Farnon v Devonshires Solicitors (a firm)

The claimant was formerly the fund manager of a Japanese hedge fund (the Japan Absolute Return Fund or “ARF”) operated by an investment management group known as Polar Capital (“Polar”). The defendant is a firm of solicitors retained by the claimant in May 2008 to provide her with advice relating to her exit from the membership of the limited liability partnership (“the LLP”) that formed part of Polar. The advice was provided by Nicola Philp, a partner of the defendant.

The claim is for damages for losses that the claimant claims to have suffered as a result of allegedly negligent advice given by Ms Philp.

The Factual Background

The claimant, a fluent Japanese speaker, joined the Polar group in July 2001. The ARF was launched in December 2001. It was a long/short equity fund which invested in Japanese equities. The claimant became the sole fund manager of the ARF in the summer of 2005.

In March 2002 Polar introduced a share scheme for each of its fund management business units. It is not necessary for present purposes to set out the details of the scheme. Suffice it to say that in due course the claimant subscribed for Manager Team Preference shares and was awarded a total of 18,151 shares in the parent company, Polar Capital Holdings Plc (PCPL).

In early 2003 the claimant introduced Tomomi Morita to Polar. She joined PCPL on 11 July 2003 as an analyst.

The LLP was formed on 15 August 2005, and on 31 October 2005 the claimant and others entered into a Partnership Agreement by which she became a member of the LLP, being notified by letter of the same date that:

“As a Member of Polar Capital LLP … your entitlement under the limited liability partnership agreement … to a share of the net income of the LLP (profit share) is as determined by … PCPL in its absolute discretion, after giving consideration to the Member P and L Accounts and to any outstanding or arrangement between the LLP and the Member.

This letter sets out the terms of the understanding reached between PCPL and yourself in relation to Profit Share as follows:

i.

you will be entitled to Drawings in the amount of £5,428 per month, which should be paid to you at the end of each month by the LLP and off-set against the amount of your final Profit Share for that Accounting Period;

ii.

you will also be entitled to a Profit Share to be determined at the discretion of the PCPL based upon PCPL’s assessment of the amount of base management fees and performance fees earned and the overall profitability of your business division. ”

In about March 2006 the claimant was given a document entitled Post Crystallisation Incentivisation Workings March 2006 (PCIW). She says in her witness statement that she was told by Mr Kary, Polar’s chief executive officer that the document set out “how the bonus would be calculated going forward.” It will be necessary to return to the PCIW in due course.

On 19 March 2008 the claimant contacted Ms Philp by e-mail, having been given her name by a friend, saying that she “would like to discuss a difficult issue concerning my employment at Polar.” They spoke by telephone on 2 April. According to the claimant, she told Ms Philp that she had not been very happy at Polar and was thinking of leaving, that she was aware that the LLP agreement contained restrictive covenants and that she wanted to talk to a solicitor about what she should do. Ms Philp told her to send her the LLP agreement and anything else she thought she should see. Following the telephone conversation, the claimant sent Ms Philp the LLP agreement and the ARF’s due diligence review document (the DDR).

On a date between 2 and 12 April the claimant was informed of her profit share for y/e March 2008. On 12 May she e-mailed Ms Philp to arrange an appointment to meet saying that there had been “some further developments.” In her witness statement she explained the further developments, namely that she had been informed of her profit share, and that she had received an offer of employment from Samena Capital Hong Kong Ltd (Samena).

The claimant and Ms Philp met at the defendant’s offices on both 14 and 15 May. The content of the meetings is in issue in a number of material respects.

On 16 May the claimant had a meeting with Mr Mansell, Chief Operating Officer (COO) of Polar, during which she raised an allegation of sex discrimination. Her account, borne out by subsequent documentary evidence, is that he denied that she had been discriminated against, refused to offer any compensation and demanded a written letter of resignation.

On the same day she telephoned Ms Philp to report on the meeting, informing her inter alia that she had sought compensation of £500,000.

The claimant says that later that day she was approached by the LLP’s Compliance Officer who questioned her about possible insider trading in relation to some of her transactions, showing her a list detailing every trade that she had executed whilst managing the ARF since its launch in December 2001.

Shortly after that meeting the claimant was handed a letter by the COO informing her that certain matters had come to their attention that caused serious concern, and that as a result the LLP had taken the decision to suspend her with immediate effect under clause 15.1 of the Partnership Agreement.

The claimant telephoned Ms Philp on receipt of the letter, and sent her a copy. On the following day, 20 May, Ms Philp sent an e-mail to the claimant saying she had reviewed the letter of suspension, and advising that she considered that the action taken by the LLP had been taken as a direct result of the claimant having raised allegations of sex discrimination, and that that amounted to victimisation under the Sex Discrimination Act. She advised the claimant to respond in the form of an attached draft. The claimant followed her advice and replied to the COO in the terms drafted by Ms Philp.

On 23 May, Denton Wilde Sapte (DWS), solicitors acting for the LLP, wrote an open letter to Ms Philp in response to the claimant’s e-mail to the COO. It contained the following paragraphs:

“Our client’s investigation to date has revealed that your client has for some months been actively soliciting and inducing (including making arrangements for) an LLP employee to leave the employ of our client and join a direct competitor.

Furthermore, there is evidence that your client has disclosed to a direct competitor of the LLP employee, confidential information in the form of a presentation which contained details of the LLP’s funds and their values together with portfolio construction details and partnership performance and summary terms. As your client will be fully aware and as clearly marked in the presentation itself, such presentations may not be reproduced in any form without express permission of the partnership and is only available to professional clients and eligible counterparties.

In addition, further e-mail evidence demonstrates that your client has also taken confidential information in the form of client contact name cards with a view to soliciting and exploiting the LLP’s clients for a direct competitor.

