Andrew Dixon v GlobalData plc

In my judgment on the trial of this claim ([2025] EWHC 2156 (Ch), together with which this judgment must be read), I held that the defendant, GlobalData plc, had assured the claimant, Mr Andrew Dixon, that his shares in the defendant’s unapproved employee share option plan 2010 (“the Plan”) would continue to be exercisable following the end of his employment with Canadean, as if he had continued in that employment. I also found that he relied to his detriment on that assurance, by extending the date up to which he would work, from September to December 2014, and agreeing to be bound by restrictive covenants for a period of four months thereafter, and that it was unconscionable for the defendant to seek to repudiate from its assurance. The claimant is accordingly entitled to a remedy in proprietary estoppel.

The basis upon which the claimant succeeded was not the primary basis on which he pursued the claim. I found that the defendant had not in fact exercised the power under rule 7.1 of the Plan to extend the claimant’s options beyond the end of his employment. As the parties had not at the trial specifically addressed the remedy which might be awarded in the event that the claimant succeeded on the estoppel claim, a separate hearing was listed for the parties to make submissions as to the appropriate remedy.

In the judgment at [110], I said this in relation to remedy, on the assumption (with reference to Guest v Guest [2024] AC 833 at [76]-[77]) that the starting point in proprietary estoppel was that the successful claimant was entitled to hold the promisor to the promise it had made to him:

I set out in the judgment the material terms of the Plan. By way of summary, the options were (provided they subsisted) capable of exercise where the Normalised EBIDTA targets (as defined) set out in section 2.2 of the Schedule of Performance Target and other Conditions of Exercise were satisfied. There were three growth targets, or tranches, to be achieved within the ten-year lifetime of the Plan with 20% of the options vesting at the first target and 40% at each of the second and third (see [33]). Mr Dixon exercised his tranche 1 rights while still in employment with Canadean. The dispute arises in relation to tranches 2 and 3.

As I said in the judgment at [36]:

Mr Graham Lilley, the defendant’s CFO, explains in his trial witness statement that for those option holders whose options subsisted the tranche 2A target was met in 2018 and the 2B target was met in 2019. I set out in the judgment at [44] onwards that the members of the Plan, whose options were due to expire at the end of 2020, were permitted to exercise their options outside the ten-year life of the Plan, as the revised performance target for tranche 3 was not going to be met during the lifetime of the Plan because of the effect of COVID. The defendant or its remuneration committee created a new 2021 plan, to which all those employees and former employees shown in the defendant’s records as continuing Plan option holders were admitted as members.

Mr Lilley further explains in his witness statement, at paragraphs 29 to 32, how the share option value was obtained on exercise.

Mr Lilley accepted in evidence at the trial that the strike price for tranche 3 was in fact £13.85, and this is the price shown in the company’s 2022 annual report. Mr Parfitt calculated that, on the basis of this strike price, the claimant is entitled to the sum of £266,878.34 net of the exercise price, commission and employer’s National Insurance Contributions at 13.8%. Mr Nicholls did not accept that the claimant was entitled to any remedy in respect of tranche 3, but did accept the accuracy of the calculation on the basis of the correct strike price and on the basis that Mr Dixon (notionally) had options in respect of 22,400 shares.

The question of the appropriate relief where a claimant has satisfied the court of their entitlement in proprietary estoppel has been authoritatively considered by the Supreme Court in Guest v Guest. Lord Briggs JSC gave the decision of the majority. As he explained at [7], a divergence grew in the early part of this century between the view that the purpose of the remedy was to satisfy the claimant’s expectation, and the parallel view that it was to compensate for detriment that had been incurred.

Mr Parfitt referred to what Lord Briggs said at [13]:

When saying this, he had made clear that the role of equity, unlike the common law, was not to reduce the award to pure quantification in monetary terms: see at [12]. It is to be borne in mind that equitable remedies are generally more flexible than those afforded by the common law and they are always discretionary: see at [5] (and [61]).

After comprehensively surveying the case law, Lord Briggs said at [61] that,

It is worth noting that, in most cases, a claim in proprietary estoppel will be a claim to land (Guest v Guest at [12]), often in the context of promises informally made and acted on in a familial or quasi-familial setting. Guest v Guest was such a case, and the comments at [62] took account of considerations which had arisen in a long line of authority in which such promises, and an unconscionable resiling from them, were generally in issue. It is in such a context that the rights of third parties, such as other family members or those in occupation of the property which is the subject matter of the claim, must be considered. The present claim is not such a case. It falls nonetheless to be determined by reference to the equitable principles enunciated by the Supreme Court.

