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

I now turn to item 16 in the Schedule. I consider that for the reasons that I have already indicated, the Defendants’ attack on the assertions in paragraphs 116 and 124 of the Particulars of Claim, that the Claimant did not know of the board meeting on 14 September 2017, that they seek to strike out, on the basis that that very point was in front of the Tribunal, and they reached a finding that the Claimant did know of it, and that is set out in paragraph 96 of the Tribunal's judgment, is clearly well founded.

Mr Dowding has addressed me on the basis that, in fact, his case in front of the Tribunal was quite different to that which is rehearsed in paragraph 96 of the judgment: it was not that he had not picked up Mr Harris’ voicemail message of 13 September 2017, timed at 9.11 am, but was instead, that he had picked that message up, but it did not give notice of the board meeting on 14 September, but instead, just gave notice that a board meeting was going to be called. In other words, Mr Dowding says that it suggested there would be notice of a board meeting given at some unspecified date.

It is remarkable that the Tribunal should have reached the findings that it did, if indeed that was not Mr Dowding’s case in front of it, but that is not a matter that arises today, in my judgment. The position is that the finding is clear. It covers the same ground as the assertion of lack of knowledge of the board meeting on 14 September 2017 in paragraphs 116 and 124 of the Particulars of Claim , and they cannot be permitted to go forward relitigating that issue, while paragraph 96 of the judgment stands.

Were paragraph 96 of the Tribunal’s judgment to be reversed on appeal, different considerations might apply, but at the moment, in my judgment, it presents an insuperable obstacle for Mr Dowding in trying to persist with these paragraphs.