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IN THE SUPREME COURT OF INDIA, AT NEW DELHI

Civil Appeal No. 8176 of 2015 (Article 136 of the Constitution of India, 1950 read with Order XXI, Rule 1, Supreme Court Rules, 2013). Dr. Jack Miliband

Appellant v.

Health Solutions Ltd.

Respondent Clubbed with: Civil Appeal No. 8177 of 2015

(Article 136 of the Constitution of India, 1950 read with Order XXI, Rule 1, Supreme Court Rules, 2013). Dr. Jack Miliband

Appellant v.

Vikram Bhatia

Respondent Clubbed with: Civil Appeal No. 8178 of 2015

(Article 136 of the Constitution of India, 1950 read with Order XXI, Rule 1, Supreme Court Rules, 2013). Health Solutions Ltd.

Appellant v.

Dr. Jack Miliband

Respondent

Written Submissions on behalf of the Respondent/Appellant, B7, Counsel for the Respondent/Appellant.

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TABLE OF CONTENTS LIST OF ABBREVIATIONS ........................................................................................................... IV TABLE OF AUTHORITIES ..............................................................................................................V STATEMENT OF JURISDICTION .................................................................................................. VII STATEMENT OF FACTS ............................................................................................................ VIII ISSUES RAISED ......................................................................................................................... XII SUMMARY OF ARGUMENTS ..................................................................................................... XIII ARGUMENTS ADVANCED ............................................................................................................ 1 I. FORREST 1 IS NOT CONCLUSIVE......................................................................................... 1 [A.] Bhatia does not fall under the jurisdictional ambit of Frugalian Courts................ 1 [B.] Forrest 1 was a decree not founded on merits. ....................................................... 2 II. IN ANY CASE, MILIBAND IS NEITHER ENTITLED TO £1M AS DEBT/DAMAGES NOR UNPAID SALARY FOR THE INTERVENING PERIOD. .............................................................................. 2

[A.] Miliband’s affirmation of the EA made him lose the right to ask for £1m as damages. ............................................................................................................................ 3 [B.] Even if he is entitled to damages, the quantum of those cannot be £1m. ................ 3 [C.] Since Miliband had no legitimate interest in continuance of the EA, he is not entitled to unpaid salary as ‘agreed sum’....................................................................................... 4 III. FORREST 2 IS NOT CONCLUSIVE ..................................................................................... 4 [A.] Bhatia did not submit to the jurisdiction of Forrest J in Frugalia. ......................... 5 [B.] Mere presence does not amount to submission to the jurisdiction. ......................... 5 [C.] Bhatia challenged the jurisdiction of the Commercial Court of Frugalia and did not ask for discretion................................................................................................................ 5 IV. IN ANY CASE, MILIBAND IS NOT ENTITLED TO ANY DAMAGES WHATSOEVER. ............. 6 [A.] Miliband never relied upon the misrepresentation.................................................. 6 [B.] Injury caused to Miliband was unforeseeable. ........................................................ 6 [C.] Smith New Securities does not apply here. .............................................................. 7 [D.] In any case, £500,000 was the maximum sum of damages to be paid..................... 7 ii

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V. CL. 7 OF THE SPA WAS ENFORCEABLE ............................................................................. 8 [A.] A restriction upon transfer of shares does not require incorporation in the AoA... 8 [B.] Pre-emption clauses enjoy legal validity. ................................................................ 9 [C.] Application of the ‘free transferability’ rule is barred. ......................................... 10 [D.] The legislative intent was to not interfere in the freedom to enter into contractual agreements. ...................................................................................................................... 10 VI. CL. 7, SPA BEING ENFORCEABLE, DAMAGES ARE NOT TOO REMOTE. .......................... 11 [A.] Breach of cl.7 was the dominant cause of the loss. ............................................... 11 [B.] Reasonably Foreseeable nature of Damages ........................................................ 11 PRAYER..................................................................................................................................... 13

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LIST OF ABBREVIATIONS Abbreviation

Expansion

¶

Paragraph

£

Great Britain Pounds

HSL

Health Solutions Ltd.

EA

Employment Agreement

§

Section

CPC

Civil Procedure Code, 1908

cl.

Clause

HSC

HS Holdings Corporation

FHPL

Frugalian Health Products Ltd.

SPA

Share Purchase Agreement

AoA

Articles of Association

CA

Companies Act

ICA

Indian Contract Act, 1872

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TABLE OF AUTHORITIES CASES 1. Adams v. Cape Industries plc, [1990] Ch 433. 2. Aron Salomon v. A. Salomon & Co., [1897] A.C. 22. 3. Attica Sea Carriers Corpn v. Ferrostaal Poseidon Bulk Reederei GmbH, (1976) 1 Lloyd’s Rep 132. 4. British India Steam Navigation Co v. Shanmughavilas Cashew Industries, 1990 SCR (1) 884. 5. Carrick v. Hancock, (1895) 12 TLR 59. 6. Cockburn & Anor v. Alexander, (1848) 6 CB 791. 7. Czarnikow Ltd v. Koufos, [1967] UKHL 4. 8. Golden Strait Corpn. v. Nippon Yusen Kubishika Kaisha, 2007 UKHL 12. 9. Great Lakes SS Co. v. Maple Leaf Milling Co., (1924) 19 Ll. L. Rep. 208. 10. Hadley v. Baxendale, [1854] EWHC J70. 11. Hedley Byrne & Co. v. Heller & Partners Ltd., [1964] A.C. 465. 12. Henry v. Geoprosco International Ltd, [1976] QB 726. 13. HRH Maharanee of Baroda v. Wildenstein, [1972] 2 QB 283. 14. ICICI Bank Ltd v. SIDCO Leathers Ltd., (2006) 10 SCC 452. 15. In Re Swaledale Cleaners Ltd, [1968] 1 WLR 1710. 16. Livingstone v. Raywards Coal Co., [1880] 5 A.C. 25. 17. M.S Madusoodhanan v.Kerala Kaumudi Pvt. Ltd., AIR 2004 SC 909. 18. Messers Holdings v. Shyam Madanmohan Ruia, [2010] 159 CompCas 29. 19. Monarch Steamship Co. Ltd. v. A/B Karlshamns Oljefabriker, [1949] A.C. 196. 20. Narasimha Rao v. Venkatalakshmi, (1991) 3 SCC 451. 21. Pannalal Jankidas v. Mohanlal, AIR 1951 SC 144. 22. Rajah of Faridkot v. Gurdayal Singh, (1895) ILR 22 Cal 222. 23. Smith New Court Securities v. Citibank N.A, [1997] A.C. 254. 24. South Australia Asset Management Corporation v. York Montague Ltd., [1997] A.C. 191. 25. SP Jain v. Kalinga Tubes Ltd., AIR 1965 SC 1535. 26. Stocznia Gdanska SA v.Latvian Shipping Co, [1996] 2 Lloyd’s Rep 132. 27. Sukhdeo Pande v. Union of India, 2007 (7) SCC 455. 28. Tett v. Pheonix Property and Investment Co Ltd., (1986) 2 BCC 99140. v

