dismiss this application, the court need only be satisfied that the claimant has a real prospect of demonstrating that its underlying claim would have satisfied the summary judgment criteria (being all that is required to establish a claim for loss of a chance). This is a low bar; and Mr Bowles submits that, in this case, this hurdle is cleared with ease. In doing so, the court must take the evidence of Mr Vickers at its highest. It is not entitled to disbelieve it, unless it finds it to be manifestly incredible.

Against this background, I turn to consider the individual issues before I then turn to address the defendant’s overarching point. I will address them in the order they were argued before me (which differs slightly from the order in the skeleton arguments).

Issues three and four raise the questions whether the claimant was ever properly a party to either of the SVP and the ERR contracts and, if not, whether the defendant should have advised the claimant to assign those contracts to the claimant. As Mr Bowles points out, even if the court were to find in the defendant’s favour on these two issues, this would only dispose of part of the claim (in so far as it relates to the claimant’s potential to recover based on either of these two contracts) and would still leave the claimant in a position to pursue its claim for the losses it has suffered as a result of the failure to prosecute any breach of the RVP contract.

For the defendant, Ms Page points out that in the underlying claim the entirety of the sums claimed against Kinross under the ERR and SVP contracts was premised on the basis that the claimant was the contracting party to those two contracts. She submits that it is clear from the face of those contracts that the true contracting party was the BVI company, a separate corporate entity, which was not a claimant in the underlying claim and is not a party to the present claim. This fact is said to be fatal to the claimant’s attempt to recover any sums flowing from those two contracts from the defendant. If the court agrees with the defendant that the BVI company was the true contracting party under the SVP and ERR contracts, then the natural party to bring any claims in relation to such contracts was that company, and not the claimant. It is the defendant’s case that it was the BVI company, rather than the claimant, which suffered any loss by the failure to pursue Kinross. Further, the defendant never owed the BVI company any duty of care.

Ms Page acknowledges that, as Teare J explained in Navig8 Inc v South Vigour Shipping Inc [2015] EWHC 32 (Comm) at [94], the

In summary the defendant’s case is that:

For these reasons, the defendant seeks, under CPR 3.4 (2) (a) and/or CPR 24.2, the striking out of, and/or summary judgment on, the claim insofar as it is premised upon the claimant having been a party to the SVP and the ERR contracts. This is on the basis that the claimant’s case lacks the crucial elements of causation and loss as it had no, or no real, prospect of recovering from Kinross the sums that it says it would have recovered, such that even if any alleged breach of duty by the defendant is made out: (1) the particulars of claim disclose no reasonable grounds for bringing that part of the claim, or (2) the claimant has no, or no real, prospect of succeeding in showing that any alleged breaches caused that part of the claimed loss.

For the claimant, Mr Bowles does not dispute that both contracts were entered into on paper bearing the letterhead of the BVI company, and that certain payments were made to the Cypriot bank account maintained by the BVI company. Neither of these facts is in dispute. However, he submits that this is hardly the end of the matter, and that in fact the evidence (properly analysed) points strongly towards the SVP and ERR contracts having been entered into with the claimant, either directly or with the BVI company acting as its disclosed agent. He points out that the only evidence that the court has from the parties who were present at the time that these contracts were entered into is the evidence of Mr Vickers and Dr Cowley. Their evidence is clear: the contracts were entered into by the claimant and not the BVI company. Conversely, the defendant is basing its case solely on a retrospective view of the contractual documentation. Mr Vickers has, quite frankly, accepted that this documentation is not as clear or as uniform as it could have been. As such, it is not possible for the court to rely only upon this documentation without considering all the surrounding factors. In this case, those factors are said plainly to point to the claimant being the contracting party.

The claimant’s case is that both the SVP and the ERR contracts were made with the claimant, and that to the extent that the BVI company had any role at all, it acted as the claimant’s agent when signing the SVP and the ERR contracts, such that these contracts were entered into by the claimant as an identified and disclosed principal under those contracts. At all times, Kinross was aware that the principal under each contract was the claimant, and not the BVI company (a company with which it had never had any previous dealings). This has been acknowledged by Dr Cowley, the only person from Kinross to give any evidence in the underlying claim. As such, there can be no suggestion that the claimant was not the correct party to bring the claims against Kinross. The factual background plainly supports this position.

Mr Bowles submits that:

Mr Bowles points out that the claimant has never sought to deny the BVI company’s involvement in the process of entering into the SVP and the ERR contracts. Rather, the claimant has pleaded, in terms, that where that company was involved in those contracts, it was only as a result of an oral agreement of agency between the two companies. Mr Bowles emphasises that the claimant need not go so far as to show that, on the balance of probabilities, it was the correct contracting party (although Mr Bowles submits that the evidence is plainly sufficient to go that far). Rather, all the claimant need show is that there is a substantial dispute of fact making the matter unsuitable for summary determination. Mr Bowles submits that this is plainly the case. There is plainly a dispute of fact which will require determination following cross-examination at trial.

In a further alternative to his primary case that the claimant was the directly contracting party to the SVP and ERR contracts, and his secondary case that the BVI company was contracting as the company’s agent in relation to those contracts, Mr Bowles also contends that if the BVI company were indeed the contracting party, then, but for the defendant’s negligence, it would have procured an assignment of the Kinross claims from the BVI company to the claimant.

In response to this latter contention, Ms Page contends that it was the claimant’s positive case in the underlying claim that it, rather than the BVI company, was the true contracting party under the SVP and ERR contracts (a case which it maintains in the present claim). It cannot be right that the defendant could be negligent to the extent that its client’s primary case, prosecuted on its client’s instructions, turned out to be false. Moreover, it was not necessarily open to Mr Vickers to assign claims from one company controlled by him to another independent company which also happened to be controlled by him. It would not have been possible for the defendant to advise in such terms since: (1) Mr Vickers could not have properly have caused the BVI company to assign the claims at an undervalue (and, on the claimant’s case, they are worth millions); (2) the defendant could not properly have advised in relation to such a breach of fiduciary duty, nor could the claimant properly have received any benefit from it; and (3) if the claims were to be transferred for the full value asserted by the claimant, then there is no evidence before the court that the claimant held sufficient funds to procure such assignment. Ms Page makes the forensic point that issue of any assignment of the underlying claim from the BVI company to the claimant is not addressed either in Mr Vickers’s evidence or Mr Bowles’s skeleton argument.

Accordingly, the defendant seeks, under CPR 3.4 (2) (a) and/or CPR 24.2, the striking out of, and/or summary judgment on, the claim insofar as it is premised upon the claimant’s alleged loss of the opportunity to take an assignment of the underlying claim from the BVI company on the basis that: (1) the claimant cannot make out its allegation of breach of duty; and /or (2) the claimant’s case against the defendant lacks the crucial elements of causation and loss as the claimant had no, or no real, prospect of securing such an assignment and thus of recovering from Kinross the sums that it says it would have recovered.

Were it necessary, and appropriate, for me to determine the issue of the identity of the true parties to the SVP and ERR contracts on the present application, I would be likely to find that the BVI company contracted as principal with Kinross. I find the arguments of Ms Page for the defendant far more compelling than those of Mr Bowles for the claimant. Although the identification of the parties to a contract is a question of fact, the exercise is an objective one, concerned not with undisclosed subjective intentions but with objective communications crossing the line. I find the deliberate change in the letterhead, after the first of the three contracts, to that of the BVI company utterly compelling. I can identify no satisfactory reason to explain this change beyond the fact that the BVI company was to be the contracting party under the SVP and ERR contracts. I can discern no satisfactory explanation for either Kinross or the BVI company entering into any contract with the claimant as the disclosed principal. Given the virtual identity of the names of the two companies – with the only difference being ‘Limited’ and ‘Ltd’ – I attach no importance to the addressee named in Kinross’s letter of 26 October 2010 terminating the ERR contract. Given that the BVI company had no separate operational address of its own, I also attach no significance to the fact that this letter was sent to the address of the claimant’s London office.

I attach no weight to the way in which invoices were drawn in view of the email dated 29 October 2008 (at page 1697), expressly relating to the RVP contract – which was undoubtedly entered into by the claimant – in which Mr Vickers confirmed “… that with overseas candidates, we will invoice all fees via our offshore company (Harrington Scott BVI) without VAT”. I can discern no logic, or pattern, behind, or any evidential value in, the way invoices were paid: see the tabloid summary at paragraph 98 of Mr Vickers’s first witness statement.

However, I find the claimant’s failure to account for the sum of US $194,197.66 invoiced by the BVI company for the first tranche of the fee due under the ERR contract (on 16 March 2009, at page 1871), and paid into the BVI company’s Cyprus bank account on 7 April 2009 (at page 1648), in the claimant’s accounts for the period ended 28 February 2010 (disclosing no turnover or costs of sales and an operating loss of £26,062, at page 1170), which Mr Vickers signed off on 14 February 2011 (at pages 1169 and 1172) and which were filed at Companies House on 17 February 2011 (at page 1176) utterly compelling. This point was not adequately answered in Mr Vickers’s evidence or Mr Bowles’s submissions; and in my judgment it is probably unanswerable.

Despite this, I am satisfied that it is neither necessary nor appropriate finally to resolve this issue because I am satisfied that, on the footing that the contracting party to the SVP and the ERR contracts was the BVI company and not the claimant, there is a triable issue, with real prospects of success, as to whether the defendant, as a reasonably competent solicitor, should have identified this fundamental obstacle in the way of the underlying claim and advised the claimant as to how it might be overcome. This could have been achieved by taking an assignment of the underlying claim from the BVI company (after any necessary restoration to the register of companies in the BVI). I accept Ms Page’s submission that such assignment would have had to be for good consideration. But, in my experience, it is commonplace, in such situations, for an assignor to accept a proportion of any realised net fruits of the underlying litigation as the consideration for an assignment of any third party claim. Such an analysis would raise issues as to what the claimant and the BVI company would (or, in the case of the BVI company, possibly might) have done had the defendant advised that such an assignment should be taken; but these are matters for trial (after any necessary amendment of the claimant’s statements of case) and not for summary determination on this application. Given that issue four has to go to trial, and because it is so closely bound up with the prior issue of the identification of the true parties to the SVP and ERR contracts, I do not consider that it would be a proper exercise of the court’s discretion to circumscribe the freedom of any trial judge to determine that prior issue by purporting to make any final determination on issue three. However, the claimant would need to amend its particulars of claim so as to plead this issue properly.

Issue five is whether the SVP and ERR contracts were ‘Retained Assignment’ contracts, such that the claimant would have been entitled to receive fees under those contracts in circumstances where a role was filled by a third party, and not the claimant. The claimant says that, in respect of both the SVP and ERR contracts, it was entitled to be paid further fees or damages (being the fees it claimed against Kinross in the underlying claim) in circumstances where a relevant role at (respectively) Kinross Gold or Kinross Far East was filled, even where the successful candidate was not sourced by the claimant. This is a question of interpretation of the contracts in question. On a correct interpretation of those contracts, the defendant says that the claimant had no such entitlement, and has suffered no equivalent loss. Mr Bowles points out that even if the defendant were to succeed on this part of the application, this would only dispose of that part of the claim relating to the SVP and ERR contracts.

A fundamental aspect of the claimant’s underlying claim, and consequently its claim against the defendant, is that the Kinross entities were under an obligation, under the SVP and ERR contracts, to only use the claimant’s services to source candidates for the relevant jobs, such that if the relevant position was filled, by whatever means, the Kinross entity was obliged to pay the claimant’s full fee under the relevant contract, even if the claimant had not introduced the relevant candidate. The claimant’s case is that such an obligation was known as a recruitment agency being retained on a ‘retained assignment’ basis.

It is the claimant’s primary case that it was an express term of the SVP and ERR contracts that they were entered into on such a ‘retained assignment’ basis, whereby Kinross had agreed to instruct the claimant exclusively for a period of 12 months to resource the roles under the SVP and ERR contracts. Alternatively, the claimant says that it was an implied term of each of these contracts that they would be entered into on a retained assignment basis, such term being implied by virtue of trade custom and usage (although, in submissions, Mr Bowles has sought to expand this aspect of the claim to assert that these contracts would lack commercial or practical coherence without the implication of such a term, which should therefore be implied so as to give the contracts business efficacy).

In summary, the defendant’s case on this issue is that:

Ms Page submits that the argument that the exclusivity term is an express term of the Kinross contracts is simply untenable. It derives from an elaborate interpretation of sub-clause 5.1 of the relevant contracts which was raised for the first time in Mr Bowles’s skeleton argument for the December hearing and is said to be in direct contradiction to the case on the alleged express term set out in the particulars of claim and the reply.

The starting point in construing a contract is that its words are to be given their ordinary and natural meaning, as viewed through the eyes of the reasonable reader; and the clearer the natural meaning, the more difficult it is to justify departing from it. Further, if a term of a contract is open to more than one interpretation, it is generally appropriate to adopt the interpretation which is most consistent with business common sense.

In this case, the text of the relevant part of clause 5 reads:

“Introductions: The Client shall pay the Company fees resulting from any employment as set out in Clause 2 [i.e. where the claimant has introduced a successful applicant for a role] where,

5.1

An Applicant has been submitted to a Client and no initial employment results, but the Applicant is subsequently employed by the Client up to twelve months after the initial introduction date or the Applicant introduces further Applicants to the Client resulting in employment by the Client;”

The claimant’s argument is that because this sub-clause does not include any specific reference to such applicants having originally been sourced by the claimant, it can somehow be the source of the broad exclusivity term on which the claimant relies. Ms Page submits that this is unsustainable as a matter of construction.

First, such an argument requires the court to ignore the phrase “An Applicant has been submitted to a Client and no initial employment results” (emphasis added by Ms Page). It is plain from this phrase that sub-clause 5.1 is intended to provide for a scenario where a candidate is put forward by the claimant, initially rejected by Kinross, and then subsequently hired by Kinross some months later. It is only possible for the claimant to suggest otherwise by ignoring this wording, and departing entirely from the natural wording of the provision. It requires an applicant simply to be “submitted to” Kinross.

Secondly, the analysis of sub-clause 5.1 for which the claimant contends makes no commercial sense. There can be no logical reason why the parties should have intended that the claimant should be paid a fee if a successful applicant was introduced by a different recruiter, but only in circumstances where “no initial employment” results. To take this point further, if the parties had intended sub-clause 5.1 to have the meaning for which the claimant now contends, they could have provided for it very simply. Clause 2 could have stated in terms that payment was due to the claimant on the employment by Kinross of any candidate, however sourced. They did not do this; and the clear inference is that it is not what they intended.

Thirdly, the definition of the term ‘Applicant’ is extended by sub-clause 5.4 in both the SVP and ERR contracts (for the purposes of clause 5 only) to include “any member of the Company’s own staff” (in both contracts) and also “any candidate sourced by the Company via any and all other parties including recruitment agencies for a period of 12 months from the date of commencement of this search assignment”. Ms Page submits that the clear inference from this is that in the absence of sub-clause 5.4, the term ‘Applicant’ would not include any such individual, otherwise there is simply no reason for the inclusion of sub-clause 5.4. This is particularly obvious in the case of the ERR contract because sub-clause 5.4 expands the definition of ‘Applicant’ to candidates sourced via other recruitment agencies. There is simply no reason for such a provision (which, at paragraph 295 of his first witness statement, Mr Vickers says he specifically drafted) if sub-clause 5.1 effectively renders the definition of ‘Applicant’ universal in any event. Plainly, therefore, the definition of ‘Applicant’ in the SVP and ERR contracts - except where specifically expanded in the ways referred to in clause 5.4 - is in fact the ‘Applicant’ of sub-clause 2.1 (i.e. an Applicant sourced by the claimant). This is further underlined by the opening words of clause 5 (quoted above) which state: “The Client shall pay the Company fees resulting from any employment as set out in Clause 2 where…” (emphasis added by Ms Page).

As regards the claimant’s case in support of an implied term, Ms Page reminds the court of the classic formulation of the test for the implication of a contractual term provided by Lord Simon of Glaisdale (speaking for the majority of the Privy Council, which included Viscount Dilhorne and Lord Keith of Kinkel) in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 52 ALJR 20 at 26:

Since the particulars of claim include (at paragraph 20) the plea that such a term could be “implied by custom and industry usage, being a typical term in any recruitment contract of this nature”, Ms Page also referred me to extracts from Vol 1 of Chitty on Contracts (34^th edn) at paragraphs 16-035 and 16-036 as follows:

In summary, Ms Page submits that consideration of these principles is fatal to the claimant’s case as to the existence of the alleged implied term:

Accordingly, the defendant seeks, under CPR 3.4 (2) (a) and/or CPR 24.2, the striking out of, and/or summary judgment on, the claim insofar as it relates in any way to the SVP and ERR contracts, on the basis that the claimant had no, or no real, prospect of recovering from Kinross the sums that it says it would have recovered, such that even if any alleged breach of duty by the defendant is made out: (1) the particulars of claim disclose no reasonable grounds for bringing that part of the claim, or alternatively (2) the claimant has no, or no real, prospect of succeeding in showing that any alleged breaches caused that part of the claimed loss.

There is no real difference between the parties as to the applicable law. On the process of contractual interpretation, Mr Bowles referred me to a number of authorities, including the following statement of Lord Hodge JSC (with whom Lords Neuberger, Mance, Clarke and Sumption all agreed) in Wood v Capita Insurance Services Ltd [2017] UKSC 24, [2017] AC 1173 at [10]:

Mr Bowles acknowledges that for a term to be implied into a contract by trade custom, it is necessary for there to be “an invariable, certain and notorious usage”: see Crema v Cenkos Securities plc [2010] EWCA Civ 1444, [2011] Bus LR 943 at [6 ] per Aikens LJ. Mr Bowles also accepts that such a term needs to be more than mere “market practice”, although he submits that such practice can be an important feature when considering the factual matrix against which the parties contracted, and also the information available to them at the time on which their contractual intentions were based. As Aikens LJ recognised (at [50]), any implied term “… must be considered in the light of the expert evidence on ‘market practice’, so that the court can put itself in the position of the ‘reasonable addressee of the contract’.” Mr Bowles also recognises that a term can only be implied into a contract by custom or usage if there is nothing in the express or implied terms of that specific contract that would prevent such inclusion, and then only if it is not inconsistent with the contract as a whole. Mr Bowles also accepts that where the parties have entered into express obligations as regards a particular subject matter, and it is argued that a further term should be implied in relation to the same subject matter, it is well established that the court will be very reluctant to imply a further term even if it does not actually conflict with the express term.

Mr Bowles accepts that on the express terms of the contract, the claimant had no entitlement to receive any further fees under either of the more typical routes to payment, namely either of clauses 2.1 or 2.4 of the SVP and ERR contracts. However, he submits that the claimant would have been entitled to receive further payments under both the SVP and ERR contracts via clause 5.1, on the basis that the definition of “Applicant” does not tie that applicant to one sourced by the claimant. Rather, it extends to any individual introduced to Kinross. This sub-clause is said to give express contractual effect to the intention, reflected by the reference in the definition of “Retained Assignment”, to fees being “non-contingent”, as fees will be due to the claimant under clause 5.1 in circumstances where it did not source the candidate (as long as the candidate is sourced within 12 months).

Mr Bowles also supports this construction by the submission that the parties intended clause 2.4 to deal with a different situation to clause 5.1. Clause 2.4 requires the introduction to have been made by the claimant (being an applicant put forward as part of its candidate shortlist) while clause 5.1 does not include any such requirement. The court should find that these clauses deal with different scenarios.

Mr Bowles therefore contends that any applicant introduced to Kinross from whatever source (during the period of the contract), who was then employed by Kinross within 12 months, would trigger a fee due to the claimant under clause 5.1. This is said to be: (1) in line with the industry standard definition of retained assignment and (2), in the case of the ERR contract, this position is bolstered by the express wording of clause 5.4. Therefore, Kinross breached the express terms of each of the SVP and ERR contracts by using third-party recruiters to source candidates for the roles under those contracts but not then paying the sums contractually due under clause 5.1.

