Comberg v. VivoPower: Constructive dismissal, Oral Contracts, Bonuses

23 October, 2020

On Friday 11 September, The High Court handed down Judgment in Comberg v. VivoPower. Members of Chambers acted for both the Claimant (Dr Comberg) and the Defendants (VivoPower) in what Freedman J described as “hard-fought” litigation, tried over 3 weeks in the Queen’s Bench Division.

Dr Comberg claimed constructive dismissal from his position as CEO of VivoPower, a Nasdaq-listed solar power specialist. He also claimed in respect of a series of alleged oral contracts in relation to additional fees in parallel to his employment remuneration. His total claim exceeded £3 million.

The Court held that VivoPower constructively dismissed Dr Comberg following non-payment of salary and dismissed allegations of repudiatory breach by him and awarded damages. The Court found in favour of Dr Comberg in relation to an oral contract for the payment of deferred remuneration, but dismissed the two other fee claims. Dr Comberg was awarded damages in excess of £680,000, plus interest and costs. Freedman J also set out detailed analysis of the relevant principles that govern interpretation of employment contracts, the approach to evidence in oral contract cases, the effects of Part 36 on compromised claims, entire agreement clauses and quantification of loss, including lost bonuses and incentive awards.

The Judgment is available here.

Edward Brown, instructed by John McElroy and Duran Ross of Hausfeld & Co LLP, acted for Dr Comberg.

Charles Ciumei QC and Owen Lloyd, instructed by Tom Southwell and Cian Mansfield of Scott + Scott UK LLP, acted for VivoPower.