Simons v Darrell and Darrell

• Jurisdiction: Bermuda
• Judgment Date: 11 June 2008
• Date: 11 June 2008
• Docket Number: Civil Jurisdiction 2003 No. 486
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Bell, J

Civil Jurisdiction 2003 No. 486

BETWEEN:

Charles Simons

Plaintiff

and

Lionel Darrell and Dolores Darrell

Defendants

Mr J Durham for the Plaintiff

Ms N Dosanjh for the Defendants

Contract for services by trainer to fitness club — Fee paid by trainer for access to club and clients — Written agreement missing — Termination — Relevant parties to the claim — Whether contract was discharged by breach due to conduct — Damages

JUDGMENT of Bell, J

Introduction

1. These proceedings arise from a business arrangement between the plaintiff (‘Mr. Simons’) and the defendants (respectively ‘Mr. and Mrs. Darrell’ or ‘the Darrells’) relating to the business known as the SeaView Health and Fitness Centre (‘the Business’), which operated from premises on North Shore Road in Pembroke Parish (which premises I will refer to as ‘the Gym’). One of the issues in the proceedings is whether the Business was operated by Mr. and Mrs. Darrell, or by a company which they and family members had incorporated under the name of SeaView Holdings Ltd. (‘the Company’). It is Mr. Simons' case that Mr. and Mrs. Darrell were the owners and operators of the Business, whereas the case for the Darrells is that the Business was owned by the Company, which then traded under the name of SeaView Health and Fitness Centre.

2. Mr. Simons was one of four or five personal fitness trainers who made their services available to clients of the Business, for a fee which was a matter of agreement between the clients and the trainers. In return for this access to the clients of the Business, the trainers were obligated to pay a monthly fee to the Business. There is an issue between the parties as to whether the agreement between Mr. Simons on the one hand and either Mr. and Mrs. Darrell or the Company as owners and operators of the Business on the other were in written form. Mr. Simons' position is that he never signed the form of agreement which was signed by other trainers. Although the amended statement of claim referred to the agreement between the parties as being partially in writing and partially oral, Mr. Durham indicated at the outset of proceedings that the contract was not partially in writing and that that part of the statement of claim should be struck. For Mr. and Mrs. Darrell, the position was that Mr. Simons signed the same form of personal trainer agreement as had been signed by other trainers, and that they had been unable to produce the document because Mr. Simons' personal file had gone missing.

3. It is common ground that on 4 November 2003 Mr. Simons' contract was terminated by Mrs. Darrell. The case for Mr. Simons is that that termination was a breach of the agreement, and that it was an express or alternatively an implied condition of the agreement that Mr. Simons would be given reasonable notice of any termination. He claims damages by way of loss of earnings in consequence of the alleged breach. For the Darrells, the claim is, firstly, that Mr. Simons' contract is with the Company, not Mr. and Mrs. Darrell. It is then said that it was a term of the contract between the Company and Mr. Simons that the Company could discontinue his services by notification in writing, and that this was done on or about 4 November 2003. Alternatively it is said that Mr. Simons repudiated the contract, which repudiation the Company was entitled to and did accept. Alternatively, if the contract was between Mr. Simons and Mr. and Mrs. Darrell, it is again said that Mr. Simons breached the terms of that contract. I will come to the full terms in due course. Finally, in relation to the claim for damages, this is disputed both on the basis that Mr. Simons' earnings were not at the level claimed, and that he mitigated his loss by means of alternative employment, so reducing the claim for damages.

The Pleadings

4. The statement of claim is in relatively short terms, and I have already referred to the material ones. The only other aspect that needs to be mentioned is that shortly before the trial, Mr. Durham sought and obtained leave to add the words ‘a licence to’ after the words ‘agreed to pay rent for’ appearing in paragraph 3 of the statement of claim. The consequence is that (subject to the change referred to in paragraph 2 above) that paragraph now reads:

‘In or about April 2000 by an agreement, partially in writing and partially oral, between the Plaintiff and the Defendants, the Plaintiff agreed to pay rent for a licence to the use of the Defendants' premises such use including but not limited to the facilities and equipment thereat.’

5. In my view, the inclusion of the word ‘licence’ added nothing to the claim. One is bound to consider the full terms and effect of the agreement between the parties, and to characterise the agreement or part of it as a licence makes no difference to such consideration. Perhaps the word was used to qualify the use of the word ‘rent’ to describe the payment required to be made by the trainers (including Mr. Simons) to the Business. This was a word used by the owners of the Business—see for instance the letter of 16 December 2002 addressed to the personal trainers in relation to an increase in rent. In truth, the payment was simply a fee required by the Business from the trainers in return for access to the Gym and to the clients of the Business.

6. The re-amended defence is a fuller document which requires a more detailed review. The contract between the Company and Mr. Simons was said to be partly in writing and partly oral. In fact, a signed version of the written document was not available because of the missing file, although Mr. and Mrs. Darrell gave evidence that Mr. Simons had signed the same form of personal trainer agreement as had been signed by other trainers. The pleading maintained that it was an express term of the contract that Mr. Simons would require any person whom he trained at the Business premises to pay their entrance dues and sign into the premises. It was said to be an express term of the contract that Mr. Simons as a trainer would ensure that his clients were members of the Gym or that they paid the daily rate prior to each session.

7. There were further terms set out, said to be either express or implied. I will make reference only to those which have relevance for the purpose of these proceedings.

These were:

• that Mr. Simons would not abuse any confidential information obtained from his position.

• that he would at all times act in a professional manner while in the Gym.

• that he would ensure that all clients were members of the premises, or, if non-members, paid the daily rate (a duplication of the express term previously referred to), and

• that he would display a high level of professionalism at all times.

8. The amended defence then set out some six alleged breaches, two of which may be run together. Firstly, it alleged that Mr. Simons trained clients without ensuring that they were members in good financial standing or had paid the daily usage fee; secondly, that he was openly and blatantly disrespectful to the shareholders, directors and managers of the Business; thirdly, that he was disrespectful to the female members of the Gym, such that his behaviour gave rise to complaints, and that he obtained confidential information in relation to such female members; fourthly, that he abused the complimentary ticket system run by the Business for the purpose of introducing new members, and lastly, that he failed to pay the monthly rental fee.

The Evidence

9. Mr. Simons was the only person to give evidence in support of his case. He referred in his witness statement to the fact that he been employed as the manager of the Business, but that this...