Global Asset Capital, Inc & Anor v Aabar Block SARL & Anor

In this section I set out the terms of an undated letter which Mr Maud says was initially emailed by him to the Aabar defendants on 23 April 2015 and was the subject of discussion on 6 May 2015. Here, and in subsequent sections setting out correspondence between the parties, I have for convenience added letters or numbers or both in square brackets in order to identify particular passages.

The undated letter can be described in broad terms as a proposal by Mr Maud and GAC for the purchase of the Aabar rights. The letter was headed with the Grosvenor Street address. It used the abbreviation “Madison” for what was described in the body of the letter as “Madison Realty International”. It identified as a copy recipient, however, Derek Jacobson (“Mr Jacobson”) of “Madison International Realty”. The addressee of the undated letter was Aabar Block at its address in Luxembourg. The undated letter stated, with identifiers added in square brackets:

[U/A] WITHOUT PREJUDICE – SUBJECT TO CONTRACT

[U/B] Dear Sirs

[U/C] Offer to purchase all rights and claims of Aabar in relation to Marme and Edgeworth

[U/D] This letter sets forth the key terms of an all-cash offer (the “Offer”) to Aabar Investments PJS, Aabar Block S.a r.l and any relevant affiliates of Aabar Investments PJS or Aabar Block S.a r.l. (jointly referred to as “Aabar”) to purchase all of Aabar’s rights and claims in relation to i) Marme Inversiones 2007 S.L. (“Marme”) and its holding companies (together the “Marme Group”) and ii) Edgeworth Capital (Luxembourg) S.a r.l. and Edgeworth Capital Limited and any and all of their affiliates and/or related parties (jointly “Edgeworth”) (the “Proposed Transaction”).

[U/E] Glenn Maud together with Madison Realty International (“Madison”) and Global Asset Capital (“GAC”) or an entity designated by them will be jointly referred to as the “Purchaser”.

[U/F1] 1. Key commercial terms of the Offer to Aabar:

[U/F1.1]Purchased Rights	All of the rights and benefits of Aabar in relation to or in connection with the Marme Group, including
	(i) all rights and benefits of Aabar under the Finance Documents as defined in the credit facility agreement (the “Junior Facility Agreement”) entered into by Ramblas Investments (“Ramblas”) on 12 September 2008 (the “Junior Claims”);
	(ii) all rights and benefits of Aabar under the Finance Documents as defined in the personal loan agreement entered into with Derek Quinlan and Glenn Maud on 12 September 2008 (the “Personal Claims”);
	(iii) all rights and benefits of Aabar under any and all arrangements with Derek Quinlan in relation to the Marme Group or otherwise, including any rights to acquire all or a part of the shareholder loans and shares held by Derek Quinlan in Ramblas;
	(iv) any and all rights of Aabar against (other) third parties in connection with the acquisition of the Junior Claims from the Royal Bank of Scotland PLC in 2010 and/or representations and/or warranties made in relation thereto; and
	(v) all rights and benefits that Aabar has against Edgeworth and/or any of its affiliates or related parties, including any and all rights and benefits under any loans that Aabar has made to Edgeworth and/or any of its affiliates or related parties;
	(vi) the right to purchase the shares in the Aabar entity or Aabar entities that hold the rights listed at (i) – (v) above for an additional purchase price of EUR 1.-
	(all jointly referred to as “Aabar’s Rights”).
[U/F1.2] Purchase Price	The aggregate Purchase Price for Aabar’s Rights shall be EUR 250,000,000

[U/F2] 2. Other conditions

[U/F2.1] Release	Upon completion of the Proposed Transaction the parties shall provide each other with appropriate waivers and releases
[U/F2.2] Closing	The Proposed Transaction shall complete within 5 business days from acceptance of this offer
[U/F2.3] Conditions	(i) Subject to limited legal due diligence the results of which are satisfactory to the Purchaser
	(ii) Subject to contract

[U/G] We hope that the proposed terms are acceptable to you and are available at your convenience for a meeting to further discuss the Proposed Transaction.

[U/H] We look forward to hearing from you.

[U/J] Yours sincerely,

[G. Maud]

_________________

Glenn Maud

[illegible signature]

________________

Global Asset Capital

[U/K] cc: Derek Jacobson, Madison International Realty

The Aabar defendants’ account of events is that on 28 April 2015 a meeting took place between them and a third party. They say that during this meeting the third party indicated that Mr Maud was proposing to purchase the Aabar rights for €250m.

Mr Maud states that in late April 2015 Global began discussions with hedge funds which had previously been in discussions, which came to nothing, with Mr Tchenguiz about possible co-operation with Edgeworth. Those hedge funds included GSO Capital Partners (“GSO”) and Centrebridge Partners LP (“Centrebridge”).

On 5 May 2015:

On 6 May 2015:

There is a dispute as to what was said during the 6 May Al-Husseiny/Maud call. Global’s account, which is not accepted by the Aabar defendants, is set out in section D2 below.

On 7 May 2015 it is common ground that:

On 8 May 2015:

A covering email and attached documents were sent by Mr Maud to Mr Al-Husseiny, timed at 22:14 on 9 May 2015. I shall refer to the attached documents as “the 9 May purchase letter” and the “9 May funding letter”.

The body of the email stated, with identifiers added in square brackets:

[1] As requested please find attached binding and committed letters of finance and offer.

[2] [2.1] If possible, I look forward to receiving your confirmation of acceptance of our offer during the course of Sunday. [2.2] Thereafter we can meet in either Abu Dhabi or London to suit to agree the mechanics of how [to] progress to completion as soon as possible.

[3] Many thanks.

