Just before Christmas, Mr. Justice Nugee handed down an eagerly awaited judgment in the case of Holyoake & Or v Candy & Ors [2017] EWHC 3317 Ch.
Mr. Holyoake’s claims were all dismissed and the Candy Brothers won on every issue in the case. Game set and match you might suppose with Mr. Holyoake left to foot his opponents’ costs that exceed an eye-watering £11 Million, not far off the original loan of £12 million which morphed into a repayment of around £37 million to Christian Candy’s Guernsey concern, CPC Group Limited. Talk about sticking your head into the crocodile’s mouth!
A fellow mediator remarked to me that if there was ever a case that was incapable of being mediated this was it. He may have had a point.
Only the parties and their advisers will know if ADR was ever contemplated or took place. If I were a betting man, I would doubt it. The lengthy judgment reeks of forceful personalities and a high degree of animosity. Some very serious allegations were levelled against the Candy Brothers in terms of threats and intimidation, business practices and how they deal with people that cross them.
It is hard to imagine, given the factual background to the case, that the Candy Brothers ever contemplated anything apart a fight to the finish. Doubtless Mr. Holyoake regarded the claim as a worthwhile punt. He may even have hoped that the Candy Brothers might not fancy taking it all the way and would pay him off. Wishful thinking perhaps, and at the same time I expect his idea of a reasonable pay off would have been far in excess of what, if anything, the Candy Brothers might have been willing to pay.
It goes without saying that Mr. Holyoake did not emerge at all well from the Judgment. But although the Candy Brothers emerged as outright winners, the judge was far from believing of everything they said and some of the judge’s observations were quite damning of them and may afford food for thought in certain quarters.
So a more interesting question is whether in the light of all that, both sides now wish that they had arrived at a mediated solution which would have avoided washing dirty laundry in public, not to mention an assessment of it and them by the Court. I expect both sides would say that they would not have had it any other way. Well, they would wouldn’t they and maybe the successful Defendants are such big hitters that given the mores of this day and age, a few negative comments by a High Court Judge amount to water off a duck’s back and will count for nothing in their business dealings.
But there may come a day when either or both sides wished that they had adopted a more conciliatory course. Although the issues in the case were complex, the basic rational and dynamic for a mediated settlement from each side’s perspective were readily identifiable and settlement achievable. It is said that for a mediation to be successful, both sides are left with a greater or lesser degree of disappointment. And so it might have been.
Apparently, in the course of the trial, one of the Candy Brothers observed that even if they won hands down, there would remain a certain smell about them. How prescient. And that is why a mediated outcome would have been a wise course. How wise, only time will tell.