Lord Briggs proceeded to set out the test to be applied, having indicated at [72] that proportionality is nothing more nor less than a useful cross-check for injustice and not something to be applied by reference to a mathematical examination:

With the principles above in mind, the first question is the sum to which the claimant is entitled, further to the findings made at trial, in respect of tranche 2. On the basis of those findings, the defendant accepts that Mr Dixon is entitled to a remedy, and contends that the sum should be that set out in Mr Lilley’s trial witness statement, being a total of £175,358.66 for both tranche 2A and 2B. It is common ground that the award should be of monetary (i.e. equitable) compensation, rather than an order for specific enforcement of the assurance that was made.

Mr Parfitt submitted that the price used should be calculated using the (higher) market price of the defendant’s shares as at 16 November 2020, being the date when it is said the defendant refused to permit Mr Dixon to exercise options. This is on the footing that if an option holder exercised their share options by requesting a sale outside the bulk sale used by most option holders (and described in paragraph 30 of Mr Lilley’s witness statement), shares were in fact sold on the market and thus at the market price on the date on which the option exercise was effected. Using publicly available data of the market price, and taking account of a share split which subsequently took place in July 2023, Mr Dixon seeks an award for the tranche 2A and 2B shares of £297,710.63, before interest (which is based on the market price on 16 November 2020).

16 November 2020 was a date on which the defendant’s solicitors communicated a refusal to permit Mr Dixon to exercise his claim to share options under the Plan. Accordingly, submits Mr Parfitt, that is the date at which the monetary award to be payable to Mr Dixon should be assessed, for that is the date at which the defendant acted unconscionably in refusing the request that he be permitted to exercise options under the Plan. The defendant had not acted unconscionably until it refused the claimant’s attempt to rely on an exercise of rights.

With reference to Lord Briggs’ summary of the relevant principles (Guest v Guest at [74]-[77]), it has already been determined that the defendant’s refusal to permit Mr Dixon to exercise the options whose continued existence had been assured to him was unconscionable. Mr Nicholls did not argue, in relation to tranche 2, that something less than full performance would negate the unconscionability and thus satisfy the equity. He argued that payment based upon the strike price for the two parts of tranche 2 would be sufficient for this purpose. The defendant has also not sought to contend that the monetary equivalent of specific enforcement of the promise would be out of all proportion to the costs of the detriment incurred. I agree with Mr Parfitt that the point by reference to which the remedy is determined is when the defendant’s conduct has become unconscionable, i.e. when the defendant has denied the claimant the entitlement that was promised.

It is the repudiation by the defendant of the promised expectation which constitutes the unconscionable wrong (Guest v Guest at [53]). In many cases, what will have been promised is an interest in land, so the equity will be satisfied by the award of that interest in land, or by its monetary equivalent. But the court assesses both whether the claim should succeed, and with what result, from the perspective of the time when there was an unconscionable denial of the promised right. This is so that the situation of the parties, and of any affected third parties, can be assessed as at the material time. Such an assessment permits difficulties ‘on the ground’ to be taken into account, where parties may be required to continue to deal with one another, and to factor in specific issues such as that arising in Guest v Guest itself, where the unconscionable repudiation of a promise to bequeath property came while the promisors were still alive.

As Lord Briggs said, at [65], ‘The inherent flexibility and pragmatism of equitable relief enabled the courts to address all these problems as they arose without having to frame a rule book for the purpose, but while pursuing the invariable aim of preventing or putting right unconscionable conduct.’ He then commented at [66], on the ‘breadth and flexibility of the equitable remedy’, saying that it had never been ‘too much of an approximation to the length of the Chancellor’s foot’.

The purpose of assessing both whether the cause of action is made out and, if so, what relief is required from the point where the defendant’s conduct became unconscionable is therefore to ensure that all material considerations are taken into account including the interests of the parties and affected third parties. It is not to set a rigid rule that the monetary equivalent of specific enforcement should be calculated based upon market values as at the very date on which the defendant communicates its repudiation of the earlier promise. The court must always exercise its discretionary jurisdiction in a manner which does justice to all affected parties. This can be seen to be why, on very different facts, Lord Briggs would not have awarded the claimant in Guest v Guest compensation for being kept off the farm in relation to which the dispute had arisen (part of which he had been promised) pending his parents’ death, even though that was part of the promise, and why he indicated that where there are two different ways to remove the unconscionability going forwards, the defendants should in principle be the ones to make the choice (see at [102] and [104]). The specific reasoning is not applicable in the case of a promise to grant shares, but it demonstrates that the majority was not laying down a fixed rule as to the date on which a valuation was to be taken, but a general principle to guide the process of determining how unconscionability should be remedied.