Like the undated letter, the 9 May purchase letter was headed with the Grosvenor Street address, and the addressee of the letter was Aabar Block at its address in Luxembourg. It used the abbreviation “Madison” for what was described in the body of the letter as “Madison International Realty”. The 9 May purchase letter was as follows, with identifiers added in square brackets:

[9P/A] Date: 9 May 2015

[9P/B] Dear Sirs

[9P/C] RE: Purchase of all rights and claims of Aabar in relation to Marme and Edgeworth

[9P/D1] We refer to our prior discussions and negotiations, and our history of seeking to work constructively together to resolve all matters that exist between us. [9P/D2] This letter sets forth the key terms of a financed agreement (the “Agreement”) with Aabar Investments PJS, Aabar Block S.a r.l. and any relevant affiliates of Aabar Investments PJS or Aabar Block S.a r.l. (jointly referred to as “Aabar”) to purchase all of Aabar’s rights and claims in relation to i) Marme Inversiones 2007 S.L. (“Marme”) and its holding companies (together the “Marme Group”) and ii) Edgeworth Capital (Luxembourg) S.a r.l. and Edgeworth Capital Limited and any and all of their affiliates and/or related parties (jointly “Edgeworth”) (the “Proposed Transaction”).

[9P/E] Madison International Realty (“Madison”), Global Asset Capital (“GAC”) and Glenn Maud (“GM”) or an entity designated by them will be jointly referred to as the “Purchaser”.

[9P/F1] 1. Key commercial terms:

[9P/F1.1] Purchased Rights	[text in materially identical terms to the text at [U/F1.1]]
[9P/F1.2] Purchase Price	[text identical to the text at [U/F1.2]]

[9P/F2] 2. Other terms

[9P/F2.1] Release	Upon completion of the Proposed Transaction the parties shall provide each other with appropriate waivers and releases of all outstanding matters, litigation and disputes between them including (without limitation) appropriate releases and waivers being granted by Glenn Maud
[9P/F2.2] Expiry	This letter will expire at 6.00 p.m. London time on 11 May 2015, unless accepted by you by that time
[9P/F2.3] Edgeworth	It is our intention post-completion to work constructively with Edgeworth and to refinance the existing senior debt to ensure Marme’s future solvency. Any amendment to the arrangements that exist between you and Edgeworth that might be necessary shall be subject to mutual discussion and agreement.
[9P/F2.4] Documentation	Upon your agreement that you are willing to proceed with the Proposed Transaction we will provide market standard documentation for the transfer of Aabar’s Rights for your review.
[9P/F2.5] Closing	The Proposed Transaction shall complete as soon as practicable upon agreement of final documentation.
[9P/F2.6] Exclusivity	Upon your agreement that you are willing to proceed with the Proposed Transaction each party agrees that it will not pursue or seek to pursue any alternative transaction with respect to Aabar’s Rights for 15 days from the date of this letter. During the Exclusivity period all litigation between the parties and any of them is to be stayed.
[9P/F2.7] Expenses	Each party shall bear its own costs.

[9P/F3] 3. Conditions

This Agreement is subject to:

	(i) agreement of final form documentation to be governed by Loan Market Association (“LMA”) terms and conditions;
	(ii) completion of limited legal due diligence the results of which are satisfactory to the Purchaser;

[9P/F4] 4. Funding

[9P/4.1] We enclose confirmation of the funding position from our financiers. [9P/F4.2] We would be happy to provide any further information at your request. [9P/F4.3] Our financiers are available to meet, if required, at short notice.

[9P/G] We hope that the proposed terms are acceptable to you and are available at your convenience for a meeting to further discuss the Proposed Transaction.

[9P/H] We look forward to hearing from you.

[9P/J] Yours sincerely

[G. Maud]

[illegible signature]

The 9 May funding letter was a document signed by Mr Jacobson as managing director of Madison International Realty, LLC, headed “MADISON INTERNATIONAL REALTY”, and giving a New York address. It was marked “Private & Confidential”, and dated May 9, 2015. It was addressed to Aabar PJS at its address in Abu Dhabi. The 9 May funding letter stated, with the addition of identifiers in square brackets:

[9F/A] We refer to the attached letter sent by Global Asset Capital Inc. (“GAC”), Madison International Realty (“Madison”), and Mr. Glen Maud (“GM”) to Aabar Block S.a r.l (together with any relevant affiliates, “Aabar”) relating to a proposed purchase (the “Acquisition”) of all of Aabar’s rights and claims in relation to (i) Marme Inversiones 2007, S.L. and is holding companies (together, the “Marme Group”), and (ii) Edgeworth Capital (Luxembourg) S.a r.l and Edgeworth Capital Limited.

[9F/B1] Madison is currently investing on behalf of its fifth fully discretionary private equity vehicle, Madison International Real Estate Liquidity Fund V, LP, which has $825 million of aggregate commitments. [9F/B2] Madison was founded in 2002 and manages approximately $1.8 billion of equity.

[9F/C1] As you have requested, we are writing to confirm the intention of Madison, on behalf of certain funds managed by its affiliates, to provide the funding needed to complete the Acquisition. [9F/C2] This funding is subject to the satisfactory completion of Madison’s due diligence and to other customary conditions precedent, including the completion of all documentation to the satisfaction of Madison.

[9F/D] It should be understood that this letter does not, and is not intended to, create (under the laws of any jurisdiction) any contractual relationship or other obligation of any kind between any of Madison, GAC, GM and Aabar.

[9F/E] This letter is to be treated as strictly confidential and is delivered to you with the understanding that neither it nor its contents may be disclosed, directly or indirectly, to any other person other than:

(a)

to your directors, officers, employees, agents and advisors, who are directly involved in the consideration of the Acquisition and who are made aware of these confidentiality obligations;

(b)

upon the order or request of any court or administrative agency or as otherwise required by law or regulation; or

(c)

with our prior written consent

[9F/F] This letter and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law.

