Guy's & St Thomas's NHS Foundation Trust & Anor v ESMS Global Ltd & Anor

MR JUSTICE ANDREW BAKER:

1. These proceedings concern a business purchase agreement (‘the BPA’) dated 30 September 2011, a contract governed by English law, and an employee benefit trust (‘the Trust’) established in Guernsey under Guernsey law that was settled pursuant to the BPA. The claimants allege that the trust was settled, in breach of contract on the part of the first defendant (‘ESMS’), late, not with the assets promised, and in certain respects not on the trust terms mandated by the BPA.

2. The intention under the BPA and, as I understand it, the reality under the trust is that if at any given time an employee of ESMS is or was a beneficiary of the trust then so too at that time their ‘Privileged Relations’, a defined category of close family members. For simplicity I shall generally not refer to Privileged Relations again. As regards any given employee or ex-employee at any given point in time, their Privileged Relations either were or were not beneficiaries of the Trust, or should or should not have been beneficiaries, as the employee or ex-employee in question was or was not or should or should not have been a beneficiary. Also for simplicity I shall refer throughout just to ESMS, although for some of what I say strictly it should be ESMS and its subsidiaries, if any, from time to time.

3. The first claimant was ESMS’s counterparty under the BPA. The second claimant sues on her own behalf and in a representative capacity fixed ultimately by paragraph 2 of a Directions Order of Paul Stanley KC, sitting as a Deputy High Court Judge, dated 14 November 2024 (‘the Representation Order’). The Representation Order defines the class represented by the second claimant thus: “All the past, present and future (with the exceptions of Messrs Sood and Webster and any ‘Privileged Relation’ of these two individuals … ) beneficiaries of the [Trust]”. That representative status is then said to be “in respect of the following issues”, namely the liability of ESMS for any breach of the BPA, the claim for specific performance of the BPA and also: “any claim for a monetary remedy [where the claim for specific performance or in substitution for or as well as specific performance) which provides for sums to be paid (whether to the [Trustee] or otherwise) to be held on trust … in accordance with the BPA”.

4. The position of the words of exclusion within the definition of the class represented is clumsy, but the effect is clear enough so far as it goes. Pursuant to CPR 19.2 the second claimant, therefore, and in respect of those stated issues, represents all past, present and future beneficiaries of the Trust other than Messrs Sood and Webster and their Privileged Relations. It is straightforwardly possible in the litigation context I have identified to describe four mutually exclusive categories of employee or ex-employee of ESMS. Defining them in that way such that as categories they are mutually exclusive is not intended to say anything as to whether their interests would not be aligned, either in whole or in part.

5. The four categories I have in mind are: (1) current employees; (2) former employees who were employed on or after 18 August 2014 when the Trust was established; (3) former employees who were still employed on 30 June 2012, the date by when the claimants allege the Trust should have been established and in breach of contract was not yet established, but who ceased to be employed by the time the Trust was established in August 2014; and (4) former employees who had ceased to be employed even before 30 June 2012. The claimants’ position as to which I understand ESMS may not maintain any specific position of its own, its concern being more to have certainty as to who and in what capacity is suing and in respect of which it may be that there is yet an issue between the applicants before me today and the second claimant, is that the beneficiaries of the Trust are the employees of ESMS from time to time with a meaning of that phrase that they are (or were) beneficiaries only if they are (or when they were) employees. That means in turn that on the claimants’ case, and leaving to one side whether the applicants before the court today necessarily agree that case in full, but on the claimants’ case as to the meaning and effect of the Trust, present beneficiaries of the Trust would only cover my category (1) of employees and ex-employees, past and present beneficiaries of the Trust would cover my categories (1) and (2), but not my categories (3) and (4), whereas past and present employees would cover all of my categories (1) to (4).

