Judge: I found Win­ters’ ev­i­dence some­times­demon­stra­bly­false

The Jewish Chronicle - - News -

TH­ESE ARE edited ex­tracts from the judg­ment given in the High Court on Wed­nes­day by Mr Jus­tice Hen­der­son. “IN 1996 the claimant, Si­mon Win­ters, be­came the chief ex­ec­u­tive of the UK branch of the JNF. He con­tin­ued to hold that post un­til at least June of this year, when his present solic­i­tors, Ge­orge Davies LLP, wrote to the then Pres­i­dent of the JNF, Gail Seal, on June 25 claim­ing that his po­si­tion as chief ex­ec­u­tive had been un­der­mined by changes be­ing made to the man­age­ment struc­ture of the JNF, and that the JNF had fun­da­men­tally breached his con­tract of em­ploy­ment.

“On 27 June, a re­ply to this let­ter was sent by the JNF’s reg­u­lar solic­i­tors, Mish­con de Reya, deny­ing that the JNF had acted in breach of Mr Win­ters’ con­tract of em­ploy­ment and in­form­ing him that the JNF had de­cided to sus­pend him from his du­ties with im­me­di­ate ef­fect.

“The let­ter went on to ex­plain that the sus­pen­sion was in con­nec­tion with var­i­ous al­le­ga­tions of fi­nan­cial mis­con­duct in his role as chief ex­ec­u­tive, and that the pur­pose of the sus­pen­sion was to en­able the JNF to carry out an in­ves­ti­ga­tion into those al­le­ga­tions, and also into two other mat­ters con­cern­ing the es­tab­lish­ment of an Is­raeli char­ity, Nes Eretz Is­rael, and the bug­ging of the of­fice of the new chair­man of the trustees of the JNF, Sa­muel Hayek.

“On 1 July 2008 Mr Win­ters’ solic­i­tors sent a let­ter of com­plaint to Mish­cons, al­leg­ing that it was im­proper for Mish­cons to act for the JNF in re­la­tion to the em­ploy­ment dis­pute with Mr Win­ters. The let­ter as­serted that Mr Win­ters was a client of Mish­cons, and that Mish­cons had ad­vised him in the past about the same or sub­stan­tially sim­i­lar mat­ters to those in re­la­tion to which they were now act­ing against him...

“I was, in par­tic­u­lar, im­pressed by the way in which Dr Julius [of Mish­con] gave his ev­i­dence. He was very care­ful to give nu­anced and ap­pro­pri­ately qual­i­fied an­swers to the ques­tions put to him in cross-ex­am­i­na­tion... and in gen­eral his ev­i­dence ap­peared to me to com­bine com­plete can­dour with thought­ful ob­jec­tiv­ity to a rare de­gree. It is easy to un­der­stand why the JNF should hold him in such high re­gard as an ad­viser, and equally easy to un­der­stand Mr Win­ters’ ini­tial dis­may at the prospect that Dr Julius and his firm would now be act­ing against him in the con­text of the em­ploy­ment dis­pute, when he has had the ben­e­fit, di­rectly or in­di­rectly, of wise ad­vice given by Dr Julius over the last three years (and what­ever the pre­cise ca­pac­ity may have been i n which he re­ceived that ad­vice). “By con­trast, I re­gret to say that I found Mr Win­ters’ ev­i­dence, both writ­ten and oral, to be highly un­sat­is­fac­tory in a num­ber of re­spects. The as­ser­tions which he makes are of­ten im­pre­cise, par­tial or ex­ag­ger­ated, and some­times demon­stra­bly false. There were times in cross-ex­am­i­na­tion when he seemed to shift his ground as each new point was put to him, and on at least two oc­ca­sions I found his ev­i­dence sim­ply in­cred­i­ble...

“Mr Win­ters says... that Mish­cons acted for him per­son­ally [in pro­posed li­bel pro­ceed­ings] ‘and they were com­pro­mised on the ad­vice of An­thony Julius who ob­tained an apol­ogy for me’.

“It emerged in cross ex­am­i­na­tion, how­ever, that the pro­posed li­bel pro­ceed­ings never pro­gressed be­yond the send­ing of a let­ter be­fore action...The threat­ened pro­ceed­ings were never even be­gun, let alone com­pro­mised, nor did Dr Julius ob­tain an apol­ogy for Mr Win­ters...