[9F/G] Yours faithfully,

Madison International Realty, LLC

By [illegible signature]

____________________

Derek Jacobson

Managing Director

[9F/H] Date: 05/09/15

[9F/J] cc: Mr. Glenn Maud

Mr. Riaz Valani, Global Asset Capital, Inc.

In this judgment I assume that the references in the undated letter to “Madison Realty International”, and in that letter, the 9 May purchase letter and the 9 May funding letter to “Madison International Realty”, are all references to Madison International Realty, LLC. I use the abbreviation “Madison” to refer to that entity.

On 10 May 2015:

On 12 May 2015 the hearing took place of Mr Maud’s application to set aside the statutory demand served on him on 5 June 2014. I deal with this in section B6 below.

As noted above, shortly after service of the statutory demand Mr Maud made an application to set it aside. This application (“the statutory demand application”) was made in the Chancery Division, case number 218/SD/2014. In support of the statutory demand application Mr Maud made a first witness statement dated 1 July 2014 (“Maud 218/1”) and a second witness statement dated 23 February 2015 (“Maud 218/2”).

The hearing of the statutory demand application took place before Rose J on 12 May 2015. Shortly before the hearing Mr Maud served on Aabar Block and Edgeworth three further witness statements. I shall refer to them as “the Maud 218 ineffective statements”. They comprised a third witness statement dated 7 May 2015 (“Maud 218/3”), a fourth witness statement dated 8 May 2015 (“Maud 218/4”) and a fifth witness statement dated 10 May 2015 (“Maud 218/5”). At the hearing on 12 May 2015 reference was made on behalf of Mr Maud to a document which had been included in the exhibit to Maud 218/3. However, no application was made by Mr Maud at the hearing to rely upon any of the Maud 218 ineffective statements.

In a judgment dated 8 June 2015 (see section B2 above) Rose J dismissed the statutory demand application. She refused an application by Mr Maud for permission to appeal. An application by Mr Maud to the Court of Appeal for permission to appeal was refused by Gloster LJ on 1 July 2015. In the meantime, on 25 June 2015, a consent order was made by Rose J granting permission to use the Maud 218 ineffective statements in the present proceedings.

The present proceedings were begun by a claim form issued on 8 June 2015. When issued the claim form was accompanied by particulars of claim. Acknowledgements of service, giving notice of intention to defend, were filed by the Aabar defendants and Mr Tchenguiz on 24 June 2015.

As noted earlier, the Aabar defendants’ application was issued on 26 June 2015 and was supported by Robinson 1 made on the same day, while Mr Tchenguiz’s application was made on 30 June 2015 and was supported by Roscoe 1 made on that day. On 8 July 2015 Mr Tchenguiz’s defence was filed, and on 16 July 2015 the Aabar defendants’ defence was filed. As also noted earlier, Maud 264/1, responding to Robinson 1 and Roscoe 1, was filed on 7 August 2015.

In the meantime arrangements had been made for the hearing of the applications. A letter from Freshfields to the court dated 26 June 2015 asserted that the hearing would require no more than half a day, with an hour and a half for reading. A fixing sheet signed by all counsel was lodged by 22 July 2015, giving an estimated length of hearing of half a day to a day, including the time necessary for the giving of oral judgment, with two hours for pre-reading.

A draft amended particulars of claim dated 4 September 2015 (“the 4 September draft”) was sent by GAC’s solicitors, Paul Hastings (Europe) LLP, to Freshfields and Linklaters. In due course letters were sent consenting to the proposed amendments, but no formal service of amended particulars of claim under CPR 17.1(2) took place. On 11 September 2015 the Aabar defendants provided other parties with a draft amended defence. Skeleton arguments for the Aabar defendants and for Mr Tchenguiz were filed on 14 September, and a skeleton argument for Global was filed on 16 September.

On the basis of the fixing sheet a hearing was scheduled for 17 September 2015. The hearing was assigned to Blair J, who on consideration of the papers concluded that the time needed had been underestimated. Subsequent events have shown that there had been a failure to warn the court that the time needed for pre-reading would be a day and that the time required for oral argument, not allowing for the giving of judgment, would be at least a day and a half.

The September hearing date was vacated. The hearing was adjourned and came before me for oral argument on 11 and 12 November 2015.

At the conclusion of argument on 12 November 2015, following suggestions in the course of argument that there might be revisions to the draft amended particulars of claim dated 4 September, at my request a revised draft of the amended particulars of claim (“the 12 November draft”) was provided by Global.

Legal principles: striking out/summary judgment

It is common ground that general principles concerning strike out and summary judgment, so far as relevant to the present case, are summarised by Asplin J at paragraphs 9 and 10 of her judgment in Tesco Stores Ltd v Mastercard Incorporated [2015] EWHC 1145 (Ch). Among other things:

In that judgment at paragraph 14, Asplin J referred to AK Investment CJSC v Kyrgyz Mobil Tel Ltd [2012] 1 W.L.R. 1804. The judgment of Lord Collins in that case stated at paragraph 84:

The general rule is that it is not normally appropriate in a summary procedure (such as an application to strike out or for summary judgment) to decide a controversial question of law in a developing area, particularly because it is desirable that the facts should be found so that any further development of the law should be on the basis of actual and not hypothetical facts …

The Aabar defendants’ application

The Aabar defendants’ application notice asserted in general terms that the legal tests for summary judgment under CPR 24.2, and for striking out under CPR 3.4(2)(a), were met. The notice itself did not explain the basis for saying that these tests were met. Instead, the information required by CPR 23.6, and by CPR 24.4(3) as supplemented by PD 24 paragraph 2(3), was (as permitted by those provisions) set out in Robinson 1.

