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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Worldspreads Ltd v Foley [2014] EWHC 3382 (QB) (17 October 2014) URL: http://www.bailii.org/ew/cases/EWHC/QB/2014/3382.html Cite as: [2014] EWHC 3382 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/10/2014

His Honour Judge Richard Seymour Q.C. :

Introduction

1. The claimant company, WorldSpreads Ltd. ("the English Company") is presently in special administration. It was originally incorporated under the name Share Spread UK Ltd. on 15 September 2003. It changed its name to its present name on 3 December 2003. The English Company was and is a subsidiary of a company incorporated in the Republic of Ireland with company number 340357 ("the Irish Company"). The Irish Company was originally incorporated on 15 March 2001 under the name Leisure Spread Ltd. It was re-registered as a public company on 1 August 2007 and changed its name to WorldSpreads Group plc. The Irish Company is currently in liquidation.
2. The defendant, Mr. Conor Foley, was involved in the formation of the Irish Company. From the formation of the Irish Company Mr. Foley was Chief Executive Officer ("CEO") of that company until he resigned on 13 March 2012.
3. By an agreement ("the Service Agreement") in writing dated 25 July 2007 and made between the Irish Company (called, in the Service Agreement, the "Company") and Mr. Foley (called, in the Service Agreement, the "Executive") Mr. Foley agreed to serve the Irish Company upon the terms of the Service Agreement. Those terms included:-

"2.1 During the continuance of his employment and without prejudice to the Executive's implied duty of fidelity, the Executive will:

2.1.1 serve the Company as Chief Executive Officer and as a director of the Company and of such Group Companies as are notified to the Executive by the Board from time to time;

2.1.2 carry out such duties and exercise such powers in relation to the Company or any Group Company as may from time to time be assigned to or vested in him by the Board;

2.1.3 …

2.1.4 declare to the Board any interest he may have (directly or indirectly) in any proposed transaction or arrangement with the Company or any Group Company, as soon as practicable and in any event before such transaction or arrangement is entered into;

2.1.5 well and faithfully serve the Company and any Group Companies to the best of his ability and carry out his duties in a proper and efficient manner;

2.1.6 use his best endeavours to promote, and at all times act in the best interests of the Company and any Group Company;

…

3.1 Subject to the other provisions regarding termination contained in this Agreement, this Agreement will commence on the Commencement Date and will continue for an initial period of one year from the Commencement Date ("the Initial Period") and thereafter unless and until it is terminated by either party giving to the other not fewer than twelve (12) months' prior notice in writing, such notice to be given at any time after the Initial Period.

3.2 The Executive's period of continuous employment commenced on 15 March 2001.

…

7.1 The Company will pay to the Executive during his employment a salary of £135,000 per annum (less statutory and voluntary deductions) which will accrue from day to day and be payable in arrears by equal monthly instalments on or about the last day of every month and will be inclusive of any fees receivable by the Executive as a director of the Company or any Group Company.

7.2 The Salary will be reviewed annually by the Remuneration Committee but with no obligation to effect an increase. Any change will be notified to the Executive. The first review date will be 1 August 2008.

7.3 The Executive may, at the absolute discretion of the Board, be eligible to receive from time to time a discretionary performance-related bonus based on individual and company performance conditions to be determined from time to time by the Board;

7.4 …

7.5 …

7.6 The Executive authorises the Company to deduct from his remuneration from time to time during the continuance of his employment any sums due from him to the Company or any Group Company including any overpayment, loan or advance made to him by the Company or any Group Company and the Executive further agrees that in the event of his failure to give due notice of termination of this Agreement pursuant to clause 3.1 above, the Company may retain any such sum without prejudice to its right to claim damages for any additional loss it may suffer as a result of the Executive's failure to give due notice of termination.

8. OTHER BENEFITS

8.1 Subject to the rules and eligibility requirements of each scheme from time to time in force, the Executive will be a member of a private medical care scheme covering the Executive, the Executive's spouse/civil partner and the Executive's unmarried dependant children under the age of 18. The scale of cover and any applicable exclusions will be at the discretion of the Board and will be notified by the Company from time to time.

8.2 The Company has an obligation to put in place pension arrangements for the Executive appropriate to his position in the Company forthwith and this will be implemented by the Remuneration Committee.

9. EXPENSES

In addition to his remuneration, the Executive will be reimbursed all reasonable expenses properly, wholly, exclusively and necessarily incurred by him in the discharge of his duties under this Agreement upon production of receipts or other evidence for them and subject to the Executive complying with the requirements of the Company's expenses policy from time to time in force."

4. Mr. Foley was appointed CEO of the English Company in January 2006, prior to the making of the Service Agreement. He continued to perform that role pursuant to the provisions of clause 2.1 of the Service Agreement until February 2010, when he was replaced by Mr. Roger Hynes. Mr. Hynes resigned in July 2010 and Mr. Foley then resumed the function of CEO of the English Company. He continued to act as CEO of the English Company until he resigned as such on 13 March 2012.
5. Between about 9 April 2008 and February 2012 Mr. Foley adopted the habit of requesting employees of the English Company who worked in the accounts department to make payments to him or for his benefit. There were some 81 requests over the period, in respect of amounts totalling, in sterling or the equivalent of sterling – some payments were requested in United States dollars and some in Euros - £540,409.43. In the cases of 69 such requests Mr. Foley indicated specifically when making the request that he would provide a cheque in the amount of the sterling, or sterling equivalent, of the payment requested. In 23 instances he actually made repayments to the English Company. The total amount of the repayments came to £231,087.64. In this action the English Company claimed against Mr. Foley the difference between the total value of the payments made at his request, £540,409.43, and the repayments made, £231,087.64, together with interest. The sum claimed before interest was thus £309,321.79.
6. In his witness statement prepared for the purposes of the trial of this action dated 11 August 2014 Mr. Foley said:-

"5. I understand that the Claimant's case is that I was an employee of Worldspreads Group Public Limited [sic] ("Group") and not the Claimant. It is common ground between the parties that I received various payments from the Claimant and/or that the Claimant made various payments on my behalf. What is not in agreement is whether or not those payments were made by the Claimant as agent for Group or by the Claimant acting on its own behalf.

6. …

8. I do not accept some of the payments that the Claimant says that it made to me or on my behalf because my own records do not allow me to confirm them all at this present point. This applies equally to the credits against the payments as I cannot be certain at present whether or not the Claimant has given credit for all payments or cheques that I made to it. That said, I accept that there are a significant number of payments which the Claimant is likely to be able to prove and I intend to work with the Claimant prior to the trial of the matter to agree a schedule of agreed and disputed payments.

…

41. I am astonished that the Claimant, on the direction of its Special Administrators, has chosen to bring these proceedings. Whilst I accept, as set out above, that the manner in which I was paid was not best practice there was what I considered to be a good reason for being paid in this manner at the material times. The reasons for requesting that the Claimant make payments to me and on my behalf to third parties was as follows:-

a. So as to take advantage of the discounted foreign exchange rates afforded to the Claimant.

b. Because it was more convenient given that I was extremely busy, often travelling, to have the Claimant make payments on my behalf.

c. Because at various points in time the Claimant owed me money or I owed the Claimant money and expected in due course that accounts would be reconciled."