However, if the court is not with the claimant on the position in relation to the meaning of the express terms of, and the entitlement to receive fees under, the SVP and ERR contracts, Mr Bowles submits that the industry standard definition of retained assignment should be implied into those contracts to give effect to the parties’ intentions objectively construed. The term “Retained Assignment” has a meaning which is invariable, certain and notorious, and should be implied into any contract made on the basis that recruitment should be conducted on a retained assignment, rather than a contingent, basis. To the extent that the defendant seeks to deny that the term is not well-known, invariable or notorious, this is another question of fact which would render the matter unsuitable for summary determination. The court is simply in no position to know, without the assistance of expert evidence, whether the term is sufficiently certain and notorious that it should be implied into the contract. Mr Vickers says that it is; and has produced a volume of evidence to support this position. The defendant has simply denied that it is, but it has failed to adduce any evidence to contradict this position (save for Ms Morrish’s evidence, and she is not an expert). It would have been open to the defendant to seek to adduce expert evidence to oppose the claimant’s pleaded contention that such a term should be implied but it has not elected to do so. Therefore, proceeding on the basis that such a term is notorious, well-known, and invariable, Mr Bowles submits that such a term should be implied into both the SVP and ERR contracts (but only if the court is not with the claimant on the meaning of clause 5.1).

Mr Bowles submits that such a term does not contradict the express contractual wording. If clause 5.1 is not found to have the meaning for which the claimant contends, then there will simply be no contractual payment provision covering a situation where Kinross has chosen to employ another recruiter concurrently with the claimant, and a candidate introduced by that other recruiter is then engaged. The contract is silent on this eventuality (on the claimant’s alternative case). As such, Mr Bowles submits that the term to be implied would neither contradict a particular express term, nor deal with subject matter covered by an express term. It would simply fill this gap.

Without such a term being implied, the SVP and ERR contracts would lack business efficacy as the claimant would be faced with a gap in its contractual protection, such that no recruiter could agree to enter into a contract where:-

Such a result is plainly one which would mean that “the contract would lack commercial or practical coherence”, as Lord Neuberger put it in Marks and Spencer. Applying the remaining criteria identified by Lord Simon in the BP Refinery case (as glossed by Lord Neuberger in Marks and Spencer):

For these reasons, Mr Bowles submits that the SVP and ERR contracts entitled the claimant to receive payment in the event that Kinross engaged a third party recruitment firm to conduct the hires under those contracts (as the claimant alleges they did), either by virtue of right to receive payment under clause 5.1 of the contracts, or by virtue of a term to be implied to give business efficacy to the contracts (in the event that the court disagrees with the claimant’s primary contention in relation to the effect of clause 5.1). Further, it is clear that in order properly to consider whether it can imply such a term, the court will require the assistance of expert evidence. It does not have that evidence presently before it; and, as such, the court is simply unable to deal with this point on this application. In his oral submissions, Mr Bowles accepted that his case on implied terms would require some amendments to the claimant’s existing statements of case.

Those were the submissions on this aspect of the application. In my judgment, a preliminary issue of construction arises in relation to the definition of the term “Applicant” as “Any person introduced to the Company [i.e. The Executive Search Division of Harrington Scott Limited], whether on a Retained search or other contingent search basis”. It is common ground that something has gone wrong with this definition because applicants are introduced to “the Client” [i.e. Kinross] by “the Company” [i.e. the claimant]. Mr Bowles submits that this obvious error should be corrected by construing the phrase “introduced to the Company” as if it read “introduced to the Client”. I prefer Ms Page’s alternative suggested correction, whereby the phrase “introduced to the Company” should be read as “introduced by the Company”. My reasons are: (1) that this does less violence to the language of the defined term, involving minimal re-writing; and (2) it is a better fit with both (a) the language of the SVP and ERR contracts in general, such as clause 1.7 (referring to “Completion of the Assignment by the company” and an “Applicant resourced by the Company”), and clause 2.4 (referring to a client hiring “any additional Applicants submitted from within the Company’s candidate shortlist”) and (b) the intrinsic character, and commercial context and objective purpose, of a recruitment contract.

On this basis, Mr Bowles’s suggested construction of clause 5.1 would seem to me to fall to the ground.

Lest I am wrong about this, however, I accept Ms Page’s submissions as to the true meaning and effect of clause 5.1 (as summarised above) in preference to those advanced by Mr Bowles. In my judgment, for the reasons that Ms Page has given, it is implicit (if it is not express) within clause 5.1, read in the context of the SVP and ERR contracts as a whole, that that sub-clause is only engaged where an applicant has been submitted to Kinross by “the Company” (meaning either the claimant or, as I would be inclined to think, the BVI company) and no initial employment results. Mr Bowles’s submissions seem to me completely to ignore the ancillary nature of clause 5, as indicated by the heading (“Introductions”) and the express reference back to “the fees resulting from any employment as set out in Clause 2”. I can discern no relevant overlap between clause 5.1 (as so construed) and clause 2.4 because they are addressing different situations: First, clause 2.4 applies where Kinross hires any additional applicant submitted from within the claimant’s candidate shortlist whereas clause 5.1 is addressing the situation where the claimant has submitted an applicant to Kinross and no initial employment results but the applicant is subsequently employed by Kinross or introduces further applicants to Kinross resulting in employment by Kinross. Second, the timescales are different: for clause 2.4, it is within 12 months from the signed agreement between Kinross and the original candidate and for clause 5.1 it is up to 12 months after the initial introduction date. Third (as Mr Bowles acknowledges) by clause 5.4 the term “Applicant” bears an extended meaning in clause 5.1 than it does in clause 2.4.

I also accept Ms Page’s reasons for rejecting the implication of any term along the lines proposed by Mr Bowles. There is not a shred of evidence that the claimant ever incurred any upfront recruitment costs; and its filed accounts for each of the years ended 28 February 2009 and 2010 record its cost of sales as nil. In any event, such costs are addressed by the initial up-front payment of the first one-third tranche of the search fee. In my judgment, there is no real prospect of the claimant establishing that notional reasonable persons in the position of the parties at the time they were contracting would have understood the exclusivity term as being either necessary for business efficacy or so obvious as to go without saying. Without it, the contract does not lack commercial or practical coherence. Apart from the self-serving evidence of Mr Vickers, there is no satisfactory evidence of any relevant invariable, certain, or notorious usage, such as to amount to a trade or market practice.

But even if there were any such evidence, or any other legal basis for the implication of a term into the contracts along the lines asserted by the claimant, in my judgment it is clear that the claimant’s suggested implied term would be wholly inconsistent with the express terms of the relevant contracts. Mr Bowles recognises that where the parties have entered into express obligations as regards a particular subject matter, the court will be very reluctant to imply a further term even if it does not actually conflict with the express term. In my judgment, that is precisely the position in the present case. The SVP and ERR contracts make express, and, in my judgment, comprehensive, provision for the circumstances in which fees are to be payable under each of those two contracts; and in my judgment it is not open to this court effectively to re-write those contracts by adding to them. Mr Bowles’s perceived “gap” is entirely the product of the claimant’s own drafting of the contracts it elected to present to Kinross and then enter into. It is not for this court to improve upon that drafting under the guise of implying a new term. The SVP and ERR contracts provide, in terms, for the fees to “be paid as outlined in The Fee Structure and Search Assignment Fees outlined” later in the contracts. It is not a permissible exercise of the court’s interpretative powers to add to the circumstances in which any fee is to be payable by any legitimate process of implication. If, as I find, the two contracts contain no contractual provision entitling the company (or the BVI company) to payment of any fee in the situation where Kinross has chosen to employ another recruiter concurrently with the claimant, and a candidate introduced by that other recruiter is then engaged, it would contradict the agreed fee structure for the court to imply a term obliging Kinross to pay a fee in this event. To do so would be to invent a fee entitlement where none already exists and not to “fill a gap” in the parties’ agreed fee structure.

For these reasons, I accede to the defendant’s application, under CPR 3.4 (2) (a) and/or CPR 24.2, to strike out, alternatively for summary judgment on, the claim, insofar as it concerns the issue whether the SVP and ERR contracts were ‘retained assignment’ contracts entitling the claimant to receive fees under them in circumstances where a role was filled by a third party rather than the claimant. I do so on the basis that the claimant had no, or no real, prospect of recovering the sums that it says it would have recovered from Kinross, such that, even if any alleged breach of duty by the defendant were made out: (1) the particulars of claim disclose no reasonable grounds for bringing that part of the claim and (2) the claimant has no, or no real, prospect of succeeding in showing that such breach caused that part of the claimed loss.

Clause 3.2 of the ERR contract provides that;

The existence of this clause gives rise to the sixth issue on this application: the defendant contends that the level of damages claimed for Kinross’s breaches of the ERR contract fails to take account of the impact of the existence of this unilateral termination clause. Since the ERR contract gave Kinross an unfettered right to terminate without cause on 30 days’ notice, if the defendant is wrong about the true construction of that contract, any compensation to which the claimant would otherwise be entitled must be calculated on the basis that Kinross would have performed the contract in the way which was least onerous to it, i.e. by terminating the contract before instructing any other recruitment agency. Thus the claimant would never have recovered from Kinross (and cannot now recover from the defendant) sums calculated on the basis that the contract would have subsisted for any longer than 30 days. Of course, this issue falls away if the court accepts (as it has) that the ERR contract contained no exclusivity term; and even if the defendant were to succeed on this issue, this will only dispose of part of the claim for losses arising under the ERR contract.

Ms Page relies upon the long-understood legal principle that where a defendant has the option of performing a contract in more than one way, damages for breach should be assessed on the assumption that it will perform it in the way most beneficial to its own, rather than the claimant’s own, interests. It follows that where a defendant has the right to terminate a contract before the end of its contractual term, damages should only be awarded up to the end of the earliest point in time at which the defendant could have terminated the contract. Underlying this principle is the proposition that a defendant in an action for breach of contract is not liable for failing to do that which it is not required to do under the terms of the relevant contract.

Ms Page refers the court to observations of Patten LJ in Durham Tees Valley Airport Ltd v BMI Baby Ltd [2010] EWCA Civ 485, [2011] All ER (Comm) 732, describing (at [79]) the exercise to be undertaken by the court when assessing damages for breach of contract by reference to such principles:

The reference to Lavarack is to the case of Lavarack v Woods of Colchester [1967] 1 QB 278. This involved a claim for wrongful dismissal where the first item in the calculation of damages was the sum that Mr Lavarack would have earned had his employment continued until the first date on which his employer could lawfully have terminated it. In Redbourn (at [67]), the deputy judge said that the application of the principle in the case of wrongful dismissal provided an instructive comparison to the case that was before him. In a case of wrongful dismissal, damages were usually limited to the benefits that the employee would have received during the period his employment would have continued had he been dismissed by lawful notice. In other words, in such a case the assumed performance is the lawful termination of the contract instead of an unlawful one.

In a foot-note to her skeleton argument, Ms Page makes reference to the case of British Gas Trading v Shell UK Ltd [2020] EWCA 2349 where, in the context of a claim based upon the defendant’s alleged breaches (as seller) of a contract to supply natural gas from a North Sea reservoir at a specified rate, the Court of Appeal held that damages could not be assessed on the footing that the defendant had been obliged to serve notices of variation reducing the volumes of gas that the claimant had been required to take and pay for under the contract, or on the basis that such notices had been served when they had not. Ms Page submits that this decision is distinguishable from the present case on two bases: first, that it concerned a somewhat unusual provision entitling the defendant to serve notices unilaterally varying the contract rather than a notice of termination; and, secondly, that it would have been contrary to the defendant’s own commercial interests to have served any notice varying the terms of the contract whereas here it would have been in Kinross’s own best interests to have served an early notice of termination of the ERR contract.

Ms Page points to the fact that it is the claimant’s case (as asserted at paragraph 314 of his first witness statement) that Mr Vickers first found out that Kinross had breached the ERR contract by hiring other recruitment agencies to fill the roles covered by that contract in around June 2009, when he was first told that someone else was advertising a role covered by that contract. Ms Page accordingly submits that in assessing damages under the ERR contract, it should be assumed that Kinross would have terminated the contract either: (1) before instructing any different recruitment company, or (2) at the point of breach (so that assuming, on the claimant’s case, that this had taken place in or around June 2009, then the contract would have come to an end by the end of July 2009 at the latest). This was the step, within the terms of the ERR contract, which most accorded with Kinross’s own commercial best interests as, on the claimant’s case that the contract included an exclusivity term, it would otherwise have been exposing itself to a double liability for fees on any appointment. As a consequence, the ERR contract would no longer have been subsisting, and the claimant would have ceased to be entitled to any further payments under it, either at the time of breach in or round June or, at the latest, by the end of July 2009. This was particularly the case in circumstances where, on the claimant’s own case, Kinross claimed to be deriving no benefit from the claimant’s services. On its best case scenario, the claimant (or the BVI company) could never have been entitled to any damages in relation to the appointment of at least 20 individuals all of whom were recruited by Kinross after July 2009.

Accordingly, the defendant seeks, under CPR 3.4 (2) (a) and/or CPR 24.2, the striking out of, and/or summary judgment on, the remaining parts of the claim insofar as it relates to the ERR contract being premised on more than 12 job roles (i.e. 32 less the 20 who were, on the claimant’s own evidence before the court on this application, appointed after July 2009). This is on the basis that the claimant’s case lacks the crucial elements of causation and loss as it had no, or no real, prospect of recovering from Kinross the sums that it says it would have recovered, such that even if any alleged breach of duty by the defendant is made out, the particulars of claim disclose no reasonable grounds for bringing this part of the claim, or alternatively that the claimant has no, or no real, prospect of succeeding in showing that any alleged breaches caused that part of the claimed loss.

Mr Bowles submits that the defendant’s argument simply misses the point:

Mr Bowles submits that Kinross thereby affirmed the ERR contract; and the claimant cannot go behind this affirmation. Therefore, there is simply no reason for the limitation on the claim for damages which the defendant now seeks to impose.

In a subsequent letter, headed ‘WITHOUT PREJUDICE’ and dated 26 October 2010, Mr Morley-Jepson wrote to Mr Vickers asserting that:

I accept Mr Bowles’s submissions. On a true reading of the relevant correspondence, Kinross affirmed the ERR contract until 26 October 2010. The 9 November 2009 email never purported to terminate that contract. Rather, it recognised its continued existence. It would never have been open to Kinross to seek to defend any claim for damages for breach of the ERR contract by asserting, contrary to the facts, that it had terminated that contract by notice under clause 3.2. In my judgment, the legal principle invoked by Ms Page only applies where there is uncertainty about the extent of a claimant’s loss, either because the defendant had a discretion as to how the relevant contract was to be performed, or where it could have been lawfully terminated by notice had it not previously been unlawfully determined. The principle is not engaged, and the counter-factual exercise that it involves has no application, in circumstances where the true facts are known.

The contract in the British Gas Trading case was unusual because it gave only one of the contracting parties the prerogative to set the parameters of an obligation that was binding upon both of them. As Peter Jackson LJ explained (at [109]) in truth it was “a claim for damages for the Seller’s failure to serve Variation Notices, something that they were under no obligation to do”. Nevertheless, I consider that it is instructive. As Males LJ recognised (at [79]), damages could not be assessed as if the defendant had been under any obligation to serve a notice of variation because to do so would have been contrary to the terms of the parties’ contract. But, relevantly to the present case, he went on to add “Nor can damages be assessed on the basis that the Sellers would in fact have served a Variation Notice when in fact they did not.” The concurring judgment of Andrews LJ is even clearer (at [89)]:

At [113-114] Peter Jackson LJ also agreed that

In the present case, there is no uncertainty, and no need for speculation, or to resort to any counter-factual analysis: it is known that, although contrary to its own factual interests, Kinross elected not to exercise its contractual right under clause 3.2 to terminate the ERR contract before 26 October 2010. It is not open to Ms Page to seek to re-write history retrospectively for the purposes of reducing the damages payable for any breach of contract that had already occurred prior to that time. For these reasons, had it been necessary to do so, I would have determined issue six in favour of the claimant.

The remuneration payable under the ERR contract (and thus the value of the underlying claim) was referable to the number of positions for which the claimant (or the BVI company) was contractually engaged to introduce applicants to Kinross. Issues seven and eight concern the number of candidates who were to be recruited under the ERR contract and how the defendant should have advised on that aspect of the underlying claim. Issue seven is whether the defendant should have advised the claimant to seek to quantify its claim for loss of income in the underlying claim on the basis that there were 32 positions to be filled under the ERR contract rather than only claiming for the 21 positions for which the claimant had actually invoiced Kinross. This ground for summary disposal is not founded upon issues of causation or loss; rather, the defendant maintains that the claimant’s allegation that it acted in breach of duty by failing to advise the claimant to invoice and/or claim in respect of 32 positions is unsustainable on the evidence. A related issue is whether (as the claimant contends) the ERR contract ever actually required the claimant (or the BVI company) to source candidates for as many as 32 positions. The defendant does not invite the court finally to determine the total number of positions to which the ERR contract applied; but it does invite the court to decide that this number did not exceed 24. Again, Mr Bowles points out that were the defendant to succeed on either of these issues, this would merely limit the losses referrable to the ERR contract and would not dispose of the whole claim under that contract.

Although this was not the order in which the defendant chose to address these two, related issues, logically it seems to me that the first issue for the court to address is the true scope of the ERR contract, in terms of the number of candidates to be recruited under that contract, since this is relevant to the advice that the defendant should have tendered to the claimant. In order to understand this aspect of the defendant’s application, it is convenient to begin by considering the basis upon which the claimant puts its case.

Mr Bowles submits that the claimant’s case in the instant litigation has always been that Kinross engaged it to recruit 32 individuals. He draws a distinction between positions (or roles, with their associated job profiles), some of which required more than one employee, and the number of individuals required to fill those positions. Mr Bowles contends that at the time of contracting, both the claimant and Kinross were aware that the purpose of the ERR contract was to enable Kinross to replace all of its expatriate employees with Russian nationals in order to meet the requirements of Russian legislation. At paragraph 279 of his first witness statement, Mr Vickers explains that Kinross needed to find suitable Russian nationals for 21 ‘job profiles’ but, because of differing working patterns, Kinross actually needed to find at least 32 people to fill those 21 roles. Mr Bowles submits that this was reflected in the negotiations between the parties and the form of the documents setting out the roles that needed replacing:

Mr Bowles submits that it is clear that the number of individuals which Kinross engaged the claimant to replace was 32. To the extent that the defendant now seeks to challenge this assertion, this plainly raises a question of fact between the parties. Ultimately, this is a question as to the terms on which the parties intended to contract:

As such, the resolution of this dispute will require the court to identify the relevant factual matrix at the time the parties contracted, and how that factual matrix operated on the parties’ minds. This is not something which is suitable for summary determination; it will require live evidence and cross-examination at trial. Although Mr Bowles acknowledged that the court can construe contractual documentation in the course of a summary judgment application, this was not an appropriate case to do so. Mr Vickers was effectively being cross-examined on his witness evidence without being given any opportunity to respond to the allegations of dishonesty being levelled against him, or to explain the true position to the court.

