THE HONOURABLE MR JUSTICE OWENApproved Judgment
Attrill & Ors v Dresdner Kleinwort Ltd & anrAnar & Ors v Dresdner Kleinwort Ltd & anr
Reuther. The MAC clause was invoked, and on 18 February 2009 Mr Reuther sent ane-mail to all employees in DKIB informing them that:“
Bonus awards for all front and middle office employees whoreceived a letter in December stating their provisional award,which was subject to Dresdner Kleinwort’s financial performance targets, will be cut by 90% pro rata to the stated provisional amount.
In the event the guaranteed minimum bonus pool of EUR 400m was applied inpayment of EUR 152.2m to those to whom individual bonus guarantees had beenmade. Approximately 10% of the remaining EUR 247.8m was distributed as bonuspayments.12.
Each of the claimants claims against DKL the unpaid balance of the sum stated intheir bonus letter of 19 December 2008, in the aggregate a sum of EUR 51,855,474;and from Commerzbank the like sum as damages for inducing breaches of contract.13.
The principal issues are whether the announcement of 18 August, and/or anysubsequent statements made on behalf of DKL, gave rise to a binding contractualobligation, and secondly whether the MAC clause was introduced in breach of contract, and if not, whether DKL was entitled to rely upon it.14.
The Procedural HistoryOn 28 January 2010 DKL and Commerzbank issued applications under CPR rule 24.2seeking summary dismissal of the actions. The applications were heard by Simon Jon 4 and 5 May 2010. By a judgment given on 28 May 2010 he summarily dismissedany part of the claims that relied upon the announcement made on 18 August 2008 onthe ground that it did not create any enforceable contractual rights on which theclaimants could rely, but held that the claims based on the bonus letters raised issuesof fact which should go to trial.15.
Both claimants and defendants appealed. By a judgment handed down on 8 March2011 the Court of Appeal allowed the claimants’ and dismissed the defendants’appeal, with the consequence that the judgment of Simon J was set aside, and thedefendants’ applications for summary judgment were dismissed.16.
On 25 June 2011 Master Eyre directed that the claims of the Attrill and Anarclaimants be heard together, that the issues to which the claims gave rise should besplit and determined in two trials, and identified the issues to be determined in trials 1and 2. He further directed the parties to attempt to define and narrow the issues; andin response the parties agreed a list of issues to be determined at trial 1 (see Appendix1).17.
In further directions made by consent on 2 December 2011, Master Eyre directed theparties to agree a representative sample of claimants to give oral evidence and to becross-examined, made provision for the selection of such claimants in the absence of agreement, ordered that the written evidence of claimants not selected as sampleclaimants would stand as their evidence in chief at trial 1 notwithstanding that theywere not required to attend trial to be cross-examined, and ordered that the claims of