As your client will be aware, clause 22.2 of the Partnership Agreement provides that a Member must not at any time disclose or produce confidential information to any person who is not a Member or in any way deal with confidential information so that it comes into the knowledge or possession of any person who is not a Member. Further, clause 22.3 provides that a Member will not without the consent of a client disclose to any person, other than another Member of employee of the LLP, matters confidential to the client.

The e-mail evidence also shows that in her capacity as a partner of the LLP your client was pursuing a potential investor to take to a direct competitor of the LLP. As your client will be aware, clause 14.2 of the Partnership Agreement, requires your client to be just and faithful to the LLP in all transactions and give a true account to the Members of all dealings and transactions relating to the LLP or its business.

Furthermore, clause 14.5(a) requires your client to devote all her working hours wholly and exclusively to the business of the LLP or the Capital Group. Clause 14.5(b) also requires your client to use all reasonable care and skill and endeavours to promote the overall business of the LLP and the Group. The evidence clearly shows that in soliciting LLP employees to join a direct competitor, disclosing confidential information and pursuing potential investors for competitors for the LLP, your client is in flagrant breach of her obligations in this regard.”

Attached to the letter, which was sent by e-mail, were copies of a number of e-mails sent to or from the claimant between March and May 2008, and which DWS relied upon in support of the assertion of breaches of the Partnership Agreement.

On receipt of the letter, Ms Philp copied it to the claimant by e-mail adding that “the letter does not make pleasant reading”.

Ms Philp also forwarded to the claimant a second letter that had been sent to her by DWS by e-mail on the same date, but headed ‘without prejudice’. It contained inter alia the following paragraphs:

“We are instructed that the LLP is, however, prepared to not continue with its investigation (into the alleged breaches of the partnership agreement) and instead allow your client to immediately resign without payment of notice to be documented in a release agreement in terms stipulated by the LLP to include the return of all confidential information and full disclosure as to what information has already been disclosed and to whom. In these circumstances, your client would continue to be bound by her confidentiality obligations and restrictive covenants contained in the Partnership Agreement.

The LLP would, be prepared to consider permitting your client to take up employment with certain agreed competitors …”

The claimant replied to Ms Philp by e-mail later on 23 May saying “I actually had expected much worse; I guess they gave up on the insider trading allegations.” The e-mail went on to refute the allegation of soliciting an LLP employee, pointing out that Ms Tomomi Morita, to whom she assumed DWS were referring, was not a member of the LLP. She added that she had had “… no discussions directly with any potential investor.”

On 25 May the claimant sent Ms Philp a draft of what she described as “… the type of letter I think may be appropriate to send out to Polar.” The first paragraph of the draft contained a thinly veiled threat to draw alleged misfeasance of one of the senior partners of the LLP to the attention of the regulatory authorities. It also contained a rebuttal of the allegations that had been made by DWS, and a draft of the terms upon which she would be prepared to settle. On receipt of the draft Ms Philp told the claimant that she had asked one of her assistants to go through the documents that had been attached to the DWS e-mail adding that “if there have been any breaches as they suggest, then we have very little room to negotiate”. The e-mail continued “I certainly do not suggest you proceed as you have outlined!”

There were two telephone conversations between them later that day. Ms Philp made an attendance note in relation to each. Both reflect the view expressed by her in her e-mail earlier that day that if the claimant was in breach of the Partnership Agreement as alleged, then there was little room for negotiation.

On the following day, 28 May, the claimant again e-mailed Ms Philp giving a more detailed response to the allegations that had been made by DWS. It is to be noted that in its last paragraph the claimant said that she would accept the offer made in the without prejudice letter “provided they pay solicitors fees and there is no say on which competitor I may choose to work for.” She also wanted to be paid up to and including the month of July 2008, and to be paid expenses incurred by her in relation to her last business trip to Tokyo.

Ms Philp replied with a draft of a letter to DWS setting out the terms to which the claimant was prepared to agree. The claimant replied on the same day thanking her for the draft “…which looks good to me.” Subject to minor amendments suggested by the claimant, the letter was sent as drafted to DWS, who replied by e-mail on 30 May taking issue with some of the terms that had been proposed by Ms Philp on behalf of the claimant.

There was then further discussion between Ms Philp and DWS as to the terms of settlement; and on 5 June, DWS sent her a proposed draft of a settlement agreement. The draft contained a clause, clause 8, by which the claimant was to agree to pay the LLP within 7 days the sum of £48,806 “relating to income tax paid to HMRC on the Member’s behalf, in excess of amounts held back from the Member’s monthly drawings and profit allocations to date.” That proved a sticking point so far as the claimant was concerned, and is a subject that it will be necessary to consider in detail.

The agreement (the ‘Compromise Agreement’), was eventually concluded on 31 July 2008, the clause relating to income tax being omitted. It provided that the claimant’s membership of the LLP was terminated on 31 May 2008, and included warranties by the claimant that she had received independent legal advice in particular with regard to any statutory claims arising out of her employment by the LLP, that she had provided her legal adviser with all facts and issues relating to her employment and its termination so as to enable the adviser to give advice as to whether she had or may have any statutory claims, and that having received legal advice she had no such claims. The agreement also provided that any claims were unconditionally and irrevocably waived by her.

On 22 August 2008 the claimant wrote to the defendant complaining about the handling of her case by Ms Philp. She complained that the agreement was “very one-sided”, and that she had been sent an e-mail by the LLP’s solicitors threatening to sue for payment of a tax refund, whereas she had understood that the effect of the agreement was that she would not be pursued for the sum in question. She also asserted that:

“When my case was being handled by Nicola, although I had sexual discrimination claims, these were more or less disregarded by her following the scanning of my e-mail by Polar.”