6. It appears to be common ground though, whatever else be the case, that the second claimant always intended not to sue as representative of Mr Webster or Mr Sood, though they have been, and it may be still are, employees of ESMS and though it may be they are beneficiaries of the Trust as set up whereas, under the BPA, it seems they were supposed to be excluded. The claimants have been, in my view, sloppy and inconsistent throughout the proceedings in the description of the representative capacity in which the second claimant claims to act, both before and after the Representation Order and even in the Directions Order of which the Representation Order forms part. I shall come back to that and what, in my view, should be done to rectify it now.

7. I agree with submissions made at least by both the applicants before me today and by ESMS, the strength of which, if I may say so, was realistically acknowledged by Ms Proferes, that on any view it is essential to be clear whom the second claimant does and does not now represent pursuant to CPR 19.8. If clarity as to that has been provided as the primary outcome of today’s hearing, even if in other respects the application as formulated by the applicants sought relief that I may not be granting, that, in my judgment, will have been a very valuable end to have achieved in the light of the difficulties with the way in which the claimants have variously described the second claimant’s representative status and, most recently, the claimants’ solicitors have aggressively pursued an entirely wrongheaded stance that the second claimant under the Representation Order does not currently represent former employees such as Mr Hill and Dr Bahra.

8. The application before the court today, then, is brought by Dr Suki Bahra and Mr Eugene Hill, former employees of ESMS, by an application notice dated 16 October 2025. Making fair allowance for the applicants as litigants in person as regards how they have expressed things, their application notice, in my judgment, sought the following possible relief, identifying it in what I would think is the logical order, and leaving aside matters of costs: i) A declaration by way of clarification that former employees of ESMS fall within the class represented by the second claimant under the Representation Order (that is paragraph 3(b) of the application notice). ii) In the alternative, joinder of the applicants as interested parties under CPR 19.2 (that is paragraph 3(a)). It is not stated in the application notice to be an alternative claim, but, in my judgment, necessarily it is, as there is no basis for the applicants to be joined as additional parties if clarification of the Representation Order confirms that they are within the class of persons represented already by the second claimant. If that clarification gives rise to complexity and, in particular, difficulty for the position that the second claimant has taken or wishes to take, whether in relation to the progress of the proceedings hereafter or in relation to settlement, that, in my judgment, is a matter for her anxiously to consider with those advising so as to decide whether in the circumstances, as it presently seems to me she may well need to do, she should be making some application to resolve that degree of mess to which through her legal representatives she has allowed the representative status of her action to become. iii) In addition to joinder, if ordered, a direction that any proposed settlement that would materially affect former employees be notified to the applicants (as, they would then be, joined parties), with an opportunity for them to make representations and have liberty to apply. That is paragraph 3(e) of the application notice which goes on to say, for the avoidance of doubt, that an order that approval of the court for any settlement is not sought. iv) In the alternative and if needed, a direction for the appointment of “ a co-representative (or separate representative) limited to consultation / settlement communications for former employees) ” (that is paragraph 3(c)). v) In any event (I think, although that is not entirely clear), an order that the second claimant and her solicitors “ adopt a proportionate consultation communications protocol with current and former employees before any material procedural step or proposed settlement ” (paragraph 3(d)). vi) In any event again (I think) a record, so I envisage a recital in any order that may be made on the application, or perhaps a further declaration, that any amendment to the Trust, if required, would be sought by the Trustee via protective proceedings in Guernsey (that is paragraph 3(f)).

9. In their skeleton argument, and in the main oral submissions developing that skeleton argument from Mr Hill this morning, the applicants focused almost exclusively on their strictly alternative application for joinder on a premise that the second claimant does not currently represent them in the proceedings. That did not mean the question whether, to the contrary, the second claimant does currently represent them in the proceedings could be avoided. Firstly, it would be for the applicants to persuade the court, if they were pressing joinder, that they are not currently represented by the second claimant; and, secondly, the point having been raised squarely by the application notice and affecting, as it does, ESMS as much as it affects the claimant, ESMS maintained that the second claimant indeed does currently represent the applicants.

