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

Mr Oudkerk argued that BISL has no real prospect of establishing an entitlement, pursuant to [55] POC, to repayment of the bonus awards which he received for performance year 2023. Barings’ Remuneration Policy expressly provided bonuses were paid for “individual performance in the applicable performance year, as well as their contribution to the profitability and profile of the firm”. There is no allegation that Mr Wheeler or any other employee received a bonus which their performance did not warrant. Absent an express term of forfeiture, equity cannot override the parties’ respective obligations at common law: see Leggatt LJ (as he then was) in Al Neyahan v Kent [2018] 1 CLC 216, [141].

Again, this is an issue for trial. BISL’s pleaded case is that Mr Wheeler’s bonus payments were, in part, remuneration for the discharge of his fiduciary duties as particularised at [22]-[23] POC. Whether that is correct is a question of fact for trial. BISL has a realistic prospect of showing that his conduct in advising the Claimant as to bonuses to be paid to his team in respect of the 2023 performance year was work done by him in relation to that same performance year.