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29. Trojan & Co. Ltd vs Rm. N. N. Nagappa Chettiar, 1953 AIR 235. 30. V.B. Rangaraj v. V.B. Gopalakrishnan, (1992) 1 SCC 160. 31. Vine v. National Dock Labour Board, [1956] 1 QB 658. 32. Vodafone International Holdings B.V. v. Union of India, (2012) 12 SCC 613. 33. Walker v. Walker, AIR 1934 Rang 284. STATUTES 1. Companies Act, 1956. 2. Indian Contract Act, 1872. 3. Sale of Goods Act, 1930. 4. Securities Contracts (Regulation) Act, 1956. 5. Statement of Objects and Reasons, Securities Contracts (Regulation) Amendment Act, 1996. Notifications 1. Notification LAD-NRO/GN/2013-14/26/6667 on Oct 3rd, 2013. 2. Notification S.O 1490, on June 27th, 1961.

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STATEMENT OF JURISDICTION

I.

CIVIL APPEAL NO. 8176 OF 2015

The Appellant has approached this Honourable Court under Article 136 of the Constitution of India, 1950. Subsequently, the leave has been granted by the Court. The Respondent humbly submits to the jurisdiction of this Honourable Court.

II.

CIVIL APPEAL NO. 8177 OF 2015

The Appellant has approached this Honourable Court under Article 136 of the Constitution of India, 1950. Subsequently, the leave has been granted by the Court. The Respondent humbly submits to the jurisdiction of this Honourable Court.

III.

CIVIL APPEAL NO. 8178 OF 2015.

The Appellant has approached this Honourable Court under Article 136 of the Constitution of India, 1950. Subsequently, the leave has been granted by the Court.

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STATEMENT OF FACTS The Players 1. Dr. Jack Miliband- Jack Miliband (hereinafter, Miliband) is one of the most brilliant scientists of his generation. He grew up in London and was for many years a leading academic at Cambridge and a member of the Royal Society. By the early 1990s he was no longer content with academic life and decided to move to industry. Mason Carter plc (‘MCP’), the second largest pharmaceutical company in the world, won the battle for his services and appointed him Vice-President of its Research & Development division. The company, keeping in view his breakthroughs in his area of research i.e., tropical diseases, transferred him to Frugalia (a country in Southeast Asia) from London. In 2007, he became a citizen of Frugalia however, by 2010, he was frustrated at the lack of opportunities in MCP and felt that his eminence warranted a senior position. 2. Health Solutions Limited (HSL) – Incorporated in New Delhi, HSL is largest and most respected pharmaceutical company in India with Mr. Vikram Bhatia (hereinafter, ‘Bhatia’) as its CEO. Its promoters and senior directors (including Bhatia) collectively hold about 40% of its equity shares; the remainder is held by FIIs, other Indian companies, mutual funds and tens of thousands of individual members of the general public. Its main competitors in the Indian market are Bruton Pvt Ltd (‘Bruton’), Medicamento Ltd (‘Medicamento’) and Versus Health Services Ltd (‘Versus’), in that order. It is increasingly a global player and rapidly expanded in the 1990s. In recent years it has emerged as MCP’s main rival in Southeast Asia. 3. Bhatia – The CEO of HSL and a senior director as well as promoter of the company, Bhatia managed to secure a contract from the Government of Frugalia to develop drugs for certain diseases that were of increasing concern in that country. This was a major achievement considering the history of rivalry between the two nations. This contract with Frugalia, being first of its kind, gave HSL substantial funding to expand its R&D department and the exclusive right to market in Frugalia any products that it successfully developed. 4. HSC and FHPL – On perusal of an internal memorandum from the HSL Legal Department, two companies were incorporated: HS Holdings Corporation (‘HSC’) in Vaduz (the capital of Liechtenstein) and Frugalian Health Products Ltd (‘FHPL’) in Frugalia City (the capital of Frugalia) in order to save HSL from the jurisdiction of the viii

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Frugalian courts and limit dispute resolution only to Indian courts. HSC, a private company, was incorporated as a wholly-owned subsidiary of HSL. FHPL, also a private company, has two classes of equity shares, A and B. Class A shares are ordinary equity shares and all issued Class A shares are held by HSC. Only one Class B share has been issued and this is held by HSL. The Dispute Bhatia was keen to strengthen his R&D Department by recruiting a world-class scientist with expertise in tropical medicine. Jack Miliband was clearly the best candidate for it and after several rounds of informal discussion, Dr Miliband said that he would consider moving but only if he was given an equity package in HSL (rather than FHPL) on the basis that this was needed in view of the financial security that he would lose by leaving MCP which was reluctantly accepted by Bhatia. In a meeting between the two at Delhi, Bhatia suggested Dr. Miliband to transfer is his entire pension pot from MCP’s Workplace pension facility to HSL’s pension facility, honestly, though errantly believing that an identical scheme existed in India. Dr Miliband relied on Bhatia’s statement and joined HSL as its Research Director entering into a Share Purchase Agreement (‘SPA’) with HSL and Bhatia (wherien the latter sold 8% of his equity shares of HSL to Miliband £5 million though their market value on that date was £4.5 million) and an Employment Agreement (‘EA’) with HSL (wherein his annual salary was decided as £750,000, payable in equal monthly instalments) both dated 10 January 2012. He also transferred his MCP pension to the HSL scheme. He was toreport directly to Bhatia. By early 2013, HSL’s profits began to fall and by mid-2013, some Board members (including Bhatia) disappointed by the same, felt that Dr Miliband, despite his reputation, had not been able to attract the best and the brightest scientists to join HSL. The situation was worsened by a Times of India report that a drug sold by HSL principally in the Indian market had lifethreatening side-effects and that it had been inadequately tested prior to release. The drug was banned due to its adverse effects on the masses and class actions were instituted in plaintifffriendly jurisdictions (notably in the USA) and the prospect of substantial awards further undermined investor confidence. Consequently, the share prices fell drastically, and Dr. Mitiland was horrified by the same and took the view that he should not have been asked to join a company potentially at risk of enormous liabilities while Bhatia thought that he (Dr. Mitiland) had conveniently washed his hands off the matter instead of doing what he could to stem the crisis. They had more than one heated exchange in September. Matters soon came to a head and Bhatia, after summoning Mr. Miliband to Delhi, summarily dismissed him and ix