It may be thought that the court should have some regard to the principles concerning the assessment of damages for breach of contract at common law, as the monetary equivalent of specific enforcement of the defendant’s promise is capable of calculation with more precision than in most cases of proprietary estoppel relating as it does to options over publicly listed shares. While Mr Parfitt did not make this submission in terms, he contended for precisely the same date and the same valuation on his estoppel claim as he did in the claim in contract. In any event, the measure of damages in a claim for breach of contract (which was the claimant’s principal claim) would not necessarily lead to the relevant date for valuation being 16 November 2020 (when it is said that the claim was unequivocally refused). In circumstances where the claimant was always going to sell I do not consider that, if the claim for breach of contract had succeeded, the claimant’s loss would be assessed as at the date for delivery of the shares (the usual date in a buyer’s claim against the seller of shares, but which was not defined in this case). The material breach could be some other date such as that when the defendant failed to notify the claimant of his tranche 2 rights, first rejected his claim to be the holder of subsisting options, or when he provided a completed Notice of Exercise of Option.

Returning to the test laid down in Guest v Guest and Mr Parfitt’s submission as to the date when the defendant’s conduct became unconscionable, I note that the defendant’s solicitors wrote to the claimant’s solicitors on 23 September 2020 (before the defendant’s share price spiked) to deny the claimant’s claims ‘in their entirety’. The defendant’s denial of the claim seems to me to have been just as unconscionable on that date as it was on 16 November 2020.

In any event, I consider that the search for a specific date is not the correct approach in principle in equity. The claimant’s approach is, from his perspective perfectly reasonably, based around the selection of a valuation date when the share price was elevated such that if a sale had taken place on that date, a higher price would have been obtained. Lord Briggs does not suggest that one must identify the precise moment when the defendant’s conduct became unconscionable. Indeed, he suggests that a change in the promisor’s circumstances may lead to the denial of the promised entitlement not being unconscionable, suggesting that an initial unreasonable position may become conscionable at a later date.

When standing back and seeking to give effect to the general remedy in proprietary estoppel, i.e. to place a monetary value on the promised benefit, I consider that the strike price is the appropriate value to place on the options. As I found in the judgment, Mr Dixon was following the company’s fortunes with an eye to his ability to exercise what he believed to be his subsisting options in the Plan. He sought to exercise his rights at the earliest opportunity, but was thwarted, both by the inadequacy of the defendant’s records and then its refusal to permit his claim. If the defendant had communicated to Mr Dixon his right to exercise the tranche 2 options, (as the amended particulars of claim pleads that it ought to have done), Mr Dixon would much more likely than not have sought to exercise in a timely way such that he would have received an amount based on the strike price. I consider that he had an expectation based on the assurance that he would be treated in the same way as the other Plan option holders, including in how his rights would be communicated to him.

The remedy in relation to tranche 2 will therefore be fixed by reference to the strike price. This meets the expectation that the claimant always had. A higher award would go beyond what is required to remedy the unconscionability in relation to tranche 2.

The question then arises as to Mr Dixon’s entitlement in relation to tranche 3. The issue left outstanding in the judgment was whether specific enforcement of the assurance made to him in 2014 would require a payment to him in respect of this final entitlement of the Plan members, in fact provided to option holders under a replacement plan.

Mr Nicholls submitted that this payment was outside the scope of the promise. The assurance that was given to Mr Dixon was that his options would vest in line with current conditions. Even on the basis of the intention and understanding set out in the judgment at [69] (and see [87]), namely that ‘the claimant would be left in the same position following the end of his employment as he was before he was given notice of termination of his employment, and therefore in the same position as all the other initial option holders granted options in January 2011’, there is no basis for treating Mr Dixon as a member of the new plan created after the ten-year life of the Plan had come to an end. For this reason, Mr Nicholls disputed Mr Parfitt’s characterisation of the judgment as having determined that Mr Dixon was entitled to be treated in the same way as other Plan members.