10. In my judgment, ESMS and the applicants (to the extent that, in formulating the application notice this was really their primary position) are plainly correct about that. The applicants are within category (2), in my categorisation. Strictly speaking, the dates of their employment by the ESMS Group are not in evidence, but Mr Lee for ESMS stated in terms in a footnote in his very helpful skeleton argument that both applicants were, as it would be in the terminology I am now using, category (2) ex-employees. Therefore, through my clerk in correspondence overnight, I raised the question whether that was in evidence and if it was not whether it was contentious, because it appeared to me to be important to have the basic factual position correct as to whether and, if so, when the applicants had been employees. I am very grateful to all parties before the court for their having been able to agree that Mr Hill’s relevant dates of employment by ESMS were 6 March 2012 to 31 December 2014 and Dr Bahra’s were 9 November 2015 to 30 September 2018.

11. As I noted at the outset, the Representation Order appointed the second claimant a representative pursuant to CPR 19.8 of “all past, present and future … beneficiaries of the [Trust]” other than Mr Webster, Mr Sood and their Privileged Relations. On any view, that covers my category (1) and my category (2) and, therefore, it covers the applicants. On at least the claimants’ position before the court today, and it may also be the applicants’ position, but I do not need to come to a final view about that, as to how the Trust defines its beneficiaries, the Representation Order’s description of the represented class does not cover my categories (3) and (4) of ex-employees of ESMS, which may mean that the applicants’ proposed declaration went too far in proposing without qualification that former employees of ESMS are represented by the second claimant.

12. The true position, at the risk of repetition, is that on any view former employees of ESMS are represented by the second claimant under the Representation Order if they were employees on or after 18 August 2014, although they are no longer employees to date and, at least as I understand it, on any view and any case that any of the parties before me might advance, ex-employees in my category (4) would not have any argument to the effect that they ever were beneficiaries of the Trust as actually established. Although as regards my category (2) and the consequence that at all events Mr Hill and Dr Bahra as individuals are within the represented class is, in my view, the plain and obvious consequence even of the second claimant’s own position relating to the Trust deed and the language of the Representation Order, the second claimant by her solicitors has sown substantial confusion about that in recent months, and at least in her skeleton argument the second claimant’s counsel on her behalf, Ms Proferes, appears to have been instructed to argue against it. There may be room, as throughout, for the possibility that that appearance of adherence to the unarguable was a continuing lack of clarity or precision in the use, or implications of the use, of the different terms “employee(s)” and “beneficiary(ies)”. In the event, Ms Proferes acknowledged in oral argument, in my view fairly and correctly, that indeed what I have described as my category (2) is, even on her client’s own case, within the represented class as having been at least past beneficiaries of the Trust, whether or not people in that category might also have some argument on the language of the Trust deed that even today they still are beneficiaries, either generally or for at least some purpose. I shall not, therefore, take up further time going through the points seemingly to the contrary that were raised in Ms Proferes’s skeleton argument.

13. The claimants’ solicitors in correspondence, the generally aggressive tone of which in recent months would have been unwelcome if they were corresponding with other professional litigators and was, in my view, wholly inappropriate for correspondence with litigants in person, have suggested that the applicants are, or have been, claiming that former employees generally of ESMS are definitely now beneficiaries of the Trust. As I have effectively indicated already in some of what I have said, it is not entirely clear to me whether that is true, nor is it entirely clear to me whether the claim attributed to the applicants extended to a claim that ex-employees in either of my categories (3) and (4) were being said now to be, or to have been in the past, beneficiaries. Be all that as it may, none of the parties before me advances or has any need to advance any such extended claim for the purpose of today’s hearing, given that Mr Hill and Dr Bahra are squarely individuals within my category (2). It would not be appropriate to make a declaration as to something that has not been in issue before me and where nobody that might have had an interest to contend to the contrary has been privy to the application.