7. At the start of the trial I was told by Miss Emily Saunderson, who appeared on behalf of Mr. Foley, that, in the light of one particular alleged loan not being pursued on behalf of the English Company, the position of Mr. Foley in relation to how much had been paid at his request and in relation to how much had been paid back by him, was that he did not specifically dispute any item, but required it to be formally proved. The evidence of Mrs. Polly Williams, a non-executive director of the English Company, called to give evidence on behalf of the English Company at the trial, in her witness statement dated 7 August 2014, was that the evidence in support of each individual transaction relied upon on behalf of the English Company had been identified and collated by KPMG LLP ("KPMG"). Copies of the relevant material were included in three of the trial bundles. I am entirely satisfied that the English Company proved that the total of amounts paid in sterling, or transposed into sterling equivalent, at the request of Mr. Foley was the sum contended for, £540,409.43, and that the total value of repayments was, as asserted, £231,087.64. In his cross-examination Mr. Foley accepted the accuracy of the schedule ("the Schedule") of payments out to him, or for his benefit, and of repayments made by him, annexed to the Particulars of Claim in this action. In her closing submissions Miss Saunderson also accepted the accuracy of the Schedule.
8. In those circumstances the focus of attention in this judgment is the, unsuccessful, attempt on the side of Mr. Foley to devise a satisfactory reason why he should not pay to the English Company so much of the amounts paid to him or for his benefit as he has not so far repaid.

Arguments on behalf of Mr. Foley

9. The Amended Defence served on behalf of Mr. Foley seemed to me to display considerable ingenuity in devising arguments as to why Mr. Foley should not pay what was due from him which were totally devoid of merit or common sense when assessed against the background of the contemporaneous documentation and the other evidence put before me.
10. It is convenient to consider individually each argument in turn.
11. At paragraph 4 of the Amended Defence these points were deployed:-

"d. Further, the Claimant is required to prove that it was the entity that in fact made or was ultimately responsible for the Payments Out and that it was the entity in respect of which debts created by the Payments Out [that is, those made at the request of Mr. Foley] were owed by the Defendant.

e. …

f. It is averred that some of the Payments Out were or are to be characterised as advances on the Defendant's salary, and some were made when greater sums were owed to the Defendant by the Claimant than the Payments Out, and they were therefore payments on account of salary and/or other remuneration due to the Defendant. …"

12. The suggestion on behalf of Mr. Foley was that the payments made at his request, although accepted as actually made by the English Company, should be treated as made by the English Company on behalf of the Irish Company, so that the creditor was not the English Company, but the Irish Company. Why that mattered was because it was contended that any payment made at the request of Mr. Foley by the English Company at a time when a sum was due to Mr. Foley from the Irish Company should be treated as having been made by the English Company on behalf of the Irish Company on account of sums due to Mr. Foley from the Irish Company, or, sometimes, by way of an advance on sums to become due to Mr. Foley from the Irish Company. In support of that analysis it was pleaded at paragraph 5 a of the Amended Defence that:-

"It is admitted that the Defendant made repayments against the Payments Out to the Claimant. The Defendant also did not draw down: portions of his salary, alternatively the remuneration due to him by the Claimant; a bonus, also owed to him by the Claimant; and he did not reclaim expenses he incurred on behalf of the Claimant, as is set out in detail below, and those sums, among other items, were and are to be offset against the Payments Out ("the Set Off Payments"). Further, the Defendant assumed and was entitled to assume that the Claimant was properly accounting for the Set Off Payments and giving the Defendant credit for them as against the Payments Out."

13. The contention that any sums were due to Mr. Foley from the English Company by way of remuneration or expenses was simply unfounded, and was abandoned by Miss Saunderson in her closing submissions. Any sums to which Mr. Foley was entitled by way of remuneration or in respect of expenses were due to him from the Irish Company pursuant to the terms of the Service Agreement. It was quite wrong to characterise any payments made by the English Company, at Mr. Foley's request, to him or to third parties as made on account of, or by way of advance upon, sums due to him from the Irish Company because the requests were not made to the Irish Company and the requests were, by and large, to have a payment made in return for a present promise to provide a cheque or otherwise furnish immediate repayment. No sums at all would have been repaid by Mr. Foley, still less a total of £231,087.64, if the nature of the request in each case was that it was for payment of a sum already due, or an advance on a sum yet to fall due.
14. The case for Mr. Foley, such as it was, depended upon there having been, at the dates of each request by him for a payment to be made to him or on his behalf, an amount due, or to become due, to him in respect of salary and/or expenses. However, the evidence clearly demonstrated that at the time Mr. Foley first made a request for a payment, nothing was due to him in respect of arrears of salary or expenses. The first thirteen requests were made prior to the end of 2009. Mr. Foley's own evidence in his witness statement dated 11 August 2014 was that he did not fail to receive the full amount of the salary which he contended was due to him until in the course of 2010. Miss Saunderson accepted in her written closing submissions that at the times of the first thirteen requests Mr. Foley was not due any salary which had not been paid to him and that in seven of the instances Mr. Foley offered a cheque in settlement of the payment which he asked be made. It was plain, on the evidence, that the basis upon which Mr. Foley requested these first thirteen payments was that he would settle the amount requested to be paid immediately, usually by offer of a cheque. That procedure having been established in operation between the first request on 9 April 2008 and the end of 2009, there was no evidence to suggest that the parties agreed to some different procedure thereafter. Miss Saunderson accepted in terms in her closing submissions that there was no express agreement to change the basis upon which the various payments requested had been provided.
15. Although, in her submissions, Miss Saunderson proceeded on the basis that it was common ground that Mr. Foley had not been paid all the salary and bonus to which he was entitled from the Irish Company, in fact, on the evidence, the situation was far from clear. There were only two fixed points as to the salary entitlement of Mr. Foley on the documentary evidence adduced. One was the fixing of Mr. Foley's remuneration at £135,000 in clause 7.1 of the Service Agreement. The other was a draft minute of the Remuneration Committee ("the Committee") of the board of directors of the Irish Company held on 15 December 2009. The material part of that minute was in these terms:-

"The Chairman stated that the terms of Conor Foley as Group CEO required review and improvement since, aside from the approval of the issue to him of 400,000 options under the scheme at the end of 2008, he had received no bonuses since inception and recognition was required of his efforts from pre floatation through the sales of Sports and Ireland to the successful snaring of the new management. It was therefore agreed that he would receive an adjusted package that the Chairman was to finalise with him consisting of the following:

A bonus to cover the period from 2007 to March 2010 of £75,000

An increase in his annual salary to £300,000 with effect from 1 January 2010."