It is to be noted that the letter of complaint did not make any reference to a claim against the LLP in relation to her profit share.

The Issues

The subjects upon which advice was sought by the claimant and given by Ms Philp expanded as the situation between the claimant and the LLP evolved so as to include advice as to the assertion by the LLP that the claimant was in breach of the Partnership Agreement, and as to the content of the Compromise Agreement. But the issue as to the scope of the retainer is whether the claimant sought advice from Ms Philp in relation to a claim for sex discrimination on the basis that she had been treated less favourably on grounds of her sex in relation to her level of remuneration within the LLP, specifically the bonus that she was paid in April 2008, and/or other treatment by the LLP, or whether such matters were discussed as a means of securing preferable terms for exiting the LLP

As to the breach of the duties owed to the claimant it will be necessary to consider:

The Scope of the Retainer

The scope of the duty to exercise reasonable care and skill will also depend on the particular circumstances of the case including the characteristics of the client, see Lord Scott of Foscote in Pickersgill v Riley[2004] UKPC 14, [2004] PNLR 31 at [7]:

“It is plain that when a solicitor is instructed by a client to act in a transaction, a duty of care arises. But it is also plain that the scope of that duty of care is variable. It will therefore depend, first and foremost, upon the content of the instructions given to the solicitor by the client. It will depend also on the particular circumstances of the case. It is a duty that it is not helpful to try to describe in the abstract. The scope of the duty may vary depending on the characteristics of the client, in so far as they are apparent to the solicitor. A youthful client, unversed in business affairs, might need explanation and advice from his solicitor before entering into a commercial transaction that itwould be pointless, or even sometimes an impertinence, for the solicitor to offer to an obviously experienced businessman.”

The nature of the duty owed by a solicitor to his client was also addressed in Credit Lyonnais SA v Russell Jones & Walker [2002] EWHC 1310 (Ch), [2002] PNLR 2 in which Laddie J observed that:

“[28]… A solicitor is not a general insurer against his client's legal problems. His duties are defined by the terms of the agreed retainer. This is the normal case although White v Jones [1995] 2 AC 207 suggests that obligations may occasionally arise outside the terms of the retainer or where there is no retainer at all. Ignoring such exceptions, the solicitor only has to expend time and effort in what he has been engaged to do and for which the client has agreed to pay. He is under no general obligation to expend time and effort on issues outside the retainer. However if, in the course of doing that for which he is retained, he becomes aware of a risk or a potential risk to the client, it is his duty to inform the client. In doing that he is neither going beyond the scope of his instructions nor is he doing 'extra' work for which he is not to be paid. He is simply reporting back to the client on issues of concern which he learns of as a result of, and in the course of, carrying out his express instructions. In relation to this I was struck by the analogy drawn by Mr Seitler. If a dentist is asked to treat a patient's tooth and, on looking into the latter's mouth, he notices that an adjacent tooth is in need of treatment, it is his duty to warn the patient accordingly. So too, if in the course of carrying out instructions within his area of competence a lawyer notices or ought to notice a problem or risk for the client of which it is reasonable to assume the client may not be aware, the lawyer must warn him.”

There is stark conflict of evidence between the claimant and Ms Philp as to the basis upon which Ms Philp was retained to advise her. In this context Mr Leiper, who appeared for the claimant, invited my attention to the decision in Crossley v Crowther (1851) 9 Hare 384 at 386 where in a very short judgment the Vice Chancellor is reported as holding that:

“The case thus fell within the principle of Allen v Bone which laid down the rule to which he should always adhere, that, where there was a conflict as to the authority between the solicitor and the client without further evidence, weight must be given to the affidavit against, rather than to the affidavit of, the solicitor.”

I do not find that judgment to be of assistance. I had the benefit of hearing both the claimant and Ms Philp give evidence and being cross examined by reference to the contemporary documents. I was therefore not in the position of having to decide between conflicting affidavit evidence. The presumption derived from Allen v Bone and applied in Crossley & Crowther has no application in this case.

The claimant’s case in essence is that at the first meeting with Ms Philp on 14 May 2008, she told Ms Philp that she had been unhappy at the LLP for some time and wanted advice in relation to various acts of sex discrimination. She claims that throughout the meeting she described the discriminatory culture at the LLP, and gave examples of acts of discrimination including the assertion that she was the only female fund manager within the group and that she had received a derisory bonus of £20,000 (after tax) for her performance for the y/e March 2008, whereas two male analysts in the team, Mr Konishi and Mr Komatsu, had been awarded a bonus that was about £50,000 more than had been awarded to her for the same year despite the fact that she was a fund manager, that she had much more responsibility than them, and that they had only been at the LLP for one year whereas she had been there for seven years.

She says in her witness statement that ideally she wanted to negotiate an exit package which would involve the LLP waiving her notice and restrictive covenants, and that she would be willing to hold on to her shares, which represented almost 1% of the issued share capital in Polar PLC, for a year, because she recognised that it would put the company in a difficult position in the market were she immediately to sell her shareholding.

She claims that she explained that she had received an offer of employment with a competitor, that she was aware that she was subject to a number of restrictive covenants, but that ideally she wanted her investment analyst, Ms Morito, to join her at her new employer at a later date.