14. I propose, therefore, to declare by way of clarification that, pursuant to CPR 19.8, in these proceedings the second claimant represents all past, present and future beneficiaries of the Trust, the definition of which can be put in a recital in the order, other than Mr Webster, Mr Sood or any Privileged Relation of either of them, and that the applicants are within the class thus represented by the second claimant. That latter aspect has been in issue, as I have explained, and, in my view, the claimants were plainly wrong about it.

15. Other parts of the application that could have had some basis, if at all, only if ESMS and the applicants were in the wrong on that underlying threshold point of dispute fall away. I do not consider there is any relevant issue before this court today about how or at whose instance any amendment to the Trust, if required or desired, would have to be obtained. I propose, therefore, to make no order on that final aspect of the application.

16. That leaves, in terms of the various relief sought by the application notice, the request for a direction about the second claimant’s conduct of the proceedings in her representative capacity. The applicants have asserted that they speak in some way for a cohort of former employees, the ambit of which they have not defined for the court, the membership of which they have not evidenced to the court, and their authority to speak for which they have not attempted to evidence to the court. Mr Hill has indicated that information as to aspects of that may be common between the parties, but acknowledges that whether for the purposes specifically of this application or in any other way he and Dr Bahra have not attempted properly or at all to evidence that for the court to be able to act upon it. In those circumstances, with respect, I adhere to the view I indicated to Mr Hill that he and Dr Bahra have not come before the court and are not before the court today in any representative capacity, to whatever extent outside the proceedings, and informally, it may be that they are liaising with other former employees and other former employees may be seeking to follow what they do. Any application that they can make or can have made, for a direction about how the second claimant conducts her proceedings, needs to be on the basis of their own personal interest, if any, in the proceedings.

17. In that regard, as things stand, it is to my mind clear that the applicants are now well aware of what is happening and what is proposed in the proceedings. They are fully informed as to the current state of settlement efforts and they have had ample opportunity to give the second claimant their input in relation to settlement and have been doing so. Without forming any view as to whether I would have power to issue the sort of direction proposed by the application, I am not persuaded that there is any need in the interests of justice to do so, at all events currently. That part of the application is, therefore, refused.

18. Having said all of that, I should emphasise that I am entirely alive from the reading that I did for the purposes of today’s case and from the submissions that have been made that there is nonetheless, to put it at its lowest, a genuine sense of concern on the part of Mr Hill and Dr Bahra, and if Mr Hill is correct about the degree to which he has been liaising with others it may be a concern shared by at least some others who, as things stand, are represented by the second claimant in the proceedings, as to whether the proceedings, and the claim that is being pursued in the proceedings, and/or proposed terms for settling the proceedings, are sufficiently or satisfactorily catering for their interests. I am equally acutely alive, as I have effectively already indicated, that further consideration to those matters that, as it seems to me, the claimants in the first instance are bound following today’s hearing to give, may yet result in some further application that either the claimants need to make or decide that they should make or some other party may feel that they should make if the claimants do not make any application. In the meantime, I strongly encourage and fervently hope that the tone of the correspondence emanating from those representing the claimants will be dialled down from eleven to one and they will engage constructively, both internally and also with Mr Hill and Dr Bahra and, it may be, others who may be effected, because it is essential, as it seems to me, to resolve any issue that does exist as to whether the current scope of the representation order, both as to how it defines the class and also bearing in mind in particular some of the submissions of Mr Lee, how it defines the issues in respect of which the Representation Order takes effect, such that either all parties concerned can be content with the Representation Order as it stands and nothing more need be done except for matters that are done, so far as the court is concerned, behind the scenes as between those parties, or the Representation Order needs to be altered which may have a range of potential further ramifications or consequences that will need to be dealt with as and when an application is made.

19. The upshot substantively, therefore, is that: pursuant to paragraph 3(b) of the application notice I will make the declaration I have indicated; I will as a result make no order on paragraphs 3(a), 3(c) and 3(e) of the notice; I also make no order as to paragraph 3(f) of the application notice; and I refuse the application made by paragraph 3(d).