16. At paragraph 32 of Mr. Foley's witness statement Mr. Foley explained his view of his remuneration entitlement from time to time preceding the meeting of the Committee on 15 December 2009:-

"My salary was £135,000 until some point in or around 2008. I cannot recall when although I think it would have been most likely to have taken effect as of 1^st January 2008, when it was increased to £159,000. At the point of settling my Defence and Counterclaim in these proceedings I had forgotten about this increase but I was reminded of it when I came across the email exchange between LT [Lukhvir Thind, the former financial controller of the English Company] and I on 23^rd December 2008 (14.44 and 15.08) … In LT's email he confirms that my salary was £159,000. That equates to approximately £7900 net of tax and national insurance per month dependant on tax code. Unfortunately I do not have any documentation to support this increase save for LT's email but I anticipate that evidence of the increase is likely to be within the Claimant's books and records."

17. In fact no such documentary evidence was put before me. Mr. Thind, who was called to give evidence on behalf of the English Company, did give evidence, which was not challenged as to its accuracy, that Mr. Foley was actually paid, according to the financial statements of the Irish Company, amounts expressed in Euros as follows: €166,258 in the year ended 31 March 2008; €189,946 in the year ended 31 March 2009; €179,463 in the year ended 31 March 2010; €200,802 in the year ended 31 March 2011. It was accepted on behalf of the English Company at the trial that Mr. Foley did not draw any increased salary from 1 January 2010 until April 2011, and that he drew no salary at all between December 2011 and March 2012. However, there was no evidence to explain why, or on what basis, Mr. Foley did not claim an increase in salary from January 2010 until April 2011. Even he only said at paragraph 35 of his witness statement:-

"By March 2011 I was still not receiving accurate payslips each month as salary increases had not taken effect."

18. Certainly Mr. Foley did not seek to explain his non-drawing of an approved salary increase as related to a desire to settle amounts which he had asked be paid to him or on his behalf.
19. At paragraph 39 of his witness statement Mr. Foley did make that assertion about his request to the Irish Company not to pay any salary at all in December 2011. However, it did appear that his decision not to draw any salary at all from December 2011 was not the reason which he asserted in his witness statement, but because of the parlous financial condition of the Irish Company. In an e-mail to Mr. Niall O'Kelly, Chief Financial Officer of the Irish Company, sent at 15.21 hours on 19 December 2011, and copied to Mr. Foley's brother, Michael, Mr. Foley wrote:-

"What are our Costs going to be this month, on the basis of the reduced marketing spend and the salary reductions for the 3 of us (although we need to find compensating arrangements for this)? How much are we budgeting to pay in Cashback this month?"

20. It may be noted that it was clear from the e-mail that Mr. Foley was not intending to forgo in perpetuity the amounts of the salary not to be paid, but that "compensating arrangements" were to be found so that he was not to be out of pocket. The e-mail was clearly wholly inconsistent with the salary forgone being used to settle Mr. Foley's debts to the English Company.
21. Mr. Lindsay McNeile was, in 2010, Chairman of the board of directors of the Irish Company and a non-executive director of both the Irish Company and the English Company. He was called to give evidence at the trial on behalf of the English Company. At paragraph 23 of his witness statement dated 4 August 2014 he said:-

"Approximately six months after Mr. Foley's salary increase to £300,000 per annum was agreed, I recall Mr. Foley telling me that he would only draw £200,000 of his salary. I asked his reason for this decision and his explanation was that the company's profits were not high enough and that we needed to reduce costs in order to improve the company's profits. If this was the case, it is logical that if any accrual of Mr. Foley's unpaid salary was to be reflected in WSG's [that is, the Irish Company's] annual audited accounts, it would adversely affect the company's profits and defeat Mr. Foley's purpose in foregoing [sic] his salary. I do not know how much salary Mr. Foley did in fact take but as far as I am aware, I do not believe any accrual of unpaid salary was recorded in WSG's annual audited accounts, which were prepared by the auditors and signed off by Mr. Foley and myself."

22. That evidence raised the possibility that, in forgoing his salary increase from January 2010, Mr. Foley was not intending to defer receipt of it, but to give it up altogether. If that were the correct interpretation, it could not be said on any view that Mr. Foley was thereafter entitled to change his mind and reassert his entitlement to the increase forgone retrospectively, although he might do so prospectively.
23. Further uncertainty as to the actual entitlement of Mr. Foley to a particular salary between the date of the Service Agreement and the draft minute of the Committee of 15 December 2009 was created by an e-mail which Mr. Foley sent to Mr. McNeile at 15.15 hours on 14 April 2010, which included:-

"For good order, I would like to record that we have agreed, as follows:

1. Basic Salary increased from £200k to £300k with effect from 1^st Jan, 2010.

2. Bonus to end Dec 2009 (aggregate of 2 years plus Jupiter) of £75k"

24. It did not appear that Mr. Foley's salary had ever been increased to £200,000. Moreover, one might have thought that, in an e-mail about his salary, Mr. Foley would have mentioned his decision not to draw all his entitlement, but he did not.
25. Just in case matters did not appear sufficiently obscure concerning Mr. Foley and his salary, in an e-mail to Mr. O'Kelly sent at 12.02 hours on 9 March 2011 Mr. Foley indicated that:-

"… I need Lukhvir to reflect my proper salary (ie £300k pa) in the payroll for this month and hence forth."

26. In his response Mr. O'Kelly said that Mr. McNeile should be asked to provide authorisation for the payment of salary at that rate. Mr. Foley then sent an e-mail to Mr. O'Kelly at 15.06 hours on 9 March 2011 in which he said:-

"Lindsay will find it strange if I ask him to confirm the salary at this time. It was supposed to be effective from 1^st January, 2009 but I didn't draw it, so he will just assume that I have been taking it."

27. The effective date of the increase was, of course, not 1 January 2009, but 1 January 2010.
28. In the circumstances all I could conclude was that, for reasons which were obscure, Mr. Foley elected not to claim the salary increase awarded to him as from 1 January 2010, but to claim a lower rate which did not appear ever to have been agreed. As from April 2011 until December 2011 Mr. Foley was paid at the agreed rate of £300,000 per annum. Between December 2011 and March 2012 Mr. Foley drew no salary at all because of a desire to improve the look of the accounts of the Irish Company. Mr. Foley was certainly paid no less than his contractual entitlement to salary in respect of all relevant periods up to 1 January 2010.
29. Paragraph 23 of the Amended Defence was puzzling. It was in these terms:-

"The Defendant relied upon the fact that he was paid by the Claimant, to his detriment, in requesting the Payments Out because it meant the parties could offset sums they owed to each other. The Defendant would not have allowed salary, bonus and other payments due to him, which are detailed below, to remain unpaid by the Claimant, and continued to request Payments Out but for his reliance on the fact that the Claimant paid him his salary, and was liable to pay him his salary, bonus and other sums, and to suggest otherwise is commercially unrealistic and lacks common sense. In the premises, the Claimant is estopped from claiming the sums it now claims."