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without the latter’s knowledge, instructed the HSL Accounts Department (on 30 September) to pay him £1m in accordance with clause 9.5 of the EA. They removed his name from the monthly payrolls however, due to an error, did not make the termination payment. In perusal of the National Security Ordinance (hereinafter, Ordinance) promulgated on 19 December 2013 and post consultation with his solicitor, Bhatia, directed the Accounts Department not to make any payment to Dr. Miliband who, on receiving a letter to this effect, was astonished and demanded the same from HSL, but was refused. Dr. Miliband, furious, sold his shares to an unknown client for r £1m. It soon emerged that the bank had purchased these shares on behalf of Bruton which, by virtue of acquiring this additional 8%, now owned 10% of HSL leading to a breach of a particular clause in the consortium agreement between HSL, Medicamento and Versus. HSL wrote to Dr Miliband on the 10th of February claiming damages for breach of contract in the sum of £2 million, i.e. loss caused by its inability to remain in the consortium. Dr. Miliband, was however, unaware of the exit clause of the agreement and did not respond to the letter. On Miliband’s instructions, his solicitors discovered that Bhatia had falsely represented in 2012 that Dr Miliband’s pension would be protected by a Government-backed scheme in the event of HSL’s insolvency and issued two writs (Frugalian equivalent of a plaint or a claim form) in the Commercial Court in Frugalia: (i) against HSL for £1m as the agreed sum under the EA or alternatively as damages for breach of the EA, and/or for unpaid salary and (ii) against Bhatia for damages for negligent misrepresentation. Both the writs were served upon him when he was in Frugalia City for 24 hours due to a technical glitch in the Air India flight he had boarded from Delhi for travelling to Sydney. Frugalian Suits Bhatia and HSL entered appearance (under protest) only to contest the jurisdiction of the Frugalian Commercial Court (they did not plead to the merits) and their applications challenging jurisdiction came before Forrest J who dismissed the same and upheld the jurisdiction. She decided the case on merits and ordered HSL to pay as damages £1m to Dr Miliband in Forrest 1 (writ 1) and Bhatia to pay as damages £4.5 million to Dr. Miliband in Forrest 2 (writ 2). None of the parties appealed the decision and thus, it acquired finality under the Frugalian law.

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Suits in India Miliband, filed three civil suits in the High Court at Delhi. The suits were heard by a single judge bench who decided as follows: 1. In the suit for claiming £1m and unpaid salary, Miliband was held entitled to both because: 1.1 Forrest 1 is conclusive; or because 1.2 £1m was a debt due to or damages for breach him or the unpaid salary. 2. In the suit for damages, he was entitled to: 2.1 £4.5m as Forrest 2 is conclusive. 2.2 £4m as difference in sale and purchase price of shares. 3. In the suit claiming unenforceability of cl. 7 of the SPA, it was held that 3.1 Cl.7 was enforceable, even if not mentioned in AoA. 3.2 £2m’s loss is not too remote. Delhi High Court’s division bench later heard the matter on appeal and reversed the decision on all counts in the first suit, depriving Miliband of £1m as contract was never terminated and since he never worked, he would not even get the unpaid salary. In the second suit Miliband’s damages were diluted to £500,000 as that was the difference between the market price and the price at which he bought. In the third appeal, cl. 7 of the SPA was held unenforceable and damages of HSL were held to be too remote. The parties sought special leave to appeal to the Supreme Court, which was granted. Hence, the present matter.

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ISSUES RAISED Appeal 1 I.

IS FORREST 1 CONCLUSIVE?

II.

IF

NOT, IS

DR. MILIBAND

ENTITLED TO:

(i) £1M

AS EITHER DEBT OR DAMAGES;

AND/OR (ii) UNPAID SALARY FOR THE PERIOD BETWEEN 30 SEPTEMBER 2013 AND 19

DECEMBER 2013? Appeal 2 III.

IS FORREST 2 CONCLUSIVE?

IV.

IF NOT, WHAT IS THE CORRECT MEASURE OF DAMAGES? Appeal 3

V.

IS CLAUSE 7 OF THE SPA ENFORCEABLE?

VI.

IF SO, IS THE LOSS FOR WHICH HSL SEEKS DAMAGES TOO REMOTE?

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SUMMARY OF ARGUMENTS I.

FORREST 1 IS NOT CONCLUSIVE

A foreign court’s decision that contravenes §13 of the CPC is not ‘conclusive’ and can neither serve either as evidence nor a basis for filing of a new claim. The Frugalian Commercial Court did not have jurisdiction to hear the matter as HSL never submitted to the jurisdiction of the Frugalian courts. They appeared there under protest to pose a jurisdictional challenge and not to seek an exercise of discretion. Moreover, notice was not properly served to HSL’s registered office. Furthermore, the facts of the case show no justification for piercing the corporate veil. Lastly, the decision in Forrest 1 was not based on the merits of the case. In light of all this, Forrest 1 is not conclusive. II.

MILIBAND IS NOT ENTITLED EITHER TO £1M IN DAMAGES OR UNPAID SALARY

Miliband could have either elected to affirm the contract or could have terminated it. He chose affirmation and hence, lost his right to claiming damages. Assuming he is entitled to damages, the quantum of those damages is not to the tune of £1m. While assessing damages we must follow the principle of minimum legal obligations and the least onerous obligation must be placed upon the defendant and that which is least profitable to the plaintiff to profit should be applied. Also, Miliband cannot claim unpaid salary as he never worked in the intervening period. While he was admittedly prevented from working, his failure to terminate the contract despite losing all legitimate interest in keeping the contract alive, divested him from a claim under the contract. III.

FORREST 2 IS NOT CONCLUSIVE

Forrest 2 was pronounced by a court of incompetent jurisdiction as Mr Bhatia never submitted to the jurisdiction of the court. Mere presence in the territory together with service of writ of summons does not invest in a court the requisite jurisdiction as per Indian law. The positions under Indian law and common law are different. In the event of a conflict, the laws of the country where the judgement is sought to be made conclusive must apply. Moreover, he only appeared to contest the court’s jurisdiction and he never submitted to it. Therefore, Bhartia was never within the jurisdictional ambit of Frugalian Courts.

