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

I now have to give a ruling on item 17 in the Schedule, which, in summary, relates to an allegation that minutes of the disciplinary meeting on 6 September 2017 were inaccurate and false. The Defendants have two lines of argument in seeking to remove from the Particulars of Claim what turn out to be a large number of paragraphs, or parts of paragraphs, that refer to this allegation about false or inaccurate minutes. They are paragraphs 117 to 120, 124, 130, 131 to 132, 135, 137, 152, 190 and 205. The two grounds upon which the defendants seek to get these paragraphs removed from this case are, first of all, a strike out ground, based on estoppel, on the basis that the issue has been resolved by the Employment Tribunal, and that is conclusive; and, second, if that is not successful, a more elaborate ground giving rise to summary judgment.

Mr Dowding’s main argument in opposition is, I believe, that the issue as to whether these minutes were accurate or not is not an issue that was before the Tribunal, and Mr Dowding also said that his evidence on it was not challenged.

Dealing first of all with Mr Dowding’s case, in paragraph 125 of a witness statement which I believe is undated but is his first witness statement in front of the Employment Tribunal, he said, with regard to these minutes, having made a number of points on the text:

“These fabricated inaccuracies (amongst others) led me to believe that the minutes have been altered from their original form by the respondent as a deliberate attempt to shore up the sham disciplinary case against me. The respondents have been asked to provide copies of any earlier drafts of these draft minutes.”

It seems to me that in these circumstances the question of whether these minutes are accurate or not, and particularly whether they contain deliberately fabricated inaccuracies, was raised in the plainest possible it terms by Mr Dowding in his evidence. That evidence was answered by a witness statement of Mr Kissane at paragraph 27, in which Mr Kissane says:

“I believe that Sarah Wells' minutes are accurate and full. I do not agree with the changes made by the claimant on the notes themselves or on the additional page provided by the claimant. I have no recollection of saying 'bollocks to this' at any time in the disciplinary hearing.”

That evidence, in turn, was answered by a supplemental witness statement that Mr Dowding made in the Employment Tribunal proceedings, in which he deals with paragraph 27 of Mr Kissane's witness statement, by commenting as follows:

“The minutes that Sarah Wells took at the disciplinary hearing may well be accurate, but it is impossible to confirm that because that record has not been given to me or disclosed by the respondent (despite a number of specific requests) or been included as part of the bundle of documentary evidence in this case.”

Some aspects of that last quote require explanation. The consistent case of Mr Dowding is that the typed version of the minutes produced by Sarah Wells is not, in fact, an accurate record of what took place, and at one stage he received that document and made a large number of manuscript amendments to it, which is what Mr Kissane is referring to as being changes that he did not agree. Mr Dowding founds that assertion about inaccuracy partly on a rubric at the head of the minutes which reads:

“These notes are not a verbatim record of the disciplinary hearing but record, as far as possible, the discussions that took place during the disciplinary hearing.”

Mr Dowding says that this rubric is not right, because if you look at them, they are a verbatim record.

This whole point seems to me to be utterly hopeless. The minutes are detailed. They do, as far as one can see, have the appearance of coming very close to being a word for word account, but it is perfectly understandable that the person who took them does not profess to have actually produced a word for word account, because that is typically a difficult task to achieve.

The main point, however, is that the issue was raised before the Tribunal. Further, it is crystal clear that the Tribunal dealt with it, because paragraph 95 of the Tribunal's judgment says (amongst other things):

“The Tribunal concluded that the minutes were a fair and accurate summary. The claimant had made changes to the notes, some of which were not decipherable. In some places large volumes had simply been struck through. The job of a notetaker is to take notes, and the Tribunal did not accept that save for a few inaccuracies, they could be changes of the kind inserted/deleted by the Claimant. The Claimant’s changes were rejected.”

That is a finding made by the Tribunal on the material in front of the Tribunal, and moreover one which it seems to me, from what I have gone over, the Tribunal was fully entitled to make. But be that as it may, that is what the Tribunal did.

There is a further question as to whether and to what extent these minutes were circulated to members of the board at the time of a board meeting which took place shortly afterwards and which, in effect, ratified or made the decision that the Claimant should be dismissed. If the minutes are fair and accurate, it does not seem to me to matter how widely they were disseminated. If they were inaccurate, the Claimant’s case would only seem to me to have legs if they were, in fact, disseminated to board members and were operative in taking a decision to dismiss him that would or might otherwise not have been made, and, obviously, the more members to whom they were disseminated, the stronger that case would be if they are inaccurate. But if they are accurate, the extent of dissemination does not take matters any further, because they cannot have had an improper effect upon the decision to terminate his employment.

Had the issue of inaccuracy not been raised, and if and to the extent that the issue of circulation to the board members was not raised, both those issues, in my judgment, were plainly matters that could and should have been raised in front of the Tribunal. As I say, it seems to me the question of accuracy was plainly raised and dealt with, but if and to the extent it was not raised, or if and to the extent the degree of circulation or the influence on the board wasn't raised, then in my judgment, it plainly ought to have been raised, as it was all germane to the case that the dismissal process was unfair.