30. Notwithstanding the last sentence, the matters pleaded in the paragraph did not, on their face, if true, justify the conclusion that the English Company was estopped from doing anything. All that was alleged was what Mr. Foley did, said to be relying on the fact that he was paid by the English Company. There was no allegation that any belief on the part of Mr. Foley was induced by anything said to have been stated by or on behalf of the English Company. It was not contended that the English Company was aware of whatever it was that Mr. Foley was said to have believed, still less that it shared the same view, or acquiesced in the view of Mr. Foley. In her written skeleton argument Miss Saunderson asserted that the basis of the estoppel for which she contended was an estoppel by convention. However, no foundation for any such estoppel could be found in paragraph 23 of the Amended Defence, or elsewhere in the Amended Defence. No evidential foundation for any such estoppel could be found in the witness statement of Mr. Foley relied upon at the trial.
31. The core of the arguments advanced on behalf of Mr. Foley in the Amended Defence, however, was to be found in this passage:-

"39. The Defendant avers, for the reasons set out below, that the Claimant, the Defendant and the Group [that is, the Irish Company] did not in fact conduct their relationship in accordance with the Group Contract [that is, the Service Agreement] and/or that the Group Contract was not an exclusive record of the arrangements in place between the Claimant and Defendant, and that either:

a. The Defendant had an employment contract implied by conduct with the Claimant in terms that were similar or substantially the same as those of the Group Contract, at least in respect of provisions relating to remuneration (clause 7), expenses (clause 9), holidays (clause 11) and termination of the contract (clause 3.1). The conduct upon which the Defendant relies is set out below; alternatively

b. The Defendant had an employment contract implied by conduct with the Claimant in terms that are set out further below; alternatively

c. That the Group's rights and obligations under the Group Contract were novated, as a result of and/or as was evidenced by the conduct of the parties, to the Claimant, as is set out below; alternatively

d. That the Group Contract was varied, as a result of and/or as was evidenced by the conduct of the parties, so that the Claimant undertook responsibility to make all and any payments owed to the Defendant by the Group under the Group Contract; alternatively

e. That there was an agreement implied by conduct between the Claimant and the Defendant that the Claimant would pay the Defendant a monthly fee, and any other sums agreed between or on behalf of the parties, in exchange for which the Defendant would apply his experience, time and skill in the service of the Defendant as its CEO and as a director.

40. The terms of the agreement implied by conduct which are referred to at paragraph 39b above included the following: that the Defendant would apply his knowledge, experience and skill to work and/or provide services for the benefit of the Claimant and in exchange, the Claimant agreed:

a. To pay the Defendant a salary, and a bonus, if deemed appropriate in any given year.

b. To reimburse the Defendant for all expenses reasonably incurred by him in his work and/or service on behalf of the Claimant.

c. That termination of the agreement would be subject to a notice period of 12 months.

41. Further or alternatively, as is set out at paragraph 39c above, the Defendant avers that the Group Contract was novated either immediately after it was entered into or shortly thereafter such that the Claimant assumed the rights and liabilities of the Group in respect of the Defendant. The novation was evidenced by the conduct of the parties in that the Defendant was employed by and/or worked for and provided his services, time and skill to the Claimant in consideration for which, the Claimant remunerated the Defendant, reimbursed his expenses and allowed him to take paid holiday.

42. Further still, or alternatively, as is set out at paragraph 39d above, the Group Contract was varied by the conduct of the parties so that the Claimant agreed to remunerate the Defendant under the Group Contract in place of the Group in consideration for which the Defendant agreed to work for and provide his services, time and skill to the Claimant.

43. Further or alternatively, as is set out at paragraph 39e above, if the Court determines that the Defendant was not employed by the Claimant, the Defendant avers that there was an agreement implied by conduct between the parties under which the Claimant agreed to pay the Defendant a monthly fee and any other such sums as were agreed.

44. Prior to disclosure, the Defendant relies upon the following facts and matters in respect of the parties' conduct in support of its [sic] contentions set out at paragraphs 39 to 43 above:

a. Notwithstanding the provisions of the Group Contract, the Claimant continued to pay the Defendant a salary in sterling on a monthly basis, deducting UK tax and National Insurance contributions after the Group Contract was signed by the Defendant as it had done before the Group Contract was signed by the Defendant.

b. The Defendant's P60 End of Year Certificates for the tax years ending 5^th April 2008, 5^th April 2009, 5^th April 2010, and 5^th April 2011 were issued by the Claimant and named the Claimant as the Defendant's employer for those years.

c. The Claimant's executives and employees in its finance department and/or its human resources department and/or its legal and compliance department (to which the human resources department reported) never told or otherwise communicated to the Defendant that he was being paid by the Claimant when in fact he should have been paid by the Group or that he was being paid by the Claimant on behalf of the Group.

d. At all material times, the Defendant worked at the offices of the Claimant in London, principally on the Claimant's business, and the Defendant lived in London.

e. The Group did not have a bank account, and so could not and did not in fact pay the Defendant a salary, a bonus or reimburse him in the form of money for expenses he incurred on behalf of the Claimant.

f. The Group did not provide the remuneration or other benefits such as health insurance and a pension that it undertook to provide in the Group Contract.

g. The Defendant reported to the Claimant's board of directors in his capacity as CEO of the Claimant, as well as the Group's board of directors and the chairman of the Claimant and the Group.

45. Therefore, the Defendant was employed by the Claimant and/or the Claimant was responsible for remunerating the Defendant by way of salary and/or monthly fee, and bonus if appropriate, and/or other such sums as were agreed for his work and/or for the services he provided to the Claimant."

32. Stripped to its essentials, what that passage amounted to was the contention that one or other of the five alternative analyses set out in paragraph 39 should be "implied" – there was not a scrap of evidence to support any suggestion that any of the analyses represented anything actually agreed – from "the conduct of the parties". That conduct, as elaborated in paragraph 44, was said to consist, basically, in Mr. Foley being paid by the English Company salary due to him under the Service Agreement, and providing services for the English Company. The artificiality of the whole argument set out in paragraphs 39 to 45 inclusive of the Amended Defence is indicated by the elaborate alternatives to be found in paragraph 39. However, the complete answer to any of the alternatives is that Mr. Foley was bound, by clause 2.1 of the Service Agreement to provide his services to the English Company, if required to do so, and the fact that, for administrative reasons, the Irish Company chose to use the English Company as its agent to pay Mr. Foley sums due under the Service Agreement provided no justification for treating the Service Agreement as in any way varied or novated or ineffective between the parties to it.
33. The individual elements set out in paragraph 44 of the Amended Defence perhaps also merit brief comment.
34. Sub-paragraph a seems to be of no significance. By clause 7.1 of the Service Agreement the Irish Company had agreed to pay Mr. Foley in sterling, rather than, for example, in Euros. Thus payment in sterling was entirely consistent with the Service Agreement. United Kingdom tax and National Insurance was deducted from salary paid by reason of Mr. Foley being ordinarily resident (as pleaded at paragraph 44 d) in the United Kingdom and the operation of United Kingdom legislation, specifically Income Tax (Earnings and Pensions) Act 2003 s.689:-

"(1) This section applies if –

(a) an employee during any period works for a person ("the relevant person") who is not the employer of the employee,

(b) any payment of, or on account of, PAYE income of the employee in respect of that period is made by a person who is the employer or an intermediary of the employer or of the relevant person,

(c) PAYE regulations do not apply to the person making the payment or, if that person makes the payment as an intermediary of the employer or of the relevant person, the employer, and

(d) income tax is not deducted, or not accounted for, in accordance with the regulations by the person making the payment or, if that person makes the payment as an intermediary of the employer or of the relevant person, the employer.

