J Levison Services Ltd & Anor v Medivet Group Ltd

An employment condition linked to deferred consideration turns on whether the employee remained employed on the specified date. That question is determined from the whole evidential picture, including reliable witness evidence and contemporaneous documents; documents should not be given undue weight when inconsistent, unsupported or unreliable.

A defendant relying on tender before claim must make an unconditional offer and comply with the payment-into-court requirement in Civil Procedure Rules 1998, rule 37.2. The court may refuse interest where proceedings were issued unreasonably despite a clear offer satisfying the claimant’s substantive entitlement and where pre-action conduct failed to support proportionate resolution.

The claim arose from the sale of a veterinary practice and the subsequent sale of the defendant’s business. Deferred consideration was payable to the first claimant if Mr Levison remained employed by the defendant on 31 May 2022. The defendant contended that his employment had ended earlier, principally on 22 April 2022.

The claimants also sought interest on partnership and retention sums which the defendant paid before or during the proceedings. The issues were whether Mr Levison remained employed on the qualifying date and whether the claimants were entitled to further interest notwithstanding the defendant’s pre-action offers to pay the sums due.

1. Claim 1 succeeded. The court found that Mr Levison remained employed by Medivet on 31 May 2022 and was therefore entitled to the Equity Price Balance of £1,018,434, together with interest.
2. The alleged agreement at the November 2021 meeting to terminate employment on 17 January 2022 was not proved. The relevant witnesses were not called, the principal evidence was second-hand, and there was no reliable contemporaneous record.
3. The alleged agreement at the meeting on 29 March 2022 to terminate employment on 22 April 2022 was also rejected. The claimant witnesses gave consistent and credible evidence that the meeting addressed accrued time off in lieu, holiday and the minimum period required to preserve the deferred consideration. The defendant’s internal emails were inconsistent, largely unsupported by their authors’ evidence, and did not establish what “leave date” meant.
4. In assessing the evidence, the court treated the guidance in Gestmin SGPS v Credit Suisse (UK) Ltd [2013] EWHC 3560 as a warning about the fallibility of memory, not as a rule requiring documentary evidence to prevail. The court applied the approach explained by Martin v Kogan [2019] EWCA Civ 1645: all the evidence had to be assessed, and heuristics could not replace findings on the balance of probabilities.
5. Claims 2 and 3 were dismissed. Medivet’s solicitors had made an unequivocal and unconditional offer to pay the partnership monies and the retention monies, with interest where applicable. It was unreasonable to issue proceedings without engaging with that offer. The court therefore declined to award further interest, having regard to the pre-action conduct requirements, the Overriding Objective and proportionality. The court did not need to determine conclusively the payment-into-court issue for Claim 3.