Robinson 1 at paragraph 23, while noting that Global’s account of the 6 May Al-Husseiny/Maud call was disputed, stated:

It is however unnecessary to resolve that factual dispute on this Application. That is because, even if the Claimants’ account of the 6 May Telephone Call is correct, it is plain, for the reasons set out below, that no binding and enforceable contract to sell Aabar’s debt interests to the Claimants could or did come into force on 6 May 2015. In any event, the alleged Conditions were not satisfied.

Paragraph 23 of Robinson 1 can be analysed as limiting the Aabar defendants’ application to three broad issues. The first, which I shall call “the Aabar defendants’ first issue”, was that no enforceable contract could come into force on 6 May 2015. The second, which I shall call “the Aabar defendants’ second issue”, was that it could not be said that an enforceable contract did come into force on 6 May 2015. The third, which I shall call “the Aabar defendants’ third issue” was that in any event two conditions, accepted by Global to have been part of the contract, could not be said to have been satisfied.

It is important to note in this regard that, as regards all these issues, the Aabar defendants’ application proceeded upon the assumption that “the Claimants’ account of the 6 May Telephone Call is correct”. I shall refer to that account as “the 6 May alleged Al-Husseiny/Maud communications”. Those alleged communications are set out in paragraph 14 of the particulars of claim: see section D2 below.

As to the Aabar defendants’ assertion that there was no arguably enforceable contract on 6 May, relevant paragraphs in the particulars of claim were unchanged in the draft amendments of 4 September and 12 November 2015. They are paragraphs 10 to 15:

10.

On 30 November 2010, RBS entered into a transfer and assignment agreement pursuant to which it sold and assigned to Aabar Block and to Edgeworth Capital (Luxembourg) S.à.r.l. (“Edgeworth”) the Junior Loan, the Personal Loan and the benefit of all securities held in respect of the same. Edgeworth is a Société à responsabilité limitée incorporated under the laws of Luxembourg, which is owned and controlled by Mr Tchenguiz. The precise details of the relationship between Aabar and Edgeworth are unknown to the Claimants, but they believe that Edgeworth’s participation in the transaction was ultimately financed by Aabar by way of loan or guarantee or otherwise.

11.

Mr Maud has repeatedly attempted to settle the debts owned by Aabar Block and Edgeworth. In particular, but without limitation, in February 2015 Mr Maud reached an agreement in principle with Aabar for the acquisition of the entirety of the Junior Loan. Mr Tchenguiz, however, consistently with his hostile strategy of acquiring control of Ciudad Financiera, blocked the deal, declaring at a meeting at the offices of Bank of America Merrill Lynch in London with (amongst others) Mr Maud and representatives of Aabar on 3 March 2015 that he would not sign the proposed contract and that he intended to become the owner of Ciudad Financiera.

The Agreement

12.

In light of Mr Tchenguiz’s conduct, Mr Maud together with GAC made an offer to Aabar for the acquisition of Aabar’s interests alone, without Edgeworth’s interests in the Junior Loan, but including Aabar’s interests against Edgeworth. That offer was set out in an undated letter to Aabar, marked without prejudice and subject to contract, signed by Mr Maud and on behalf of GAC and sent to Aabar and Aabar PJS on or around 23 April 2015 (the “Offer Letter”). The Offer Letter, a copy of which is annexed hereto, contained the following material, express terms (described in the Offer Letter as “Key commercial terms”):

a.

The offer was to purchase all rights and benefits of Aabar and their affiliates ‘in relation to or in connection with’ Marme and its holding companies (the “Aabar Rights”), specified at Clause 1 as including: (i) all rights and benefits under the Finance Documents as defined in the Junior Facility Agreement; (ii) all rights and benefits under the Finance Documents as defined in the Personal Loan Agreement; (iii) all right and benefits under any and all arrangements with Mr Quinlan in relation to the Marme Group or otherwise; (iv) any and all rights against third parties in connection with the acquisition of the Junior Loan from RBS; (v) all rights and benefits against Edgeworth and/or any of its affiliates or related parties, including any and all rights and benefits under any loans that Aabar or their affiliates had made to Edgeworth and/or any of its affiliates or related parties; and (vi) the right to purchase the shares in the Aabar entity or entities that hold the aforesaid rights for an additional purchase price of €1.

b.

Clause 2 provided that the purchase price for the Aabar Rights would be €250 million.

13.

On 5 May 2015 at or around 18:00 London time, the Chief Executive Officer of both Aabar Block and Aabar PJS, Mohamed Al-Husseiny, telephoned Mr Maud and informed him that Aabar PJS’ board would be meeting the following day and would consider the Offer Letter.

14.

On 6 May 2015 at or around 15:37 London time, Mr Al-Husseiny again telephoned Mr Maud. Mr Al-Husseiny stated that he was telephoning Mr Maud with some of his colleagues from Aabar PJS board, to tell him that the board had met, chaired by Suhail Al-Mazrouei, and that they had accepted Mr Maud’s offer on behalf of Aabar Block and Aabar PJS. Mr Maud thanked Mr Al-Husseiny and asked, “What do we need to do now to progress it?” Mr Al-Husseiny responded that Mr Maud needed (i) to resend the Offer Letter in “open and binding form” and (ii) to provide satisfactory evidence of his ability to fund the transaction (the “Conditions”). Mr Maud said that he would do so. Mr Al-Husseiny expressed no other condition or caveat on Aabar’s acceptance of the Offer Letter.

15.

By the Offer Letter and these telephone communications, the Claimants and Aabar concluded a contract for the purchase by the Claimants of the Aabar Rights from Aabar, on the terms set out in the Offer Letter and subject to the satisfaction by the Claimants of the Conditions (the “Agreement” as defined above).

Under the heading, “(1) 23 April proposal”, a term used to refer to the undated letter, Robinson 1 identified at paragraph 24 five reasons in support of a proposition that it is plain that the undated letter:

was not an offer which was capable of being accepted to form a binding contract. Rather, on its face it was the opening proposal to negotiate terms acceptable to both parties.