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NO DAMAGES ARE PAYABLE TO DR MILIBAND

Dr Miliband did not place reliance on the misrepresentation made by Bhatia in deciding as to the purchase of equity shares of HSL. Also, the loss suffered and monetary harm caused was unforeseeable. Here, the rule of fraudulent misrepresentation must not be applied as there was no fraud in this case. An honest mistake should not be treated the same as an active endeavour to defraud. Therefore, no damages are owed. However, if at all damages are to be paid, then the optimum amount of damages would be £500,000. V.

CL.7 OF THE SHARE PURCHASE AGREEMENT IS ENFORCEABLE

It is submitted that a pre-emption clause in a share purchase agreement does not need incorporation within the AoA of a company for it to be enforceable. Furthermore, given the legislative intent behind §22A of the Securities Contracts (Regulation) Act, 1956 and §111A of the Companies Act, 1956, the rule of free transferability must not be applied in the present case. Also, the incorporation rule laid down in Nagaraj has been impliedly overruled by the Supreme Court. In light of all this, pre-emption clauses must be enforceable. VI.

CL.7 BEING ENFORCEABLE, THE LOSS FOR WHICH DAMAGES ARE SOUGHT IS NOT TOO REMOTE

The loss suffered by HSL because of being ousted from the Governmental consortium was a direct consequence of the breach of cl. 7 of the SPA by Miliband. Furthermore, the damages were reasonably foreseeable. What is significant is not whether Miliband had contemplated the damages, rather, whether a reasonable man in his position would have done so. The ability of the defendant to contemplate the extent of damages is irrelevant.

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ARGUMENTS ADVANCED Suit 1 I. FORREST 1 IS NOT CONCLUSIVE. 1.

Forrest 1 was instituted in the Commercial Court in Frugalia. Summons was served to

Bhatia on his unexpected emergency landing in Frugalia. Bhatia appeared only to challenge jurisdiction, but the challenge was dismissed by Forrest (J.). It is submitted that, for the purposes of CPC, Forrest 1 is not conclusive as: first, Bhatia does not fall under the jurisdictional ambit of Frugalian Courts [A.] and; secondly, Forrest 1 was a decree not founded on merits [B.]. [A.] 2.

BHATIA DOES NOT FALL UNDER THE JURISDICTIONAL AMBIT OF FRUGALIAN COURTS. Bhatia never fell within the jurisdictional ambit of the Commercial Court of Frugalia,

as: (a) HSL did not submit to Frugalian jurisdiction; (b) Notice served to HSL was not valid; (c) HSL appeared in the matter only under protest of jurisdiction, and; (d) FHPL’s corporate veil should not be lifted. (a) HSL did not submit to Frugalian jurisdiction. 3.

Corporations that are not residents of a country, are generally not amenable to its

jurisdiction. However, if a foreign resident corporation voluntarily submits to a court in that country, the court is justified in exercising jurisdiction over such corporations.1 Appearing to contest jurisdiction does not amount to submission. While common law recognises mere presence to be enough for serving of a summons writ,2 Indian law deviates from common law and purports that only voluntary and unconditional submission amounts to submission.3 However, in case of a conflict between the two, Indian Law must be considered for the purposes of this appeal as common law also purports that the country in which the decree is being enforced, that country’s jurisdiction must be followed.4 It is thus, submitted, that HSL did not unconditionally submit to Frugalian jurisdiction, as it appeared only under protest to present a jurisdictional challenge.

HALSBURY’S LAWS OF ENGLAND, vol. 7, 5th edn., 2008. Admans v. Cape Industries plc, [1990] Ch 433. 3 Narasimha Rao v. Venkatalakshmi, (1991) 3 SCC 451. 4 Admans v. Cape Industries plc, [1990] Ch 433. 1 2

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(b) Notice served to HSL was not valid. 4.

Per Company (Court) Rules, 1959, a writ of summons must only be sent to a company’s

registered office. In the case at hand, the writ of summons for Forrest 1 was served to Bhatia. This was in express violation of the Rules, and hence, the decree given by the Frugalian Commercial Court is a nullity, owing to contravention of procedural rules.5 (c) FHPL’s corporate veil should not be lifted. 5.

A corporation has a distinct legal personality. Its jurisdiction under a legal framework

could not be established in the same6 way as a person’s, through residence.7 The purpose of lifting the corporate veil is to see through tax evasion tactics of a group of companies acting as a single economic entity, thereby perpetrating tax evasion.8 It is to be noted that FHPL’s operations are limited to Frugalian jurisdiction. It legitimately pays taxes on the income that it generates in Frugalia. The mere fact that HSL wanted to minimize assets by creation of a special purpose vehicle, is not enough to lift the corporate veil. [B.] 6.

FORREST 1 WAS A DECREE NOT FOUNDED ON MERITS.

For the decision to be made on merits, there must be challenge between the parties. 9 A

mere appearance in the court for challenging jurisdiction, and filing of a reply claim does not mean that there has been a real contest between the parties. This does not amount to submission to the jurisdiction, and such a decree cannot be enforced on merits.10 II. IN ANY CASE, MILIBAND is NEITHER ENTITLED TO £1M AS DEBT/DAMAGES NOR UNPAID SALARY FOR THE INTERVENING PERIOD.

7.

By mid-2013, HSL’s Board members had lost confidence in Miliband’s services for

they believed that despite being a renowned expert in his field, Miliband had not been able to expand HSL’s research and development department to the requisite levels.11 Upon his dismissal on 30th September 2013, Miliband rejected the dismissal and wanted to continue the contract, despite HSL’s persistent refusal. Further, he turned down a better offer from a

5

Rajah of Faridkot v. Gurdayal Singh, (1895) ILR 22 Cal 222. Aron Salomon v. A. Salomon & Co., [1897] A.C. 22. 7 Adams v. Cape Industries plc, [1990] Ch 433. 8 Vodafone International Holdings BV v. Union of India, 2012 Indlaw SC 20. 9 Narasimha Rao v. Venkatalakshmi, 1991 SCALE (2)1. 10 Narasimha Rao v. Venkatalakshmi, 1991 SCALE (2)1. 11 Factsheet, ¶ 8. 6

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Frugalian pharmaceutical company.12 In this claim, Miliband is neither entitled to £1m, nor the unpaid salary, as: first, Miliband’s affirmation of the EA made him lose the right to ask for £1m as damages [A.]; secondly, even if he is entitled to damages, the quantum of those cannot be £1m [B.] and; thirdly, since Miliband had no legitimate interest in continuance of the EA, he is not entitled to unpaid salary as ‘damages’ or ‘agreed sum’ [C.]. MILIBAND’S AFFIRMATION OF THE EA MADE HIM LOSE THE RIGHT TO ASK FOR £1M AS

[A.]