She further claims that she explained to Ms Philp in detail how the ARF generated both performance fees and management fees, and that as a fund manager she was entitled to a share of such fees, adding that the management fees were 1.5% of the AUM (assets under management), and that the AUM was about $250 - $300m. She asserts that Ms Philp did not ask about the value of the management fees and did not include that element in her calculation of her loss, simply saying that the value of claim was not high, and that there were limits on what an employment tribunal would award on a claim for sex discrimination, “she seemed to base this view on the fact that I was paid £50,000 less than the male analysts.” She says that at the end of the meeting she was advised that her losses in relation to her sex discrimination claim would include the following:

Her account in her witness statement continues with a description of their meeting on the following day, 15 May 2008, at which she said they discussed the strategy for the meeting that she had organised with the COO on the following day. She says that Ms Philp suggested that one approach for the meeting would be for her to start crying, but that she explained that the COO was devoid of emotion and that hysterics would not work. She claims that it was then agreed that she would explain to the COO that she had been discriminated against on grounds of her sex.

She claims that she then referred Ms Philp to the ARF’s DDR, in particular the part that related to the basis upon which the fund managers are paid; but says that Ms Philp did not question her about the value of her loss of her share of management and performance fees. She further claims to have explained in strong terms that she had been discriminated against on grounds of her sex throughout her time at the LLP, citing as examples that:

“(a)

I had been awarded a much lower bonus for the y/e March 2008 in comparison to my male counterparts;

(b)

unlike my male counterparts I did not receive a ‘golden hello’ when I had joined PCPL;

(c)

I did not receive as many stock options/shares as my male counterparts throughout my time at the Polar Group;

(d)

the stock/shares in Polar PLC that I had received were not subject to as favourable terms as the male members of Polar LLP’s stock/shares. I told Ms Philp that my shares were given to me over a period of seven years whereas Mr Kimber seemed to be able to sell his shares within a number of months of joining the Polar Group (or was given special permission to do so);

(e)

I was not offered a company loan at low interest rates (as was the case with Mr Salter and Mr Slater); and

(f)

A number of male members of the Polar Group had left with huge severance packages; this was the case even if they had been sacked. ”

Finally she claims that they specifically discussed a figure for loss of bonus at the level of approximately £500,000, which she believed could easily be justified as a conservative figure when compared with her compensation in previous years. She says that Ms Philp repeated her advice that although her sex discrimination claim was good, the value of her claim was not high, but nevertheless agreed that she should ask the COO for £500,000 in settlement of her sex discrimination claim.

Ms Philp’s recollection of the meetings on the 14^th and 15^th May is markedly different in a number of important respects. She says in her witness statement that at the outset of the meeting the claimant repeated that she was the manager of a Japanese hedge fund, that she had obtained a new job with a direct competitor, and made it clear that her primary objective was to leave the LLP as soon as possible and to start employment with the direct competitor in September 2008. They discussed her notice period under the Partnership Agreement, a period of one year, and the restrictive covenants that it contained. The claimant told her that it could be difficult to leave the LLP too quickly because of the continuing need to manage the fund for which she was responsible. She therefore said that she was prepared to make an offer to the LLP that in return for being permitted to take up a position with a competitor, and not serving out her notice, she would manage the fund until the end of the month, adding that she had an interest in doing so because it was a fund in which she had personally invested. She also said that she was prepared to negotiate holding on to her shares in the parent company for a specific period of time, say for one year.

Ms Philp’s attendance note of the meeting, upon which the account given in her witness statement is clearly based, then records the question “what about compensation?”, Ms Philp explained that that is a standard question that she asks any client that comes to see her seeking advice on an employment related issue, particularly when they are looking to leave their employer. The attendance note records that the claimant told her that her bonus at the end of April was around £20,000 and that her biggest ever bonus had been £750,000, but that some of her colleagues who had only been there for a year had received £75,000 by way of bonus.

The attendance note then records a discussion about the performance and management fees structure for the hedge fund, the claimant explaining that a portion of her bonus was based on how the fund was performing. It notes her saying that the fund had been hard hit by the economic crisis, that she had been verbally attacked by three directors about her performance, but that she considered such criticism to be unfair given that the Japanese market was the worst affected by the crisis.

The attendance note records a ‘wish list’ setting out what she wished to achieve. It is in the following terms:

“Leave asap – have one year’s notice (will look after the fund until the end of month). Difficult to get out too quickly. MJP suggested could offer to ‘make it easy for them’ and leave.

Waive restricted covenants – if closed down the fund cannot compete with it.

Basic is £150,000.

Shares (worth around £1m)”

There was then discussion of the defendant’s fees in relation to the meeting and a further proposed meeting for the purpose of preparing her for the meeting with the COO.

Ms Philp says in her witness statement that from her discussion with the claimant, she had the impression that she was totally unprepared for any discussions with her employer, and that she told her to go away and think about what had been discussed during the meeting so that they could have a further discussion on the following day. She wanted the claimant to consider in particular what possible leverage she could come up with to help her during her discussions with the COO, including ‘potential discrimination issues’. She says that it was she who raised the question of sex discrimination, saying that it could give the claimant some leverage in her meeting with the COO if presented in a credible style.

That is borne out by the attendance note which at this point records “sex discrimination?” It then records:

“No other female fund managers – 12 (joined 7 years ago)

3 female analysts (1 part time) out of 10”.

The note then records discussion of whether the fund would have to close if the claimant left, and secondly that she wanted to take another female analyst with her, with a note of the advice given “does not breach clause 19.5”. The attendance note concludes with the following:

“Sex discrimination – difficulties with time bar – and award –injury to feelings £500 - £25,000, loss of bonus, time bar, going for another job.”

Ms Philp explained the attendance note in her witness statement, she says that she told the claimant that she had to list things that she was unhappy with and how she considered that they were linked to her gender, that sex discrimination claims compensate claimants for any financial loss suffered as a consequence of the employer’s behaviour, i.e. loss of earnings, and injury to feelings. She further explained that an award for injury to feelings was in the bracket £500 - £25,000, but without knowing how badly she had been treated, it was hard to estimate where she might have fallen within that band, and that she gave her those figures to think about for the purpose of her negotiations with the LLP.