Mr Robinson described the five reasons in this way:

(a)

It was expressly headed “WITHOUT PREJUDICE – SUBJECT TO CONTRACT”. It set out proposed terms of a “Proposed Transaction”.The final page of the 23 April Proposal repeated that it was expressly subject to contract and proposed a “meeting to further discuss the Proposed Transaction”.

(b)

Moreover, further negotiation and consideration needed to be given to the terms and parties to the Proposed Transaction. The purchasing and selling entities were not defined. Further, key terms as to waivers and releases between the parties needed to be agreed.

(c)

Further, the 23 April Proposal was expressly stated to be conditional upon satisfactory limited due diligence being carried out.

(d)

Accordingly, the 23 April Proposal could not have formed an offer for the purchase of Aabar’s debt interests which was capable of acceptance by Aabar. It was made on an expressly subject to contract and conditional basis, and required substantial further negotiation and consideration.

(e)

It follows that even if Aabar had accepted this proposal on 6 May 2015 as Mr Maud contends (and Aabar denies) this could not have given rise to a binding contract.

The points at (d) and (e) above are put forward as consequences arising from the substantive points at (a), (b) and (c). In conjunction with those substantive points and alleged consequences, I think it important to examine the proposition in support of which they are advanced. The proposition makes an assumption that Global puts forward a case under which the Aabar defendants were entitled to conclude a contract by saying that they accepted an offer in the undated letter. The assumption is apparent not only from Mr Robinson’s proposition itself, but also from Mr Robinson’s points (a), (d) and (e).

This assumption misconceives the case pleaded at paragraphs 14 and 15 of the particulars of claim.

As was pointed out in Global’s skeleton argument, if, in reply to the undated letter, the Aabar defendants had merely written back, “we accept your offer”, then this could not have given rise to a binding contract. The reason is obvious: the undated letter was headed “subject to contract”. But, as was similarly pointed out by Global, that is not what is alleged in the particulars of claim.

Paragraph 14 of the particulars of claim includes allegations that:

It was on this basis that paragraph 15 of the particulars of claim asserted that the undated letter and “these telephone communications” gave rise to a contract “on the terms set out in” the undated letter, and subject to Global doing the two things identified by Mr Al-Husseiny.

It can be seen from this analysis that Mr Robinson’s proposition fastens upon the description in the particulars of claim of the undated letter as an “Offer Letter”, and targets an assumed claim that a contract could be made merely by responding “I accept”. Mr Robinson’s misconception has the result that his proposition fails to engage with Global’s case, which in paragraphs 14 and 15 of the particulars of claim asserted a contract based upon not merely the undated letter but also upon Mr Al-Husseiny allegedly referring to it as an offer and saying it was accepted, forming part of an alleged conversation incorporating the elements described in points (2) to (6) above.

The first result of the misconception is that there is a short answer to Mr Robinson’s point (a). That point was reiterated in the Aabar defendants’ skeleton argument. It was relied on in the Aabasr defendants’ oral submissions. But it simply did not engage with Global’s pleaded case. The legal principle underlying point (a) is that an offer in a letter headed “subject to contract” is not open for acceptance without more. The short answer lies in an elementary proposition, for which it is not necessary to cite authority. The elementary proposition is that the legal principle underlying point (a) does not in itself prevent the parties from later reaching an agreement on the terms set out in the letter. The making of such a later agreement appears to me to be the substance of what is alleged in paragraph 15 of the particulars of claim.

The second result is that Mr Robinson’s points (d) and (e), in so far as they rely on point (a), are unfounded.

Accordingly, the third result of this misconception is that Mr Robinson’s proposition, along with his point (a), and his points (d) and (e) in so far as based on (a), do not show that a binding contract could not have been made on 6 May 2015: they target a case which was not advanced. As to the case which was advanced, the points taken by the Aabar defendants appear to me to fall within their second issue rather than their first: see section D4 below.

It is, however, necessary to deal separately with Mr Robinson’s points (b) and (c). That is because, if there is no realistic prospect of refuting them, then terms said to be part of the 6 May alleged agreement would be terms which could not amount to a binding contract.

For this reason I deal with those points in sections D3.3 and D3.4. I then turn in section D3.5 to a further matter, not relied on in Robinson 1, which is said by the Aabar defendants to have the consequence that no enforceable contract could have been made on 6 May 2015.

In Mr Robinson’s point (b) he identified two reasons for saying that further negotiation and consideration needed to be given to the terms of, and parties to, what was proposed. The first reason was that the purchasing and selling entities were not defined, and was elaborated in footnote 12 in the Aabar defendants’ skeleton argument. As to these entities:

The second reason given by Mr Robinson was that key terms as to waivers and releases between the parties needed to be agreed. The passage referred to by Mr Robinson is at clause [U/F2.1] of the undated letter. It describes an obligation on the parties, on “completion of the Proposed Transaction” to “provide each other with appropriate waivers and releases”.

In this regard the Aabar defendants’ draft amended defence stated at paragraph 19.5(c) that the undated letter:

did not set out the contractual terms needed to effect the Proposed Transaction and left key terms as to releases and waivers to be agreed …

Here it is necessary to say something about the law concerning certainty of terms and agreements to agree. It is common ground that an agreement which fails to provide for an essential term, and instead provides simply for it to be agreed in due course, may be void for uncertainty. However, there is a distinction between: (1) an invalid overall mere ‘agreement to agree’; and (2) a concluded bargain that does not spell out all its terms. In the latter case, the courts will seek to give effect to bargains, even by implying important terms (e.g. that the price is to be determined on the basis of what was fair and reasonable). Global’s skeleton argument cited observations by Chadwick LJ in BJ Aviation Ltd v Pool Aviation Ltd [2002] 2 P & CR 25:

… where the court is satisfied that the parties intended that their bargain should be enforceable, it will strive to give effect to that intention by construing the words which they have used in a way which does not leave the matter to be agreed in the future incapable of being determined in the absence of future agreement.