DAMAGES.

8.

A claim for payment in lieu of notice, is in the form of a claim for ‘damages’.13 A party

affirming a contract after breach has only two options14: (a) to terminate the contract and sue for damages, or (b) to affirm the contract. Impliedly, a party affirming the contract after breach is not entitled to damages in Common Law. In the present case, Miliband chose to affirm the contract after his dismissal. Hence, it is submitted, that he is barred from instituting a suit claiming £1m as damages. [B.] 9.

EVEN IF HE IS ENTITLED TO DAMAGES, THE QUANTUM OF THOSE CANNOT BE £1M.

In Golden Strait Corpn. v. Nippon Yusen Kubishika Kaisha, The Golden Victory,15 it

was held that the effective date of assessment of damages accruing out of a contract, would be the date of hearing the case, in cases where supervening circumstances that were not premeditated by the parties have manifested. Hence, the effective date of assessment of damages in the present case should also be the date of hearing as supervening illegality had frustrated the contract. Further, in Common Law, computation of damages is done using the concept of ‘minimum legal obligation’. This principle states that where there are several ways of performance of a contract, that mode is adopted for the purposes of computing damages which is least onerous to the defendant, and least profitable to the plaintiff.16 In hindsight, the contract, after the breach, could have unfolded in two ways: (a) Miliband would have been paid £1m and the EA would have been terminated; or (b) Miliband would not have been paid and the contract would have automatically frustrated after the Ordinance. Following the minimum

12

Factsheet, ¶ 9. Vine v. National Dock Labour Board, [1956] 1 QB 658. 14 White and Carter (Councils) Ltd. v. McGregor, [1961] UKHL 5. 15 [2007] UKHL 12. 16 Cockburn & Anor v Alexander, [1848] 6 CB 791; Lion Nathan Ltd v. C-C Bottlers Ltd, [1996] 1 AC 344. 13

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legal obligation principle, the latter situation must be the basis for calculating the damages. Hence, it is submitted, that Miliband is not entitled to £1m as damages. [C.]

SINCE MILIBAND HAD NO LEGITIMATE INTEREST IN CONTINUANCE OF THE EA, HE IS NOT ENTITLED TO UNPAID SALARY AS ‘AGREED SUM’.

10.

Admittedly, owing to Miliband’s affirmation of the contract after the breach, the

contract subsisted and later got discharged by frustration. However, the principle of “no work, no pay”17 bars Miliband from getting any remedy as contractual due. §53, ICA, 1872 invests in the innocent party, a right to declare the contract void in case the other party prevents it from discharging its performance. Admittedly, HSL prevented Miliband from performing his part of the contract by not replying to his e-mails and cutting him off official communications. However, this prevention invested in Miliband, a right to terminate the contract at any point in Miliband. 11.

Per the legitimate interest principle, “the innocent party must have reasonable grounds

for keeping the contract open, bearing in mind also the interests of the wrongdoer.”18 The justification for the same is that a party cannot keep a contract open only to claim damages. Here, as soon as Miliband received a better offer, he lost legitimate interest in the employment. A party that loses such an interest cannot sue for agreed sum. 19 Hence, it is submitted, that Miliband cannot sue for unpaid salary as contractual due. Suit 2 III. FORREST 2 IS NOT CONCLUSIVE 12.

Per the Factsheet, Forrest 2 was instituted by Miliband in Frugalia. The writ of

summons was served upon him when he was accidentally within the Frugalian territory because of his flight’s emergency landing. Forrest (J.) in the said suit allowed Miliband to claim from Bhatia, a sum of £4.5m, as that was the difference between the original and market prices of shares. Conclusiveness of a decree is adjudged on the touchstone of §13, CPC. It is submitted that Forrest 2 lacks conclusiveness as it was not adjudged by a court of competent jurisdiction. This is because: firstly, Bhatia did not submit to the jurisdiction of Forrest J in Frugalia [A.]; secondly, mere presence does not amount to submission to the jurisdiction [B.] and; thirdly,

17

Sukhdeo Pande v. Union of India, 2007 (7) SCC 455. Stocznia Gdanska SA v. Latvian Shipping Co, [1996] 2 Lloyd’s Rep 132. 19 White and Carter (Councils) Ltd. v. McGregor, [1961] UKHL 5; Attica Sea Carriers Corpn. v. Ferrostaal Poseidon Bulk Reederei GmbH, (1976) 1 Lloyd’s Rep 132. 18

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Bhatia challenged the jurisdiction of the Commercial Court of Frugalia and did not ask for discretion [C.]. [A.] 13.

BHATIA DID NOT SUBMIT TO THE JURISDICTION OF FORREST J IN FRUGALIA.

Only an unconditional and voluntary submission to the jurisdiction empowers a court

to exercise jurisdiction over a person who is ordinarily not a citizen of their country. 20 A presence within the jurisdiction must necessarily be established.21 An appearance solely to contest the jurisdiction would not amount to submission to that jurisdiction.22 In the present case, the sole purpose of Bhatia’s appearance in the proceedings of the Frugalian Commercial Court was to challenge the jurisdiction.23 Hence, it is submitted, that Bhatia never submitted to the jurisdiction of the Frugalian Commercial Court. [B.] 14.

MERE PRESENCE DOES NOT AMOUNT TO SUBMISSION TO THE JURISDICTION.

Even a temporary presence of a person in a country, entitles the courts of that

jurisdiction to serve valid subpoenas upon that person.24 However, such presence must be voluntary and not compulsive, fraudulent or under duress.25 In the present case, owing to Bhatia’s flight making an emergency landing in Frugalia,26 Bhatia entered the Frugalian jurisdiction by compulsion. His presence was not voluntary and unconditional. It is, thus, submitted that Bhatia’s presence in Frugalia would not amount to his submission to the jurisdiction. [C.]

BHATIA CHALLENGED THE JURISDICTION OF THE COMMERCIAL COURT OF FRUGALIA AND DID NOT ASK FOR DISCRETION.

15.