She says that at no point did she advise the claimant about the merits of a sex discrimination claim against the LLP, and was merely pointing out that such a claim is governed by a limitation period.

As to the meeting on the following day, the focus was on how best to negotiate the claimant’s exit from Polar. Ms Philps says that a number of issues were discussed including “… more specifics about incidents that the claimant could use to challenge sex discrimination.” She recalls further discussion as to remuneration; but that the claimant did not quantify the sums to which she claimed to be entitled.

With regard to the meeting with the COO on the following day, Ms Philp advised her that she needed to build up some leverage with him and “deliver the headline facts on discrimination”. But she was emphatic that during the course of the meeting on 15 May, she did not give her any advice on initiating a sex discrimination claim against the LLP, and furthermore that the claimant did not instruct her to advise on bringing such a claim nor did she ask about the merits of any potential sex discrimination claim against the LLP. Her primary aim was to leave the LLP in order to join her new employer.

Ms Philp’s evidence was that in the course of the telephone conversation immediately after the claimant’s meeting with the COO, the claimant had sounded very shaken and shocked as to how badly her meeting had gone. She told Ms Philp that in the course of the meeting she had asked for the restrictive covenants to be waived, to be treated as a ‘good leaver’, and to be paid up to September 2008 and for £500,000 in compensation. She said that she had gone through the discrimination points that they had discussed together. The COO had denied that there had been any form of discrimination against her and reacted very badly to her demands. Ms Philp says in her witness statement that she was staggered that the claimant had demanded £500,000. She did not know how that figure had been calculated, and it was not a figure that the claimant had previously discussed with her, the only figure that they had discussed being the shortfall of around £50,000 in her bonus.

I have come unhesitatingly to the conclusion that on this aspect of the case, as in other areas in which there is a conflict of evidence, the evidence of Ms Philp is to be preferred. I arrive at that conclusion for a number of reasons. First Ms Philp impressed as a reliable witness who gave evidence in a careful and straightforward manner, and most importantly her evidence is borne out by the contemporary attendance notes. Thus by way of example I am satisfied that the issue of sex discrimination arose in the manner and at the point in the meeting described by Ms Philp, i.e. that it was she who raised the issue and did so towards the end of the first meeting. That runs entirely counter to the assertion now made by the claimant that she opened the meeting on 14 May by saying that she wanted advice in relation to various acts of sex discrimination. It is also to be noted in this context that there was no reference to a claim for sex discrimination in the e-mail exchanges that had preceded the first meeting, nor does the claimant suggest in her evidence that she raised the issue of sex discrimination in her first telephone conversation with Ms Philp on 2 April. Had that been her primary concern I have little doubt that it would have been raised prior to the meeting of 14 May. Secondly the claimant asserts that at the meeting on 15 May, she said that she was intending to claim £500,000 and that Ms Philp advised her that she should demand such a sum in settlement of her sex discrimination claim. There is no reference to such a claim in the attendance notes. Given the detailed nature of the notes, I have no doubt that if mentioned, such a figure would have been recorded by Ms Philp.

The claimant’s evidence on the latter point can also be tested by consideration of whether the claimant did in fact have an expectation of a bonus of the order of £500,000 net for the y/e March 2008.

The first point to be made is that the claimant was remunerated by monthly advances against her profit share. Such advance payments during the course of the y/e March 2008 amounted to £145,404. Her profit share for the year amounted to £182,019. Thus the assertion made on her behalf by Mr Leiper that her bonus for the year was £20,000, was simply wrong. In fact that figure represented the net sum due to her on the basis of a profit share calculated in accordance with the PICW document to which I have made reference at paragraph 8 above.

Secondly it is clear from Ms Philp’s attendance note of 14 May 2008, that the claimant complained of receiving a bonus of £20,000 against bonuses paid to others who got £75,000. But as has already been noted the attendance note does not contain any reference to the figure of £500,000, and if it had then been the claimant’s understanding that she was entitled to such a figure, she would surely have said so, and it would have been recorded by Ms Philp.

She also agreed in cross-examination that Ms Philp said that the value of the claim for the shortfall in the bonus was in the region of £50,000, and that she had not sought to correct her. Furthermore she has changed her account as to how she understood Ms Philp to have arrived at that figure. In her first detailed letter of claim dated 22 December 2009, her solicitor said that the claimant informed Ms Philp that “she had received a derisory bonus of £20k… which was at least £50k below the amount that she should have received” and that “Ms Farnon considered that her bonus was underpaid by at least £50k”. In her witness statement she said that Ms Philp seemed to base her views as to the value of the claim “on the fact that I was paid £50k less than the male analysts”. But in evidence she said that she did not know where Ms Philp had got that figure from, and that Ms Philp had given her the impression that it was because there was a limit on her claim.

In contrast Ms Philp gave clear evidence that she had asked the claimant “are we talking about a shortfall of about £50k”, and that the claimant had said “yes”.

Secondly the claim to a bonus of £500,000 net, based upon a claim to be entitled to 40% of gross management fees and 50% of all performance fees, is inconsistent with the PCIW; and I found the claimant’s assertion there were conversations as to remuneration that post-dated the PCIW, and resulted in a markedly higher entitlement, wholly unconvincing. Her evidence as to such conversations was extremely vague. She did not recall to whom she had spoken, nor exactly what had been said; and the claim that the PCIW does not accurately set out the basis for calculation of her remuneration was unsupported by any documentary evidence.