(2) The relevant person is to be treated, for the purposes of PAYE regulations, as making a payment of PAYE income of the employee of an amount equal to the amount given by subsection (3).

(3) The amount referred to is _

(a) if the amount of the payment actually made is an amount to which the recipient is entitled after deduction of income tax, the aggregate of the amount of the payment and the amount of any income tax due, and

(b) in any other case, the amount of the payment.

(4) If, by virtue of any of sections 693 to 700, an employer would be treated for the purposes of PAYE regulations (if they applied to the employer) as making a payment of any amount to an employee, this section has effect as if –

(a) the employer were also to be treated for the purposes of this section as making an actual payment of that amount, and

(b) paragraph (a) of subsection (3) were omitted.

(5) For the purposes of this section a payment of, or on account of, PAYE income of an employee is made by an intermediary of the employer or of the relevant person if it is made –

(a) by a person acting on behalf of the employer or the relevant person and at the expense of the employer or the relevant person or a person connected with the employer or the relevant person, or

(b) by trustees holding property for any persons who include or class of persons which includes the employee.

(6) In this section and sections 690 and 691 "work", in relation to an employee, means the performance of any duties of the employment of the employee and any reference to the employee's working is to be read accordingly."

35. The point made in paragraph 44 b again is immaterial. The production of certificates P60 naming the English Company as employer was simply a consequence of Mr. Foley being liable to pay income tax in the United Kingdom and the English Company, as the party liable under Income Tax (Earnings and Pensions) Act 2003 s.689 to deduct PAYE contributions from payments of salary which it made to him on behalf of the Irish Company and to account to HM Revenue and Customs for the sums deducted, being bound to produce to Mr. Foley a document recording the gross salary due and the deductions made.
36. The allegation in paragraph 44 c was very difficult to understand. Mr. Foley plainly knew that he had entered into the Service Agreement and that the Irish Company was bound to pay him salary under that agreement. He also knew perfectly well that the salary was payable in sterling and that the Irish Company itself never made any payment to him in sterling in respect of the salary due. Instead, the sum contractually due was paid to Mr. Foley by the English Company. It was simply blindingly obvious that the sums paid by way of salary by the English Company to Mr. Foley were paid on behalf of the Irish Company in discharge of the obligations of the Irish Company under the Service Agreement. Mr. Foley could not have supposed anything else. He certainly did not require to be told that the salary in fact paid to him by the English Company was actually being paid on behalf of the Irish Company.
37. What was pleaded at paragraph 44 d of the Amended Defence amounted to no more than recording the practical effect of the Irish Company exercising its right under clause 2.1 of the Service Agreement to require Mr. Foley to provide services to the English Company.
38. Far from being points for Mr. Foley, the allegations in paragraph 44 e actually provided an obvious explanation for payment of Mr. Foley's sterling salary being made by the English Company on behalf of the Irish Company.
39. The matters pleaded at paragraph 44 f may well have amounted to breaches on the part of the Irish Company of its obligations under the Service Agreement, but on no view could they support any of the contentions set out at paragraphs 39 to 43 inclusive of the Amended Defence.
40. Finally, what was pleaded at paragraph 44 g was entirely consistent with the provisions of clause 2.1 of the Service Agreement.
41. In her written closing submissions Miss Saunderson accepted that the allegations in paragraphs 39 to 45 inclusive of the Amended Defence were unsustainable and abandoned them all.
42. It may be that there was, in advance of the conclusion of the trial, an awareness of the total insufficiency of what was pleaded at paragraphs 39 to 45 inclusive of the Amended Defence as providing Mr. Foley with any ground of defence in this action, for, by amendment, further, alternative cases were added in paragraphs 45A to 45C, as follows:-

"45A. Alternatively, if the Defendant was employed solely by the Group, and the relationship between the Defendant and the Group was governed by the Group Contract, the Group and/or the Claimant relied periodically upon clause 7.6 of the Group Contract in failing to pay regularly and on time the full sums owed to the Defendant in respect of the salary and other remuneration to which he was entitled. The Group and/or the Claimant thereby deducted from the Defendant's remuneration, on an ad hoc basis, sums due by the Defendant to the Group and/or the Claimant.

45B. Given the course of conduct of the Group and/or the Claimant in that they relied upon clause 7.6 of the Group Contract as is set out above, the Payments Out stand to be offset against the salary and other remuneration owed to the Defendant as is set out in this Amended Defence.

45C. Further or alternatively, if the Defendant was employed solely by the Group, the Payments Out were payments made by the Group, through the agency of the Claimant, to the Defendant, and they are to be set off against the sums due by the Group to the Defendant in respect of salary and other remuneration."

43. For the reasons which I have already explained, there was no justification on the evidence led before me to suppose that, in some way, the Service Agreement had been discharged and replaced by an agreement between the English Company and Mr. Foley, whether by novation or otherwise. The reality was that the Service Agreement continued in existence, with the Irish Company, and not the English Company, being the party to that agreement with Mr. Foley. What was alleged in paragraphs 45A to 45C of the Amended Defence were simply constructs, without any substance. Clause 7.6 of the Service Agreement entitled the Irish Company, but did not bind it, to deduct from the remuneration due to Mr. Foley sums due from him to the Irish Company or to other group companies. There was not a scrap of evidence that the Irish Company ever elected to operate that provision, and in particular no such evidence in relation to sums owed by Mr. Foley to the English Company in respect of payments which he had requested the English Company to make to him or on his behalf. His offer, on the vast majority of occasions upon which he requested a payment, of a cheque or other payment to match the payment requested made it clear beyond argument that what Mr. Foley was requesting was not any sort of advance on salary or payment of an amount which he considered was already due to him. In truth the contentions in paragraph 45A and paragraph 45B amounted to a contrived attempted re-assignment of what when made were loans into payments of remuneration or advances of remuneration.
44. An attempt was made to bolster what was pleaded at paragraphs 45A and 45B by reference to a number of e-mails generated by Mr. Foley in which he requested the payments to him or made at his request to third parties be "reconciled". The first such request, in an e-mail sent at 10.19 hours on 12 January 2010, may be taken as typical:-

"We need to tidy up the advances I received last year and reconcile them with a bonus I was due at the end of the year and a deferred pay rise I was also due, but didn't take. Can you prepare a spreadsheet showing the payments I received and we will reconcile them accordingly."