Appearing before a bench under protest and contesting jurisdiction, is different from

asking the court to exercise discretion with respect to the hearing of the matter, and raising a plea of forum non conveniens. When either of the aforesaid two are pleaded, the defendant submits to the jurisdiction, however, while arguing with the bench with respect to its jurisdictional ambit. The court’s competence to hear is acknowledged in this case. 27 In the present case, Bhatia challenged this very competence to hear of the Commercial Court of Frugalia and did not plead court’s discretion or forum non conveniens. This would not amount 20

Adams v. Cape Industries plc, [1990] Ch. 433. HRH Maharanee of Baroda v. Wildenstein, [1972] 2 QB 83. 22 British India Steam Navigation Co v. Shanmughavilas Cashew Industries, 1990 SCR (1) 884. 23 Factsheet, ¶ 16. 24 Carrick v. Hancock, (1895) 12 TLR 59. 25 Adams v. Cape Industries plc, [1990] Ch. 433. 26 Factsheet ¶ 15. 27 Henry v. Geoprosco International Ltd [1976] QB 726. 21

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to submission to the jurisdiction of the Frugalian Commercial Court. It is thus, submitted, that since the Frugalian Commercial Court does not possess jurisdiction upon the matter, Forrest 2 lacks conclusiveness. IV. IN ANY CASE, MILIBAND IS NOT ENTITLED TO ANY DAMAGES WHATSOEVER. 16.

Bhatia, with a view to expanding Research and Development department’s efficiency,

headhunted for a pharmaceutical field maestro. Unsurprisingly, he had zeroed in on Miliband. However, in the protracted negotiations that followed, Miliband posed two conditions that must be fulfilled for his joining in HSL. One of these was the existence of a pension scheme of Government of India, like the one promulgated by the Financial Conduct Authority in the UK. Bhatia, honestly believing all of this, posited that such a government scheme existed, where in fact it did not. Having discovered the misrepresentation, Miliband sues for damages. It is submitted that, the true computation of the sum owed to Miliband is zero or £500,000 (if at all), as: firstly, Miliband never relied upon the misrepresentation [A.]; secondly, injury caused to Miliband was unforeseeable [B.]; thirdly, Smith New Securities is not applicable [C.] and; fourthly, in any case, £500,000 was the maximum sum of damages to be paid [D.]. [A.] 17.

MILIBAND NEVER RELIED UPON THE MISREPRESENTATION.

A crucial necessity for assessment of damages, as espoused in Hedley Byrne & Co. v.

Heller & Partners,28 was that the party who seeks damages must have relied upon explicitly or implicitly on the misrepresentation. In the present case, Miliband had not relied upon the misrepresentation with respect to pension scheme at all. The pension scheme was mentioned on a later date.29 Miliband’s express interest in the shares was apparent even before the conversation with respect to the pension happened. Hence, reliance was not placed upon the misrepresentation with respect to the pension scheme, while entering into the SPA. It is thus, submitted, that there is no intelligible nexus between Miliband’s loss and Bhatia’s misrepresentation. [B.] 18.

INJURY CAUSED TO MILIBAND WAS UNFORESEEABLE.

The drop in share prices in 2013 was attributed to multiple factors, all of which were

beyond the spectrum of foreseeability. Market dynamics, economic competition, and loss of investor confidence were the factors mentioned. Market forces that operate to determine innumerous losses and profits have been held to be unforeseeable consequences of

28 29

[1964] AC 465. Factsheet, ¶ 4 and ¶ 6.

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negligence.30 Intervening factors frustrate the causational chain.31 It is therefore, apparent that market dynamics were unforeseeable. 19.

In case of banned drugs, one can also observe that such a banning and filing of class

action lawsuits against HSL32 came as a surprise for HSL as well. In no way, could these be prevented. Hence, it is submitted, that losses accruing to Miliband were not foreseeable. [C.] 20.

SMITH NEW SECURITIES DOES NOT APPLY HERE.

It is submitted, that the valuation procedure entailed by Smith New Securities33 is

inapplicable to the facts at hand. This is because the present case portrays a parable of negligent misrepresentation and not fraudulent misrepresentation, unlike the aforesaid case. §2(1) of the Misrepresentation Act, 1967 of the United Kingdom provides for damages in cases of negligent misrepresentation as being similar in nature to fraudulent misrepresentation. However, since this is a statutory principle and not common law, it cannot be accepted and applied in the Indian judicial paradigm. Common Law, in fact, treats negligent misrepresentation at par with tortuous negligence.34 The distinction between the two was stated in Livingstone.35 Further, rigorous implementation of full compensation would be exaggeratedly punitive upon the defendants.36 [D.] 21.

IN ANY CASE, £500,000 WAS THE MAXIMUM SUM OF DAMAGES TO BE PAID.

A premium was paid on the erstwhile market price when Miliband entered into the SPA

with Bhatia and HSL. This premium was to the tune of £500,000 paid over and above the then market price (£4.5m). However, these shares were transferred to Miliband by way of dilution of the CEO’s shares. Hence, a premium upon the said shares was a token money for acquiring those important shares of the company. Assuming but not conceding, that these shares were brought owing to complete reliance on the misrepresentation, the only damages that this accrues to Miliband would be to the tune of £500,000.

30

South Australia Asset Management Corporation Respondents v York Montague Ltd., [1997] A.C. 191. 31 W.V.H. Rogers, WINFIELD AND JOLOWICZ ON TORTS 309 (2006). 32 Factsheet ¶ 5 and ¶ 8. 33 Smith New Court Securities Ltd. v. CitiBank N.A., [1997] A.C. 254. 34 Hedley Byrne & Co. v. Heller & Partners, [1964] AC 465. 35 Livingstone v. Raywards Coal Co., (1880) 5 A.C. 25. 36 Victoria Laundry v. Newman, [1949] 2 KB 528.

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Suit 3 V. CL. 7 OF THE SPA WAS ENFORCEABLE 22,

It is submitted, that the partial restraint imposed upon the transfer of shares by cl.7 of

the SPA is enforceable, as: firstly, a restriction upon transfer of shares does not require incorporation in the AoA [A.]; secondly, pre-emption clauses enjoy legal validity [B.]; thirdly, application of the ‘free transferability’ rule is barred [C.] and; fourthly, the legislative intent was to not interfere in the freedom to enter into contractual agreements [D.]. [A.]

A RESTRICTION UPON TRANSFER OF SHARES DOES NOT REQUIRE INCORPORATION IN THE AOA.