“When th­ese points were put to Mr Win­ters in cross ex­am­i­na­tion, it is fair to say that he was left floun­der­ing and com­pletely un­able to ex­plain what he had meant by the state­ment...

“The most char­i­ta­ble construction that I can place upon it is to say that this part of his ev­i­dence was pre­pared with cul­pa­ble haste and care­less­ness, even though it lies at the heart of his com­plaint against Mish­con... Given the lack of pre­ci­sion in Mr Win­ters’ ev­i­dence, the lack of any doc­u­men­tary cor­rob­o­ra­tion, and his ten­dency to ex­ag­ger­ate his ev­i­dence, I am not pre­pared to ac­cept that any detailed dis­cus­sions took place be­tween him and Dr Julius with re­gard to the li­bel mat­ter un­til late July...

“The re­quest [to ex­tend his em­ploy­ment con­tract for a fur­ther five years] was a dis­cred­itable one, com­ing from the chief ex­ec­u­tive of a ma­jor char­ity, and it is per­haps un­sur­pris­ing that Mr Win­ters should now seek to dis­own it, even though it had the ini­tial sup­port of the Trustees...

“I am un­able to ac­cept Mr Win­ters’ ev­i­dence that he was told to seek in­de­pen­dent ad­vice, and I find it sig­nif­i­cant that the en­try on [Mish­con’s] Mr Naf­talin’s time sheet refers to ‘ad­vice to JNF’. Here too, I am re­gret­fully driven to con­clude that Mr Win­ters has not told the truth to the court... KKL in the lit­i­ga­tion. I am un­able to ac­cept Mr Win­ters’ ev­i­dence that he said noth­ing about a five-year term, and am driven to con­clude that here at least he was not be­ing frank with the court...” [The judge found that Mish­con did act for Mr Win­ters in a per­sonal ca­pac­ity for two brief pe­ri­ods only in con­nec­tion with an ap­pli­ca­tion to dis­cover the iden­tity of the writer of a hos­tile let­ter about him, and a pro­posed li­bel action against the son of a se­nior mem­ber of Scot­tish JNF. In both cases, the judge said, there was no per­cep­tion on ei­ther side of any con­flict of in­ter­est be­tween JNF and Mr Win­ters.]

“Mr Win­ters re­ferred to a sug­ges­tion that he should is­sue a let­ter be­fore action [against for­mer JNF pa­tron David Lewis], and asked Dr Julius ‘what do you think?’, to which the an­swer came 20 min­utes later: ‘Dear Si­mon — I think it would be a mis­take for you to sue. Best — An­thony.’

When asked in cross ex­am­i­na­tion whether this was the to­tal ex­tent of Dr Julius’ ad­vice to him in re­la­tion to the mat­ter, Mr Win­ters said that later down the line, af­ter Ge­orge Davies LLP had been in­structed, Dr Julius sug­gested that he drop the mat­ter.

“I ac­cept that Dr Julius may well have given ad­vice to this ef­fect, in an in­for­mal man­ner; but in a con­text where Mr Win­ters had his own solic­i­tors act­ing for him... I find it im­pos­si­ble to con­clude that any sep­a­rate re­tainer had come into ex­is­tence...

“Dr Julius was pre­pared to give Mr Win­ters the ben­e­fit of his ad­vice, on an in­for­mal ba­sis, when specif­i­cally asked to do so; but Mr Win­ters should have re­alised that the giv­ing of such ad­vice formed part of Dr Julius’ gen­eral client man­age­ment role on be­half of the JNF, or at the high­est was given as a favour on a ba­sis of friend­ship. He can­not sen­si­bly have sup­posed that he was get­ting the ben­e­fit of a sec­ond and sep­a­rate re­tainer for free, at a time when Ge­orge Davies LLP were al­ready act­ing for him...

“To say that Dr Julius should not have acted for him merely be­cause a time might come when his in­ter­ests would di­verge from those of the JNF is in my judg­ment like say­ing that a so­lic­i­tor should not act for a hap­pily mar­ried hus­band and wife merely be­cause a time may come when the mar­riage breaks down and they di­vorce.”

PHO­TOS: JOHN RIFKIN

Head-to-head: Si­mon Win­ters ( left) and Mish­con’s An­thony Julius

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