On behalf of the defendant it was also submitted that the circumstances which led to the creation of the new plan were unforeseeable in 2014 (see the judgment at [95]). Furthermore, Mr Nicholls suggested that nothing in the promise made by Mr Pyper on behalf of the defendant could be construed as meaning that the options could continue to be exercised after the expiry of ten years. To construe the promise in this way would contradict the promise that was in fact made.

I bear in mind that the question in relation to tranche 3 must be assessed with reference to the question of unconscionability. In the judgment, I necessarily determined that it was unconscionable for the defendant to deny Mr Dixon his promised entitlement to tranche 2. This is because I held that it was unconscionable for the 2014 assurance to be repudiated, and the tranche 2 rights clearly arose within the anticipated lifetime of the Plan. I did not make a determination in relation to tranche 3 as, because of the focus of the parties’ submissions at the July 2025 trial, I did not consider that I had at that stage been addressed on the point.

Whether the relevant question falls within the first or second points of the analysis identified by Lord Briggs in Guest v Guest at [73]-[74] is perhaps unclear. The view I have reached is that where the scope of the promise is, as here, to an extent uncertain, the court must ask itself separately whether the repudiation of the promise is unconscionable in relation to one part, and then separately whether it is unconscionable in relation to the other. The relevant question is at least clearly defined: was it unconscionable for the defendant to deny Mr Dixon the right to exercise options in relation to tranche 3?

Mr Nicholls’ submissions proceeded on the basis that the decision of the defendant (or its remuneration committee) to structure the tranche 3 entitlements under the Plan as a new scheme, rather than as an extension of the Plan, is necessarily determinative. In other words (and putting it more bluntly than Mr Nicholls did), by choosing one form in law for achieving the desired result, that is of enabling continuing Plan members to receive their final entitlements under the Plan, the defendant was entitled to and did defeat any rights the claimant may have in equity.

I consider that this approach would place form over substance in a way which is wholly inconsistent with the nature of the equitable remedy represented by proprietary estoppel, described at one point by Snell (and noted by Lord Briggs in Guest v Guest at [23]) as ‘equity at its most flexible’. It is also clear from Guest v Guest that all the circumstances fall to be taken into account when exercising the ‘flexible conscience-based discretion aimed at producing justice’ (see at [53]). This is not a palm-tree justice, but one which assesses unconscionability against the reasonable understanding of the parties of the promise that was made, and the practical effects of giving effect to the promise in light of the circumstances as they pertain once the defendant has denied that an alleged entitlement in line with the promise has arisen. As Lord Walker of Gestingthorpe pointed out in Thorner v Major [2009] 1 WLR 776 at [64], in response to the argument that equity may refuse a remedy because there was uncertainty as to the terms of a contract:

In the judgment following trial, I held as follows:

Mr Dixon understood that he would be treated in the same way as the other Plan members who held options in the Plan. All those employees and former employees who held options in 2020, by reference to the records held by the company and described by Mr Lilley in his evidence, were permitted to exercise them once the tranche 3 EBITDA target had been met. For obvious reasons, the defendant still wished the Plan members to benefit and there was more than one way to achieve this (see judgment at [50]).

What the company sought to achieve is laid out in the Annual Report for 2020, in the Notes to the Consolidated Financial Statements:

The creation of the new scheme was thus treated for accounting purposes as a continuation of the Plan. The Plan could have been formally extended with similar effect. The new scheme was deliberately very limited in its scope, to last for one year only to enable tranche 3 rights to be exercised (Board minutes, 15 December 2020, at 7.5). There is no reason, when the question of unconscionability is considered, why equity should regard the choice by the defendant of one formal structure rather than another as being of magnetic importance.

It is clear that the defendant made a decision, knowing of Mr Dixon’s claim, and with knowledge of what Mr Pyper had said to him in 2014, deliberately to structure the arrangement so as to maximise the chance of preventing Mr Dixon’s claim from succeeding. That is clear from Mr Lilley’s email to Mr Danson of 31 July 2020, which talked of the opportunity to “cleanse” the option list of people such as Mr Dixon who had ‘come out of the woodwork’ (see judgment at [48]). It can also be seen from an email communication between Mr Lilley and Deloitte on 24 February 2021, where the notes refer to Mr Dixon, showing the priority being afforded to the denial of his claim. There may have been other reasons to create a new plan in which to grant replacement options, but the spectre of Mr Dixon’s claim was undoubtedly a material factor.

