PROVING THINGS 81: PROVING MITIGATION OF LOSS – AGAIN: FAILURE TO FIND WORK WAS NOT A FAILURE TO MITIGATE

December 12, 2017 · by · in Damages

We have looked at issues relating to proving mitigation of loss before*.  The legal burden in establishing a failure to mitigate loss lies with the party asserting a failure to mitigate.  This was made clear in the judgment of Mrs Justice Moulder in Faieta v ICAP Management Services Ltd [2017] EWHC 2995 (QB).

“The burden is on the defendant to show that the claimant did not take reasonable steps to mitigate his loss.”

THE CASE

The claimant was an inter-dealer broker who had been dismissed by the defendant.  He brought an action for damages fOR wrongfully placing him on gardening leave and for wrongful dismissal. The claimant was partially successful.  The defendant asserted a failure to mitigate loss, in failing to find alternative employment.

THE JUDGMENT ON MITIGATION OF LOSS

Mitigation

    1. The burden is on the defendant to show that the claimant did not take reasonable steps to mitigate his loss. In the light of my findings above, I deal only with the period from 7 November 2015.

    2. The claimant refers (paragraph 190 of his witness statement) to documents showing his mitigation “including communication with recruitment agencies and headhunters”. He says (paragraph 191) that he has encountered difficulties as the current legal dispute with the defendant has meant that employers in the City are not going to employ anyone who is suing their previous employer. His field is a narrow one and he can only realistically go to one of two companies. This was confirmed by agencies and headhunters when he approached them. Further the lengthy period of garden leave has led to atrophy of his business skills. As a result he was not “marketable“. At his level and seniority he says:

“client relationships and contacts are essential to secure alternative employment.”

    1. Counsel for the defendant submitted that there is not one document evidencing that the claimant did anything until February 2016, three months after his dismissal. Counsel submitted that the claimant was “unenthusiastic” about getting a job and the bursts of activity are infrequent and perfunctory at best. There is no evidence that the claimant got in touch with any contacts. The claimant should have found a job paying at least half the remuneration he now claims within three months of his employment terminating.

    2. Counsel for the claimant submitted that there was no point in pursuing the headhunters more frequently because that was not a constructive way of finding a job. The claimant sought to make use of his contacts and it got him nowhere.

    3. In cross examination the claimant said that he was pretty shocked when his contract was terminated and it took him a while

“to get my head round it”

He said he contacted some clients in late December 2015 and again in January 2016. However that was not mentioned in his witness statement nor is there any evidence of text messages or phone calls.

    1. There is evidence that the claimant contacted head hunters in February 2016 again in March 2016 and then there is a gap until April 2017. The claimant’s evidence was that it was quite humiliating to send CVs and be told that someone would get back to him and then they did not. He said that if someone makes it clear that they are not interested there are only so many times that you can keep getting humiliated.

    2. He said that he did not try to get a job every day but would take some time in a morning or a day and and contact people. He said he was not confident that he would end up getting a job by one of the head hunters because in the City people tend to know each other and they get jobs via recommendations. He had been told clearly by a headhunter that so long as he was involved in litigation with an employer he would never be considered. He said he did try and make some money by trading futures but unfortunately that did not work.

    3. The evidence of Mr Vogels in his witness statement was that in this industry there is usually no need to approach recruiters and it is “rare” that interdealer brokers would recruit in this way (Paragraph 111). He said that:

“Experienced and competent brokers generally get approached by competitors quickly.”

    1. Mr Vogels accepted that the litigation may have made the claimant “a less attractive recruit“. Mr Vogels said:

“I also did not see any need to have mentioned this.” (Paragraph 112)

  1. Mr Vogels also accepted in cross examination that someone who has been out of the market for a long time is less attractive to competitors even if they are highly experienced and competent [Day 3/68/24].

  2. I accept the evidence that the claimant’s job prospects were likely to have been hindered by the litigation with the defendant. I do not accept the proposition that the claimant should not have disclosed the fact of this litigation to prospective employers. I also accept that given the industry, it was unlikely that the claimant would get a job through the head hunters or recruitment agencies and therefore it was not necessary in my view, for him to contact them more regularly.

  3. There is no evidence to support the defendant’s submission that the claimant should have found a job within three months on half the salary. On the evidence and for the reasons discussed above, I find that the defendant has not established that the claimant did not take reasonable steps to mitigate his loss/”

 

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