Case Nos: CA-2025-001485 - [2025] EWCA Civ 1108

Mr Rivett argued that, if Shift and Corja succeed at trial, it will become apparent that the “transformation plan” propounded by InPost should not have been adopted. In the absence of injunctive relief, however, Yodel can by then be expected to have incurred very substantial expenditure (and correspondingly large indebtedness to JLL), including substantial exceptional costs of £25 million, in pursuit of the plan and Yodel’s business will have been changed beyond recognition. Shift and Corja will become the majority shareholders in a company dependent on, and owing large sums to, a minority shareholder. The objective of integrating Yodel’s business with that of Shift will have been frustrated, Mr Rivett submitted.

The specific grounds of appeal advanced in this context are to the effect that, in concluding that damages would be an adequate remedy for Shift and Corja, the Judge failed to take account of Yodel’s inability to satisfy an award of damages in their favour and, in any event, an order that Yodel pay damages to the entities which would by then be its majority shareholders could not constitute adequate compensation. With regard to the latter point, Mr Rivett submitted that any award of damages would prima facie prejudice the value of Shift’s and Corja’s shareholdings in Yodel. As for the former point, Mr Rivett argued that, on Yodel’s own evidence, it would be unlikely to be in a position to pay any damages. Mr Rivett pointed out that Mr Neil Kuschel, the chief executive officer of Yodel, JLL and InPost UK Limited (the company responsible for InPost’s United Kingdom and Irish businesses), referred to the “transformation plan” in a witness statement dated 22 May 2025 as “ambitious”, “not easy” and “involv[ing] risk”, albeit that he also spoke of the plan being “achievable”. Mr Rivett further relied on evidence from Mr Paul McCourt, the chief financial officer of Yodel, JLL and InPost UK Limited, in a witness statement dated 22 May 2025, that “Yodel’s stand-alone balance sheet continues to show a substantial negative net asset position, with nearly £168 million owing to JLL (due to the substantial sums that InPost has injected into JLL which, in turn, have been lent to Yodel as intra-group debt)”. Mr Rivett said that, even were the “transformation plan” to succeed, Yodel would be in a precarious financial state when the claims made by Shift and Corja came to be determined in their favour.

However, Yodel and JLL said in their skeleton argument for the appeals that InPost UK Limited would if needs be guarantee payment by Yodel of any damages awarded in favour of Shift and Corja additional to an order for specific performance with no right of recourse against Yodel. Further, in the course of the hearing before us Mr Thompson said that InPost SA was itself willing to give such a guarantee and we were provided with a draft. In the light of that, there can be no real doubt as to the ability of Shift and Corja to recover any damages to which they might be entitled. As I have mentioned, the evidence shows InPost to have very substantial net assets.

During his own submissions to us, Mr Rivett stressed that Shift and Corja are seeking specific performance rather than merely damages and that what they want is the business of Yodel as it has hitherto been constituted so that they can put their own plans for it into effect. Shift and Corja thus stand to suffer loss that cannot be quantified, Mr Rivett said.

As I read the grounds of appeal, they focus on the prospects of Shift and Corja receiving monetary compensation rather than alleging unquantifiable loss. Even supposing, however, that there is an appreciable chance of some such loss, the fact remains that there is now no good reason to doubt that Shift and Corja could recover proper compensation for any assessable loss. That must be of significance when considering where the balance of convenience lies.