Moving to the defendant’s alleged failure to give appropriate advice, Mr Bowles submits that it is also clear that the defendant failed to take any steps properly to advise Mr Vickers to plead a claim against Kinross in respect of the 32 individuals who were subsequently hired under the ERR contract. The defendant now denies that it owed any such duty and has suggested that the contemporaneous documentation demonstrates that Mr Vickers only instructed the defendant to being claims under the ERR contract against Kinross on the footing that it had only lost the fees for 21 hires. However, Mr Bowles submits that, when properly analysed, the contractual documentation was such that it should have been obvious to the defendant that there were more than merely 21 individuals to replace, and that simply by comparing the Expat Release List and the Appendix 1 documentation, it would have been clear that 32 individuals would be required to fill these 21 roles (as previously explained). That was the correct measure of the claimant’s losses, and this should have been the basis on which the defendant brought the underlying claim against Kinross.

Mr Bowles accepts that a solicitor is not obliged to travel outside his instructions or to undertake investigations which are not expressly or impliedly requested by the client. Rather, the general principle as to the scope of a solicitor’s duty was formulated by Oliver J in Midland Bank v Hett, Stubbs & Kemp [1979] Ch 384 at 403 A-C in the following terms:

Similarly, in Gilbert v Shanahan [1988] 3 NZLR 528 at 537, Tipping J (speaking for the New Zealand Court of Appeal) set out the principle that:

Mr Bowles submits that in this case the claimant engaged the defendant to: (1) advise on the claims available to the claimant against Kinross, and (2) once the defendant had decided that these were claims which had good prospects of success (such that it was content to bring them on the basis of a conditional fee agreement), to pursue those claims. In those circumstances, Mr Bowles further submits that the defendant owed a duty to the claimant to advise on the quantum of any claim on which it was acting. That is not a controversial proposition. In this case, that would involve considering the correct number of individuals that the claimant had been engaged to recruit (and which it lost the chance of recruiting as a result of Kinross’s breach of contract). Such advice, or the duty to provide such advice, would have arisen “fairly and reasonably” from the scope of the defendant’s retainer.

In relation to the defendant’s attempts to rely upon the contractual documentation supplied by the claimant, Mr Bowles submits that:

Mr Bowles frankly acknowledged that mistakes had been made in the course of preparing the invoices and other documentation. He accepted that these had not been brilliant; but he contends that the defendant should have drilled down properly into the underlying documentation. The defendant had treated the underlying claim as a simple debt collection exercise when it should have properly analysed the true contractual position. Mr Bowles points to the defendant’s admission (at paragraph 75 of the defence) of the duty (pleaded at paragraph 70 of the particulars of claim) that it had been instructed to advise the claimant in respect of the contractual claims. The defendant had failed to bring the claim in the correct sum: it should have claimed for an additional 11 hires.

At paragraph 225 of his skeleton argument Mr Bowles had originally relied upon evidence from Mr Vickers (at paragraph 332 of his first witness statement) that he had

Unfortunately for Mr Bowles this submission was comprehensively holed below the waterline and sank during the course of Ms Page’s oral submissions. She took the court first to the email from which Mr Vickers had been quoting (at page 1883) and then to the paragraph (125, at page 1320) of Mr Lever’s second witness statement upon which Mr Vickers had been commenting at a time when it was still in draft form. This clearly related, not to the ERR contract with Kinross, but rather to an earlier contract with a different Russian entity called ‘Basic Element’. The full text of Mr Vickers’s correction had read: “125 NOT 32 searches...sorry....it was 12 (32 was the number of people to be placed)”. As so corrected, paragraph 125 of Mr Lever’s 2^nd witness statement read: “I am advised by TV [Mr Vickers] that the Basic Element Group instructed the Claimant to do 12 searches for 32 positions in 2007-2008.” The reference to placing 32 people was not to the ERR contract at all, but rather to a wholly different contract. It was Ms Page’s submission that by asserting (in paragraph 332 of his first witness statement) that he had “… told Mr Lever that the ERR contract covered 32 people on at least one occasion”, Mr Vickers had been misleading the court: the only specific occasion cited by Mr Vickers had had nothing at all to do with the ERR contract. Mr Lever had not needed to refute the assertion that he had been told that the ERR contract covered 32 people because this was demonstrably false on the unchallenged documents. Recognising the force of Ms Page’s analysis, when he came to present his oral submissions to the court on issues seven and eight, Mr Bowles acknowledged that the claimant had produced no evidence that Mr Vickers had ever told the defendant that the ERR contract covered 32 people. Apart from his false assertion in paragraph 332, there was no evidence to this effect at paragraph 330 of Mr Vickers’s first witness statement (or anywhere else in his voluminous evidence).

In my judgment, Mr Bowles’s concession that Mr Vickers’s evidence at paragraph 332 of his first witness statement in these proceedings was wrong has implications for the reliability, and the credibility, of the remainder of Mr Vickers’s extensive evidence. At best (for the claimant), it demonstrates that his recollection of events (even when verified by a statement of truth) is inaccurate, opportunistic, and unreliable; and that his evidence is slapdash. At worst (and I find much more likely), his evidence is deliberately dishonest. On either view, Mr Vickers’s evidence must clearly be approached with great caution.

Mr Bowles nevertheless submits that the defendant was under a duty to advise the claimant to bring, and then to prosecute, the underlying claim on the basis that the true quantum of the claim should have been based on 32 lost hires. He emphasises, however, that on the present application the claimant has no need to establish that claim on the balance of probabilities. Rather, it only needs to establish that it has a real prospect of success on its claim that the defendant owed such duties to it; and that, in failing to bring the underlying claim correctly, the defendant breached such duties. This is a low bar; and since Mr Bowles claims that this has been established on the facts outlined in the claimant’s statements of case, and by Mr Vickers in his witness statement, there is plainly a triable issue. It would not be appropriate to dispose of this issue summarily, and without a full investigation by the court into: (1) the information provided by Mr Vickers to the defendant, and (2) the advice given by the defendant to the claimant.

Ms Page emphasises that neither the claimant, nor the BVI company, ever raised any invoice under the ERR contract for any number of jobs greater than 21; hence the description in the particulars of claim of the 11 disputed jobs as those “for which no invoices were raised”. In accordance with clause 10 of the ERR contract, it was only once an invoice had been raised that Kinross ever fell under any obligation to make payment so, in the absence of any such invoice, neither the claimant, or the BVI company, ever had any claim for any additional sum from Kinross; and no such sum was ever included in the underlying claim. Prima facie, therefore, neither the claimant or the BVI company have suffered any loss which they can now seek to recover from the defendant by way of this part of the claim. It follows (so Ms Page submits) that if the claimant is to be entitled to recover any sums from the defendant in relation to the 11 uninvoiced jobs, it can only do so on the basis that the defendant acted in breach of a duty to take reasonable skill and care in not advising the claimant that either it, or the BVI company, had such a claim.

Ms Page submits that it is entirely unsustainable that there could ever have been any such breach of duty by the defendant:

Ms Page also invites the court to note that:

Ms Page points out that the claimant’s case on this aspect of the defendant’s supposed negligence is confined to four short paragraphs (330-334) of Mr Vickers’s witness statement (which might be said to be “at the outer reaches of exiguousness”), together with a compendious paragraph (125 (8) (c)) in the particulars of claim: “Coupe [the defendant] failed to advise HSL [the claimant] properly or at all in relation to the quantification of the claim under the ERR Contract in that Coupe failed to advise HSL to invoice and/or claim for the fees of all 32 roles covered by that contract and due to HSL under the terms of the ERR Contract”.

Ms Page submits that the contention that the defendant should somehow have appreciated, contrary to the documentary record, and to the evidence and the instructions of its own client, and its main supporting witness, that the ERR contract was properly referrable to 32 jobs is simply unarguable. Therefore, even if the court were to agree with the claimant as to the true construction of the ERR contract, there is no basis on which it can sensibly be maintained that the defendant acted in breach of any duty owed to the claimant in failing to advise that it (or the BVI company) had any claim in relation to the 11 ‘uninvoiced’ jobs. No reasonably competent solicitor would have undertaken the task of trawling back through the pre-contractual documentation to verify whether their client had misunderstood the fundamentals of the contract they had negotiated, and which had informed the way in which they had drafted and submitted their invoices. To do so would be to impose upon the solicitor “duties which go beyond the scope of what they are requested and undertake to do”.

Further, since, according to paragraph 305 of his first witness statement, Mr Vickers claims to have known, since the time he agreed the ERR contract with Dr Cowley, that the number of people required to fill the expatriate roles was 32, essentially this aspect of the claim comes down to a complaint that the defendant failed to advise him of something he already knew, but had done nothing about. Therefore, there is also a lack of causation. If Mr Vickers already knew that the “true” number of recruits was 32, but had done nothing about it, what difference would it have made had the defendant reiterated that fact? Ms Page points to a document headed “Explanation”, which Mr Vickers had drafted and attached to an email he sent to Mr Lever (of the defendant), with a copy to his counsel (Mr Apthorp), on 22 June 2015. This refers expressly to Kinross having instructed the claimant “… to recruit for them to replace 21 expatriate employees in Kupol Russia with specific names” . Ms Page submits that the claimant is effectively inviting the court to hold that it has a claim, with a real prospect of success, that the defendant should have worked out that these instructions were incorrect, and that its client had been misleading it. That is said to be an astonishing basis upon which to bring a claim in professional negligence.

For all these reasons, the defendant seeks, under CPR 3.4 (2) (a) and/or CPR 24.2, the striking out of, and/or summary judgment on, the claim insofar as it is premised upon the defendant having acted in breach of duty in relation to the 11 ‘uninvoiced’ jobs, and all sums claimed in reliance thereon, on the basis that the claimant cannot make out its allegation of breach of duty, and the particulars of claim disclose no reasonable grounds for bringing this part of the claim, or, alternatively, that the claimant has no, or no real, prospect of success on this part of its claim.

Ms Page submits that as the underlying claim proceeded on the basis of invoices which were only ever expressly referable to ‘21 Positions’ and ‘21 hires’, and there was no negligence on the part of the defendant in failing to identify that the ERR contract covered recruitment to any additional positions, the claimant has no conceivable, or realistic, basis for seeking to recover the uninvoiced sums from the defendant. On this footing, the claim against the defendant is limited to the 21 positions for which it raised invoices against Kinross; and the question whether, on its true construction, the ERR contract related to 32, or only to 24, positions to be filled simply falls away. However, Ms Page submits that the ERR contract did not relate to 32 positions, and that no reasonable reader of the contract could ever have concluded that it did. The defendant’s case is that, properly construed, the ERR contract refers to only 15 positions to be filled; but on the present application it asks the court only to conclude, as a matter of construction, that the ERR contract obliged the claimant (or the BVI company) to introduce candidates for no more than 24 jobs. More than $1m turns on this question of construction.

On the claimant’s case, the figure of 32 jobs is derived from the Expat Release List provided to Mr Vickers by Dr Cowley by email dated 26 January 2009 (identifying 37 employees (with one ‘TBD’). The covering email states:

Ms Page therefore submits that the highest number of jobs for which the claimant could ever have brought any claim is 24, being the number of individuals which Mr Vickers extracted into from the Expat Release List and inserted into ‘Appendix 1: Kinross Russia Job Requirements’, which was then appended to the ERR contract itself. It is simply unsustainable, as a matter of logic, to suggest that the ERR contract could bear any higher construction as to the number of jobs.

Ms Page says that Mr Vickers now seeks to rely on a construction of Dr Cowley’s 26 January 2009 email to suggest that there were to be two waves of recruitment, with the second wave of jobs (the more senior positions) not to be replaced until after the first wave had been resolved, but which nevertheless remained the subject of the ERR contract. She submits that this is implausible, emphasising that Dr Cowley provided the list with the direct instruction that: “The top category of ‘Must Have’ are to remain”. His email can bear the meaning suggested by Mr Vickers only by reference to the content of alleged discussions with Dr Cowley which are entirely unevidenced and have never previously been articulated before in these proceedings until they surfaced at paragraph 285.2 of Mr Vickers’s first witness statement. Moreover, even assuming this is the correct understanding of the structure of the recruitment exercise itself, there is nothing to suggest that this second wave of recruitment was actually to form part of the subject matter of the ERR contract. In fact, it seems clear from Dr Cowley’s email that the second wave (if there was to be one) was to be explicitly excluded from the ERR contract; and this is the logical rationale for why ‘Appendix 1: Kinross Russia Job Requirements’, on its face, refers to only 24 individuals. This document describes the ‘Kinross Russia Job Requirements’ by reference to the specific individuals who were to be replaced. The analysis for which the claimant now contends is that the number of jobs which formed the subject of the ERR contract could only be ascertained by cross-referring: (1) the content of discussions between Mr Vickers and Dr Cowley (which are entirely unevidenced in the documents), and (2) the Expat Release List (which was not even appended to the ERR contract and had been superseded by the first Appendix 1 document). There is no suggestion, from its face, that this was intended only to be a ‘placeholder document’, as Mr Vickers now suggests. In any event, it was a contractual document, and was relied on as such by the claimant in the underlying claim (in paragraphs 31-32 of Mr Lever’s first witness statement and its accompanying exhibit) and in the particulars of claim in this litigation. Moreover, as previously outlined, there is nothing in the contemporaneous documentary record to suggest that either Dr Cowley or Mr Vickers (at least before April 2016) ever thought that the claimant was entitled to be compensated for more than 21 jobs.

Accordingly, and if necessary, the defendant seeks, under CPR 3.4 (2) (a) and/or CPR 24.2, the striking out of, and/or summary judgment on, the claim insofar as it is premised upon the claim under the ERR contract being in relation to more than 24 jobs, and all sums claimed to the extent that they are referable to any greater number than 24 jobs, on the basis that the case against the defendant lacks the crucial elements of causation and loss as the claimant had no, or no real, prospect of recovering from Kinross the sums that it says it would have recovered, such that, even if any alleged breach of duty is made out: (1) the particulars of claim disclose no reasonable grounds for bringing the claim (or those parts of the claim); alternatively, (2) the claimant has no, or no real, prospect of succeeding in showing that any alleged breaches of duty caused the relevant parts of the claimed loss; alternatively, (3) the losses which flow from the alleged breaches are much lower than currently pleaded.

I have set out Ms Page’s submissions at such considerable length because I consider them to be entirely unanswerable. I find her analysis of the evidence to be clear and convincing and her reasoning to be utterly compelling and thoroughly persuasive. I accept all of her submissions, notwithstanding Mr Bowles’s strenuous efforts to argue the contrary.

I warn myself against conducting any form of mini-trial. However, I am satisfied that the claimant’s case on both issues seven and eight is entirely fanciful; and I find that it is so devoid of any element of reality that it is completely unsustainable, and is bound to fail at trial.

I am entirely satisfied, as a matter of its true construction, that there is absolutely no substance whatsoever in the claimant’s case that the ERR contract extended to the recruitment of 32 individuals. This is entirely dependent upon evidence of pre-contractual negotiations and declarations of subjective intention which are inadmissible in evidence on issues of construction. It also relies upon a document (the Expat Release List) which was clearly superseded by the two Appendix 1 documents which Mr Vickers himself drafted, and which were incorporated within the ERR contract. Looked at objectively, they formed the subject-matter of the ERR contract. The second Appendix 1 document contained 21 job profiles; but the first Appendix 1 document identified only 15 of those positions as falling within the ‘Kinross Russia Job Requirements’, with up to 24 named individuals requiring to be replaced. Further, as explained below, Mr Vickers’s evidence about the scope of the claimant’s retainer under the ERR contract is so wholly inconsistent with, and contradicted by, the reliable contemporaneous documentary evidence as to be entirely lacking in credibility and incapable of belief. As a matter of construction, the true scope of the ERR contract was limited to (at most) 24 named individuals and (more likely) the 21 positions for which the claimant invoiced Kinross.

I am also entirely satisfied that, even if I am wrong about the true scope of the ERR contract, as a matter of construction, there is no substance in the claimant’s case that the defendant acted in breach of any duty it owed to the claimant as a reasonably competent solicitor in failing to pursue the underlying claim on the basis that the claimant was entitled to fees calculated by reference to any more than the 21 individuals for whom invoices had previously been submitted to Kinross. For the reasons Ms Page has given, I am entirely satisfied that there is no truth or substance in Mr Vickers’s evidence that he ever considered that the ERR contract extended to any more than the 21 individuals for whom the claimant invoiced Kinross, or that Mr Vickers ever considered that the claimant might have any entitlement to any greater fee. Mr Vickers’s evidence is entirely inconsistent with, and indeed is contradicted by, all of the reliable contemporaneous documentation. It is impossible to read through the contemporary emails and other documents, to which I have been taken at great (some might even say, tedious) length, and in considerable detail, over the five days of this application, without arriving at a clear appreciation of the keen interest, and attention to detail, shown by Mr Vickers in and about the claimant’s pursuit of the recovery of its unpaid fees from Kinross. Yet at no point throughout this narrative history did Mr Vickers ever for one moment take any issue with the basis – 21 individual roles – on which the claimant’s own invoices had been prepared and presented to Kinross and which formed the foundation of the underlying claim, and the basis of its instructions to the defendant.

For the purposes of the present application, I am prepared to accept Mr Vickers’s evidence, which is supported by his covering email to Dr Cowley of 18 March 2009 (and his later email of 3 April 2009 to Ekaterina Dolganova, which was copied to Dr Cowley and Mr Williams), that the first invoice under the ERR contract was essentially of an interim nature, to be the subject of a final fees reconciliation at the end of the entire search process, once all the candidates had been hired. I am prepared to accept, in the rush to submit this invoice for a still considerable sum, that the 15 roles which it covered were taken from the 15 positions identified in the first Appendix 1 document, and that it mistakenly ignored the additional names identified in the numbered columns 2 and 3. However, I find it utterly incredible, and entirely incapable of any rational acceptance, that Mr Vickers should have approved, submitted, or relied upon any of the second, third or fourth invoices in circumstances where (as he now claims) they had been prepared on the basis of a fundamental (and costly) misstatement as to the number of relevant candidates for whom search fees were due and owing to the claimant from Kinross under the ERR contract. I find it even more incredible, and utterly unbelievable, that Mr Vickers should have persisted in any such mistake throughout the debt collection process, and the hotly contested litigation of the underlying claim which followed.

Mr Vickers has had over six months following the service of Ms Morrish’s witness statement to come up with satisfactory explanations for the consistent, and persistent, errors in the many documents that have come into existence since the entry into the ERR contract (many, if not all, of which were endorsed and approved by Mr Vickers, and some of which he actually verified by statements of truth) yet he has failed to do so. Since his first witness statement was produced, Mr Vickers has made a second witness statement. Since then, he has then had many more months to provide a satisfactory explanation, if one was available, for his past mistakes, and to instruct counsel appropriately; but, yet again, no such explanation has been forthcoming. Particularly in light of the death of Mr Williams in 2019, there is no real prospect that any further evidence will become available at any trial of this claim which might support Mr Vickers’s evidence and the claimant’s case. Even though this involves a finding of dishonesty on the part of Mr Vickers, I am entirely satisfied that this is one of those very rare, and elusive, cases where it is possible for the court to disbelieve, on the papers, and without cross-examination, Mr Vickers’s evidence as to the true scope of the ERR contract because it is so utterly irreconcilable with the reliable contemporary documentary evidence as to be incapable of all rational explanation or belief.