… if the court concludes that the true intention of the parties was that the matter to be agreed in the future is capable of being determined, in the absence of future agreement, by some objective criteria of fairness or reasonableness, then the bargain does not fail because the parties have provided no machinery for such determination, or because the machinery which they have provided breaks down. In those circumstances the court will provide its own machinery for determining what needs to be determined - where appropriate by ordering an inquiry.

Global’s skeleton argument also cited the six principles which were identified by Lloyd LJ in Pagnan SpA v Feed Products Ltd [1987] 2 Lloyd's Rep. 601 at 619:

(1)

In order to determine whether a contract has been concluded in the course of correspondence, one must first look to the correspondence as a whole … .

(2)

Even if the parties have reached agreement on all the terms of the proposed contract, nevertheless they may intend that the contract shall not become binding until some further condition has been fulfilled. That is the ordinary ‘subject to contract’ case.

(3)

Alternatively, they may intend that the contract shall not become binding until some further term or terms have been agreed …

(4)

Conversely, the parties may intend to be bound forthwith even though there are further terms still to be agreed or some further formality to be fulfilled … .

(5)

If the parties fail to reach agreement on such further terms, the existing contract is not invalidated unless the failure to reach agreement on such further terms renders the contract as a whole unworkable or void for uncertainty.

(6)

It is sometimes said that the parties must agree on the essential terms and that it is only matters of detail which can be left over. This may be misleading, since the word ‘essential’ in that context is ambiguous. If by ‘essential’ one means a term without which the contract cannot be enforced then the statement is true: the law cannot enforce an incomplete contract. If by ‘essential’ one means a term which the parties have agreed to be essential for the formation of a binding contract, then the statement is tautologous. If by ‘essential’ one means only a term which the Court regards as important as opposed to a term which the Court regards as less important or a matter of detail, the statement is untrue. It is for the parties to decide whether they wish to be bound and, if so, by what terms, whether important or unimportant. It is the parties who are, in the memorable phrase coined by the Judge, ‘the masters of their contractual fate’. Of course the more important the term is the less likely it is that the parties will have left it for future decision. But there is no legal obstacle which stands in the way of the parties agreeing to be bound now while deferring important matters to be agreed later. It happens every day when parties enter into so-called ‘heads of agreement’.

As to Mr Robinson’s point about “appropriate waivers and releases” the Aabar defendants’ case was explained in footnote 13 of the Aabar defendants’ skeleton argument. It comprised a precautionary objection and two substantive contentions. The precautionary objection was taken to evidence of subjective intention in Maud 264/1. The precaution was not needed, however, as the passage in question was not relied upon by Global for present purposes.

The two substantive contentions were:

Global’s skeleton argument dealt with waivers and releases by making two general observations. They were (1) the relevant releases and waivers were obvious (i.e. waivers and releases of all claims the contracting parties had against each other in relation to the relevant assets at the time of transfer); and (2) in any event, the contemplated sale could proceed even if no waivers were ever agreed.

The Aabar defendants’ oral submissions built upon the two substantive contentions in their skeleton argument. It was submitted that the wording “appropriate waivers and releases” was enormously vague, and that in the context of litigation that had been in progress involving unsatisfied debts of Mr Maud and his companies, the releases and waivers were no doubt going to be complex. In addition, it was said that the court must have in mind, when considering points such as certainty, that the relief sought by Global was specific performance of a contract said to be evidenced and made on the terms of the undated letter.

It seems to me that Global’s general observations raise issues which I cannot resolve summarily. I do not know enough about the background to rule out the possibility that the relevant releases and waivers were obvious. As to the second general observation, the evidence at trial may enable to court to conclude that Global can rely upon Lloyd LJ’s principle (6) in the Pagnan case.

It follows that Mr Robinson’s paragraph (b) does not provide a basis for summary judgment.

Mr Robinson’s point (c) relied on condition (i) at [U/F2.3] of the undated letter. This point appeared at paragraph 19.5(d) of both the defence and the draft amended defence. It was not advanced in the Aabar defendants’ skeleton argument. Nor, however, was it abandoned. I have now learnt that it is no longer relied upon.

In the Aabar defendants’ oral submissions a point was taken which at first I thought was no more than a mere aside. On reflection, however, it seems to me to involve a new argument which was not foreshadowed in Robinson 1. It went beyond Mr Robinson’s points about the buying and selling entities, and about “waivers and releases”. At the present stage I make that comment only in order to explain why I differentiate this new argument from Mr Robinson’s points.

The new argument was that the undated letter was not a document which the court would ordinarily see, or would expect to see, in a commercial transaction where a purchase of rights is to be achieved in exchange for a payment of €250m. This may, perhaps, be allied with the reference in paragraph 19.5(c) of both the defence and the draft amended defence to an alleged failure to set out “the contractual terms needed to effect the Proposed Transaction”.

To my mind this point cannot show that Global’s contention has no realistic prospect of success. Global’s case is not that on 6 May an agreement was reached which obviated the need for a detailed purchase and sale contract. What Global say is that the undated letter contemplated a binding agreement to make such a contract – a binding agreement that the parties would enter into the “Proposed Transaction” – and that, taken in context, the words used in the 6 May telephone call resulted in such an agreement. Lloyd LJ pointed out in his principle (6) that our law does not prevent parties from doing this. On the contrary, in the words of Bingham J at first instance, approved by Lloyd LJ on appeal, our law recognises that parties are masters of their own contractual fate. Lloyd LJ observed that parties enter into “heads of agreement” every day. The court’s experience is that agreements of the kind alleged by Global in the present case do occur, and can involve sums even greater than those at stake in the present case.