20. I return then, as I said I would, to what I described as the claimants’ sloppiness and inconsistency about the representative capacity in which the second claimant claims to act. Representative proceedings are by nature exceptional. Where they are justified, on any view it is essential that care is taken to be clear and consistent about the class or classes of person for whom one or more named parties stands as representative litigant. As I explained to the parties at the outset of today’s hearing, my concern having been aroused by reading for this application as to whether proper care had been taken about that in this case, I checked through the court records on CE-File so that I might be able to deal with the point comprehensively and not just by reference to the base documents that happened to be otherwise in the hearing bundle for today.

21. I said the problem affects even the Directions Order within which the Representation Order itself was made. In the title to that order the second claimant is said to be suing “ on behalf of herself and all employees of ESMS … from time to time ”. As then for the Claim Form and Statements of Case, the Claim Form describes the second claimant as suing on behalf of herself and all other past, current and future employees of ESMS (excluding the second to fifth defendants). The second to fifth defendants were Mr and Mrs Sood and Mr and Mrs Webster. The claim as against them was struck out by one of the earlier orders of the court to which I will be referring in a moment. Unless I have misunderstood the underlying facts, I do not apprehend that Mrs Webster or Mrs Sood had ever been an employee of ESMS, so their being carved out from a description of “ past, current and future employees of ESMS ” was possibly a bit of a puzzle at all times, but in any event that description, plainly, is not what was ultimately ordered or, it is clear from the materials in this application, what the second claimant ever really intended.

22. In the Claim Form there are in the usual way brief details of the Claim, to be supplemented by full and detailed particulars of claim, but which nonetheless, at least in principle, are supposed still to define the overall scope of the claims raised. The first few lines of the brief details of claim on the Claim Form which assert in terms that the second claimant represents “ herself and all other past, current and future employees of ESMS … with the exception of the second to fifth defendants ” indicates that she is making the various claims intimated by the claim form in that capacity and, of course, a statement of truth is signed in this instance from a director of the claimant’s solicitors, but I can take it as authorised by the second claimant.

23. The re-amended particulars of claim which is the current and effective document is headed with a description of the second claimant as suing on behalf of herself and all other past, current and future employees of ESMS which, again, is inaccurate, both in that it should refer to “ beneficiaries of the Trust ” rather than employees, albeit there is, of course, a significant overlap between the two, and in that it fails to exclude, as it should, those who are supposed to have been excluded. The amended reply says that the second claimant is “ suing on behalf of herself and all other past, current and future employees of ESMS ”, but it says “ excluding Mr and Mrs Sood and Mr and Mrs Webster ”, identified in that document by name rather than as second to fifth defendants, I assume because that is a document that at least in its current form came into existence after the proceedings against them had been struck out – again, a description with a range of inaccuracies: “ past, current and future employees of ESMS ” rather than “ past, current and future beneficiaries of the Trust ”, as it ought to have been; and then internally excluding Mrs Sood and Mrs Webster, although I understand them never to have been employees in the first place needing to be excluded, but, on the other hand, not excluding Privileged Relations who should have been excluded if the language of “ beneficiaries ” and not “ employees ” had been used as it should have been.

24. I turn then, if only to identify them, to quite a long list of previous orders of the court and they are the following: - an order of Moulder J dated 7 September 2021; - another order of hers of 1 October 2021; - an order of Cockerill J, as she was then, 25 October 2021; - an order of Butcher J, 1 November 2021; - another order of Cockerill J, 16 November 2021; - an order of Bryan J, 17 November 2022; - an order of Ms Julia Dias KC, sitting as a Deputy High Court Judge, as she was then, 18 November 2022, which is the order by which the Claim against, amongst others, Mr and Mrs Webster and Mr and Mrs Sood was struck out; - an order of Calver J dated 8 December 2022; - an order of Jacobs J dated 13 February 2023; - another order of Calver J dated 21 March 2023; - a further order of Bryan J this year, 25 February 2025; and - most recently, an order of Bright J dated 29 September 2025.