Further, I find the proposition that any reasonably competent solicitor would have undertaken the task of trawling back through the pre-contractual documentation to verify whether their client had misunderstood the fundamentals of the contract that its principal director had negotiated for it, and which had informed the content of the invoices it had proceeded to draft and submit to its customer, to be fanciful, and wholly devoid of any appearance of reality, particularly where it was that director who was the source of the solicitor’s instructions. To do so would, in my judgment, be to impose upon the solicitor “duties which go beyond the scope of what they are requested and undertake to do”. It may be that a particularly meticulous and conscientious solicitor would have taken it upon himself to have pursued a line of inquiry beyond the strict limits comprehended by their instructions and inquired why: (1) only 15 of the 21 job profiles identified in the second Appendix 1 document had featured in the positions column in the first Appendix 1 document, and/or (2) the invoices submitted to Kinross were posited on the recruitment of 21 candidates when 24 names had been identified in the first Appendix 1 document. But, as Oliver J observed in Midland Bank v Hett Stubbs & Kemp (cited above) at page 403 A-C, that is not the test. The test is what the reasonably competent practitioner would have done, having regard to the standards normally adopted in their profession; and that duty is directly related to the confines of the solicitor’s retainer. In my judgment, this did not require the defendant to question the accuracy of the claimant’s own invoices. And even if the defendant should have done so, I am entirely satisfied, in the light of Mr Vickers’s consistent confirmation that the basis of the claimant’s fee entitlement under the ERR contract was that “Kinross had instructed [the claimant] to recruit for them to replace 21 expatriate employees in Kupol Russia with specific names” (as Mr Vickers expressly instructed Mr Lever on 22 June 2015, at pages 771-2, when drafting Mr Lever’s first witness statement for permission to serve the underlying claim out of the jurisdiction, and for the period for service of the claim form to be extended), that this would not have led Mr Vickers to instruct the defendant to revise the basis of its claim for loss of fee income against Kinross by seeking to advance any claim for any more positions than the 21 for which the claimant had actually invoiced Kinross. I am also satisfied that had Mr Vickers given any such instruction to the defendant, that claim would not have been an honest one; and it is clear that a dishonest claim falls outside the category of lost claims for which a claim in negligence properly lies against solicitors.

As Ms Page submits, if one were to accept Mr Vickers’s evidence and case (which I do not since it is wholly inconsistent with, and contradicted by, all of the reliable contemporary documentary evidence), ultimately this aspect of the claim for breach of duty against the defendant comes down to complaints that the defendant: (1) should have worked out that its instructions from Mr Vickers were incorrect, and that he had been misleading it; and (2) failed to advise Mr Vickers of something he already knew, but had done nothing about. As Ms Page points out, that is an astonishing basis upon which to pursue a claim in professional negligence.

For these reasons, and for the further reasons advanced by Ms Page (all of which I accept and will not repeat), insofar as this claim proceeds on the footing: (1) that the claimant had a valid underlying claim to recover fees under the ERR contract in excess of those for the 21 positions for which it had actually invoiced Kinross, and (2) that the defendant was in breach of duty in failing to advise the claimant that it had any such claim, I am entirely satisfied that it is fanciful, lacking in any reality, without any substance, and bound to fail. This aspect of the claim should either be struck out or summarily dismissed.

Issue nine is whether, by an exchange of emails, the claimant expressly and irrevocably waived any right to receive any payment for the third tranche of fees under the SVP contract. This issue represents a relatively small proportion of the total damages but, if the defendant is successful, it will dispose of the whole of the claim as it relates to the SVP contract and so narrow the issues between the parties.

As part of the underlying claim (and consequently this claim) the claimant sought to recover (and now seeks compensation for the non-payment of) the third tranche of the fee to which it says it was entitled under the SVP contract following the recruitment by Kinross Gold of Mr Sam Coetzer (a candidate introduced by a third party recruitment agency and not the claimant) for the SVP position in South America. The claimant and the BVI company issued two invoices under the SVP contract, both in the sum of US $71,874. The first, dated 3 December 2008 and bearing invoice number 00826, was paid on 8 December 2008. The second, dated 16 January 2009 and bearing number 00857, was not paid until 11 June 2009. The claimant never issued a third invoice, representing the third tranche of the fee potentially payable; nor was any claim to recover this fee included within the Euler Hermes letter of demand dated 27 April 2012.

The defendant’s case is that the claimant waived any right to issue a third invoice, and to receive payment of the third tranche of any fee that might otherwise be due under the SVP contract, in May 2009. This is said to be the irresistible inference from the contemporaneous material referred to at paragraph 246 of Miss Morrish’s first witness statement. In summary, Kinross disputed any liability to pay the second invoice. Mr Vickers then agreed to forgo any asserted right to present a third invoice in exchange for payment of the second invoice, which Kinross paid on 11 June 2009. In an email to Jaana Harkonen, Vice-President of Human Resources for Kinross Gold, dated 8 May 2009 (at pages 749 and 1751), Mr Vickers wrote:

In reliance on that forbearance, Ms Harkonen responded by email (on 15 May at page 1750) stating:

The basis of the dispute as to the presentation of the second invoice is to be found in an email to Mr Vickers from Ms Harkonen, dated 24 April 2009 (at page 1823), which states:

Ms Page contends that this email shows that Kinross had complained about the standard of performance provided by the claimant under the SVP contract, and about the claimant continuing to search after Kinross had exercised its contractual right to terminate the contract; and also that Kinross did not accept that the SVP contract was subject to any exclusivity term. This is supported by the fact that whilst the first invoice had been paid within five days of presentation, by late April/early May 2009 the second invoice remained unpaid, more than three months after it had been rendered.

Ms Page submits that the legal effect of the claimant waiving its right to the third tranche of any fee payable under the SVP contract was to create a contractually binding variation of that contract, supported by good consideration, such that the claimant could not resile from it. She characterises aspects of the evidence of Mr Vickers on this issue (at paragraphs 268-276 of his first witness statement) as “incredible”; but even if this evidence is taken at face value, she submits that it it is clear that there was a contractual waiver of any right to invoice for, and receive payment of, the third tranche of the SVP fee, in return for Kinross agreeing to pay the outstanding invoice for the second tranche of that fee, and in the hope that this would secure the future of the very important ERR contract. At paragraph 271 of his first witness statement, Mr Vickers states that Ms Harkonen “said she did not feel obliged to pay HSL the whole amount” he was claiming under the SVP contract. At paragraph 272, Mr Vickers refers to “the disagreement about HSL’s third tranche of fees for the appointment of Sam Coetzer”. Mr Vickers concedes there that he “had a decision to make”. The outcome was that he agreed to “capitulate” on the third tranche of fees under the SVP contract:

To the extent that, in agreeing to such a waiver, Mr Vickers and the claimant were motivated by the continuation of the ERR contract, and the hope that it could be a springboard to the claimant then being appointed to recruit the 1,000 or so people who would be needed when the Kupol mine was commissioned, Ms Page submits that this merely underlines the further benefit (itself constituting good consideration) accruing to the claimant by reason of the waiver. In circumstances where the ERR contract could, under clause 3.2, be unilaterally terminated by Kinross on the provision of 30 days’ written notice, preserving a good commercial relationship with Kinross was potentially very valuable to the claimant; as Mr Vickers himself notes: “It was therefore very important to me to keep the ERR contract on track and not to jeopardise it at all”. Ms Page acknowledges that part payment of an undisputed debt is not good consideration; but here Kinross was already disputing its liability under the second invoice. It supplied good consideration by giving up its right to continue to dispute that invoice; and, in addition, it withdrew any immediate threat to terminate the ERR contract, thereby supplying additional valuable consideration. As discussed in section 8 of this judgment, the ERR contract remained on foot until 26 October 2010. The claimant does not seek to allege any illegitimate or improper commercial duress on the part of Kinross, and for good reason; that is because Kinross had a contractual entitlement to terminate the ERR contract at any time on 30 days’ written notice pursuant to clause 3.2. Further, Ms Page points to the fact that the claimant (or, more precisely, the BVI company) had only recently (on 7 April 2009) received US $194,197 from Kinross by way of payment of the first invoice rendered under the ERR contract. In terms of the claimant’s recorded turnover, this was a significant sum, so it could not be said to have been under any real financial pressure in May 2009.

This analysis of the waiver is further borne out by the fact that the claimant never raised (and has failed to provide any good explanation for its failure to raise) any invoice in relation to this third tranche of fees. The obvious inference from this is that the claimant knew that it was not entitled to such sums. If the position were simply that Mr Vickers decided not to press the third tranche of its fee, so as to preserve goodwill, then, once it became clear later in the year that the relationship with Kinross had broken down, there was – on that analysis – nothing to stop the claimant (or the BVI company) from issuing an invoice for the third tranche; yet it never did so. That omission is consistent only with the ostensible right to the third tranche of its fee having been contractually, and irrevocably, foregone. This point was made clearly and fairly in Ms Morrish’s witness statement; yet Mr Vickers simply ignores it. Ms Page submits that this is conclusive of the issue against the claimant because there is simply no answer to it: the proof, she says, is in the pudding. There was a contractually binding variation of the SVP contract, or an accord and satisfaction.

Should the court find that the waiver agreement was not contractually binding, however, then it should find that the claimant was nevertheless estopped from resiling from the waiver pursuant to the principles of estoppel: there was both forbearance by the claimant and a resulting alteration in Kinross’s position. Both Ms Page and Mr Bowles referred me to the principles relating to waiver as set out by the editors of Chitty on Contracts (34^th edn) at paragraphs 25-042, 25-044, and 25-046 as follows:

As to these requirements, Ms Page submits that:

For these reasons, the defendant seeks the striking out of the claim in relation to the SVP contract under CPR 3.4 (2) (a) and / or CPR 24.2 on the basis that the claimant’s case lacks the crucial elements of causation and loss as it had no, or no real, prospect of recovering from Kinross the sums that it says it would have recovered, such that even if any alleged breach of duty by the defendant is made out, the particulars of claim disclose no reasonable grounds for bringing the claim (or those parts of it).

Mr Bowles acknowledges that the claimant never issued a third invoice for the final tranche of fees under the SVP contract following communications with Ms Harkonen in which she: (1) indicated that the claimant’s second invoice would only be paid if it did not continue to seek payment of the sums due under the third tranche, and (2) threatened that if the claimant continued to claim such sums, then the lucrative ERR contract would be lost. He emphasises that before forbearance can have any contractual effect, it must be supported by consideration. If it is not, then it can only operate to bind the parties in the event that it operates as a waiver by estoppel, with the necessary requirements being made out.

Mr Bowles contends that at trial the defendant will be unable to establish either waiver by estoppel or a contractual waiver on the facts. He submits:

Mr Bowles submits that the instant case is akin to the case of D & C Builders Ltd v Rees [1966] 2 QB, where the provision of part payment in circumstances where there had been threats made not to pay the full sum - a reduced sum had been offered with threats that nothing would be paid if that was not accepted - was deemed not to be sufficient consideration to bind the parties. Similarly, it would have failed to support any reliance in equity. Mr Bowles referred the court to the passage in the judgment of Lord Denning MR at page 625 A-G emphasising that:

Finally, Mr Bowles submits that any suggestion that the absence of an invoice for the third tranche of fees under the SVP contract would have disentitled the claimant to any payment is unsustainable. He contends that the right to payment under the ERR contract arose when a candidate was recruited to the SVP role, and the absence of an invoice cannot remove such an entitlement. This would seem to me to ignore the fact that under clause 10.3 of the SVP contract, the obligation on the part of Kinross to pay the claimant was only triggered by the issue of a third invoice, so the third tranche of any fee payable under the SVP contract was not then due and owing. In my judgment, however, this consideration is not determinative of this part of the defendant’s application.

I accept Mr Bowles’s submission that the court should approach this aspect of the claim by taking Mr Vickers’s evidence at its highest because (unlike the position regarding the number of roles to be filled under the ERR contract), that evidence is not manifestly incredible and unsustainable. However, even on that basis, the claim under the SVP contract is utterly hopeless, and is doomed to failure because there is simply no conceivable or realistically arguable answer to the defence of waiver. For the reasons given by Ms Page, which I accept, this is a classic case of contractual waiver by accord and satisfaction, or, if not, of waiver by estoppel.

In my judgment, the case of D & C Builders Ltd v Rees is wholly different from the present case. In that case, there was no dispute as to the creditor’s entitlement to payment. Rather, the debtor’s wife had held the creditor to ransom, putting pressure upon it to accept a lesser sum than was undoubtedly due to it by threatening to break the contract (by paying nothing) in order to compel the creditor to do what it was unwilling to do; and she succeeded. In those circumstances, there was no true accord so as to found a defence of accord and satisfaction. There was also no equity in the debtor to warrant any departure from the due course of law. No person can insist on a settlement procured by intimidation. There was therefore no reason in law or in equity why the creditor should not enforce the full amount of the debt due to it.

Here the position is entirely different. In the instant case, even if one takes Mr Vickers’s evidence at its highest, there was no intimidation on the part of Kinross, and no inequity in holding the claimant to its promise not to bill Kinross for the third tranche of the fee otherwise due to it under the SVP contract in return for the payment of the second invoice. This was not a case where Kinross took advantage of the claimant’s desperate need for money. Kinross was disputing its liability under that invoice; and in order to secure its prompt payment, Mr Vickers agreed to forgo issuing a third invoice. He was also motivated to do so by his concern to avoid Kinross implementing its threat, implicit if not express, to do that which it was contractually entitled to do, by serving notice to terminate the ERR contract in accordance with its terms. Kinross proceeded to pay the second invoice; and, as discussed in section 8 of this judgment, the ERR contract remained on foot until 26 October 2010. There was therefore a true accord and satisfaction, supported by good consideration. This was not a case where the claimant agreed to accept a lesser sum in satisfaction of an undisputed larger debt because that debt was disputed.

Alternatively, if that contractual analysis is wrong, there was clearly a binding waiver by estoppel. There is no inequity involved in holding the claimant to Mr Vickers’s undertaking not to issue a third invoice. Rather, any inequity would exist in permitting the claimant (or the BVI company) to pursue payment of the third tranche of any fee due under the SVP contract once Kinross had paid the second invoice, particularly when it proceeded to allow the ERR contract to remain on foot after May 2009.

In the course of oral argument, I referred counsel to the decision of the Court of Appeal in Collier v P & M J Wright (Holdings) Limited [2007] EWCA Civ 1329, [2008] 1 WLR 643. Delivering the leading judgment, at [42] Arden LJ said this:

For these reasons, and for the further reasons advanced by Ms Page (all of which I accept and will not repeat), insofar as this claim proceeds on the footing that the claimant had a valid underlying claim to recover any further fee under the SVP contract, I am entirely satisfied that it is fanciful, lacking in any reality, without any substance, and bound to fail. This aspect of the claim should either be struck out or summarily dismissed.

Issue 10 is whether the claimant had any claim under the RVP contract (or any new or replacement RVP contract) when Dr Cowley left his role at Kinross with effect from 11 May 2009. This is a discrete issue which relates only to the lost claim allegedly arising under that contract. It involves consideration of the terms of clause 3.1 of that contract, which provides:

Despite having already received the sum of US $163,800 for sourcing Dr Cowley under the RVP contract, the claimant alleges that it is entitled to be paid the same sum again for complying with Kinross Gold’s request to source a replacement Regional Vice-President following the resignation of Dr Cowley in May 2009 (within 12 months of starting his employment). The claimant contends that it was entitled to this sum on three alternative bases, none of which the defendant considers are sustainable. Ms Page submits that these amount to:

Ms Page submits that at the time it undertook the searches for Dr Cowley’s replacement (apparently between May and October 2009), the claimant clearly understood that it was obliged to do so pursuant to clause 3.1 of the RVP contract (as its successful candidate had resigned within 12 months of starting employment). However the claimant now asserts: (1) that it subsequently discovered that Kinross had in fact made pre-contractual promises to Dr Cowley that he would shortly receive a promotion as an inducement to his entering into the employment contract with Kinross (notwithstanding that such promises are nowhere to be found in Dr Cowley’s contract of employment or in any contemporaneous email); (2) that Kinross then resiled from those promises, leading Dr Cowley to resign; and (3) as a result of this behaviour, and contrary to the claimant’s contemporaneous understanding, clause 3.1 of the RVP contract did not in fact require the claimant to undertake any searches for Dr Cowley’s replacement.

Ms Page submits that the claim to recover any further sums under the RVP contract is fundamentally flawed for the following reasons:

In light of the above, Ms Page submits that the claimant’s primary contention that it was entitled to $163,800 under the terms of the RVP contract is simply incoherent. It was expressly proceeding on the basis that it was required to find a replacement for Dr Cowley at its own expense by the terms of clause 3.1 of the RVP contract. Similarly, the claimant’s alternative argument as to the existence of any ‘new RVP contract’ is unsustainable as a matter of fact or of law. At paragraphs 213-217 of his first witness statement, Mr Vickers puts that case on the footing that: “Kinross did not ask me to find a like-for-like replacement for Dr Cowley. Instead, they asked me to fill a new job title, that was substantively different to the old job description, and this was therefore a new assignment, on the same terms as the original approved RVP contract.” In light of Mr Vickers’s own email of 28 May 2009, Ms Page characterises this argument as “simply baffling”. In any event, it is impossible to spell any new contract out of the exchanges between Ms Harkonen and Mr Vickers on 27 and 28 May: they were clearly proceeding on the basis that the claimant was proceeding to find a replacement for Dr Cowley at its own expense. The claimant’s alternative argument as to unjust enrichment is made on an incorrect basis and could, in any event, amount only to the value of the work it actually performed in relation to the sourcing of the ultimately successful candidate. (Contrary to Ms Page’s submission, it would appear, from paragraphs 218 to 225 of Mr Vickers’s witness statement, that this involved rather more than only sourcing and reporting on three references, amounting, at most, to a couple of hours work).

For these reasons, the defendant seeks under CPR 3.4 (2) (a) and/or CPR 24.2 the striking out of, and/or summary judgment on, the claims in relation to the RVP contract, any new RVP contract and/or unjust enrichment, and all sums insofar as they are calculated by reference to those claims, on the basis that the case against the defendant lacks the crucial elements of causation and loss as it had no, or no real, prospect of recovering from Kinross the sums that it says it would have recovered, such that even if any alleged breach of duty by the defendant is made out: (1) the particulars of claim disclose no reasonable grounds for bringing the claim (or those parts of the claim), alternatively (2) the claimant has no, or no real, prospect of succeeding in showing that any alleged breaches caused the claimed loss (or the relevant parts of the claimed loss); or alternatively (3) that the losses which flow from the alleged breaches are much lower than currently pleaded.

Mr Bowles explains that the claims under the RVP contract are either:

The defendant now seeks to deny that Dr Cowley was ever promised this role (whether as part of his employment contract or as a collateral contract). Mr Bowles submits that this gives rise to a clear factual dispute and so is unsuitable for summary determination. As Mr Vickers has made clear in his evidence, many of these conversations took place over the telephone, and so the promises made (which have been confirmed not only by Mr Vickers but also by Dr Cowley) were not recorded in contemporaneous documentation. As such, this evidence will only be capable of full exposition at trial; and to the extent that the defendant is denying this version of events, this will require cross-examination and the testing of live witnesses. This is plainly not suitable for summary determination.

Similarly, there is a significant dispute of fact about the manner in which Dr Cowley left Kinross. The defendant asserts that he did so due to a change in personal circumstances, and it relies upon a contemporaneous resignation letter that Dr Cowley sent to Kinross. However, the claimant contends (with the support of Dr Cowley) that the latter was actually constructively dismissed by Kinross; and that the contemporaneous emails were prepared on the instructions of Kinross to give the impression that Dr Cowley was leaving of his own volition, and for reasons other than Kinross’s own breach of contract.

Mr Bowles submits that the manner of Dr Cowley’s departure, and the conflict in the written evidence, plainly raise a substantial dispute of fact. As such, the court is simply unable to determine this issue at a summary hearing, and without hearing live evidence from Dr Cowley and any relevant actors at Kinross. If the court were minded to consider the matter on a summary basis, then it could only do so by taking the evidence of Mr Vickers and Dr Cowley at its highest, and finding an arguable case that Dr Cowley had been promised Mr Baker’s role as chief operating officer, and that he had therefore been constructively dismissed. This is what the claimant’s evidence amounts to. The evidence of Mr Vickers and Dr Cowley is neither incredible nor contradicted by the contemporary documents; and Dr Cowley has no vested interest in the outcome of this litigation.