45. It is unclear what Mr. Foley meant by "a deferred pay rise I was also due, but didn't take." There was no other evidence, not even from Mr. Foley himself, that, as at 12 January 2010, he had had a deferred pay rise. The first payment following the increase to a salary of £300,000 was not due, under clause 7.1 of the Service Agreement, until the end of January 2010.
46. Leaving that point on one side, what Mr. Foley actually meant by "reconcile" in his e-mail was also obscure. It was clear that he wanted, on the face of it, a list of what he owed the English Company. What he wanted to do with it once he had it was less clear. He did not in terms suggest that salary due to him should be withheld until he had discharged his liabilities to the English Company. He did not contend that whatever was already due to him was, or might be, sufficient to discharge his liabilities. As a matter of the use of the English language what was due from Mr. Foley could not be "reconciled" in any sensible way with anything. According to Shorter Oxford English Dictionary, 4^th ed., 1993, the primary meaning of "reconcile" is "Restore (a person) to friendly relations with oneself or another after an estrangement". The meaning perhaps closest to what Mr. Foley may have intended is, "Bring into acquiescence with, acceptance of, or submission to a thing, condition, situation etc." However, the whole idea underlying that definition is that one set of circumstances or things can be brought into acquiescence with or acceptance of another set of circumstances or things. If what Mr. Foley wished to say was that there should be a set off of whatever was due to him against whatever was due from him, he did not choose the correct words in which to express himself. However, actually I am far from persuaded that the word "reconcile" was ill-chosen for Mr. Foley's purposes. It has an encouraging sound, without actually meaning anything sensible. If Mr. Foley had really wanted to discharge his indebtedness to the English Company out of monies due to him, or to become due to him, from the Irish Company, nothing was simpler than to say so, and, given Mr. Foley's position as CEO of both the English Company (for most of the relevant period) and the Irish Company, to bring it about.
47. As I have already remarked, it was not until thirteen payments had been made by the English Company at the request of Mr. Foley, in sums in fact totalling £111,155.21, and one repayment of £27,770 had been made, that any suggestion of any "reconciliation" was raised by Mr. Foley. At that point he owed the English Company £83,385.21, but nothing was due to him from the Irish Company which had not been paid. There was thus nothing to "reconcile", whatever Mr. Foley's use of that word was intended to convey.
48. Mr. Foley did send one more e-mail concerning reconciliation in 2010, at 16.49 hours on 19 January 2010, to Mr. Thind. Mr. Foley wrote:-

"Could you please do me a £3,000 transfer to my account for value today please.

This is the last of these I will be doing and we can reconcile all of these against the bonus I am due and the salary I haven't taken."

49. As I have explained, there was no salary which Mr. Foley had not taken as at that date. However, reference to it seemed an implicit recognition on the part of Mr. Foley of the fact that the £75,000 bonus approved would not, of itself, extinguish Mr. Foley's liability to the English Company, not least because the amount of £75,000 would, when payable, be reduced by the sum due in respect of income tax.
50. Mr. Foley did not raise the matter of "reconciliation" in writing again until an e-mail he sent to Mr. Thind at 12.56 hours on 9 January 2011. However, in the interim he had been busily requesting more payments – 25 of them – on the basis, generally, that he would provide a cheque in return for the payment. The very first request after the e-mail suggesting "reconciliation" may be treated as typical. It was to Mr. Terry Everson, who dealt with foreign exchange, and was sent by Mr. Foley at 10.50 hours on 25 February 2010:-

"Could you (today) arrange a Euro 5,000 transfer to the same Barclays Bank, Nice account that you made for me previously.

I want to give you a Sterling cheque for this today, so can you give me the Sterling equivalent please."

51. Plainly it was because, by and large, Mr. Foley did not perform his promise to provide a cheque that he ran up the indebtedness the subject of this action. Mr. Foley did not seek to blame Mr. Everson for not informing him of the sum which needed to be paid in sterling, and rightly not. On the occasion considered in the previous paragraph Mr. Everson informed Mr. Foley by an e-mail sent at 10.57 hours on 25 February 2010 that the sum required was £4,405.
52. The allegation in paragraph 45C of the Amended Defence that all of the payments made in fact by the English Company at the request of Mr. Foley were actually made by the English Company on behalf of the Irish Company, although impressive in its effrontery, was wholly unsupported by any evidence.
53. At paragraphs 46 to 50 of the Amended Defence were set out allegations that Mr. Foley had not drawn bonus or salary to which he was entitled, and it was contended that, in consequence, there was a fund of some £336,733 which he could set against any liability to the English Company in respect of the claims made in this action. It is not necessary to consider those allegations in any detail because, if and insofar as any sum was due to Mr. Foley by way of bonus or salary, it was due from the Irish Company and not from the English Company. Although it seemed, as I have already remarked, from the evidence, that, indeed, Mr. Foley had not been paid all of the sums to which he was prima facie entitled by way of bonus or salary after 1 January 2010, the circumstances in which that happened were not entirely clear. As I have pointed out, there was some evidence that Mr. Foley decided to forgo some part of the pay rise to £300,000 per annum because of the financial situations of the Irish Company and the English Company. If Mr. Foley had in truth forgone some part of his salary entitlement, it was difficult to see how he could revive the entitlement which he had forgone just because it now suited him to do so. However, it is not necessary to consider this aspect further because any bonus or salary due to Mr. Foley, but unpaid, was not due from the English Company, but from the Irish Company.
54. Rather sportingly it was asserted on behalf of Mr. Foley that, on the occasion of his resigning his employment under the Service Agreement and his directorships of the Irish Company and the English Company, he had entered into a severance agreement not with the Irish Company, but with the English Company. It is necessary to consider the written documents in which the relevant agreement was said to have been made. The material documents are identified in the Amended Defence, but the consequences of those documents contended for were pleaded in these paragraphs:-

"51. When the Defendant told the Claimant and the Group that he planned to resign, the Group remuneration committee agreed a severance package ("the severance package agreement") which, as a result of the employment contract between the Claimant and Defendant and/or the previous conduct of the parties as is set out above, including the fact that the Company paid and had always paid the Defendant and that the Group did not have a bank account, was to be paid by the Claimant.

52. …

56. It was therefore either an express term of the severance package agreement, or there was an implied term the substance of which was, that the Defendant would be paid £300,000 in lieu of notice by the Claimant, and that this would include payment for the Defendant working to ensure a full and orderly handover to his replacement.

57. The Claimant has not paid the Defendant the sum agreed in respect of his resignation, or any part thereof, although the Defendant stood ready, willing and able to work on a reasonable, full and orderly handover to whoever was to be appointed in his place.

58. The £300,000 which was to be paid by the Claimant to the Defendant under the severance package agreement is to be set off against the sum claimed by the Claimant. The Defendant will give credit for any UK tax or other deductions that would have been made to this payment."