Furthermore her argument that she was entitled to a profit share of the order of £800,000 gross for y/e March 2008 presents her with considerable difficulties with regard to her remuneration in earlier years. If she is right as to the basis of calculation, she was under-remunerated in the sum of approximately £1m in relation to the y/e March 2006. Yet she did not then raise such under-payment with her superiors. Her explanation for not doing so does not ring true. She asserts that the profit share that she did in fact receive, namely approximately £1m, was the largest that she had ever received and that she was happy with it. In my judgment the over whelming probability is that a fund manager of her experience, if under-remunerated to the tune of £1m, would unquestionably have taken it up with her employer. The fact that she did not do so therefore further undermines her evidence as to the basis upon which she considers herself to be entitled to be remunerated for y/e March 2008. It further demonstrates her unreliability as a witness.

The same point arises in relation to y/e March 2007, when her profit share was of the order of £500,000. She now says that she ought to have been entitled to a further £500,000, but again did not raise the point with the LLP for the same reason. Again I find that her explanation lacks any credibility.

Thus in my judgment there was no basis for her claim to have been entitled to a bonus of £500,000, a conclusion which further undermines her reliability.

Conclusion

That being the case it is not necessary to address the issue of whether the claimant in fact had a valid claim against the LLP for sex discrimination.

The advice given as to sex discrimination

The claimant does not take issue with the advice as to limitation, nor as to the range of awards for injury to feelings. The argument advanced on her behalf is directed to the advice as to loss of bonus. It is submitted on her behalf that, whether or not she told Ms Philp that the loss of bonus was of the order of £500,000, it ought in any event to have been apparent to Ms Philp that she had a substantial claim for loss of bonus, and that that ought to have put her on the alert, leading her to question the claimant further so as to enable her to give comprehensive advice as to such a claim. But that argument is unsustainable in the light of my findings as to the scope of the retainer, and particular as to whether the claimant had any real expectation of a bonus of £500,000 net for the y/e March 2008.

I am satisfied that when assessed by reference to the PCIW (see paragraph 8), the figure of £50,000 discussed with Ms Philp at their initial meeting was in fact a realistic assessment of any shortfall that there might be in her entitlement to a profit share. That being the case the criticism of the advice given by Ms Philp as to the quantum of a claim for sex discrimination evaporates.

Finally in this context Mr Leiper sought to challenge the advice on the basis that Ms Philp did not have the material upon which to give advice as to whether there was a valid claim for future loss of earnings. There is certainly no evidence that the question was raised. But again it is necessary to bear the context in mind. The claimant was seeking advice as to an exit strategy from the LLP because she had agreed to join Samena in order to establish and manage a hedge fund similar to the fund that she had run for the LLP. It was plainly reasonable to assume that her remuneration, albeit dependent upon performance, would be at a comparable level to that with the LLP. The claimant does not claim to have suggested otherwise. If she had foreseen a significant drop in earnings, then the overwhelming probability is that she would have raised it.

I therefore reject the allegation of negligence with regard to the limited advice given with regard to a claim for sex discrimination.

The advice given as to breach of Partnership Agreement

Ms Philp’s immediate response to the DWS letter was to copy it to the claimant by e-mail saying that “the letter does not make pleasant reading”. At that point she was not able to open the attachments as she was working at home, but told the claimant that one of her assistants would review them. The claimant’s response was to e-mail Ms Philp on 25 May attaching a draft letter that she considered might be an appropriate response, (see paragraph 22 above). Ms Philp advised against such a letter, and in her witness statement explains that she was astounded by the contents of the draft as the first paragraph in her view amounted to blackmail, containing as it did a thinly veiled threat to approach the regulatory authorities as to the conduct of one of the senior partners of the LLP and “possibly one of the major shareholders of Polar Capital Holdings”.

The claimant responded on 27 May saying in response to the DWS letter that she had not contacted any clients directly or indirectly, had signed no contracts with any competitor, and that Ms Morita was an employee of Polar Capital and not a Member of the LLP. There was a telephone conversation between them later that day. The relevant attendance note says:

“Solicitation of employees is a huge breach for partners.

Confidential information bulk = in public domain – but other information?

Cannot really negotiate in these circumstances, although accept this is all victimisation.

V. vindictive/arrogant – but you have been caught out.

…

Can expel you for those issues – WP letter is not a weakening of their position

- - -

Need you to confirm your instructions by e-mail – you will do.”

There was a further telephone conversation later that day. The attendance note records:

“NJP’s proposal to agree Without Prejudice letter – don’t think we have any choice – she is in major breach of partnership agreement.”

The claimant e-mailed Ms Philp on the following day, 28 May. She said that she did not have any hard or soft copies of any confidential information issued by Polar, and that the presentation materials referred to in one of the e-mails scanned by the LLP were freely available either through the prospectus, the Group’s website, Bloomberg, the Group’s annual report and/or that of the ARF; but importantly it concluded with the statement that she was prepared to accept the offer contained in the without prejudice letter from DWS provided that they pay her solicitor’s fees and that the LLP would have no say on which competitor she might choose to work for. She added a number of further matters of relatively minor importance that she wished to incorporate in any agreement (see paragraph 24 above).

The next contact between the claimant and Ms Philp was by telephone on 4 June. In the meantime there had been communication between the claimant and Ms Philp’s assistant, Juniper Cheng, as to the detail of the proposed settlement. But the attendance note of 4 June records discussion as to the position of Ms Morita, the claimant repeating that she was not employed by the LLP, and concludes with the note, “CF had already solicited whilst a partner and that is a clear breach of the partnership deed.”

On the following day, 5 June, the claimant e-mailed Ms Philp seeking early finalisation of the agreement with LLP; and on the same day a draft agreement was sent to Ms Philp by DWS.