In these circumstances, Mr Bowles submits that the application of clause 3.1 is clear: Kinross had no entitlement to receive a replacement for Dr Cowley without further fees being payable to the claimant since the termination of his employment was not “justified”, nor had he “left of his… own volition”, and these were pre-conditions for the claimant being contractually obliged to “endeavour to find a replacement”. In the absence of these conditions being fulfilled (which they were not), Kinross had no entitlement to receive a replacement free of charge.

If the court is not with the claimant in finding that Dr Cowley was constructively dismissed, Mr Bowles advances an alternative line of argument. He submits that it is quite clear from the evidence provided by Mr Vickers that the search for Dr Cowley’s successor was not a search for a like-for-like replacement. Clause 3.1 of the RVP contract only makes commercial sense in circumstances where the role being replaced is the role covered by the initial search. Otherwise, Kinross could have sought to alter the provisions of the RVP contract, and impose un-bargained for burdens on the claimant, requiring it to conduct two searches for the price of one (rather than merely using the existing work performed, less than 12 months previously, to find a ready-made replacement). It is clear from Mr Vickers’s evidence that this was not the case. The search for Mr Morley-Jepson was materially different from the search for Dr Cowley; in reality it was a search for a wholly different type of candidate, such that it could never have been caught by the narrow replacement provisions of clause 3.1. In particular, the evidence (which the court must take at face value on this application) is extremely clear: Mr Vickers sought confirmation from Ms Harkonen that the search for a replacement candidate should be conducted upon the basis of the same job description. Ms Harkonen’s response was to stop the search and then to provide a new RVP role profile. This clearly demonstrates that the role sought, and the type of candidate (in terms of requisite experience and level), were materially different. The original, and the new, job descriptions are poles apart so this was not a like-for-like replacement caught by clause 3.1, enabling the claimant simply to re-use the previous list of candidates. This is clear from the fact that Mr Morley-Jepson was hired for the new role even though he would not have satisfied the search criteria under the initial RVP role profile.

In these circumstances, Mr Bowles submits that it is clear on the evidence that there was a new RVP contract, the subject-matter of which was materially different to the initial RVP contract. As such, the claimant was entitled to charge fees for this new work on the basis of a new RVP contract. Such contract would (by virtue of the fact that the claimant was a preferred supplier, with a standard form contract agreed with Kinross) have been on materially the same terms as the RVP contract, such that the claimant would have been entitled to receive fees on the same basis, and in the same order. This is reflected in the invoice raised, which claims the full fees due under all three tranches of the new RVP contract. It is also clear that the only reason for the delay in submitting this invoice was the fact that the claimant had mistakenly relied upon Ms Harkonen’s assurances that a replacement for Dr Cowley should be provided free of charge when, in fact, Kinross had no contractual right to such a free service.

I accept Mr Bowles’s submission that on the present application, the court must proceed by taking the evidence of Mr Vickers and Dr Cowley at its highest, and by finding that there is at least an arguable case, with a real prospect of success, that: (1) Kinross had promised Dr Cowley that he should succeed to Mr Baker’s role as chief operating officer; and (2) it was Mr Baker’s announcement that he intended to remain in that role that led Dr Cowley to resign his role as RVP, thereby creating the need to find a replacement RVP. However, even on this basis, I find that the claimant’s claim to be entitled to receive any fee for resourcing a replacement candidate for that role is fanciful, entirely lacking in any reality, and has no real prospect of success. In my judgment, the true position is entirely clear on the incontrovertible documentary evidence, without the need for any oral evidence or cross-examination at trial.

Accepting, for the purposes of this application, that Dr Cowley’s motivation for resigning was that he had been told that he would lose out on the role of Kinross’s chief operating officer, and treating the claimant’s evidence at its highest, the reality is that Dr Cowley himself elected to terminate his employment as the RVP within 12 months of the date of the commencement of his employment with Kinross. On his own evidence, he chose to resign his position in order to achieve a severance package equivalent to three months’ salary. That termination was “justified” because Dr Cowley elected to resign, and Kinross chose to accept his resignation. By submitting his resignation, Dr Cowley left “of his own volition and not due to redundancy”. In my judgment, it is not possible to characterise the failure to honour a promise of promotion to the position of chief operating officer as amounting to constructive dismissal from the separate, and different, position of RVP. But, in any event, Dr Cowley was never dismissed; rather he chose to resign. On the true construction of clause 3.1 of the ERR contract, in those circumstances the claimant (or the BVI company) was obliged to “endeavour to find a replacement” for no further fee. Having initially submitted an invoice for the first tranche of a further fee, Mr Vickers accepted, by his 28 May 2009 email, that no such fee was due to the claimant (or the BVI company) from Kinross.

At no stage thereafter did Mr Vickers ever seek to resile from the position he had made clear to Kinross in his 28 May 2009 email that the claimant (or the BVI company) would be proceeding at its own expense, even when he received the new RVP role profile from Ms Harkonen by email dated 20 July 2009; and in his evidence Mr Vickers does not suggest otherwise. Mr Vickers never followed up on his earlier email request for confirmation of the claimant’s terms and conditions; nor did he ever seek payment of his earlier invoice, or raise any further invoice until 2013. It follows that at all times both Kinross and Mr Vickers understood that the claimant (or the BVI company) was working on the basis that it would be charging no further fee, on the footing that it was bound by sub-clause 3.1 of the RVP contract to provide a replacement without charge. The evidence is entirely inconsistent with the claimant’s case that there was any new, or replacement, RVP contract: the search for a successor to Dr Cowley proceeded under clause 3.1 of the existing RVP contract. For the same reason, there can be no conceivable claim in unjust enrichment.

For these reasons, and for the further reasons advanced by Ms Page in relation to the analysis of clause 3.1 of the RVP contract, and the effect of the communications passing between Kinross and Mr Vickers following the departure of Dr Cowley (which I accept and will not repeat), I am entirely satisfied that the claimant’s case that it had any valid underlying claim to recover any further fee under the RVP contract (or any suggested new or replacement RVP contract) for any work done to recruit Dr Cowley’s replacement is wholly fanciful, lacking in any reality, without any substance, and bound to fail. This aspect of the claim should either be struck out or summarily dismissed.

Under clause 10 of each of the three contracts, Kinross was required to pay all invoices to the claimant (or the BVI company) in three tranches, with the first 33% of the estimated total fee (of 30% of each hired applicant's total first year guaranteed gross annual remuneration package) falling due when the claimant (or the BVI company) commenced the retained assignment, a further 33% becoming due upon the arrangement of a second interview or short list, and the final balance of 34% of the actual fee (after any adjustment for any differences between the estimated and actual remuneration package) falling due on completion of the assignment (meaning the formation of a signed contract between Kinross and the applicant). The first tranche was payable by Kinross within seven days of the date of the relevant invoice whilst the second and third tranches were payable within 30 days of the date of each invoice. By clause 10.6: “Interest will be payable by the Client on overdue invoices at a rate of 2.00% for each period of fourteen days' delayed payment.” It is common ground that any interest so payable was simple interest only, and did not fall to be compounded. Issue one is whether (as the defendant contends) this interest rate (equivalent to an annual rate of 52%) was a penal provision which could not be enforced against Kinross, and so cannot be claimed from the defendant. Paragraph 128 of the particulars of claim pleads a claim to interest pursuant to s.35A of the Senior Courts Act 1981 “at such rate and for such period as the court deems fit”. However, paragraphs 126 and 127 of the particulars of claim plead claims for interest at the rate of 8% per annum (which is the Judgment Act rate). The defendant asserts that it is obvious that no court would ever award interest at the rate of 8% pa, save in very exceptional circumstances, and that the claim for interest at this rate is brought oppressively and should be struck out. This is issue 11. Although this was not the order in which these two issues were argued, it is appropriate to take issue one first.

The law on penalties was comprehensively reviewed and restated by the Supreme Court in Cavendish Square Holding BV v Makdessi [2015] UKSC 67, [2016] AC 1172. There are three substantive judgments dealing with the general law on penalties, one by Lords Neuberger and Sumption (with whom Lord Carnwath agreed), a second by Lord Mance, and a third by Lord Hodge. Lord Toulson (who dissented in the result on one of the appeals) agreed with Lords Mance and Hodge on the general principles. Lord Clarke agreed with each of the three substantive judgments. These judgments were analysed and summarised by Nugee J in Holyoake v Candy [2017] EWHC 3397 (Ch) at [467] as follows (omitting references):

Mr Bowles referred me to the further summary of the law contained in the judgment of Mr Timothy Fancourt QC (sitting as a Deputy Judge of the High Court) in Vivienne Westwood Ltd v Conduit Street Development Ltd [2017] EWHC 350 (Ch) at [38] where he made the additional points that:

Mr Bowles reminded me that this court had recently considered whether a provision for default interest on a secured loan should be characterised as penal in Ahjua Investments Ltd v Victorygame Ltd [2021] EWHC 2382 (Ch). There I proceeded to consider first the question whether the clause in question was a primary obligation or a secondary obligation, and then whether the obligation imposed was “out of all proportion to any legitimate interest” or otherwise “exorbitant, extravagant or unconscionable”. In that case it had been unsuccessfully asserted that the legitimate interest supposedly protected by the default interest rate was the fact that the borrower had a poor credit score. In her oral submissions, Ms Page took me to my observations at [144]:

Ms Page relied on this “rule of thumb”; and she emphasises that an annualised rate of slightly more than 52% is, on any analysis, an extraordinarily high amount. She points out that this claim for contractual interest makes up more than half the total damages claimed (amounting to US $3,709,096.24 up to 11 December 2015, the date of the particulars of claim in the underlying claim). This is said to dwarf the principal sums alleged to have been due and owing from Kinross under the three contracts.

Ms Page contends that clause 10.6 was clearly penal. As to this, she submits that:

For these reasons, the defendant seeks, under CPR 3.4 (2) (a) and CPR 24.2, the striking out of and/or summary judgment on, the claim to contractual interest pursuant to clause 10.6 of the three Kinross contracts on the basis that this claim lacks the crucial elements of causation and loss: the claimant (and the BVI company) had no, or no real, prospect of recovering from Kinross the sums that it says it would have recovered, such that even if any alleged breach of duty by the defendant is made out: (1) the particulars of claim disclose no reasonable grounds for bringing that part of the claim, and / or (2) the claimant has no, or no real, prospect of succeeding in showing that any alleged breaches caused the relevant part of the claimed loss; or alternatively (3) the losses which flow from the alleged breaches are much lower than currently pleaded.

In his skeleton argument, Mr Bowles had submitted that clause 10.6, providing for interest on overdue invoices at a rate of 2% for every 14 days’ delay in payment, was not an unenforceable penalty clause as it was in fact a conditional primary obligation. He had emphasised that whether a clause is a primary or a secondary obligation is a question of substance and not of form. In his oral submissions, however, Mr Bowles conceded that this was a secondary obligation. I have no doubt that he was right to do so.

Mr Bowles contends that even though clause 10.6 may be a “penal” clause, it was one that had been specifically agreed by a party with greater bargaining power than the claimant; and it protected a legitimate interest of the claimant. He submits that:

Mr Bowles further submits that the term is not “exorbitant, extravagant or unconscionable”. Unlike the term in Ahjua, which provided for 12% per month compounded, this term is merely for 2% simple interest every 14 days. This is hardly extravagant or unconscionable, especially when considered in the light of the substantial upfront financial outlay that the claimant was required to make, and thus in the context of the legitimate interest that the clause was seeking to protect. Indeed, had such a term been exorbitant or unconscionable, there is simply no way that Dr Hunter could or would have agreed to it.

Mr Bowles submits that these are not matters which are capable of summary determination in advance of trial. He emphasises the points made by Mr Fancourt QC in the Vivienne Westwood case that: (1) the onus lies on the defendant to show that this interest provision is exorbitant, extravagant or unconscionable, and (2) the court should not readily conclude that a term in a contract negotiated by properly advised parties of comparable bargaining power is a penalty.

In response, Ms Page points out that there is no evidence that Kinross were in receipt of any legal advice. She submits that it is inherently unlikely that Dr Hunter would have agreed to a clause providing for interest to be paid on any overdue invoice at the rate of 2% every 14 days if she had noticed, and appreciated, the effect of this provision, particularly in the context of the agreed reduction in the period for the payment of the first tranche of the fee from 30 to only seven days. When I pointed out to Ms Page that Dr Hunter might simply have taken the view that there was no risk of Kinross not making payment within the timescale prescribed by the contract, her response was that agreement to a clause is no impediment to the application of the rule against penalties if, on an objective assessment, that is what the clause in question amounts to.

In addressing the issue whether clause 10.6 is a penal provision which was unenforceable against Kinross, I adopt the approach taken by Mr Fancourt QC in the Vivienne Westwood case (cited above) at [44]:

I have no doubt that Mr Bowles was right to concede that clause 10.6 is not a conditional primary obligation; rather, it is a secondary obligation providing a contractual alternative to common law damages. The distinction between the two is a matter of substance rather than form, and was explained in the joint judgment of Lord Neuberger and Lord Sumption (with which Lord Carnwath agreed) in the Cavendish Square case at [14]:

Clearly any supplier of goods or services has a legitimate interest in securing prompt and timely payment of any invoice rendered in accordance with the terms of the relevant contract. Apart from the detrimental effect on the supplier’s own cash flow, and their consequent ability to service their own debts and business expenses in accordance with their own cash flow projections, the failure to receive payment on the due debt may indicate that the debtor is a credit risk. There can therefore be no objection in principle to a provision for interest to be paid if a debtor fails to make payment on, or within a prescribed time after, the due date. Such a provision acts as an incentive to the debtor to effect payment on time or, in the event of their failure do so, promptly to remedy that default. It also serves to compensate the supplier both for any interest charges incurred, or other losses sustained, as a result of the late payment, and for any administrative expenses or other inconvenience incurred in having to chase up the purchaser for late payment of the relevant invoice. The key question, therefore, is whether the charge for interest is “exorbitant, extravagant or unconscionable”, either in amount or in its effect.

In my judgment, previous court decisions on the propriety of increases in the applicable rate of interest in the event of any default in the repayment of instalments of interest or capital under a secured loan agreement afford an unreliable, and unhelpful, analogy when considering whether a particular rate of interest is exorbitant, extravagant or unconscionable as applied to an overdue invoice for payment for goods supplied or services rendered. Apart from the relevance of the existence of security for the indebtedness, and the cushion that should be afforded to a prudent lender by the loan to value ratio applied as part of its initial due diligence, the nature and intended duration of the relationship between lender and borrower is inherently very different from that which applies as between the supplier and the purchaser of goods and services. The secured lender retains a realisable interest in the security taken for their advance. Retention of title clauses aside, a supplier of goods, and even more so of services, can look only to the purchaser for payment. A secured loan is typically of some duration, whilst the obligation to pay for goods and services is typically more short-lived. In my judgment, a four-fold increase in the primary rate of interest payable in the event of default on a secured loan, when combined with a provision for the monthly capitalisation of such interest, is qualitatively very different from a provision for interest on overdue invoices at a rate of 2% for each period of 14 days’ delayed payment. At the time they entered into them, the parties to the Kinross contracts are unlikely to have envisaged that any invoice rendered thereunder would remain unpaid for any length of time after its due date.

I remind myself that this is not a mini-trial on the papers of the claim to interest on overdue invoices at a rate of 2% for each period of 14 days’ delayed payment pursuant to clause 10.6 of each of the Kinross contracts. This is an application to strike out that claim, or for summary judgment thereon, on the basis that it is bad in law and that the claimant has no real prospect of succeeding on it. Whatever the position may turn out to be at any trial, I am not satisfied that the defendant, on which the burden lies, has demonstrated, for the purpose of the present application, that clause 10.6 is self-evidently, and indisputably, exorbitant, extravagant or unconscionable. I therefore dismiss this part of the defendant’s application.

At paragraphs 126 (1), 126 (2) and 127 the claimant pursues alternative claims for damages calculated by reference to its alleged value of the underlying claim in the sum of over £5 million “plus interest on this sum at a rate of 8% per annum, being £1,700,133.38 to date” (6 March 2020). By paragraph 128, the claimant further claims interest on “the aforesaid loss and damage” pursuant to s. 35A of the Senior Courts Act 1981 “at such rate and for such period as the court thinks fit”. On the pleadings, it is therefore necessary to consider two periods of time: (1) the period up to 6 March 2020, where interest is claimed at a rate of 8% pa and (2) the period thereafter, where the rate is left to the court’s discretion. However, as recognised by Neuberger J in his judgment on interest in Harrison v Bloom Camillin (No 2) [2000] Lloyd’s Rep PN 404 at 408 (col 2), strictly there are two lots of interest to consider: (1) the interest which would have been awarded by the notional trial judge when giving judgment for the claimant against Kinross on the underlying claim; and (2) the interest which has accrued since that date on that notional judgment.

Ms Page refers the court to paragraph 29-299 of Chitty on Contracts (34^th edn), which (omitting foot-note references) reads:

Ms Page submits that the suggestion that the claimant could ever recover interest at 8% prior to judgment is entirely implausible. 8% is, of course, the judgment rate under the Judgments Act 1838. It has no bearing on an award of interest under the 1981 Act up to judgment. In reality, the maximum amount of statutory interest the claimant would ever be awarded would be at a rate between 1-3% above base rate for the period in question. As the Bank of England base rate has not exceeded 1% since 5 February 2009, this will amount to considerably less than the 8% claimed. Ms Page proclaims that this is known by every practitioner in the Chancery Division. Mr Vickers has produced no evidence to justify an award of interest at 8% pa (such as evidence of the rate of interest at which the claimant has had to borrow money, or which it might have earned on any moneys invested by it). It is inconceivable that any judge hearing the underlying claim would have awarded interest at the rate of 8% at trial, or that any judge hearing the present claim would do so. Nor can the claimant seek to contend that it would have been entitled to interest at 8% after judgment in the underlying claim because the present claim proceeds on the footing that the claimant has lost something of value, and therefore on the basis that Kinross would have satisfied any judgment. She says that this plea is patently made in terrorem, with a view to generating an optically very large sum (added to the various other sums to create a huge overall number) in the hope that the defendant will settle by reference to it. It is yet another example of the claimant exaggerating the value if its claim; and it is conduct which this court should deprecate. Ms Page also points to the three year delay on the part of the claimant in bringing this claim since the underlying claim was struck out; and the further delay in pursuing this claim since the claim form was issued on 8 December 2019. However, I consider that this submission is more directly relevant to the period for which interest should be payable rather than the applicable rate of interest; and it also ignores the extent to which the delay in progressing these proceedings has resulted from the present application by the defendant.

For these reasons, Ms Page seeks the striking out and/or summary judgment under CPR 3.4 (2) (a) and/or CPR 24.2 of the claim to statutory interest at 8% pursuant to s.35A of the Senior Courts Act 1981 on the basis that: (1) the particulars of claim disclose no reasonable grounds for bringing that part of the claim; alternatively (2) the claimant has no, or no real, prospect of succeeding in showing that it has any entitlement to the relevant part of the claimed loss; or alternatively (3) the interest rate ultimately applied by the court would be much lower than that currently pleaded.