23.

In V.B Rangaraj v. V.B Gopalakrishnan,37 the oft-critiqued “incorporation rule” was

elucidated. This rule entails that a contractual clause restricting free transfer of a company’s equity, must be necessarily incorporated in the the AoA. It is submitted that the aforesaid rule need not be followed, as: (a) “incorporation rule” laid down in Rangaraj does not stand; and (b) such a stipulation in agreements between ‘particular shareholders’ for transfer of ‘specific shares’ is enforceable. (a)

“Incorporation rule” laid down in Rangaraj does not stand

24.

It is submitted that the “incorporation rule: is the wrong legal position, as:

25.

First, the aforesaid rule has been implicitly overruled. In Vodafone,38 the Supreme

Court has dissented from the view expressed in Rangaraj and has opined that a shareholder’s agreement imposing restrictions must not necessarily be incorporated in the AoA. 26.

Second, §4439 was not intended by the legislators to apply to contractual relationships.

Undeniably, the aforesaid section entails transfer of shares in the way provided by the AoA. However, it is submitted, that the legislators did not intend to apply this to contractual relationships. It is known that before the inclusion of §22A40 the directors had no intrinsic power to refuse registration of transferred shares and the authority for the same had to searched for in the AoA. This principle extends only to board of directors finding the power to reject in the AoA. The ambit of it, is however, does not include in its ambit, the contracting parties.

37

AIR 1993 SC 453. Vodafone International Holdings B.V v. Union of India, (2012) 12 SCC 613. 39 §44, CA, 2013. 40 §22A, Securities Contract (Regulation) Act, 1956. 38

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Third, Rangaraj had relied on foreign judgments, with their ratios taken out of context.

The aforesaid foreign judgements were - In re Swaledale Cleaners Ltd41 and Tett v. Phoenix.42 In the former, the issue at hand was whether delay inhibits directors’ right to refuse registration. Hence, the judgment is not applicable in the present scenario. In the latter, the issue was with respect to the validity of refusal to register. Hence, it is submitted, that the conclusion arrived at in Rangaraj is wrongful and does not hold well. (b) Such a stipulation in agreements between ‘particular shareholders’ for transfer of ‘specific shares’ is enforceable. 28.

While distinguishing Rangaraj, the Supreme Court has held that agreements amongst

‘particular shareholders’ with respect to transfer of ‘specific shares’ is not restricted by law.43 In the opinion of the judges in Madusoodhanan, an omnibus restriction on the free transferability among shareholders of shares, both present and future, is not permitted. In the present case, the SPA entered into by Bhatia and Miliband, entails a relationship between ‘particular shareholders’ with respect to ‘specific shares’, and not an omnibus restriction that is impermissible in law. 29.

Additionally, fractional restriction which invests a right of pre-emption is a valid

action.44 It is submitted that, the impugned clause in the instant case, is also by way of a fractional restriction. Furthermore, a fractional bar upon the share of transfers that provided that without first refusal, equity cannot be sold to a transferee has been held to be valid action.45 [B.] 30.

PRE-EMPTION CLAUSES ENJOY LEGAL VALIDITY.

It is submitted that the pre-emption clause at hand enjoys legal validity, because: (a)

the aforesaid clause enjoys legal validity by virtue of applying the proviso to §58(2), CA, 2013; and (b) Government notifications permit such pre-emptive clauses. (a) The aforesaid clause enjoys legal validity by virtue of applying the proviso to §58(2), CA, 2013.

41

In re Swaledale Cleaners Ltd, [1968] 1 WLR 1710 (Court of Appeal Civil Division). Tett v. Phoenix Property and Investment Co. Ltd., (1986) 2 BCC 99140 (Court of Appeal Civil Division). 43 M.S Madusoodhanan v. Kerala Kaumudi Pvt. Ltd., AIR 2004 SC 909. 44 Modi Rubber Ltd. v. Guardian International Corp., 141 (2007) DLT 822; M.S Madusoodhanan v. Kerala Kaumudi Pvt. Ltd., AIR 2004 SC 909. See also, Ontario Jockey Club Limited v. Samuel Jackson, AIR 1928 PC 291. 45 Modi Rubber Ltd. v. Guardian International Corp., 141 (2007) DLT 822. 42

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Plain reading of §58(2), CA, 2013 allows contractual limitations on free transferability.

This part of the statue paves the way for pre-emption clauses. (b) Government notifications permit such pre-emptive clauses. 32.

Vide §28 of the Securities Contract (Regulation) Act, 1956, the Government had issued

two notifications, dated June 27, 196146 and October 3, 2013.47 These notifications exempt the application of the Securities Contract (Regulation) Act, 1956 to pre-emption clauses. It is, thus, submitted that since §58, CA, 2013 finds its roots in §22A of the Securities Contract (Regulation) Act, 1956, by logical extrapolation, pre-emption clauses, are allowed per the provisions of the CA. [C.] 33.

APPLICATION OF THE ‘FREE TRANSFERABILITY’ RULE IS BARRED.

It is submitted that §58(2) of CA, 2013 debars the pervasive application of §111A of

CA, 1956. In any event, since §58(2) has been derived from §22A of the Securities Contract (Regulation) Act, 1956, which was related to refusal of registration of share transfers by directors, “free transferability” does not bar contractual arrangements. Furthermore, it is submitted that “freely transferable” has been interpreted as an enforceable restriction unless barred by AoA.48 Contractual relations not in contravention of AoA have also been held to be not impeding “free transferability.” No such bar, in the case at hand, appears to accrue from the AoA. [D.]

THE LEGISLATIVE INTENT WAS TO NOT INTERFERE IN THE FREEDOM TO ENTER INTO CONTRACTUAL AGREEMENTS.

34.

Any moveable property envisages proprietary rights of owners. Since shares are also

moveable property,49 shareholders are entitled to voluntarily bar the movement of shares. Moreover, shares also fall within the definition of ‘goods’.50 Hence, contractual arrangements entered into by shareholders whereby they give rights of pre-emption to each other do not constitute a restriction on free transferability as it amounts to a shareholder exercising proprietary rights.51 §111A (2) cannot be construed as a fetter as well. This is because legislators have hardly ever interfered with contractual relationships unless warranted by public 46

Notification S.O 1490, dated June 27, 1961 (Securities and Exchange Board of India). Notification LAD-NRO/GN/2013-14/26/6667., dated October 3, 2013 (Securities and Exchange Board of India). 48 Messers Holdings v. Shyam Madanmohan Ruia, [2010] 159 CompCas 29. 49 Section 44, Companies Act, 2013. 50 Section 2(7), Sale of Goods Act, 1930. 51 Bajaj Auto Ltd. v. Western Maharashtra Development Corporation, 2015 (4) BomCR 499. 47

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policy.52 Also, while enacting a statute, Parliament cannot have presumably taken away the right to property.53 In light of all this, it is submitted that the SPA entered into by Miliband with HSL and Bhatia has is enforceable. VI. CL. 7, SPA BEING ENFORCEABLE, DAMAGES ARE NOT TOO REMOTE. [A.] 35.