The criticism of Ms Philp now advanced by the claimant has to be considered in context. The allegations of breach of the partnership agreement were made in the context of the negotiation of her exit from the LLP. The letter in which they were contained was accompanied by the without prejudice letter containing a set of proposed terms, but stating that the offer they contained would only remain open until 28 May after which the LLP would proceed with its investigation “… which seems at this stage very likely to lead to your client’s expulsion in accordance with Clause 16 of the Partnership Agreement”.

Ms Philp formed the view that on their face the documents relied upon by DWS amounted to a clear breach of the Partnership Agreement. The claimant had given some explanation; but in particular in relation to the position of Miss Morita it was to say the least unimpressive as it was based upon the proposition that as she was employed by another entity within the group, nothing that the claimant might have done in relation to her could amount to a breach of the Partnership Agreement.

It is submitted on behalf of the claimant that Ms Philp was under an obligation to take detailed instructions from her on each of the allegations made against her, and to give comprehensive advice as to the strength of the LLP’s claim as articulated by DWS. But in my judgment that submission fails to take account of the reality of the situation, namely that the claimant’s principal concern was to exit the LLP in such a manner as to enable her to take up the employment with a competitor to which she already committed herself. It is revealing that despite her assertion that she had done nothing wrong, she was prepared to accept the terms on offer in the without prejudice letter from DWS as the basis of a settlement, subject to a number of relatively minor points. That suggests that she understood full well the force of the allegations made by the LLP in the light of the obligations imposed by the Partnership Agreement.

But if wrong as to that, it is necessary to consider what her advice ought to have been had Ms Philp then been obliged to take detailed instructions on the material disclosed by the LLP.

A preliminary point was raised by Mr Leiper, namely that Ms Philp erred in advising the claimant on the basis that she was a partner, and in consequence under a fiduciary duty to her fellow partners. He directed my attention to section 1(5) of the Limited Liability Partnerships Act 2000 which provides that:

“Accordingly, except so far as otherwise provided by this Act or any other enactment, the law relating to partnerships does not apply to a limited liability partnership.”

He also invited my attention to a recent decision by Sales J in F & CAlternative Investments (Holdings)Ltd v Barthelemy [2011] EWHC 1731 (Ch) in which he held that members of an LLP do not owe each other the fiduciary duties of partners in a partnership subject to the Partnership Act.

He therefore argued that Ms Philp’s advice was based on an error of law. Whilst it appears that Ms Philp may have been in error in assuming that partners in a limited liability partnership owed fiduciary duties to their fellow partners, I do not consider that to be of any significance given the express terms of the Partnership Agreement, which contained the following clauses:

“14.2

Each Member should be just and faithful to the LLP in all transactions relating to the LLP and give a true account to the other members of all dealings and transactions relating to the LLP or its business as often as is reasonably required.

14.5

Each Member must:

(A)

devote all of his working hours wholly and exclusively to the business of the LLP and/or the Group;

(B)

use all reasonable care and skill and endeavours to promote the overall business of the LLP and the Group

The claimant has now advanced a series of arguments to demonstrate that she was not in fact in breach of the agreement. Her explanation of passages to be found in two e-mails are illuminating. In an e-mail of 17 April to Mario Schembri, of Global Executive Search Inc, she said “Tomomi and I are going to sound out a potential investor next week”, and in relation to the client contact cards, she e-mailed Ramiz Hasan of Samena on 12 May 2008 saying “client contact name cards now safely in my personal care …”.Her answer to the first is that she did not in fact approach a potential investor, and to the second that she did not produce the client contact cards to the head hunter nor to a competitor. But she accepted that she was setting out deliberately to mislead the head-hunter and prospective employer. In other words she was prepared to give a false impression in order to secure a job. Such evidence does little to install confidence in her credibility.

Had she then been facing proceedings for breach of the agreement, it would plainly have been necessary for Ms Philp to take full instructions and to advise accordingly. But that was not the issue. The question at that stage was the degree to which the e-mails, which prima facie amounted to a very strong case that she was in breach, undermined her negotiating position so far as the LLP were concerned. It was plainly of paramount importance to her to secure an agreement that would enable her to leave the LLP and take up her employment with Samena. As Mr Short QC, who appeared for the defendant, submitted, it is highly unlikely that the LLP in the circumstances would have been satisfied with her denials.

In the light of the contents of the e-mails the claimant was plainly at risk of expulsion from the partnership with the damage to her reputation that would ensue, of proceedings seeking both injunctive relief and damages, and importantly a prolonged and messy exit which could have compromised her ability to regularise her position with the SFA and to take up employment with Samena.

I should address one further point in relation to the allegation of soliciting or endeavouring to solicit Ms Morita. Mr Leiper sought to argue that as she was not a director, senior executive or portfolio manager in the group, clause 19.5 did not apply to her so that an allegation that her actions with regard to Ms Morita were a breach of the Partnership Agreement was misconceived. But that argument is based on the premise that the clause applied to the claimant during the currency of her membership of the LLP. I am entirely satisfied that the proper construction of clause 19 is that it applied to actions taken post membership. But in any event the argument could not avail the claimant, as if as clearly appeared to be the case from the e-mail exchanges, she had solicited Ms Morita, she would have been in breach of clause 14.2 and would have been liable to immediate expulsion under 16.2(f) having acted contrary to the requirement of good faith that governed her actions as a Member.

It follows that I reject the argument that Ms Philp was negligent in the manner in which she advised the claimant following receipt of the letter from DWS alleging breach of the partnership agreement.

The advice as to the compromise agreement

The first draft of the compromise agreement prepared by DWS contained the clause by which she was obliged to pay the LLP the sum of £48,806 within 14 days. The claim related to income tax paid to HMRC on her behalf in excess of amounts held back from her monthly drawings and profit allocations (see paragraph 26 above). The claimant objected to the inclusion of the clause in the agreement, according to her witness statement because the deadline that had been set for the signing of the agreement, a period of six weeks, was insufficient for her accountants to check the calculation. It is of note that she did not assert that in principle such a sum could not be owed to the LLP.