55. Clearly the contention that the English Company agreed to make a payment to Mr. Foley in consideration of Mr. Foley resigning his employment by the Irish Company is intellectually challenging. The obvious expectation, if there was indeed an agreement to make a severance payment to Mr. Foley, would be that it was his employer, the Irish Company, which had agreed to make the payment. Confusingly, in paragraph 51 of the Amended Defence the pleaded case of Mr. Foley was that the party which agreed the alleged severance package was "the Group remuneration committee", and not the English Company. So one was being invited to contemplate that a committee of the board of directors of the Irish Company acted as agent on behalf of the English Company in agreeing on behalf of the English Company that it would make a payment to Mr. Foley in consideration of the termination of the Service Agreement between the Irish Company and Mr. Foley. It has to be said that that seems to be wildly improbable.
56. The alleged agreement to make a payment was said to be found in written exchanges between Mr. Foley and Mr. McNeile. Mr. McNeile was one of two members of the Committee in March 2012. It was common ground between Mr. Foley and Mr. McNeile that, as Mr. Foley put it at paragraph 59 of his witness statement prepared for the purposes of the trial of this action:-

"Prior to my resignation I discussed with LMcN terms of a severance package. …... LMcN advised me that I should take independent legal advice before confirming my resignation ….. I have a positive recollection of the meeting and in particular I remember saying to LMcN "I will be billing the company for this advice" to which LMcN responded "ok" …"

57. Mr. McNeile told me in his evidence that at a meeting on 12 March 2012 he had told Mr. Foley that any agreement for payment of any severance sum to Mr. Foley depended, first, upon consideration of the appropriate terms by the Committee, and, second, upon the agreement of the whole board of directors of the Irish Company. Mr. Foley did not appear, in his evidence, to challenge that evidence. He said in cross-examination that he did not recall that conversation, but he did not contend that it had not taken place or that Mr. McNeile had not said what Mr. McNeile told me he had said to Mr. Foley. I was impressed by Mr. McNeile as a witness and I accept his evidence that he told Mr. Foley what he said he had told him about the need for approval from the board of directors of the Irish Company to any severance payment to Mr. Foley. It was obvious from that evidence that what was contemplated was that the parties to any severance agreement would be, as one would expect, the company which had entered into the Service Agreement with Mr. Foley, the Irish Company, on the one hand, and Mr. Foley, on the other.
58. The first of the documents to which it is relevant to refer in the context of the alleged severance agreement is an e-mail sent by Mr. Foley to Mr. McNeile at 14.42 hours on 13 March 2012:-

"Lindsay,

I'm advised to keep my exit terms as simple as possible, and for good order, I will forward this exchange of e-mails to Jane Mann of Fox Williams when we have agreed it.

Terms

1. 12 month's [sic] salary, in lieu of notice, as per my contract.

2. Agreement on how my resignation is communicated to the Market, Staff and the FSA.

3. Access to view everything that is given to the FSA that relates to me and given an opportunity to comment on this.

4. Agreement on a Daily Rate to be charged for Consultancy or Co-operation work, post exit (Fox Williams have advised that the figure should be agreed before exit, but I can live with agreeing it in the next couple of days.)

5. My Options in WorldSpreads to remain exactly as they are agreed presently, with the same expiry dates."

59. The reference in item 1 to "my contract" could, I think, only refer to the Service Agreement. Thus, as one would expect, Mr. Foley was proposing an amount to be paid to him for consensual termination of the Service Agreement.
60. The terms of the e-mail sent at 14.42 hours on 13 March 2012 seem to me to have been insufficiently precise to amount to an offer capable of acceptance so as to bring into existence a binding contract. In particular, items 2 and 4 contemplated further negotiation as to what exactly were to be the terms of any agreement.
61. Mr. McNeile responded to the e-mail sent at 14.42 hours substantively at 15.53 hours on 13 March 2012:-

"Conor:

Re your exit terms:

I can confirm that the remuneration Committee has met and in the context of your resignation being delivered very soon so we can manage process but in any event no later than 5pm this evening, your "exit terms" by reference to your email below will be:-

1. Agreed, but this will encompass your work on a reasonable, full and orderly handover.

2. Agreed within reason clearly (and we have forwarded to you already the first outline drafts).

3. This we accept but only:

a. Where there are no obligations on us to treat information differently or entirely confidentially.

b. Provided it is understood that while you may comment on such submission as we may be able to discuss with you, we will be the final arbiters of text.

c. In all cases within reason.

4. Yes: £1000.00 per day: but this does not apply to your hand over work (per 1 above).

5. Agreed.

Hope that is acceptable.

This is the substance of the deal …. Subject to refinement of wording."

62. On its face the response of Mr. McNeile sent at 15.53 hours on 13 March 2012 was itself insufficiently precise to be an offer capable of acceptance so as to bring into existence a binding contract. The questions which plainly arose were what was meant by "work on a reasonable, full and orderly handover" in item 1, what was "within reason" in item 2, and what was "within reason" in item 3. In any event the concluding words of the e-mail indicated that what was to be offered was subject to further refinement. However, whether or not the e-mail was sufficiently clear in its terms to be capable of amounting to an offer which could be accepted so as to bring about a binding contract, it was plain that what Mr. McNeile wrote was not intended as an offer which could be accepted, because it had not been considered, and approved, by the board of directors of the Irish Company. Thus, although Mr. Foley purported to accept an offer in the terms of Mr. McNeile's e-mail in a letter of resignation dated 13 March 2012, actually no binding contract ever came into existence.
63. The letter of resignation simply said this:-

"Dear Lindsay,

I confirm that I agree to resign from my directorship and my employment with effect from today on the terms you set out in our e-mail exchange, copied below [where the e-mails were simply reproduced], in response to my earlier email. This means that my pay and benefits will continue up to today's date as per my contract and the lump sum referred to below should be paid as soon as possible. I would be happy with payment within the next week."

64. It was not suggested in the letter that the sum of £300,000 to be paid "as soon as possible" should be paid after deduction of any amounts owed by Mr. Foley to the English Company.
65. In her written closing submissions Miss Saunderson dealt with the issue of the alleged severance agreement in this way:-

"35. The £300,000 severance package was agreed between Mr. Foley and WSG [the Irish Company], and it therefore falls to be included in the sums to be offset against the Payments Out, either because it is part of Mr. Foley's remuneration and the Payments Out were advances against such remuneration; or because clause 7.6 of the Service Agreement was in operation; or because WSL [the English Company] is estopped from denying that Mr. Foley's remuneration can be offset against the Payments Out."

66. Sub silentio, at any rate, the argument that the alleged severance agreement was an agreement between the English Company and Mr. Foley was abandoned. The alleged severance payment was simply sought to be aggregated in calculations said to have been justified for one or other of the reasons set out in Miss Saunderson's paragraph 35.
67. I have already noted that Mr. McNeile accepted that at his meeting with Mr. Foley on 13 March 2012 he had urged Mr. Foley to seek legal advice and had indicated that the fees incurred by Mr. Foley in seeking such advice would be paid. At paragraph 59 of his witness statement Mr. Foley stated that, "I took this [Mr. McNeile saying "OK" to Mr. Foley's comment about billing "the company" for the cost of legal advice] as his agreement that the Claimant would pay for the cost of the advice as I understood was normal in circumstances where severance packages were agreed." In fact, of course, what was being discussed was the termination of the Service Agreement between the Irish Company and Mr. Foley, not the termination of a non-existent agreement between the English Company and Mr. Foley. Thus it was plain that the agreement of Mr. McNeile that Mr. Foley's legal fees should be paid was an agreement entered into by him on behalf of the Irish Company, not on behalf of the English Company. Why this mattered was that at paragraphs 59 (the second one so numbered) and 60 of the Amended Defence there was a plea of entitlement to set off against the sum due from Mr. Foley to the English Company the alleged amount of fees paid by Mr. Foley for legal advice to Fox Williams LLP, £3,697.20.
68. In the Amended Defence various other sums said to be due to Mr. Foley were also sought to be set off against his liability to the English Company. There were relatively modest sums in respect of alleged expenses incurred, alleged non-provision of medical insurance cover and alleged non-provision of pension contributions. All of these elements of claim, if proper, were claims for amounts or benefits which ought to have been provided under the terms of the Service Agreement, and thus claims against the Irish Company and not the English Company.
69. Moreover, by clause 9 of the Service Agreement the entitlement to reimbursement of expenses was conditional upon the provision by Mr. Foley of receipts or other evidence of the relevant expense having been met by him, but no such receipts or specific evidence of expenditure was put before me.
70. What was pleaded as due by way of reimbursement of expenses at paragraph 61 of the Amended Defence was:-