There is correspondence, the full ambit of which I do not propose to go over, which includes a letter from Duane Morris, the Defendants solicitors, i.e. the solicitors for the respondent in the Tribunal, relating to the issue of the extent of circulation and the accuracy of the board minutes, which record that all directors had received the notes. That letter is dated 31 July 2018. At page 7 of what is an extraordinarily long letter, it rehearses, in short, that at the time that the minutes of the board meeting were made, the person making the minutes understood that all directors had received copies of Sarah Wells’ notes of the disciplinary meeting. It later appeared that the respondents in the Tribunal took the view that this was wrong, and that the notes had only gone to three directors, Mr Kissane, Mr Diver and Mr Shah. Later, it is my understanding, but whether it is right or not, it may not matter, that in fact the respondents revisited that view and took the view that in fact there had been wider circulation. But whatever the ins and outs of that, an issue as to the extent of circulation was clearly flagged up and known about in advance of the Tribunal hearing, and if it was germane to the question of dismissal, it was something that should have been raised in the Tribunal.

The only other matter that I need to address in dealing with the argument that these paragraphs in the Particulars of Clain and this allegation of fabrication or doctoring of, or inaccuracies in, the board minutes should be struck out on the grounds of res judicata, relates to the question of who was privy to the earlier decision. The Employment Tribunal proceedings were brought by the claimant against the company. Those who are sought to be made liable in respect of the pleaded case of inaccuracies in the board minutes extend beyond the company to individuals. Mr Shah, who was a director; Mr Kissane, who was perhaps also a director; and Ms Wells, who basically had a personal assistant or secretarial role. The question is, does the principle of estoppel by res judicata apply to them as well? The whole topic was discussed in some detail by the Vice Chancellor, Sir Robert Megarry, in Gleeson v Wippell & Co Ltd [1977] 1 WLR 510, and he mentioned, amongst other things, the decision of Zeiss (No 2) [1967] 1 AC 853, of which the Vice Chancellor says at page 515, letter B:

“Lord Reid suggested that if a plaintiff sued X and established some right in that action, a servant or third party employed by X to infringe the right and so raise the whole question again should be regarded as being a privy of X’s in subsequent proceedings, for it would be X who would be “the real defendant”. Lord Reid agreed with a statement which applied the rules of res judicata to subsequent proceedings brought or defended 'by another on his account,' that is, on X’s account.”

It seems to me that that approach is manifestly right both in principle, and as a matter of common sense. One of the Defendants on these proceedings is, and the respondent in the Employment Tribunal proceedings was, the employer company. A company is not a natural person, and can only act through the agency of natural persons. The natural persons concerned in this part of the story were Ms Wells and maybe Mr Kissane and maybe Mr Shah, but in any event they were all basically doing whatever they were doing as instruments of the company, acting on its behalf. To allow a Claimant to bring proceedings against a company, necessarily involving actions of officers or employees of the company, and leading, as has happened in this case, to a finding by the court or Tribunal that the officers or employees were not responsible for wrongful acts as alleged by the Claimant, but then allow the claimant to commence fresh proceedings, raising exactly the same issues against the officers or employees as individuals, seems to me to be the plainest possible abuse, and plainly to be covered by an appropriate approach to the principle of estoppel by res judicata.

I say no more about the Vice Chancellor’s judgment, save to say that it contains an interesting discussion about the concept of the breadth of privity of interest, which he says at page 515 is difficult territory, but I would observe that at 515H, he says this:

“Thus in relation to trust property, I think there will normally be a sufficient privity between the trustees and the beneficiaries, where a decision that is binding on the trustees is also binding on the beneficiaries and vice versa.”

In my judgment, an approach which regards a case of that sort brought against trustees as being binding also on beneficiaries and vice versa, is, if anything, wider in concept than the notion of privity of interest existing as between a company and its officers or employees, as arises in this case. And I think it only necessary to add that the Vice Chancellor’s judgment in Gleeson v Wippell has been considered and approved, it would appear, on a number of occasions, including in Lemas & Anor v Williams [2013] EWCA Civ 1433.

The points that Mr Dowding has made by reference to other authorities, and the question of whether claims for inducing breach of contract and claims for breach of contract have sufficient overlap to make findings in a claim in respect of one determinative in relation to a claim for the other, and whether some findings of Tribunals are binding in respect of some claims for breach of contract in subsequent High Court proceedings, all seem to me to be beside the point.

The relevant aspects of the evidence, the findings of the Tribunal, and the law, are those which I have covered.

For those reasons, I consider that the Defendants are entitled to succeed on their first and primary ground, namely that these allegations that these minutes were inaccurate, false or fabricated, is one which has been resolved by the Tribunal, and, subject to some reversal on appeal, is binding not only on Mr Dowding and the company, but also on Mr Dowding in respect of claims against the company’s officers and employees.