Be careful what you promise: The Court's approach to an alleged oral contract

In Christie v Canaccord Genuity Ltd [2022] EWHC 1130 (QB), the High Court has dismissed a claim brought by a former employee for a £1 million “retention award” based on an alleged oral contract.

Background

A former investment banker, Mr Colin Christie, brought several claims against his former employer, Canaccord Genuity Limited (“Canaccord”), alleging that he should have been awarded higher discretionary bonuses and that Canaccord had promised him, by way of oral agreement, a £1 million retention award.

The discretionary bonus claims were dismissed following a summary judgment application. However the court held it could not decide on a summary judgment basis on the claim for payment of the retention award because of the factual nature of the allegations which would require witness evidence and disclosure. Following trial, the retention award claim was also dismissed.

Decision

Bruce Carr KC (sitting as a Deputy Judge of the High Court) considered the approach to be applied when determining the existence of an oral contract and followed the principles summarised in Blue v Ashley [2017] EWHC 1928 (Comm) when considering the reliability of oral evidence as to distant recollections: the best approach is for a judge “to place little if any reliance on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from documentary evidence and known or probable facts”. 

The judge recognised that wealth management is a document-heavy industry in which bonuses form a significant part of the payment of senior management. As such, commitments regarding bonuses would be expected to be made with care (in terms of both authority and the creation of binding commitments) and to be fully documented.

In his judgment, Bruce Carr KC considered five specific issues:

Following Blue v Ashley the judge relied more on the documentary evidence than the recollections of the relevant parties as regards the 16 July 2015 conversation in which the retention bonus was discussed, concluding that the CEO’s mention of the £1 million retention award amounted to no more than a “prospect of a ‘tap on the shoulder’ later on in the year”. The judge also referenced a collection of emails which were inconsistent with Mr Christie’s position that he had been awarded the £1 million in stock.

(2) Was what was said sufficiently certain to give rise to a contract?

No. Whether a contract is formed is an objective question but the subjective understanding of the parties provides guidance. The “post-contract” communications indicated that the 16 July 2015 conversation had not provided the Claimant with certainty about the award.

(3) Was what was said, assessed objectively, intended, without more, to create legal relations?

The judge was satisfied that the post-meeting attitude of both participants indicated that they both understood that further work was required and that legal relations would only arise after the "tap on the shoulder" had taken place, therefore the answer to this was also no.

(4) Was it objectively apparent that any award was subject to further confirmation, consideration or approval?

The answer to this question was yes, if an award as a result of the conversation in question was going to be made, it was apparent that it would be subject to confirmation if and when the "tap on the shoulder" had actually happened.

(5) Was any such agreement confirmed or ratified in subsequent correspondence?

Although an email following the conversation used some confirmatory language, the judge held that this was not sufficient to confirm the existence of an agreement especially given email correspondence showing that the quantum of the award was still under consideration.

Key takeaways

The above questions provide helpful guidance when considering whether or not an oral contract exists. If the judge had found that an oral contract existed, the final issue would then have been whether or not the Claimant had indicated its acceptance of the contract. While the test for whether or not an oral contract exists remains an objective one, evidence of the subjective understanding of the parties is admissible in so far as it helps to indicate whether objectively an agreement was reached and, if so, what its terms were and whether it was intended to be legally binding. Evidence of subsequent conduct is admissible on the same basis.

With thanks to Lucy Heenan for her assistance in preparing this post.