During the course of her oral submissions, Ms Page referred me to a number of authorities: The earliest (in point of time) was the decision of the Court of Appeal in Pinnock v Wilkins & Sons, The Times, 29 January 1990 where a majority of the Court of Appeal (Fox and Nicholls LJJ, Ralph Gibson LJ dissenting) upheld the decision of the trial judge (Sheen J) to award interest on damages for breach of duty by a solicitor in a personal injury case at the judgment debt rate. The next was Watts v Morrow [1991] 1 WLR 1421 where the Court of Appeal had to consider the contention that the award by the first instance judge of interest at the judgment debt rate was inappropriate in a surveyor’s negligence case. In light of Pinnock, the Court of Appeal (Sir Stephen Brown P, Ralph Gibson and Bingham LJJ) unanimously rejected that argument. These (and other) authorities were considered at length by Neuberger J in Harrison (cited above). At page 410 (col 1) he identified the following principles:

The next case was the decision of the Court of Appeal in Reed Executive Plc v Reed Business Information Ltd [2004] EWCA Civ 887. The issue there was the appropriate rate of interest to include in an order for the repayment of an interim payment of costs (in the sum of £350,000). At [7], Jacob LJ (with the agreement of Auld and Rix LJ) said this:

Finally, there is the decision of the Court of Appeal in Perry v Raleys Solicitors [2017] EWCA Civ 314. (Their substantive decision upholding the claim to damages for negligence was reversed on appeal to the Supreme Court so that Court had no need to consider the issue of the appropriate rate of interest.) Gloster LJ (with whom McFarlane and Tomlinson LJJ agreed) concluded that in the particular circumstances of the case, the appropriate rate for the whole period from 1 December 2006 to judgment on 28 April 2017 was the judgment debt rate of 8% pa rather than the special account rate. Her reasons for doing so (at [63-68]) were essentially that: (1) the judgment debt rate more adequately compensated the claimant for the fact that he had been kept out of his money for so long; (2) the conduct of the defendants (or their insurers) in their long drawn-out defence of the claim deserved appropriate sanction; and (3) there was no suggestion that the claimant (or his advisers) had been responsible for any delay in the resolution of the litigation.

Mr Bowles points out that s. 35A (1) of the Senior Courts Act 1981 provides that interest may be claimed at “such rate as the court thinks fit or as rules of court may provide”. He refers to the plea for interest under this section at paragraph 97 of the particulars of claim in the underlying claim. He submits that 8% may be appropriate in the circumstances of this case. In circumstances where: (1) the Court of Appeal has twice upheld the exercise of the lower court’s discretion to award interest at the judgment debt rate when it was 15% pa, and has recently decided to award interest at the current judgment debt rate of 8% in a solicitor’s negligence case; and (2) Neuberger J confessed to “some hesitation” in awarding interest at special account, rather than judgment debt, rate, Mr Bowles submits that the appropriate rate of interest must be a matter for the trial judge to decide after a full consideration of all the facts of the case, and in light of all the relevant factors and circumstances. He points to the fact that for over two years the defendant had achieved absolutely nothing in pursuit of the underlying claim. Mr Bowles also submits that due to the defendant’s present application, and its request for an adjournment of the December 2021 hearing, the present claim has not yet even progressed to a costs and case management hearing. The claimant has been kept out of its money. The claim for 8% interest is not one that should be struck out at this stage, but should await a determination on the facts at trial. (Ms Page objects that it was not the defendant which had requested an adjournment of the December hearing: the proposal to adjourn came from the Deputy Master and, having taken instructions, leading counsel then appearing for the defendant agreed to this suggestion whereas the claimant objected to it.)

I accept Mr Bowles’s submissions. In light of the Court of Appeal’s refusal in both Pinnock and Watts to interfere with the exercise of the trial judge’s discretion to award interest at judgment debt rates, in my judgment it cannot sensibly be maintained that the claim for an award of interest at 8% pa, whether in the underlying claim or in the present litigation, is bad in law, or that the claimant has no real prospect of succeeding on it. Certainly, so far as the position going forward is concerned, with inflation currently running at around 10% pa, and forecast to rise to ever dizzier heights, as a result of Putin’s war in Ukraine and the consequent disruption to global energy and food supply chains, a rate of 8% pa may soon fall to be considered as modest. But even as regards the past, in my judgment the appropriate rate of interest is a matter to be considered at trial, in light of all relevant facts and circumstances. The reasons given by Gloster LJ for awarding interest at the judgment debt rate demonstrate the fact-sensitive nature of decisions as to the appropriate rate of interest. Indeed, I consider that there is something surreal, as well as novel, about this part of the defendant’s application: it is commonplace for statements of case to include claims for interest at 8% pa yet I have never previously encountered an application to strike out such a claim as being bad in law and devoid of any prospect of success. I doubt whether the defendant would ever have pursued this part of its application as a stand-alone matter. Further, although I received no submissions on this point, I note that since 7 August 2002 the rate of interest prescribed under the Late Payment of Commercial Debts (Interest) Act 1998 has been 8% over the Bank of England’s official dealing rate. For these reasons, I dismiss this part of the defendant’s application.

Issue two had been whether the claim for US $788,029 in respect of the costs of establishing a ‘Moscow office’ was “flawed and misleading” (as asserted by the defendant). The claimant had maintained that it would have recovered this sum from Kinross in the form of ‘wasted costs’ for its alleged breach of the ERR contract. The defendant asserts that this sum would never have been recoverable from Kinross because: (1) it was claimed on a misleading and incoherent basis and, indeed, was never incurred at all; (2) in any event, it represents double recovery; and further (3) as a matter of law it was irrecoverable. The claimant no longer pursues this head of claim, and has not done so since shortly before the December hearing (although it has never formally been discontinued). Mr Bowles accepts that it should be struck out, or summary judgment entered in favour of the defendant. However, Ms Page addressed this head of claim both in her skeleton argument and in her oral submissions. She did so both for forensic reasons (because of the bad light it throws on the way the claimant and Mr Vickers have conducted themselves) and in support of her overarching submission that this claim should not be allowed to proceed to trial.

As part of the sums claimed from Kinross in the underlying claim, paragraph 94 of the particulars of claim had sought “damages in respect of the costs incurred in setting up and managing an office in Moscow in the sum of $788,029.00 as of 30th November 2009”. Mr Vickers had personally verified this claim by a statement of truth. Paragraph 60 (5) of the particulars of claim in these proceedings (also verified by a statement of truth signed by Mr Vickers) similarly alleged that the claimant had “incurred wasted costs in the sum of US $788,029 in respect of the costs of setting up a satellite office in Moscow”. At paragraph 54, the claimant pleaded: “… approximately 30% of the work required to be performed by [the claimant] under the ERR contract, was conducted from [the claimant’s] satellite office in Moscow which was set up specifically to perform the ERR contract (at a cost to [the claimant] of US $788,029). Further [the claimant] appointed Mr Diedrik Arnold … (a Russian speaker) on or around 12 March 2019. Mr Arnold was relocated to Moscow in order to manage [the claimant’s] performance of the ERR contract in Moscow.” These costs were claimed in relation to the ERR contract as costs allegedly incurred by the claimant in discharging its obligations under that contract. Such was the strength of the defendant’s arguments on this issue, however, that the claimant conceded (in its skeleton argument before the December hearing), that it could not maintain any claim for such costs. Accordingly, Ms Page says that paragraph 60 (5) of the particulars of claim should be struck out (together with all other references in the claimant’s statements of case to the claim to have set up a Moscow office and spent the Moscow office costs, and all sums claimed to the extent that they include such costs). This is now conceded by Mr Bowles.

Notwithstanding the claimant’s concession, however, Ms Page submits that it is important that the court is aware of the manner in which the claimant advanced this claim. This is because this aspect of the claim is particularly relevant to the defendant’s overarching argument that the underlying claim (and therefore this claim) is a dishonest claim. Moreover, Ms Page submits that the manner in which the claim for the Moscow office costs was conceded (in Mr Bowles’s skeleton argument, filed a few days before the December hearing, and with the claimant having previously maintained the validity of such a claim in robust terms throughout the pleadings and witness evidence filed in response to this application) amounts to an abuse of process. Certainly, it is conduct outside the norm. The defendant has already incurred significant costs in responding to the claim for the Moscow office costs, both at the pleading stage and in preparing for this application; and it now transpires that such costs were incurred in responding to a claim which was unsustainable, and which should never have been brought. Ms Page invites the court to infer that the claim for the Moscow office costs was made in terrorem, with the intention of putting pressure, first on Kinross and then on the defendant, by advancing an artificially high sum for its claims.

In summary the defendant’s case is that:

Ms Page submits that this assertion by Mr Vickers that he “never meant to say that $788,029 was spent setting up a physical office in Moscow” is entirely implausible and simply not credible given (in particular) that:

Ms Page submits that this was no mere error of communication: Mr Vickers plainly knew that there was no Moscow office, and yet he has subscribed his name to statements of truth in documents, including two sets of particulars of claim, which said (and in this claim continue to say) exactly the opposite. Mr Vickers instead seeks to skate over the point with the following words (at paragraph 334 of his first witness statement): “Unfortunately, there seems to be quite a bit of confusion about what Ms Morrish has termed the ‘Moscow Office Costs’”, as if the matter were the product of some minor misunderstanding. Similarly, the level of costs claimed in relation to this office are entirely unsubstantiated and implausible such that the court should regard them as false.

Ms Page also submits that it is notable in this regard that Mr Vickers has sought (at paragraphs 337-341 of his first witness statement) to blame both the defendant and Euler Hermes, the debt collection agency he had previously instructed, for failing to appreciate that the $788,029 did not in fact relate to the setting up of an office in Moscow. (This is a criticism he does not apparently make of his present legal team in these proceedings, who made precisely the same alleged mistake in their letter of claim, and again in the particulars of claim). Moreover, Mr Vickers is faced with the further difficulty that Euler Hermes, who wrote an earlier letter of claim to Kinross on behalf of the claimant on 27 April 2012, had specifically referred to “a dedicated office in Moscow”, and the recruitment by the claimant of “a local Director…and support team of 3 to manage the Kinross campaign …” In light of Mr Vickers’s later admissions, these statements were simply false. Ms Page argues that Mr Vickers resorts to a by now familiar excuse (at paragraph 337) that he did not read the letter. Even if that were true – and it is extraordinary – it does not explain where Euler Hermes got this information from. It can, of course, only have come from Mr Vickers. How else would Euler Hermes have known about the costs of establishing a Moscow office? Nowhere in his evidence does Mr Vickers suggest that anyone else had been instructing Euler Hermes.

Ms Page asserts that Mr Vickers’s response (at paragraphs 341 and 343 of his first witness statement) to the defendant’s objections to the wholly unsubstantiated nature of the Moscow office costs has simply been to rely on the work of Mr Williams: “Mike is now no longer with us and I cannot ask him to take me through his calculations, nor can I look at his records”; and “I cannot add anything to this as the documents were prepared by Mike. As Mike is no longer alive, I cannot ask him to elaborate this in any more detail.”. Ms Page questions how such an assertion can assist the claimant: if even Mr Vickers, its sole director, and the person charged with delivering the ERR contract, cannot explain, or suggest, how such costs may have been incurred (and presumably could not do so at the time the present claim was issued since this post-dated Mr Williams’s death), then that simply underlines their unsupportable nature: Ms Page cannot understand how the claimant could ever have been in any position to ask the court to enter judgment in relation to such a sum. Indeed, it is notable that notwithstanding the very detailed evidence on this issue in Ms Morrish’s witness statement, Mr Vickers’s evidence in response – the sum total of which is paragraphs 334-343 – simply fails to engage with it. Putting aside the non-existence of the Moscow office, Mr Vickers is seemingly unable to offer any explanations at all as how or why these sums were paid, when, or to whom, or how they even related to the ERR contract or were ever claimable against Kinross. Ms Page invites the court to note that a considerable slice of the $788,029 (some $180,000) apparently related to renovations to Mr Vickers’s own home, which she suggests may explain his reticence in this regard. Moreover $324,300 apparently related to “staff remuneration”: on the analysis contained at paragraph 83 of Ms Morrish’s witness statement, and in circumstances where the only person even possibly paid by the claimant in Moscow was Mr Arnold, who only worked (on a moonlighting basis) for three months or so, this figure must simply be inconceivable. Moreover, Mr Vickers cannot explain how the claimant was ever able to pay for such costs given that its accounts (signed by Mr Vickers) for the relevant year (ending 28 February 2010) demonstrate that its cash position was nil both in 2009 and 2010. Moreover, those same accounts show that the cost of sales was nil. The costs incurred in performing a contract would plainly constitute a cost of sale; yet none were incurred. These points were fairly made in Ms Morrish’s witness statement; and Mr Vickers has had months to consider them yet he has chosen to ignore them.

Ms Page submits that it follows that:

In his skeleton argument, Mr Bowles briefly summarised the position in relation to the Moscow office costs as follows:

I consider all of Ms Page’s points to be well made. I do not consider that Mr Vickers has provided any satisfactory answer to them. As regards the document at page 660, on which Mr Bowles appeared to place considerable reliance, the total for the costs of “Russian Office” is in fact given as £528,919 (for 9 months). The covering email, dated 30 July 2014, from Mr Vickers to Mr Lever and counsel (Mr Apthorp) begins: “This is the FOURTH email containing lists [sic] a summary of the costs incurred by HSL [the claimant] in first implementing, then running and resourcing recruitment from Moscow for Kinross candidates in 2009” (emphasis supplied). The figures in that document do not support the suggested 70/30 split between the UK and Russia. But, in any event, none of this begins to explain how, or why, this claim was ever pursued against the defendant in the current proceedings when, at paragraph 80 of his witness statement in the underlying claim, Mr Vickers had already admitted that “… the setting up and use of these offices never came to fruition. There was, therefore, never any form of HSL offices in Russia.” I am entirely satisfied that the only explanation is that this was a deliberately exaggerated claim, dishonestly advanced by Mr Vickers against the defendant after it had previously been advanced, and then abandoned, in the underlying claim. This is one of those very rare cases where it is possible for the court to discount any other explanation on the papers, and without cross-examination of Mr Vickers, because deliberate, and dishonest, exaggeration is the only explanation which is reconcilable with the reliable contemporary documentary evidence.

It is against this background that I come to consider the defendant’s overarching argument that this is a fundamentally dishonest claim that should not be allowed to proceed to a full trial because it would be impossible to ensure a fair trial of this claim.

The defendant seeks the striking out of the entire claim under CPR 3.4 (2) (b) (or the court’s inherent jurisdiction) on the grounds that, as a result of the claimant’s conduct, it would not be possible for there to be a fair trial of this case, and it would be an affront to the court to allow the claimant to continue with its claim. In summary, Ms Page submits that:

Ms Page submits that no reliance can be placed on the testimony of Mr Vickers, the sole director of the claimant company, or upon any documents verified by him. She suggests that the court can properly conclude that Mr Vickers is simply not a man who can be trusted to tell the truth, and that any trial of this action would be at risk of leading to an unjust result because the claimant will abuse the court’s processes in order to achieve a judgment in its favour. She submits that the underlying claim (and consequently this claim) is a dishonest claim the value of which has been purposely exaggerated by Mr Vickers. She relies upon the claimant’s false and dishonest evidence and case in relation both to the Moscow office costs and the 11 uninvoiced placements (where Mr Vickers was compelled to resile from the evidence at paragraph 332 of his first witness statement that he “told Mr Lever that the ERR contract covered 32 people on at least one occasion”). This is said to show Mr Vickers’s readiness to put misleading evidence before the court, and then to resile only if he is caught out, but without providing any proper explanation, asserting matters of privilege. Ms Page also relies upon the constant evolution of the claimant’s case, with numerous instances of the claimant having had to resile from positions it had previously adopted throughout the course of both the underlying claim and this claim. Ms Page has produced a six-page table setting out key instances where the claimant has resiled from its case as pleaded, or as set out in witness statements, in relation to (1) the Moscow office costs; (2) the entry into the ERR contract; (3) the 11 uninvoiced positions; (4) the whereabouts of financial documents; (5) the role of Mr Williams; and (6) the performance of the ERR contract more generally. In short, Ms Page says that Mr Vickers’s evidence cannot safely be relied upon; and that any judgment in favour of the claimant would therefore be unsafe because without Mr Vickers’s evidence, it has no case.

Ms Page further relies on Mr Vickers’s admission that he was involved in producing a false document for use in the underlying claim (albeit that he subsequently withdrew the document before it could be provided to Kinross), and in giving the defendant instructions in relation to the creation of that document which he now asserts were wholly untrue. Ms Page characterises Mr Vickers’s evidence in relation to this incident as “one of the more extraordinary accounts ever to have been presented to a judge of this Division”. This all arose in the context of the case advanced by Ms George, the solicitor acting for Kinross, in support of its application to set aside the order permitting service out of the jurisdiction and an extension of time for such service, to the effect that the claim under the ERR contract had no real prospect of success because the claimant was not a party to that contract and the underlying claim must therefore fail. To meet this argument, it became evident that it would be of advantage to the claimant to be able to point to an assignment, by the BVI company to the claimant, of the debts allegedly due under the Kinross contracts and associated causes of action.

On the evening of 21 April 2016 Mr Vickers says (at paragraph 355 of his first witness statement in this claim) that he met Mr Charles Apthorp, the barrister instructed in relation to the underlying claim, at the Carlton Club without any representative of the defendant being present. Mr Apthorp allegedly told him that a deed of assignment was “absolutely necessary” and, when Mr Vickers told him that there was no existing deed of assignment, Mr Apthorp “indicated that this was not a problem as the deed of assignment could be backdated”. Ms Page observes that such advice from a member of the Bar would be extraordinary. As a result of this curious indication, Mr Vickers asserts that he instructed the claimant’s accountant (and former director), Mr Mike Williams, to create a backdated deed, ostensibly dated 30 October 2010. This document was then sent to Mr Lever on 28 April 2016. It is clear from the covering email (at page 1904) that that document was presented to Mr Lever as a genuine assignment from 2010: “As I mentioned earlier .. , after [the claimant] made its assignment in 2010 (see attached) it then made a bad debt provision in the [the claimant’s] accounts in the UK in 2012.” The same representation had previously been made to Mr Apthorp in Mr Vickers’s email of 27 April (at page 1902), thereby contradicting Mr Vickers’s evidence that it was Mr Apthorp who had advised him that the deed of assignment could be backdated. Mr Lever noted, in his email of 5 May 2016 (at page 1905), that the production of this document at such a late stage was going to generate an outraged reaction from Kinross: “I suggest you all keep your heads down tomorrow as the proverbial is really going to hit the fan. I suspect we will have rarely seen a response of the like.” Ms Page notes that the terms of this email make it clear that, contrary to Mr Vickers’s evidence, Mr Lever had not advised Mr Vickers to create a back-dated document, which (as she notes) would have been a remarkable thing to have advised. At this point, Mr Vickers seemingly lost his nerve: “At this, I realised it had been a mistake to enter into the deed of assignment and backdate it even though I had been following Mr Lever and Mr Apthorp’s guidance on this.: see paragraph 360. Ms Page suggests that the obvious inference from this is that Mr Vickers was aware throughout that what he had done was illegitimate.

Mr Apthorp then seemingly drafted an email for Mr Vickers to send to Mr Lever withdrawing the purported deed of assignment. This evidence is given by Mr Vickers (and was raised for the first time in the reply) as if were perfectly normal for one’s counsel to draft an email behind the back of their instructing solicitor for their client to send on to that solicitor. Mr Vickers received this draft email (at page 1910) on 6 May 2016 at 11:31. It begins:

Mr Vickers then proceeded to send an email in these terms to Mr Lever 45 minutes later (at 12.16). Rather than simply cutting and pasting the text into the new email to Mr Lever (as Mr Apthorp had suggested), Mr Vickers actually corrected the typing error in Mr Williams’s name (shown above in bold) by changing ‘Mile’ (which is of course itself a word which would not be identified as an error in a spell-check) to ‘Mike’: see page 1912. Mr Vickers now says that there was no such original assignment deed; and (at paragraph 363) that he “simply copied and pasted the email that Mr Apthorp had drafted and sent it to Mr Lever unaware that it contained a reference to having an original assignment deed until after I had sent it”. He also says (at paragraph 365) that the email was erroneous because it referred to Mr Williams having given him the advice that the assignment could be backdated. He explains himself (at paragraph 363) by saying that he did not read the email drafted for him by Mr Apthorp before he copied and pasted it into the email which he then sent on to Mr Lever. Ms Page submits that this is wholly implausible; but, in any event, in light of the correction by Mr Vickers of Mr Williams’s name (from ‘Mile’ in the Apthorp draft to ‘Mike’ as sent to Mr Lever) what was implausible becomes obviously false evidence. Nor did Mr Vickers take any steps to correct or clarify the email thereafter. The clear inference, says Ms Page, is that either: (1) there was indeed an original assignment deed, and Mr Vickers is now seeking to conceal its existence (because it would tend to show that the claimant was not a party to the SVP and ERR contracts); or (2) the instructions given to Mr Lever that the deed of assignment was prepared in October 2010, but not signed until April 2016, were entirely untrue and Mr Vickers was aware of this fact at the time they were given. Ms Page submits that: (1) in 2016 Mr Vickers was clearly willing to procure the creation of a knowingly false document with the purpose and intention of using it in court proceedings (although, in the event, he lacked the courage to do the latter); and (2) Mr Vickers’s account of relevant events in his witness statement made for this application is wholly inconsistent with the contemporary documents and should therefore be rejected as false.

