KB-2025-001160 - [2025] EWHC 2369 (KB)

The question whether BISL, or Barings Group companies more generally, made more profit as a result of affirming the contracts of the departing EMEA GPF employees than they would have made if they had terminated their employment on or before 22 February 2024 will be a matter for evidence and argument at trial. The evidence which is before me for the purposes of the Application does not enable me to make a finding on this issue on a summary basis.

As I have noted, Ms McCafferty argues that at trial the court should approach this issue on the basis that on BISL’s counterfactual the employment of the departing employees would have been terminated on notice around 2 weeks earlier than it was i.e. on or about 21 February 2024. This argument has a real prospect of success and it means that the alleged additional profits would have been generated over a short period. There is also a real dispute as to any additional profits would have been made during this period given BISL’s argument that a large part, if not all, of the profits of the GPF Group resulted from the payment of fees which would have been payable in any event.

The interpretation and application of the terms of the LTIP to the facts as the court finds them, including the hypothetical question of what BISL would have done and why had it known more than it did before bonuses were paid, will also be a matter for consideration at trial in the light of all of the evidence. There seems to me to be a perfectly respectable argument that the definitions of “Cause”, “Termination for Cause” and “Termination without Cause” under the LTIP permit notice of dismissal of an employee “for Cause” for the purposes of the provisions governing the forfeiture of unvested awards pursuant to clause 6.3.

As to the arguments about the bonus pool and the fact that Mr Wheeler was merely advising as to how it should be divided up, BISL’s case is simply that the sums in question would not have been paid to the departing EMEA GPF employees and, as a result, it has suffered loss. Mr Oudkerk’s arguments do not engage with that claim unless it is said that the bonus pool would still have been spent on whichever employees were left, but that is an argument which BISL would need to plead for consideration at trial.