5th – 6th May 2021
NOTE: THIS IS A LIVE STREAM OF A FULLY REMOTE HEARING BEING HEARD BY MICROSOFT TEAMS
This is the Claimant’s appeal of the order made by Sir Michael Burton GBE (sitting as a High Court Judge) dated 19 October 2020.
This case has a long a complex history and has seen litigation in the Court of Appeal, the Supreme Court and the European Court of Justice. The Appellants (Mr Bosworth and Mr Hurley respectively) were the CEO and CFO of the Arcadia Group of companies (the First, Second and Third Respondents, Arcadia London, Arcadia Switzerland and Arcadia Singapore respectively). The Fourth Respondent (Farahead or FH) is the 100% owner of the other Respondents, and the Respondents are ultimately owned and controlled by John Fredriksen. They allege that the Appellants (together with others) committed a fraud on the Arcadia Group and bring claims in conspiracy and breach of fiduciary duty. The Appellants vigorously dispute the allegations, and, being both domiciled in Switzerland say that the claims against them should be heard in Switzerland. The Respondents have filed a claim of virtually identical scope in Switzerland against the Appellants and have also brought related proceedings in Switzerland against the Appellants which materially overlap with the litigation in the English Court.
The present Appeal
This appeal is from the Order of Sir Michael Burton GBE dated 19 October 2020 and concerns identification of the correct test to establish whether an individual is in a relationship of subordination so as to be an employee for the purposes of the special jurisdictional regime in Section 5 of the Lugano II Convention. Section 5 provides that claims against an employee must be brought in the court of the employee’s domicile. The Appellants state that the appeal raises an important question of general public importance as to whether an individual who holds a senior role in the organisational hierarchy of a company (such as any director or senior manager) could ever fall within the scope of Section 5.