Mr Lilley candidly accepted in cross-examination that a mistake had been made in that no steps had been taken to give effect to what was said in Mr Dixon’s settlement agreement about his share options. (He agreed with the proposition that whoever made changes to the options spreadsheet to remove Mr Dixon’s options cannot have checked the agreement.) He also accepted that no-one looking at the settlement agreement could have thought that the options had lapsed. Mr Lilley also gave evidence that Mr Pyper would not have sought to take advantage of Mr Dixon, and the defendant by and large tries to do the right thing.

Having assured Mr Dixon that he would continue to be entitled to exercise the options he had hitherto held on the same basis as the other Plan members, he was excluded from the treatment afforded to all other Plan members. No factor has been identified by the defendant why this was not unconscionable. The fact that the right was extended to other members outside the 10-year life of the Plan does not, in my judgment, change the analysis. A decision was made to extend the entitlement of all known members. As Mr Dixon had been assured he would be treated in the same way as other members, there was no good reason to treat him differently by excluding him. He was excluded because his options were not shown on the company’s records because, as I have found it, no exercise of the power under the Plan to extend his options was made.

For all these reasons, I consider that the denial by the defendant of rights to a tranche 3 payment was unconscionable. The assurance was that he would continue to be able to exercise his options, on the same basis as other members. No good reason has been given for his differential treatment.

Specific enforcement of the promise that was made to Mr Dixon in 2014 entails his being compensated for the failure to include him within tranche 3 and, for the same reasons I have given in relation to tranche 2, the strike price is the right basis for determination of the remedy. The defendant might have sought to defend this part of the claim on the basis that the payment in relation to tranche 3, in addition to tranche 2, was out of all proportion to the detriment incurred by the claimant. In the absence of such a defence, there is no reason to exclude or modify the entitlement to a remedy in respect of tranche 3 from the sum that would have been received had Mr Dixon been permitted to exercise options in the same way as those members of the Plan at the end of 2020 were able to exercise their replacement options in the new plan. One can see why this defence was not raised: this is an “almost contractual” case in the sense discussed by Lord Briggs in Guest v Guest at [77]. It is in the nature of a share option that the consideration that will pass to the option holder in due course is unknown at the date when it is granted; it depends upon the market value of the option shares at the relevant time and, of course, is contingent upon the conditions for exercise coming into existence. But the consideration to be provided by Mr Dixon was fixed. The parties agreed that he would continue to work for Canadean for longer, for the benefit of the group, and would bind himself to restrictive covenants.

Mr Parfitt asks for simple interest at 2% over base rate. Mr Nicholls says that base rate is sufficient. He refers to Carrasco v Johnson [2018] EWCA Civ 87 at [17], where Hamblen LJ set out the general considerations to apply when awarding interest, the key being that the court considers the position of individuals with the claimant’s general characteristics, i.e. whether they would have borrowed (and if so at what rate) or would they have put money on deposit. Many claimants are not clearly in one category or the other and a blended rate is often chosen, with rates commonly 2.5%-3% over base rate.

Mr Parfitt refers to what Lord Leggatt JSC said on interest in his dissenting opinion in Guest v Guest; he would have ordered a sum as equitable compensation, rather than remitting the question of remedy if the parties could not agree. He said this, in an appendix to his opinion:

I agree with Mr Parfitt that similar considerations justify a rate of 2% over base rate in the present case, which I also regard as conservative. I consider it unlikely that a person with the claimant’s general characteristics would have kept the entirety of the sums involved sitting on deposit.

The remedy I will award is based on the amount that would have been received based on the strike price if the claimant had been paid following a bulk sale in the manner described in Mr Lilley’s witness statement at paragraph 30. Interest should therefore run from the date when those option holders who participated in a bulk sale at strike price received their entitlement. I appreciate they may have been paid over a range of dates in which case it would seem appropriate to select a point in the middle of any such period. It is unclear to me whether the dates are evidenced. If the parties cannot agree the date from which interest runs in relation to each tranche, I will have to determine it as a consequential matter.

There will be judgment for the claimant in relation to tranches 2 and 3. The award of equitable compensation for tranche 2 will be in the sum of £175,358.66 and, for tranche 3, £266,878.34. Interest will be at 2% over base rate from the dates to be ascertained in accordance with the paragraph above.