Judge: I found Winters’ evidence sometimes demonstrably false

These are edited extracts from the judgment given in the High Court on Wednesday by Mr Justice Henderson.


October 17, 2008
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"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 in 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... 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."

    Last updated: 11:49am, October 17 2008