Before leaving this new argument, I return to my comment that it was not foreshadowed in Robinson 1. As to that comment, I have a general concern that practitioners may be losing sight of important procedural requirements. Accordingly I set out observations about the present case and more generally:

For the reasons given in section D3.1 above, Mr Robinson’s proposition, while rightly saying that the undated letter was merely an opening proposal, misunderstands Global’s claim. Thus the Aabar defendants’ proposition on their first issue does not, on its own terms, provide any basis for granting summary judgment. In so far as Mr Robinson’s contentions about the legal due diligence condition and uncertainty in the undated letter might, if correct, vitiate Global’s actual claim, those contentions do not demonstrate that Global’s actual claim is bound to fail. As noted in section D4.1 below, the Aabar defendants, as it seemed to me, advanced an additional contention which might be relevant to one or other or both of the Aabar defendants’ first and second issues. Subject to that contention, which I deal with in section D4.3 below, the Aabar defendants have not demonstrated that the 6 May alleged agreement could not in law have amounted to a binding and enforceable contract. I stress that my conclusion in this regard is that the factual assertions in the particulars of claim are not shown on the present application to be incapable in law of demonstrating the objective agreement, and requisite certainty, for the making of a binding contract. Whether those assertions are proved, and if so whether in all the circumstances they give rise to an objective agreement of sufficient certainty, are matters for trial.

In support of the argument that “no binding and enforceable contract did come into force on 6 May 2015” Mr Robinson relied entirely on events after 6 May 2015. The events that he described fall into two categories. The first concerns what happened on 9 May. This was dealt with in a section of Robinson 1 comprising paragraphs 26 to 31 and headed “(2) 9 May proposal”.

The second category relies upon what Mr Maud said and did not say in the Maud 218 ineffective statements. The matters relied upon in this regard were set out in a section of Robinson 1 headed “(3) the Bankruptcy Proceedings”. Despite that heading, reliance was also placed upon the email sent on 10 May 2015 by Mr Maud. These matters were dealt with in paragraphs 32 to 34 of Robinson 1.

In addition on this second issue, as it seemed to me, the Aabar defendants sought to rely upon matters not foreshadowed in Robinson 1. Of these the first, as regards the historical point in time that it concerns, was the additional contention referred to in section D3.6 above: it relied upon the words which Mr Maud said were used by Mr Al-Husseiny in the 6 May telephone call. The other additional matters all concerned events after 6 May 2015.

Roscoe 1 did not suggest that, on the aspects now under discussion, Mr Tchenguiz sought to rely on any argument other than those advanced by the Aabar defendants. However oral submissions were advanced on behalf of Mr Tchenguiz which, if valid, would point against any binding contract having been made on 6 May 2015. They, too, all concerned events after 6 May 2015.

In section D4.2 I discuss a general aspect that arises for consideration. It concerns both categories of events relied on by Mr Robinson and all save the first of the additional matters which the Aabar defendants seek to rely upon. This is whether Global are right to say that they can, at least arguably, insist that events after 6 May cannot be relied upon by the Aabar defendants.

In section D4.3 below I discuss the first additional matter which the Aabar defendants seek to rely upon. This concerns what may be described as condition (i) of 6 May as pleaded in paragraphs 14 and 15 of the particulars of claim.

In section D4.4 I deal with the first category relied upon by Mr Robinson, what happened on 9 May 2015. The second category relied upon by Mr Robinson is dealt with in section D4.5, as to the Maud 218 ineffective statements, and D4.6, as to the 10 May email. Thereafter I deal in section D4.7 with additional matters sought to be relied upon by the Aabar defendants. In section D4.8 I deal with the additional matters that were sought to be relied upon by Mr Tchenguiz.

The first objection to reliance on events after 6 May concerns the basis upon which the Aabar defendants’ application is made. As explained in section D1 above, it was expressly stated in paragraph 23 of Robinson 1 that the application proceeded on the footing that Global’s account of the 6 May telephone call is correct. I do not consider that the Aabar defendants can go back on this. Nor do they suggest that they can. The result is that I must proceed on the footing that paragraph 14 of the particulars of claim accurately sets out what was said in the course of the 6 May telephone call, and I must shut out any attempt to rely upon evidence, whether before, during or after 6 May 2015, seeking to cast doubt upon that account.

Second, Global submitted orally that, in relation to a contract asserted to have been made on 6 May, it is not permissible to look at post-contractual documents in order to evaluate whether or not there was a binding agreement on 6 May and, if so, its legal effect. The rule against interpreting the meaning of words used in a contract by reference to what happened later is well established. The Aabar defendants relied upon an exception identified in principle (1) of Lloyd LJ’s judgment in Pagnan (see section D3.3 above). That principle, however, was concerned with how the court is to go about determining whether a contract has been concluded in the course of correspondence. The present contract is not said to have been concluded in the course of correspondence: it is said to have been concluded in a telephone call. It seems to me that there is considerable force in the contention that the meaning of the words used in the telephone call must be determined by reference to the background to the telephone call and what was said during the call, but that in accordance with the well established rule mentioned earlier, cannot be assessed by reference to what happened later. The Aabar defendants additionally relied upon observations of Lord Denning MR cited by Bingham J at first instance in Pagnan. Those observations, however, were also concerned with an examination of a course of correspondence. Moreover, immediately prior to his citation from Lord Denning MR, Bingham J noted what was said by Lord Cozens-Hardy MR in Perry v Suffields [1916] 2 Ch 187 at 192:

when once it is shown that there is a complete contract, further negotiations between the parties cannot, without the consent of both, get rid of the contract already arrived at.