Ms Page also relies on pervasive concerns about Mr Vickers’s probity generally in relation to documents in this dispute:

Ms Page submits that there is therefore a real question as to whether the claimant will give full disclosure of all relevant documents in its control, and even as to whether documents which the claimant may produce in future relating to the finances of itself and the BVI company are genuine (given the earlier denial that they are in Mr Vickers’s possession, and his acknowledged previous willingness to create a false document). Even if (which the defendant disputes) those questions can be resolved in the claimant’s favour, there is a further question as to whether, in the absence of the majority of the two companies’ financial records, and in circumstances where the claimant has clearly breached its obligations under PD 51U, there can be any fair resolution of the very important issues which arise in this case if the claimant and Mr Vickers simply no longer have highly relevant documents.

Towards the end of Ms Page’s oral submissions I referred to the deed of indemnity dated 6 December 2021 by which the claimant had provided security for the defendant’s costs (in the sum of £260,000), and suggested that the court might require this to be supplemented by the provision of further security, in an amount equal to the defendant’s approved budgeted costs to trial, as a condition of any order permitting this claim to proceed to trial. Ms Page indicated that any such order should also be conditional on appropriate amendments to the claimant’s statement of case so that the claim might proceed to trial on an orderly footing. At no time during the course of his oral submissions in response to Ms Page did Mr Bowles suggest that the claimant might be unable to comply with any such condition.

In his skeleton argument, Mr Bowles submitted that the defendant’s suggestion that the court should simply strike out the claim because the claimant only has access to a limited number of its financial records is wholly misconceived. The court should only exercise this jurisdiction in circumstances where there is a real risk that any order made following a trial will be “unsafe”. This case simply does not get close to that.

Rather, the court will be faced with the (admittedly unenviable) task of trying to ascertain, based on the evidence it has, whether the claimant can establish the losses it claims on the balance of probabilities. The absence of the underlying financial documents is hardly likely to render any decision made by the court at trial “unsafe” since:

Moreover, the absence of documentation is unlikely to assist the claimant’s position. To the extent that there any inferences that can be drawn based on the absence of documents, these will only assist the defendant, as the court will not allow the claimant’s failure to produce documentation to enure for its benefit.

Finally, to the extent that the claimant suggests that the failure to maintain such documents should lead to a strike out of the whole of the claim under CPR 3.4 (2) as being a breach of the requirement to maintain potentially disclosable documents, Mr Bowles submits that such a remedy would be wholly disproportionate. This is especially so where the death of Mr Williams has left the claimant in an exceedingly difficult position.

It is clear that at the time he prepared his skeleton argument, Mr Bowles had not fully appreciated that the defendant’s application was founded not simply upon the lack of available documentation, but on the wider principle that the claimant’s conduct in these proceedings has put “… the fairness of the trial in jeopardy, where it is such that any judgment in favour of the litigant would have to be regarded as unsafe, or where it amounts to such an abuse of the process of the court as to render further proceedings unsatisfactory and to prevent the court from doing justice”, to adopt the language of Chadwick LJ in Arrow Nominees (cited above).

In his oral submissions, Mr Bowles emphasised that this principle requires the court to be satisfied that a fair trial will be impossible, that any judgment in the claimant’s favour would be unsafe, and that there is a real risk that justice will not be done if the case proceeds to trial. Any misconduct relied upon must be so serious that it would be an affront to the court to permit the claimant to continue to prosecute its claim to trial. That sets a very high bar: has the claimant so advanced its case that it has forfeited its right to have its claims considered, and determined, by the court. Whether viewed individually or taken together, none of the matters relied upon by the defendant gets anywhere near to surpassing this bar.

Mr Bowles emphasises that the Moscow office costs are no longer being claimed and they will not be in issue at trial. Essentially, the issue goes to Mr Vickers’s credibility, and that is an issue for trial. Mr Bowles accepts that Mr Vickers’s explanation is not as full as it should have been; but that is a matter for investigation at trial.

As to the claim in respect of the 11 uninvoiced positions, Mr Bowles submits that it was only after Mr Vickers had consulted new lawyers, who then undertook a full and proper examination of the true position, that he had come to appreciate that the claimant was not limited to claiming for the 21 invoiced positions. There is nothing dishonest about this part of the claim; and Mr Vickers should have an opportunity to explain his conduct at trial before any finding of dishonesty is made against him. It is not for the court to speculate on Mr Vickers’s state of mind: he should be allowed to answer for himself. His case on the 11 uninvoiced positions in no way renders any trial unsafe.

Mr Bowles points to the substantial volumes of documents that were provided to the defendant in its prosecution of the underlying claims. It is Mr Vickers’s evidence, and the claimant’s case, that it was Mr Lever who was not in control of the documents he had received from the claimant; and that, when challenged, Mr Lever simply refused to acknowledge his errors but rather sought to conceal them. The criticisms of Mr Vickers concerning the lack of documents are very much in dispute. The claimant should be able to recover some further financial documents from its bankers, both in this country and in Cyprus. Any lack of relevant documentation will not make the trial unfair or unsafe. To the extent that any relevant documentation is missing, that will operate to the detriment of the claimant, which bears the burden of proof in this claim, rather than the defendant. The court will draw adverse inferences against the claimant from any lack of relevant documentation so the only party prejudiced by any missing documents will be the claimant. Mr Bowles referred me to the observation of Lord Briggs in Merricks v Mastercard Inc [2020] UKSC 51, [2021] Bus LR 25 at [74]: “The incompleteness of data and the difficulties of interpreting what survives are frequent problems with which the civil courts and tribunals wrestle on a daily basis.” The underlying claims are contractual claims based on unpaid invoices. The court will not be required to investigate the manner of the claimant’s operations. Any missing documents do not go to the heart of this case, which is in no way out of the ordinary.

As for the deed of assignment, Mr Bowles submits that Mr Vickers has provided a full explanation at paragraphs 334 to 367 of his witness statement. He referred me to an email from Mr Lever to Vickers (and copied to Mr Apthorp) dated 6 May 2016 and timed at 10.33 am (at page 1909) which, he said, shows that Mr Apthorp had insisted to Mr Lever that Mr Vickers had acted innocently. The full text of that email reads:

Mr Bowles submits that there are three possibilities: (1) Mr Vickers had been given very bad advice by his lawyers. (2) If their advice was appropriate, that Mr Vickers had misunderstood the advice they had given to him. (3) Mr Vickers was deliberately seeking to mislead Kinross and his lawyers. Of these three options, Mr Bowles submits that the third is the least likely because if that were the case, why should Mr Vickers have then instructed the defendant not to send the assignment to Kinross’s solicitors?

In the course of her oral reply, Ms Page took me to observations of Ward LJ in his concurring judgment in Arrow Nominees (cited above). At [72], he criticised the lower court for viewing

Ms Page reiterates that Mr Vickers has provided no credible explanation for his false statements (verified by statements of truth) about the costs of setting up a non-existent Moscow office nor has he made any attempt to purge his consequent contempt of court. Mr Bowles has relied on Mr Vickers’s lack of explanation as a reason for permitting him to be cross-examined at trial but what is this likely to achieve? There is no real prospect that he can retrieve his credibility at trial. It cannot be in furtherance of the overriding objective for Mr Vickers to be allowed to pursue this claim to trial. This is precisely the sort of case where he has forfeited the claimant’s right to have its case brought to trial, and the court should put a stop to the case now. Mr Vickers’s expressed concerns about the way his instructions have been misinterpreted is yet another attempt to muddy the waters. Ms Page took me to a further document, dated 9 May 2015 (at page 785), where Mr Vickers was clearly commenting upon, and explaining, the figures for the Moscow office costs and a letter from Mr Williams, who is (misleadingly) described as an “independent accountant”. This document reads:

Mr Bowles had submitted that Mr Vickers had thought that he was limited to claiming only for those employees for whom invoices had been submitted. However, this does not bear serious scrutiny. Ms Page referred me to the document prepared by Mr Vickers and headed ‘Explanation’ which he attached to his email to Mr Lever dated 22 June 2015 (and copied to Mr Apthorp) at pages 771-2 which concludes: “It seems unlikely that anyone else other than Kinross Russia would have given this instruction to THR to recruit the same people as Kinross had instructed HSL to recruit for them to replace 21 expatriate employees in Kupol Russia with specific names.” That was a clear statement of fact to Mr Lever that the claimant had been instructed to replace 21 expatriate employees in Kupol Russia, with specific names. Those were his instructions to the defendant. Mr Vickers has had ample opportunity to explain these instructions in his witness statement; and Mr Bowles did not address this document in his submissions.

As for Mr Bowles’s submission that it is only the claimant that will suffer any prejudice from the lack of relevant documentation, Ms Page responds that the defendant has not yet got the full picture from the documents and it is unlikely ever to do so. This is a case where the claimant has already advanced (for the second time) a false claim verified by a statement of truth from which it has had to resile when it was caught out, without any plausible explanation, or any excuse or apology. Mr Vickers (and the claimant) seem to regard such conduct as acceptable. In circumstances where the defendant does not have access to the full documents, it may never know whether other factual assertions made by the claimant are untrue. There must be a very real danger that the defendant will never find out if any part of the claim which the claimant may establish at trial would have been shown to be false had the full documents been available.

Ms Page submits that it is clear that not only did Mr Vickers create a false document with the intention, and expressly for the purpose, of placing it before the court in aid of the underlying claim, but that his account of this episode in his witness evidence for this application does not stand scrutiny against the underlying contemporary documents. This is said to be a further example of the unreliability of Mr Vickers’s evidence generally. The date at paragraph 345 of Mr Vickers’s first witness statement (‘around 14 May 2016’) clearly cannot be correct because many of the relevant emails precede this date. The “angry exchange” between Mr Abhorp and Mr Vickers, which the latter relates at paragraph 360, is clearly inconsistent with Mr Apthorp’s contemporary understanding, as expressed in the emails of 6 May at pages 1909 and 1910: Mr Apthorp apparently understood that Mr Vickers had located an unsigned assignment prepared in 2010; yet Mr Vickers’s evidence is that Mr Apthorp had advised that he should create an assignment and backdate it, which Mr Vickers then proceeded to do using a template that Mr Williams had only found online on 17 April 2016. However, this is entirely inconsistent with Mr Vickers’s email to Mr Lever of 28 April 2016 (at page 1904), which includes the following: “Just in case, here is the assignment letter and 2012 accounts. As I mentioned earlier … , after [the claimant] made its assignment in 2010 (see attached) it then made a bad debt provision in the [claimant’s] accounts in the UK in 2012.” At the very best (for the claimant), Mr Vickers was lying to his own solicitor about the date the assignment had been created (and signed); and if Mr Vickers’s evidence is to be accepted, Mr Apthorp, a practising member of the Bar (called in 1983), must have been colluding in that deception. However, it is clear from the email that Mr Vickers sent to Mr Apthorp on 27 April 2006 (at page 1902), that Mr Apthorp was also being told that the claimant “had made its assignment in 2010”. Mr Apthorp, too, was a victim of Mr Vickers’s deception.

For all these reasons, Ms Page submits that this is one of those rare cases where it is entirely appropriate for the court to strike out the claim for abuse of the court’s process. These are exaggerated and dishonest claims which have no real prospect of success.

I accept Ms Page’s submissions on this aspect of the case. I agree with her analysis and her reasoning.

I accept that the court has an inherent jurisdiction to strike out proceedings where the claimant’s conduct, past and reasonably to be apprehended, puts the fairness of the trial in jeopardy; where it is such that any judgment in favour of the claimant would have to be regarded as unsafe; or where it amounts to such an abuse of the process of the court as to render further proceedings unsatisfactory, and to prevent the court from doing injustice to the defendant. If it were necessary to identify a source for this jurisdiction in the Civil Procedure Rules (which it is not, because the court has an inherent jurisdiction to act so as to preserve the integrity of the trial process), it is to be found in the duty imposed on the parties, by CPR 1.3, to help the court to further the overriding objective of enabling the court to deal with the case justly, thereby engaging (in addition to the inherent jurisdiction) the jurisdiction to strike out under CPR 3.4 (2) (c) for non-compliance with CPR 1.3. I note that at the end of his concurring judgment in Arrow Nominees (at [77]), Ward LJ explained that he had added his observations to the judgment of Chadwick LJ “… simply to underline that the principles to apply are those in the new procedural code. They are encapsulated by the need to do justice, case by case. In this case it is no more than justice in that broad sense that the petitioners should be denied the relief which they sought to obtain by persistent cheating.” This is a separate, albeit a complementary, jurisdiction to that which falls to be considered in response to any failure of disclosure.

I accept Ms Page’s submission that this is a case where the claimant (through its sole director, and principal and controlling shareholder, Mr Vickers) has grossly and knowingly exaggerated the values of both this claim and the underlying claim. I am entirely satisfied that Mr Vickers is neither a reliable nor a credible witness, whose evidence cannot safely be relied upon. I also accept that there are difficulties over the disclosure of documents, and genuine concerns about whether full and proper disclosure can or ever will be given by the claimant. On their own, these difficulties and concerns over disclosure would not have justified the court in striking out this claim, or in refusing to allow it to proceed to trial; but when they are allied to the unreliability and lack of credibility of Mr Vickers, the claimant’s controlling mind and sole or principal witness of fact, they are matters of real concern because of the potential lack of availability of relevant documents to challenge his evidence and case.

By consent, paragraph 60 (5) of the particulars of claim, and all other claims in relation to the so-called Moscow office costs, should be struck out. This claim is, and always was, manifestly unsustainable, both in fact and in law, and it should never have been advanced. I am satisfied that this was a deliberately exaggerated claim, dishonestly advanced by Mr Vickers against the defendant after it had previously been advanced, and then abandoned, in the underlying claim. This is one of those very rare cases where it is possible for the court to discount any other explanation on the papers, and without cross-examination of Mr Vickers, because deliberate, and dishonest, exaggeration is the only explanation which is reconcilable with the reliable contemporary documentary evidence.

I accept Ms Page’s analysis of the evidence (as summarised above), both generally and particularly concerning the production of the false deed of assignment. I find that the contemporary documentation is utterly compelling. One starts from a position where Mr Vickers has admitted that he was involved in producing a false deed of assignment from the BVI company to the claimant for use in the underlying claim (albeit that he subsequently withdrew the document before it was supplied to Kinross). I am satisfied from the contemporary documents that he lied to the defendant (as the claimant’s solicitors) and to his retained counsel at the time, and now to this court about the circumstances in which he came to produce this document. I accept Ms Page’s submission that: (1) in 2016 Mr Vickers was clearly willing to procure the creation of a knowingly false document with the purpose and intention of using it in court proceedings (although, in the event, he thought better and withdrew it); and (2) Mr Vickers’s account of relevant events in his witness statement made for this application is wholly inconsistent with the contemporary documents and should be rejected as false. I am also satisfied that he lied to his solicitors and counsel about the creation of this false document at the time he fabricated it.

As I have already explained, I am satisfied that there is no truth or substance in Mr Vickers’s evidence that he ever considered that the ERR contract extended to any more than the 21 individuals for whom the claimant invoiced Kinross, or that Mr Vickers ever considered that the claimant might have had any entitlement to any greater fee. Mr Vickers’s evidence about the scope of the claimant’s retainer under the ERR contract is so wholly inconsistent with, and contradicted by, the reliable contemporaneous documentary evidence as to be entirely lacking in credibility and incapable of belief.

Mr Vickers has been responsible for advancing claims that he must have appreciated were hopeless. The claim under the SVP contract was doomed to failure because there is simply no conceivable or realistically arguable answer to the defence of waiver. The claim to any further fee for any work done to resource or recruit a replacement candidate for Dr Cowley’s role under the RVP contract (or any suggested new or replacement RVP contract) was wholly fanciful and bound to fail. In my judgment, the true position is entirely clear on the incontrovertible documentary evidence, without the need for any oral evidence or cross-examination at trial. At all times both Kinross and Mr Vickers understood that the claimant was working on the basis that it would be charging Kinross no further fee, on the footing that it was already bound by sub-clause 3.1 of the RVP contract to provide a replacement without charge.

So, for all these reasons (and for the further reasons advanced by Ms Page, which I accept) this court would be amply justified in refusing to allow what remains of this claim to proceed to trial. However, I am conscious that this would be a most unusual, and draconian, course to take. The court should not do so if there is some other, less drastic course open to it. In my judgment there is such a course. In the exercise of the court’s powers of case management, it should allow any remaining claim to proceed, but only on strict conditions. First, the claimant’s statement of case will require comprehensive re-casting and re-writing, to reduce both its length and complexity, and to confine it to what, following this judgment, now remains live and in issue: effectively any remaining claim for the loss of the opportunity (after taking any necessary assignment of the remaining underlying claim) to pursue a claim for fees for the 21 invoiced positions under the ERR contract alone. Secondly, since the proceedings thus far will be superseded by this new, and greatly reduced claim (in terms both of complexity and amount), the claimant will be required to pay either the whole, or a part, of the costs incurred by the defendant to date (with an interim payment on account). Thirdly, the claimant should be required to provide security for the defendant’s budgeted costs if and when these are approved by the court. If whoever is funding the claimant has insufficient confidence in the outcome of this litigation to provide the further funding required for this, then it would seem to me to be just, and in accordance with the overriding objective, for this claim to be struck out.

For the reasons set out above, I have concluded as follows:

These conclusions are provisional only in the sense that they are subject to the contents of the following postscript to this judgment

As explained at paragraph 8 above, the foregoing 15 sections of this judgment largely follow the terms of the draft judgment that was circulated to counsel on 5 September 2022 (subject to minor corrections and tidying-up). For the defendant, Ms Page submits that no claim with any, or any real, prospect of success survives the findings in my draft judgment, and that the appropriate form of relief must be for the whole claim to be struck out and/or summarily dismissed (with costs). Ms Page further invites the court, should it accede to that submission, to re-consider its decision not to make any final findings as to the identity of the parties to the SVP and ERR contracts (issue three) despite its decision that issue four raises a triable issue.

Given the amount of court and judicial time that has already been allotted to this protracted application to strike out and/or for summary judgment, I am satisfied that it is entirely in accordance with the overriding objective for the court to determine the consequences of my draft judgment for the future conduct and disposal of this claim on the basis of the helpful further written representations I have received from counsel (for which I thank them).