"a. Payment of £2,500 made by the Defendant in five instalments of £500 each between late 2011 and early 2012 to a charity called the Ireland Fund for a table at a charity event called the Twenty Twelve Rugby lunch to which the Defendant took key clients of the Claimant for marketing and client relationship purposes, for the benefit of the Claimant.

b. Incidental expenses including travel to and from meetings attended by the Defendant on behalf of the Claimant in late 2011 and early 2012, estimated in the sum of £300."

71. The evidence in support of those allegations set out at paragraphs 65 and 66 of the witness statement of Mr. Foley was:-

"65. Whilst employed by the Claimant I held a Barclaycard credit card in the name of the Claimant. Copies of credit card statements have been disclosed during the course of these proceedings. After I left the Claimant's employment I received an invoice for £2,500 from The Ireland Fund of Great Britain [134] for a table at a 2012 Rugby Lunch. The invoice was issued on 18^th January 2012 but not paid by the Claimant and so I arranged to pay it over instalments.

66. Further I did not claim a significant amount of reimbursement for cash expenses that I incurred between late 2011 and early 2012 (the dates are incorrectly given as 2012 and 2013 respectively at paragraph 61 of the Defence [they were corrected in the Amended Defence, as I have quoted]) whilst working for the Claimant. This includes a lot of taxi fares for travel to and from appointments in the UK. I estimate that these costs were in excess of £300 but I limit my claim to that sum. I haven't kept the receipts and so there is no documentary evidence of these expenses."

72. The copy of the invoice dated 18 January 2012 issued by The Ireland Fund adduced in evidence was addressed to "Worldspreads" at the address of the English Company in London. On that evidence it would appear that the obligation to pay for the rugby lunch was not that of Mr. Foley, but that of, perhaps, the English Company. It seems that Mr. Foley was not personally liable to pay for the lunch, but chose to do so for his own reasons after he had left the employ of the Irish Company. Plainly Mr. Foley accepted that there were no receipts or other reliable evidence of his alleged travel expenses.
73. Notwithstanding Mr. Foley's assertion that he was not provided with any medical insurance cover, in fact the evidence was that such insurance cover was provided by the Irish Company as from April 2011, as Miss Saunderson accepted in her closing submissions. The obligation of the Irish Company under clause 8.1 of the Service Agreement to provide medical insurance cover to Mr. Foley was not absolute, but, "The scale of cover and any applicable exclusions will be at the discretion of the Board and will be notified by the Company from time to time." The question why no medical insurance provision was made until April 2011 was not investigated at the trial, and so it was not possible to reach any conclusion as to whether, in fact, the failure of the Irish Company to arrange medical insurance cover until April 2011 amounted to a breach of the Service Agreement or not. However, what was plain was that any breach there may have been was irrelevant to any issue which I had to determine.
74. It was common ground that the Irish Company did not in fact pay pension contributions on behalf of Mr. Foley, but it appeared that the reason for that was probably that Mr. Foley never sought to make pension arrangements to which the Irish Company could contribute. In her written closing submissions Miss Saunderson abandoned any reliance upon alleged failure to make pension contributions.
75. Perhaps the most astonishing of all of the pleas made in the Amended Defence on behalf of Mr. Foley were those to be found in paragraphs 70 to 72 inclusive:-

"70. Further or alternatively, if contrary to what is pleaded above, the Court finds that there was no binding contract between the Claimant and the Defendant under which the Claimant agreed to remunerate the Defendant for his work and/or services, the Defendant will say that the Claimant has been unjustly enriched at the Defendant's expense and that the Defendant is entitled to set off against the Claimant's claim compensation from the Claimant in respect of its unjust enrichment.

71. In particular:

a. The Claimant benefitted [sic] from the Defendant's time, skill, experience and work as the Claimant's CEO and director, in particular between 9^th April 2008 and 13^th March 2012.

b. The Claimant benefitted [sic] at the Defendant's expense because the Defendant has not been adequately remunerated for his work. The level of adequate, fair and reasonable remuneration is that which was determined by the Group remuneration committee as being due to the Defendant, as is set out above, and it includes reimbursement of the expenses claimed above, and payment under the severance package as detailed above.

c. The Claimant's enrichment is unjust because the Defendant would not have undertaken work for the Claimant but for his belief and understanding that he would be paid by the Claimant in return for his work; the Claimant accepted the work undertaken for it by the Defendant, and it paid the Defendant and led him to believe by its conduct, as is described in the Amended Defence, that it was the entity responsible for paying him.

72. The restitution sought by the Defendant in respect of the Claimant's unjust enrichment is an order for payment of such sum as will reverse its unjust enrichment, which equates to the sum set out in section entitled "Total Set Off" above [essentially paragraph 66, where the various elements said to be due to Mr. Foley, totalling £643,230.20, were set out], or such other sum as the Court deems just."

76. These pleas were frankly unreal. Mr. Foley provided his services to the English Company pursuant to the provisions of clause 2.1 of the Service Agreement, in consideration of the undertaking of the Irish Company in clause 7.1 to pay him a salary, and in consideration of the other benefits to be provided to him by the Irish Company under the Service Agreement. There was nothing remotely unfair or unjust in the English Company receiving from Mr. Foley services for which the Irish Company had agreed to pay him. Per contra, if there were any substance in the pleas in paragraphs 70 to 72 inclusive in the Amended Defence, the effect would be either that Mr. Foley was entitled to be paid twice for providing services to the English Company, as any payments in respect of such services made on behalf of the Irish Company fell to be disregarded, or, at least, that the English Company was constituted guarantor in favour of Mr. Foley of the due performance by the Irish Company of its obligations under the Service Agreement. Each of those consequences would plainly be absurd.
77. The various elements which Mr. Foley sought to set off against his liability to the English Company also featured in a counterclaim. For the same reasons that the alleged set offs fail, so do all of the counterclaims.

Conclusion

78. In the result there will be judgment in favour of the English Company in the sum of £309,321.79, together with interest, as to which I will hear Counsel.