On 10 July Ms Philp spoke to the claimant by telephone having had a telephone conversation with both Tas Voutorides of DWS and the financial controller at Polar in which the tax position had been explained to her. Her attendance note of her conversation with the claimant records that the claimant said that she was not going to pay the tax claimed, and ends with the note “issue of tax will not go away – she appreciates that.” Following the telephone conversation the claimant sent Ms Philp an e-mail at 14.55 confirming her instructions that she would only sign a compromise agreement “on the condition that the tax payment clause is removed”. Ms Philp replied at 18.43 saying inter alia that as she was not a tax lawyer she could not advise on the ability of the LLP to pursue her for the over payment, but adding that “if the figures are correct (and of course there is no guarantee they are) you have not paid enough tax from your drawings and money is due.”

There was an inconclusive telephone conversation on 15 July, followed by a further telephone conversation in which the claimant repeated that she was not willing to pay the sum in question. But in a third conversation on 15 July, the claimant is recorded as saying “will pay within six weeks if correct”.

DWS were putting pressure on the claimant through Ms Philp to sign the compromise agreement as a matter of urgency; but on 15 July Ms Philp e-mailed DWS saying that the claimant’s accountant was away until 23 July, and observing that she did not see how a delay to enable the claimant to try to resolve the issue with the claimant’s accountants should cause such serious concern for his client. Ms Philp then spoke to the claimant again by telephone on 23 July. Her attendance notes records inter alia:

“Want to pass to an employment/tax specialist to work out – got a name from someone who has dealt with them before.

Just tax point = outstanding.

Will talk to Fergusons tomorrow and NJP will e-mail agreement through.”

Later that day Ms Philp e-mailed DWS saying:

“I have just spoken with my client. She is instructing tax lawyers to review the outstanding point on the tax payment. She considers that the figure is not accurate and that she should not have to pay any payment due at the current time.”

At 9.52 on 24 July the claimant e-mailed Ms Philp saying that she had spoken to a tax specialist at Fergusons, and asking if Ms Philp could send her an e-mail explaining the situation. On 24 July Ms Philp e-mailed Fergusons saying inter alia:

“Further to your recent telephone conversation with Celia Farnon, I understand she has instructed you to deal with the tax issues arising out of the proposed comprise agreement between her and her former employer … ”

The e-mail attached the latest copy of the draft Compromise Agreement, directing attention to the clause requiring the re-payment of tax.

There is then an attendance note recording a number of telephone calls on 30 July; first a conversation with the claimant which records that Ms Philp had had a message from DWS to the effect that they may take the tax clause out, and that the claimant had spoken with her tax specialist, and that she did not think that they can prove definitely that the sum is due; secondly a conversation with DWS to the effect that they would take the tax clause out and that “tax can be sorted out at a later date”; thirdly a further conversation with the claimant in which Ms Philp records that she told the claimant that DWS had said that the tax issue will be dealt with at a later date.

But it is the claimant’s case that on 23 July she told Ms Philp that she had decided to instruct another firm of solicitors to take over her case “… because they were in a position to better deal with the compromise agreement including the outstanding tax point as one of the solicitors was a specialist in taxation.” She further asserts that in that conversation she told Ms Philp that she did not believe that the figure claimed by the LLP was accurate, and that she was not going to sign the agreement until that issue was resolved.

She goes on to say that on the morning of 31 July she received a call from Ms Philp telling her that DWS might agree to remove the tax clause from the Compromise Agreement, and telephoned later to say that the clause would be deleted and that that would “conclude the matter”. She claims that she understood Ms Philp to be saying that she was no longer liable to pay the tax. That afternoon she attended at the defendant’s offices to sign the Compromise Agreement, and says that “I do not recall (and I do not believe) that Ms Philp informed me that I should sort out the position with my tax advisers.”

That is the basis upon which she now says that Ms Philp was negligent in failing to make it clear to her that the LLP could still seek to recover the sum in question.

Ms Philp’s evidence as to the critical telephone conversation on 30 July is that she had received a telephone call from DWS stating that they would remove the clause in question and that the tax could be sorted out at a later date, that she relayed that message to the claimant stressing that whilst the tax clause was being removed, the tax issue would need to be dealt with at a later date. Secondly as to the meeting on 31 July she says that she again reminded the claimant that she would need to sort out the tax issue with her tax advisers as the issue would not go away, and made it clear to the claimant that the removal of the clause from the Compromise Agreement did not mean that she was not liable for the sum claimed.

There is then an attendance note recording the meeting on 31 July at which the claimant signed the Compromise Agreement. It contains two notes of relevance:

“CF needs to continue sorting out tax issue with advisers as the issue won’t go away

…

CF’s tax advisers contact NJP if need any further information on this. ”

Finally on 8 August, Ms Philp wrote to the complainant attaching a copy of the signed Compromise Agreement and saying “if I can be of any further help to your tax adviser, please do not hesitate to let me know.”

Thus as with regard to other issues in the case, there is a direct conflict of evidence between the claimant and Ms Philp. I unhesitatingly accept the evidence of Ms Philp supported as it is by the contemporaneous documentation, which serves fatally to undermine the account given by the claimant.

In the face of that contemporary documentary material, the assertion either that the claimant understood that she could no longer be pursued by the LLP for the sum in question, or that Ms Philp failed to advise her that she could be pursued, is simply unsustainable. It must have been perfectly clear to the claimant that the issue was still to be resolved.

The causation issue

It follows that in my judgment the claimant has failed to establish that Ms Philp was in breach of her duties to her, and the claim must be dismissed.