Ms Page points out that the court has found (on issue four) that there is a triable issue as to whether the defendant should have identified and advised the claimant as to the correct parties to the SVP and ERR contracts, and how this problem might have been overcome. The court has concluded that what effectively remains live (following the judgment) is a claim for the loss of the opportunity (after taking any necessary assignment of the remaining underlying claim) to pursue a claim for fees for the 21 invoiced positions under the ERR contract alone. However, Ms Page submits that the court has found (on issue five) that the claim in relation to the ERR contract, on which the claim for the 21 invoiced jobs depends, has no real prospect of success and/or should be struck out; and (at paragraph 82) “… that the claimant had no, or no real, prospect of recovering the sums that it says it would have recovered from Kinross, such that, even if any alleged breach of duty by the defendant were made out: (1) the particulars of claim disclose no reasonable grounds for bringing that part of the claim and (2) the claimant has no, or no real, prospect of succeeding in showing that such breach caused that part of the claimed loss”. Citing paragraph 20 of the particulars of claim, Ms Page contends that the claim for unpaid fees allegedly due under the ERR contract was fundamentally premised on the claimant’s contention that it was a “retained assignment” agreement. She submits that this contention cannot survive the court’s rejection of the claimant’s case that the ERR contract contained any express or implied term to that effect.

Ms Page points out that there is no issue of fact as to whether it was the claimant or third parties who introduced the candidates whom Kinross recruited for the ERR positions. The claimant does not contend that it introduced any of the candidates recruited by Kinross into those positions. On the contrary, the claimant’s pleaded case (at paragraphs 56 and 57 of the particulars of claim, and confirmed at paragraphs 314 to 316 of Mr Vickers’s first witness statement) is that the candidates were indeed introduced to Kinross by other recruitment agencies. Moreover, Ms Page notes that the last sentence of paragraph 53 of my judgment records that Mr Bowles accepted that if the defendant were to succeed on issue five, that would dispose of that part of the claim relating to the SVP and ERR contracts.

Ms Page submits that it follows from the court’s findings on issue five that there is no claim for any loss of the opportunity to pursue a claim for any fees for the 21 invoiced positions under the ERR contract which has any real prospect of success. This is because even if (which is denied) any breach of duty were to be established, the claimant has no, or no real, prospect of showing that the breach caused any loss to the claimant in respect of the 21 invoiced roles. By reason of the court’s findings on issues five (a retained assignment contract), nine (the SVP contract), and ten (the RVP contract), there are simply no claims in respect of the recovery of unpaid fees which survive. As the claims to interest are parasitic on those underlying claims, they too have no realistic prospect of success, and there is no other reason why they should go to trial: they simply fall away.

Ms Page therefore submits that no claim with any, or any real, prospect of success survives the findings in this judgment; and that the appropriate form of relief must be for the whole of the claim to be struck out and/or summarily dismissed (with costs).

Mr Bowles does not dispute that, by reason of the court’s findings on issues nine and ten, there are no surviving claims in respect of the recovery of unpaid fees relating to the RVP and SVP contracts; and that the sole remaining area of dispute is in relation to the ERR contract. He submits that unpaid fees are still recoverable in relation to that contract, irrespective of the court’s findings on issue five (retained assignment).

Mr Bowles notes that the defendant’s argument that the claimant has no claim for fees under the ERR contract is premised on the following:

However, Mr Bowles submits that the defendant’s analysis fails properly to appreciate: (1) the payment terms contained in the ERR contract, (2) the claimant’s pleaded claim in relation to that contract, and (3) the true effect of the court’s findings on issue five.

Mr Bowles contends that it is clear from the express terms of clauses 1 and 2 of the ERR contract that the first two tranches (each of 33% of a candidate’s first year’s gross annual remuneration) fall to be paid in the circumstances and at the times provided for by clause 2.3, namely (1) the first tranche is payable upon Kinross accepting the contract, and (2) the second tranche is payable upon the claimant presenting to Kinross a qualified set of short list candidates as approved by Kinross. Whether or not Kinross actually recruited those candidates is irrelevant for the purposes of determining whether any fees have become payable under those first two tranches. As such, Ms Bowles contends that the question of whether the ERR contract was a retained assignment contract was only relevant in relation to the third tranche of fees (as the claimant was claiming to be entitled to fees for the placement of candidates it had not presented to Kinross). Mr Bowles accepts that the claimant can no longer claim any sums in respect of the third tranche of fees by virtue of the court’s finding that it would only have been entitled to receive the third tranche of fees when a candidate sourced by the claimant received a signed offer letter. Mr Bowles submits, however, that nothing in the court’s conclusions on issue five would prevent the claimant claiming fees under the first and second tranches (as long as it can prove that the appropriate criteria are made out). He emphasises that it is important to appreciate the limited scope of the conclusion that the court has reached at paragraph 82 of its judgment, which relates solely to “the issue whether the SVP and ERR contracts were ‘retained assignment’ contracts entitling the claimant to receive fees under them in circumstances where a role was filled by a third party rather than the claimant”. Mr Bowles says that it is clear from this that the court only struck out, or entered summary judgment in relation to, the claims under the ERR contract in so far as they related to the third tranche of fees (as that was the only tranche which was concerned with the question whether the contracts were “retained assignment” contracts). Mr Bowles contends that this is not the entirety of the claims under the ERR contract.

In his note, Mr Bowles proceeds to address the way in which the claims in relation to the ERR contract are pleaded in the particulars of claim (at paragraphs 53 and following) and the evidence of Mr Vickers in his first witness statement (at paragraphs 321-329) as to the three invoices raised under that contract (on 16 March 2009, 29 September 2010, and 11 November 2010). The first invoice relates to the first tranche of fees and was raised in a sum less than the claimant was entitled to, with the intention of effecting a later reconciliation. The second invoice relates to the remaining fees due under the ERR contract, and was raised to cover: (1) the remainder of the first tranche (being the difference between the first invoice and the sum which should have been paid invoiced for 21 roles), (2) the fees due for the second tranche, and (3) the fees due for the third tranche. This invoice clearly represents the total fee due under all three tranches, based on assumed bonuses of 25%, less the sums already paid towards the first tranche. As such, it is clear that part of the second invoice relates to the first and second tranches and so remains a loss which the claimant may seek to recover from the defendant, having lost its chance to pursue it as part of the underlying claim. The third (and final) invoice reflects the 35% uplift due and payable for bonus fees that should have been applied to all sums invoiced, and is charged in respect of all three tranches. Mr Bowles submits that it is clear from these three invoices that they relate to the full fee entitlement that the claimant should have claimed under all three tranches of fees.

As a result of the findings at paragraph 82 of the judgment, the claimant accepts that the invoiced sums can only be claimed in respect of the first and second tranches of fees; and the claimant also accepts that it must give credit for the payment of the first invoice. In those circumstances Mr Bowles contends that the principal sum that the claimant can claim to have lost the chance to pursue by reason of the defendant’s negligence is at least:

In the light of the conclusions reached in the judgment on interest, this can then be claimed under clause 10.6 of the ERR contract (as against the sums outstanding), and then at a rate of 8% under s. 35A of the Senior Courts Act 1981. The contractual interest would be in the region of US $1,824,681.41 to the date of the particulars of claim in the underlying claim. That gives a remaining claim for the loss of a total sum of £2,500,489.34 under the ERR contract. This sum then attracts interest, being (1) up to 6 March 2020 (which is claimed at 8% under s. 35A of the Senior Courts Act 1981), in the sum of approximately US $903,738.52, and (2) thereafter, until judgment or final resolution, at such rate as the court deems fit. Mr Bowles reserves the claimant’s right to engage an accountant to calculate this sum properly prior to any re-pleading of the claimant’s case. The simple point, however, is that Mr Bowles contends that the claimant retains valuable claims for the loss of a chance.

Mr Bowles also addresses Ms Page’s invitation to reconsider its decision not to make any findings on issue three (the identity of the parties to the SVP and ERR contracts) should the court accede to her submission that this claim should not go to trial. He submits that it is both unnecessary for the court to change its findings in relation issues three and four and that it would be wrong in principle for the court to do so. The reason for this is simple: These issues would have been suitable for trial had there been any recoverable loss, and so the court should not (and does not need to) alter its individual conclusions on those issues. The defendant should not simply be saved from having to litigate these triable issues by the absence of any loss. That cannot alter the strength of the underlying point which is that, but for (on this hypothesis) the absence of any loss, the issues of the contracting parties, and the assignment of the remaining underlying claims, would have been suitable for trial.

For these reasons, Mr Bowles submits that the court should not alter the conclusions reached in its judgment but should now make orders which will allow the claimant’s remaining valuable claim to proceed to trial, once it has been amended in line with the indications set out in the judgment.

In her further note to the court, Ms Page reiterates that it follows from the court’s finding on issue five that there is no claim with any, or any real, prospects of success so the claim should be struck out in its entirety. She contends that in a last effort to rescue its claim, the claimant now asserts (for the first time) that unpaid fees were recoverable under the ERR contract irrespective of whether it was a retained assignment contract. Ms Page submits that the claimant attempts to do this by contending (wrongly) that the claim, as currently pleaded, includes claims for:

Notwithstanding that the judgment records (at paragraph 53) Mr Bowles’s acceptance that issue five would dispose of the claim relating to the SVP and ERR contracts, Ms Page points out that he is now submitting that issue five only pertained to the third tranche of fees. Ms Page contends that this is wrong for several reasons:

First, the claimant’s pleading is explicitly on the basis that it was entitled to unpaid fees from Kinross because the ERR contract was a retained assignment contract. Ms Page points to paragraph 57 of the particulars of claim, which expressly, and unequivocally, pleads that: “Upon the appointment of a candidate into a role contained in the ERR Contract, [the claimant] became entitled to receive payment of its fees under the ERR Contract, by virtue of the fact that the ERR Contract was made on a Retained Assignment basis, as set out in paragraph 31 (1) above.”

Second, as to the first tranche, nowhere in the particulars of claim is it pleaded that the first invoice was understated, or that there was any claim against Kinross for the balance of fees due in respect of the first tranche

Third, as to the second tranche, nowhere in the particulars of claim is it pleaded that: (a) the claimant was entitled to be paid upon the submission of a shortlist; (b) the claimant submitted a shortlist which was approved by Kinross; or (c) Kinross was in breach of contract for failing to pay the second tranche upon the submission of a shortlist. To the contrary, paragraphs 31 (3) and (4) of the particulars of claim state in terms that the claimant’s “remuneration would be 33% of each of the successful candidate’s guaranteed gross annual remuneration”, with such fees being “paid in three instalments, being 33% on commencing the Retained Assignment, 33% upon the arrangement of a second interview and/or shortlist of candidates and 34% upon the candidate entering into a signed contract”.

Ms Page submits that this new case has never previously been advanced. Collyer Bristow’s pre-action letter dated 18 April 2019 makes no such claim. Ms Page contends that this is yet another example of the claimant seeking to shift its case in a way highly prejudicial to the defendant, which is entitled to know the case against it, and has been forced into spending considerable sums defending the claim, and making this application, on the basis of the current pleadings. The claimant is seeking to advance a totally new case. Still worse, the claimant is not even frank or candid about this fact. Rather it seeks to pass off its new case as if it were contained within the existing pleadings. Mr Bowles highlights paragraph 82 of the judgment and in particular the phrase "insofar as it concerns the issue whether the SVP and ERR contract were ‘retained assignment’ contracts", as if to suggest that, as pleaded, there was some other basis for a claim in relation to those contracts. But, as the claimant well knows, so far as the SVP and ERR contracts were concerned, the only basis upon which it has ever been contended – to Kinross, to the defendant and to the court (both in the underlying, and in the current, proceedings) – that the claimant was entitled to any further payment from Kinross was because they were retained assignment contracts and the positions in question had been filled (even if not by candidates sourced by the claimant).

Mr Bowles goes on to suggest that only the claim in respect of the third tranche of fees has been struck out but that “that is not the entirety of the claimant's claims under the ERR contract". But again, as far as the pleadings, both in this and in the underlying claims are concerned, until now an entitlement to payment based on the plea that this was a retained assignment has been the entirety of the claim. The claimant should not be permitted to shift the basis of its claim. The whole purpose of a strike out or summary judgment application is that it is premised on whether the pleadings disclose any real prospect of success. The defendant has successfully established that the pleadings do not disclose any claim with any realistic prospect of success. It follows that the claim ought to be dismissed with costs. The claimant has had ample opportunity (since at least 30 March 2021, when the defendant’s instant application was issued) to respond to this application by way of an application to amend but it has chosen not to do so. Ms Page submits that it is wholly unorthodox to wait until after the receipt of a draft judgment to imply the need to do so; and even more so given the absence of any draft amended pleading or any application to amend. This conduct is highly prejudicial to the defendant and should be deprecated by the court.

Ms Page further submits that the new claim for any alleged unpaid balance of the first tranche of the search fee has no real prospect of success, not least because:

Ms Page further submits, more fundamentally still, that Mr Bowles’s argument in relation to the second tranche of the search fee is hopeless as a matter of contractual construction and has no real prospect of success. Ms Bowles is said to be selective as to the wording of clause 2.3. When clause 2.3 of the ERR contract is read in full, and in the context of the remainder of the clause, the fallacy of the claimant’s position is said to be clear.

Clause 2.1 makes it clear that the search fee is payable “for the successful retained search, resourcing and introduction of an Applicant subsequently hired by the Client”. Indeed clause 2 (including, in particular, clause 2.3, which was there expressly set out) was characterised by Mr Bowles (at paragraph 180 of his skeleton argument) as “the First Way” in which the claimant would be entitled to receive its fees: “This, therefore, is the first way in which [the claimant] would be entitled to receive its fees. This is the ‘normal’ way that [the claimant] would be entitled to receive its fees in the event that the search and hiring process was successful”. Moreover, Mr Bowles expressly abandoned any reliance on clause 2 and the “First Way” at paragraph 189 of his skeleton, where he stated in terms that: “It is accepted that on the express terms of the contract that the Claimant would not be entitled to receive fees under either of the First or Second Ways (the more ‘typical’ routes to payment) in respect of either the SVP … or any of the ERR Contract roles” Thus, Mr Bowles accepted that the claimant had no entitlement to fees under clause 2 (including clause 2.3) of the ERR contract. The claimant should not be permitted to resile from that.

Ms Page submits that this concession was rightly made, as it is clear from the express language and the context of clause 2.3 that it does not provide a free-standing entitlement to fees upon the submission of a shortlist. On the contrary:

Consistently with the above interpretation, in practice the claimant did not invoice a second tranche under the ERR contract separate from the third tranche at all: the fees for the second tranche were only included together with the third tranche fees in the second invoice (dated 29 September 2010); and according to Mr Vickers’s evidence, they were only raised after he had been informed that the roles under the ERR contract had been filled via other recruitment agencies, which the claimant subsequently purported to top-up in respect of the higher (60%) bonus level by the third invoice (dated 11 November 2010).

Moreover, as previously noted, the second and third invoices were not raised pursuant to clause 2.3 at all. On the contrary, they are stated to be for “resourcing and recruitment fees (as per clauses 1.5, 1.6, 5.4, 10.0 and 10.5) for resourcing and recruitment of candidates in accordance with Retained agreement between Harrington Scott” and Kinross Gold. There is no mention of clause 2.3.

For all these reasons, Ms Page submits that the claim should be dismissed with costs. If the court were minded to permit the claimant an opportunity to rescue its case, however, Ms Page submits, in the alternative, that the court should maintain, and re-enforce, the conditions on the claimant proposed in section 14 of the judgment in order to address the prejudice caused to the defendant by the claimant’s approach. Whilst costs and consequential orders will require further argument, in this event it is the defendant’s position that:

Ms Page did not address any arguments in response to Mr Bowles’s submissions that it is unnecessary for the court to change its findings in relation issues three and four, or that it would be wrong in principle for the court to do so.

For the reasons given by Ms Page (which I accept), I am satisfied that no claim with any, or any real, prospect of success survives the findings in my draft judgment, and that the appropriate form of relief is for the whole claim of this claim to be struck out and summarily dismissed (with costs). Had I rejected Ms Page’s post-draft judgment submissions, I would have accepted her alternative submission recorded at paragraph 275 above. However, for the reasons advanced by Mr Bowles, I reject Ms Page’s further invitation to reconsider my decision not to make any final findings as to the identity of the parties to the SVP and ERR contracts (issue three) in advance of any trial.

I am satisfied that Ms Page is correct that the basis upon which Mr Bowles now seeks to advance a claim to any entitlement to further fees under the ERR contract has never previously been advanced and is not presently pleaded. I agree with Ms Page that it would be both procedurally and substantively unfair and unjust to the defendant to permit the claimant to amend its particulars of claim to raise any such new case at this late stage in the long history of this application. In any event, I am satisfied, for the reasons that Ms Page gives, that the various ways in which Mr Bowles now seeks to reformulate the claim under the ERR contract have no, or no real, prospects of success. I adopt, without repeating, those reasons. I agree with Ms Page’s submission that the court should give short shrift to Mr Bowles’s last desperate effort to rescue his client’s claim that unpaid fees were recoverable under the ERR contract irrespective of whether it was a retained assignment contract. Any new claim for any alleged unpaid balance of the first tranche of the search fee has no real prospect of success. Likewise, any new claim to the second tranche of the search fee is manifestly ill-founded as a matter of contractual construction and has no real prospect of success.

I accept Mr Bowles’s submissions that it is unnecessary for the court to revisit its findings in relation issues three or four, and that it would be wrong in principle for the court to do so. For the reasons I have already given, these issues would have had to be resolved at trial had there been any recoverable loss, and so the court does not need to, and should not, alter its conclusions on those issues. The fact that the claimant has suffered no recoverable loss cannot alter the fact that, had there been any such loss, the issue concerning the assignment of any remaining underlying claims could only properly have been determined at trial; and, on that hypothesis, I have determined that the true identity of the parties to the SVP and the ERR contracts should be determined at the same time rather than on the papers. I see no good reason to revisit those conclusions.

At the request, and with the agreement, of both parties’ counsel, this approved judgment is to be handed down without the need for any attendance by solicitors or counsel. It is to be treated as having been handed down at 10.00 am on Michaelmas Day 2022. It is clearly desirable for the hand down of this judgment to take place as soon as practicable without the parties having to wait for a convenient date to be found (with the judgment remaining under embargo in the meantime).

I order that the hearing of any consequential matters (including any applications for costs and for permission to appeal) is to be adjourned to a date to be fixed (by reference to counsel’s dates to avoid and the convenience of the court). As the defendant is substantially the successful party, the defendant’s counsel should act as the single point of contact with Chancery Listing, and should provide a list of available dates over the next six months (with an agreed time estimate) by no later than 4.00 pm on Friday 7 October. Both counsel are agreed that at least half a day of court time will be required; and an appropriate time should also be allowed for any necessary pre-reading and for judgment. I extend the time for all consequential written submissions (including submissions as to costs) until two clear days before the adjourned hearing date. The time for any application for permission to appeal (by either party) is extended to the adjourned hearing (pursuant to PD52A paragraph 4.1(1)). There will be a corresponding extension of time for any appellant’s notice until 21 days after the adjourned hearing (pursuant to CPR 52.12 (2) (a)). There will be a consequential extension of time for any respondent’s notice.

I record that I have already relaxed the terms of the embargo upon its release to enable the defendant’s professional indemnity insurers to be shown a copy of the draft judgment and the parties’ submissions on the same. Since that insurer is funding the costs of the defence, the defendant’s solicitors are required to keep it appraised of the work being undertaken on the matter. At Mr Bowles’s request, I have granted a similar relaxation to the claimant to enable it to show the draft judgment to its own insurers and to its litigation funder (and, given I am told that the latter is in administration, the relevant insolvency practitioner). These relaxations will extend to the terms of this approved judgment before it is formally handed down.

I conclude this lengthy considered judgment by recognising and acknowledging the great assistance that I have derived from the work of all three counsel retained for this substantial five days strike out and summary judgment application. I recognise also the considerable additional work which both Ms Page and Mr Bowles have undertaken since the initial circulation of my draft judgment.