BREACH OF CL.7 WAS THE DOMINANT CAUSE OF THE LOSS.

Damages are accrued only when the breach is a direct and dominant cause of the loss.54

If there are several causes that may lead to damages, the impugned breach must be the “effective cause”55 There causational chain56 must not be broken by intervention of third party57 or intervening act58 or omission of the plaintiff.59 In the case at hand, breach of cl. 7 led to Bruton’s increasing their stake in HSL by 8%. This made the other parties to the consortium invoke the exit clause, ousting HSL from the consortium. The consequential loss has been computed accurately to be £2m.60 Contractual damages envisage a restitution principle, which states that the wronged party must be returned to a pre breach position.61 Hence, HSL must be entitled to recover £2m from Miliband. [B.] 36.

REASONABLY FORESEEABLE NATURE OF DAMAGES

Both common law62 and the ICA63 prescribe similar tests for determining reasonable

foreseeability. Two prongs can be used to test the same: 37.

First, damages must arise in the ‘usual course of things’.64 A direct consequence of

breach of cl. 7 could be perceived as loss in equity control and economic losses may arise out of the same. This loss, arising in ‘usual course’ entailed invocation of the exit clause, which

52

Byram Pestonji Gariwala v. Union Bank of India, (1992) 1 SCC 31. ICICI Bank Ltd. v. SIDCO Leathers Ltd., (2006) 10 SCC 452. 54 Trojan & Co. Ltd v. Rm. N. N. Nagappa Chettiar, 1953 AIR 235; State of Kerala v. K Bhaskaran , AIR 1985 Ker 49. See also, Re Polemis & Furniss, Wilthy & Co Ltd., [1921] 3KB 560. 55 Monarch Steamship Co. Ltd. v. A/B Karlshamns Oljefabriker, [1949] A.C. 196; Galoo Ltd. v. Bright Grahame Murray, [1995] 1All ER 16. 56 Lambert v. Lewis, (1982) AC 956. 57 Weld-Bundell v. Stephens, (1920) AC 956. 58 Weld-Bundell v. Stephens, (1920) AC 956. 59 Quinn v. Burch Brothers (Builders) Ltd., (1966) 2QB 370; Lambert v. Lewis, (1982) AC 225. 60 Factsheet, ¶ 13. 61 Frederick Pollock and, Dinshaw Mulla, THE INDIAN CONTRACT AND SPECIFIC RELIEF ACTS, Vol. II, 1164 (14th edn., 2012). 62 Hadley v. Baxendale, [1854] EWHC J70. See also, Karsandas H. Thacker v. The Saran Engineering Co. Ltd. AIR 1965 SC 1981. 63 §73, ICA. 64 Union of India v. Hari Mohan Ghosh, AIR 1990 Gau 14; Hadley v. Baxendale, [1854] EWHC J70; C Czarnikow Ltd v Koufos, [1967] UKHL 4. 53

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was further in ‘usual course’ of the same. The fact that Miliband contemplated the damages is enough to connote liability to him. Knowledge about the intricacies of the procedure of damage is irrelevant for determining remoteness.65 No prior knowledge of manner of accruing of damages is also irrelevant.66 38.

Second, in any case, knowledge of accruing damages could be imputed to him. It was

held in Heron II,67 that the parties can be held liable for damages that they could preconceive based on their (a) actual knowledge and (b) imputed knowledge. If it can be shown that the any reasonable man in place of the defendant could have had imputed knowledge of the damages that will accrue as a consequence of his actions, the defendant could be held liable.68 It follows from these findings that two important pieces of knowledge could be imputed to Miliband. They are: 1. Knowledge of the Consortium Agreement 39.

Knowledge about the common industry practices prevalent in and around defendant’s

place of work could be attributed to him.69 In the present case, Miliband cannot deny the presence of the consortium agreement that HSL was bound by.70 Hence, terms of such a contract must have been known to any reasonable party who would have been in place of Miliband. That he did not know of it, is no excuse. 2. Importance of Confidentiality 40.

One who has been in similar trade for years, is assumed to have known the common

trade practices governing that field.71 Miliband’s experience in the field is enough for him to know the dynamics of a multinational pharmaceutical company, its rivals, etc. He should have contemplated that selling such a crucial percentage of shares to an unidentified buyer can affect research projects’ confidentiality immensely. Further, he should have picked a cue from the secretive manner in which he was approached for the purchase. In light of all this, it is submitted that the damages being claimed are not too remote.

65

Monarch Steamship Co. Ltd. v. A/B Karlshamns Oljefabriker, [1949] AC 196; Great Lakes SS Co. v. Maple Leaf Milling Co, (1924) 19 Ll. L. Rep. 208; Parsons (Livestock) Ltd. v. Uttley Ingham & Co. Ltd., [1978] QB 791. 66 Pannalal Jankidas v. Mohanlal, 1951 AIR 144. 67 C Czarnikow Ltd v Koufos, [1967] UKHL 4. 68 Brown v. KMR Services Ltd., [1995] 4 All ER 598. 69 Monarch Steamship Co. Ltd. v. A/B Karlshamns Oljefabriker, [1949] AC 196. 70 Factsheet, ¶ 8. 71 Transfield Shipping Inc. v. Mercator Shipping Inc., [2008] UKHL 48.

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PRAYER Wherefore in light of the issues raised, arguments advanced and authorities cited, it is humbly prayed that this Honourable Court may be pleased to dismiss the first two appeals and allow the third, holding: 

Forrest 1is inconclusive and that Dr Miliband is neither entitled to £1m nor arrears in salary;



Forrest 2 is inconclusive and award no damages;



Declare cl. 7 of the SPA enforceable and award damages to the extent of £2m;

And pass any other order that this Honourable Court may deem fit in the interests of justice, equity and good conscience. All of which is humbly prayed, B7, Counsel for the Respondent/Appellant.

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