KB-2023-003510 - [2025] EWHC 1755 (KB)

For those reasons, I accept the Defendants’ submissions in relation to this third topic.

I now have to deal with items 6 and 7 in the Schedule summarised, I think fairly, in the Schedule as being complaints that (i) the Claimant was excluded from news of a Pokemon distribution deal and (ii) Mr Shah planned to defer making an announcement about that deal, effectively until after the Claimant’s dismissal.

The relevant paragraphs of the Particulars of Claim in the present claim to which these allegations relate are paragraphs 62 and 63, 65, and 104 to 106.

One can get some idea of the thrust of the allegations by looking at parts of paragraphs 62 to 65. Paragraph 62 starts off by saying that, in short, a binding agreement was executed on 3 July 2017, and that very document has been shown to me in the bundle by Mr Dowding. Paragraph 63 then says that news of that deal was then unlawfully withheld from various entities and that there should have been an immediate public announcement of it. Paragraph 65 ends by saying that the timing of the release that was eventually made was designed to counteract the likely negative effect on the employer company’s share price of the announcement that was made simultaneously of the termination of Mr Dowding’s employment.

The substance of paragraphs 104 to 106 is effectively a rehearsal of those matters. It is alleged in paragraph 104 that the Claimant was - and, indeed, that other directors were - informed about the deal on the evening of 5 September 2017 for the first time, and at paragraph 106, that the way in which the employer company went about announcing and disclosing this deal was contrary to law and regulation. Ending at paragraph 106: “This is another example of Mr Shah and the company disregarding legal obligation [I think it should be in the plural: s] and the basic requirements of good corporate governance.”

The Defendants’ principal ground for seeking to strike-out these allegations is that they have been dealt with by the Employment Tribunal, and it appears to me absolutely clear that that is the case. In light of the time that it would take, I do not propose to read out all the relevant passages of the judgment of the Tribunal. But paragraphs 62 and 63 find in terms that the Claimant was told about the deal -- as I read it, as a prospective deal -- at a board meeting on 22 June 2017 and as an actual concluded deal at a board meeting on 17 and 18 July 2017. The Tribunal went on later in its ruling to consider this topic and picks up the matter at paragraph 126. Again, because of the time that it would take, I do not propose to read all of that out. The Tribunal rejected an allegation that this was a high risk and highly irregular deal, and repeated at paragraph 126, with regard to knowledge, that: “The Tribunal has found that the claimant did have knowledge, at least at the meeting on 17 and 18 July 2020. This was not withheld from him.”

The reason why these matters were relevant in the Employment Tribunal proceedings was because the Claimant was bringing claims that as a result of his whistle blowing activities he had been subjected to detrimental treatment by his employer and also that he had been unfairly dismissed on the same basis and he was seeking relief under both heads. It is because of the nature of those claims that the Tribunal was required to consider the saga relating to the Pokemon deal. That is made clear, in my judgment, by the first bullet point in paragraph 15 of the Tribunal’s judgment.

Mr Dowding, as I understand his position before me, is not able directly to confront that situation and to deny that that was the nature of the claim he was bringing and that was the nature of the Tribunal’s rulings. He has suggested in front of me that this result was procured by misleading the Tribunal, both as to the nature of the transaction or whether it was something that required a regulatory announcement or not, and I think perhaps as to whether the board minutes had been tampered with in some way.

Those allegations appear to me to be without any foundation and, in any event, as far as I can see, on the regulatory front, not directly relevant.

The Tribunal made a clear finding of fact that Mr Dowding was not misled and that information was not withheld from him and, in my judgment, it would plainly be an abuse for him to seek to revisit that very issue in these High Court proceedings.

But, although possibly as a matter of logic it should have come first, secondly, and in any event, I am wholly unpersuaded that any of these allegations are of any relevance to any of the causes of action that Mr Dowding seeks to bring. He has listed those causes of action in paragraph 1 of his skeleton argument and they amount to approximately a dozen causes of action. Put shortly, neither (i) bad corporate governance nor (ii) withholding information which is positive, so that it coincides with the announcement of information which is negative, with a view to protecting or enhancing the Company’s share price would, in my judgment -- even if the allegations are right -- have any bearing on any of Mr Dowding’s causes of action.

If there is any basis for complaint about such matters, and I am not for one moment suggesting that there is or ever was, it lies far outside a claim for breach of contract and indeed any of the other claims that Mr Dowding now seeks to bring.

In the course of asking Mr Dowding to explain the relevance of these allegations, he repeatedly referred to allegations about procuring breach of contract and the like. As far as I can see, these matters - even if they (i) were factually correct and (ii) have not been disposed of by the Employment Tribunal - would have no relevance to procuring a breach of a contract. The only relevant contract that I can see is Mr Dowding’s contract of employment, and this, in my judgment, plainly was not procured to be breached by any of these activities, even if they took place and even if they had the unsatisfactory characteristics with which he seeks to stigmatise them.

For those reasons, in my judgment, these two items should be decided in the Defendants’ favour and the relevant paragraphs of the Particulars of Claim should be struck out accordingly.