25. Most of those prior orders used the following incorrect description for the second claimant’s representative capacity, namely that she was “ suing on behalf of herself and all other past, current and future employees of ESMS ”. The order of Ms Dias KC used that same wording, but adding “ (excluding the second to fifth defendants) ”. The order of Bryan J, like the amended reply, used effectively that same wording, but the Websters and the Soods were excluded by name rather than as second to fifth defendants, since they were no longer party to the proceedings. Finally, the recent order of Bright J describes the second claimant as suing “ on behalf of herself and all past, present and future beneficiaries of the [Trust] ” which is the closest the claimants have come to being accurate, but is still wrong, because it fails to exclude Mr Webster, Mr Sood and their Privileged Relations.

26. In my judgment, it is important, not just a matter of tidiness or administrative convenience, that the court record is completely clear on the second claimant’s current representative status, and that the parties are as a result completely clear with the benefit of correct documents, the judgment I have now given, and the declaration I shall be making today, not least for the purposes of their consideration, I hope on an urgent basis, as to whether further applications may need to be made. The solution that I will adopt is the following. I direct that the claimants must file and serve, and when serving provide copies by email to Mr Hill and Dr Bahra, a corrected claim form, re-amended particulars of claim and amended reply, in each case correcting in relevant title pages the description of the second claimant’s representative capacity and in the case of the claim form correcting what is said in the brief details of claim narrative. I propose so as to create both a neat solution and one that does not involve tedious additional paperwork all round that as regards the long list of prior orders in the case that the order that is drawn up on today’s hearing and judgment should recite them in a long list and define them as ‘the prior orders’ or some such defined term and, having thus recited and defined them, I shall simply direct that they are now varied and stand corrected, or deemed corrected, without any need for them to be redrawn or reissued, so that the second claimant is identified as suing on behalf of herself and/or other past, current and future beneficiaries of the Trust other than Mr Sood, Mr Webster or any Privileged Relation of either of theirs. L A T E R

27. It seems to me that as between the claimants and the first defendant as currently constituted in terms of legal representation, the costs of this application either being treated as costs in the case or being reserved to trial would be satisfactory outcomes and on both sides of that possibility counsel propose costs reserved as their first preference. I shall so order. As regards the applicants, however, Mr Hill and Dr Bahra, I do consider, with respect, that from their position and at least stated in purely general terms, not intending by this any formal finding that might be relevant to a future Part 19 application, their (in general terms) legitimate interest in what is happening with these proceedings, they have entirely reasonably brought to court, under cover of the form of application they felt it appropriate to try to make to bring the matter to a head, the significant confusion and difficulty that was entirely the creation of the claimants or their legal representatives, exacerbated by the nature and tone of some of the solicitors’ correspondence of which I was critical.

28. The applicants having indicated that they do not wish to seek any measure of costs in their favour, even for the modest costs that might be theoretically available to them as litigants in person, I shall not grant any order for costs in their favour, but in those circumstances, in my judgment, it would be wholly unjust for there to be any adverse costs order against them in relation to costs of or occasioned by the application they have brought. Being in a position to form that clear view on the basis of having dealt with the application in the way I have, I consider that it would be unfair to leave hanging over them, even if I felt it would be a remote prospect, the chance under a costs reserved order that an application might be made to some future trial judge to impose some measure of adverse costs on them.

29. Having taken account of the submissions on all three sides, it seems to me that the formulation I mentioned last to counsel is the right formulation to adopt. Costs will be reserved, save that there be no order as to the costs of and occasioned by this application either in favour of or against the applicants themselves. - - - - - - - (This Judgment has been approved by the Judge.) Digital Transcription by Marten Walsh Cherer Ltd 2 nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP Telephone No: 020 7067 2900 DX: 410 LDE Email: [email protected] Web: www.martenwalshcherer.com