In these circumstances it seems to me that there is at least a realistic prospect that at trial Global will be entitled to rely on a proposition that on the question whether an agreement was made on 6 May 2015 and what the true meaning of that agreement was, reference cannot be made to events after 6 May 2015. The limited argument on the law advanced at the hearing does not enable me to form a conclusion as to whether that proposition will be held to be sound in the context of the present case.

Paragraph 23.1 of the Aabar defendants’ skeleton argument noted that, according to paragraph 14 of the particulars of claim, during the 6 May telephone call Mr Al-Husseiny told Mr Maud to resend the undated letter in “open and binding form”. This was said by Global to give rise to what I have called condition (i) of 6 May. It was relied upon by the Aabar defendants as showing that, on Global’s own case as to what was said on 6 May, Mr Al-Husseiny on 6 May did not regard the undated letter as being anything other than a without prejudice and non-binding proposal. This point does not appear to me to have been relied upon by Mr Robinson, nor does it appear to me to have featured in the defence or the proposed amended defence. It does not appear to me to be a point which can assist the Aabar defendants on a summary judgment application. First, it is relied upon as evidence of Mr Al-Husseiny’s subjective intention. It is difficult to see that Mr Al-Husseiny’s subjective intention can be of relevance to the question whether, objectively, the parties reached agreement in the 6 May telephone call. Second, for reasons given earlier, recognition by Mr Al-Husseiny that the undated letter when sent was no more than a proposal is not necessarily inconsistent with Global’s case. Third, however, to the extent that these words are said to indicate objectively that what Mr Al-Husseiny required was a new offer which the Aabar defendants could consider whether to accept or not, that does not appear to me to be a matter which I can determine on a summary judgment application. It is a question which can only be determined with the benefit of evidence as to the 6 May Al-Husseiny/Maud call and the background factual matrix, and on the basis of full argument.

As noted in section D4.1 above, events of 9 May comprised the first category of events relied upon by Mr Robinson at paragraphs 26 to 31 of Robinson 1. The assertion made at paragraph 26 of Robinson 1 was that the 9 May purchase letter was inconsistent with a contract having been made on 6 May 2015. The first observation to make in this regard is that, for the reasons given in section D4.2 above, for the purposes of the present application the 9 May purchase letter cannot be relied upon to put in doubt Global’s account of what was said on 6 May 2015, and Global has a realistic prospect of establishing that the 9 May purchase letter cannot be relied upon in order to determine whether an agreement was made on 6 May and if so what the content of that agreement was.

If it were permissible to have regard to a contention that the 9 May purchase letter is inconsistent with there having been an agreement on 6 May 2015 as described by Global, then it is convenient to deal with this in conjunction with the argument that the 9 May purchase letter did not satisfy condition (i) of the 6 May alleged agreement. Accordingly, I deal with this in section D5 below.

In his second category, at paragraphs 32 to 34 of Robinson 1, Mr Robinson cites Maud 218/3 referring to Mr Maud having “made an offer… which I understand is acceptable and heads of terms are now being finalised…”, referring to an “Aabar proposal”, and referring to the terms of the proposal being “highly confidential and commercially sensitive”. In relation to Maud 218/4, Mr Robinson noted that the witness statement corrected an assertion made in Maud 218/3 that he had procured the support of two hedge funds: the true position was that no binding agreement with the hedge funds had yet been completed. As to Maud 218/5, Mr Robinson noted that Mr Maud described the current position between himself and the Aabar defendants as involving contact between himself and Mr Al-Husseiny “on the telephone, via text and via email on numerous occasions within the last seven days in order to seek to finalise a deal”, and as describing the position as one in which “negotiations were at an advanced stage”.

As to all of this, my first observation in section D4.4 applies. Moreover, it is submitted by Global that Mr Maud has explained in his evidence the reason why he used the terminology cited by Mr Robinson: it was, in effect, a decision by him that seeking to rely upon the contract made on 6 May might be counterproductive. I cannot resolve the truth or not of that assertion on a summary judgment application.

Robinson 1 at paragraph 33 noted what happened following Mr Al-Husseiny’s email timed at 13:18 on 10 May stating “for the record” that “we have not accepted your offer and there are no ongoing negotiations between us.” Mr Maud’s response in his email timed at 21:49 the same day included a statement by Mr Maud that “we wish to progress this transaction as offered and financed and are prepared to move immediately”. Mr Robinson noted that in this email Mr Maud made no suggestion that a contract had already been agreed on 6 May 2015. As to this, however, the points made in section D4.5 above apply and in my view enable Global to say that they have a realistic prospect of answering Mr Robinson’s contentions.

As noted in section D4.1 above, the Aabar defendants relied upon other additional matters. As also noted in section D4.1 above, they all concern matters after 6 May 2015. It follows that, for the reasons given in section D4.2 above, for the purposes of the present application they cannot be relied upon to put in doubt Global’s account of what was said on 6 May 2015, and Global has a realistic prospect of establishing that they cannot be relied upon in order to determine whether an agreement was made on 6 May and if so what the content of that agreement was.

In these circumstances I deal briefly with the additional matters raised by the Aabar defendants:

Oral submissions on behalf of Mr Tchenguiz began by noting that if no contract has been formed then there can be no tort committed for procuring a breach of contract. In that context a comment was made that if Mr Maud believed that there was an agreement in existence, then it was “frankly extraordinary” that a contention to that effect had not been run at the hearing before Rose J. It was submitted that if there had been an agreement then Mr Maud would have sought an adjournment of the hearing on 12 May. Instead, it was not until 8 June that the present proceedings, alleging an agreement, were issued.

I am not persuaded that this submission can justify a conclusion that no agreement was in fact reached on 6 May 2015. My reasons are essentially those set out in section D4.5 above: for present purposes events after 6 May 2015 cannot be relied upon to put in doubt Global’s account of what was said on 6 May 2015, and in any event an explanation has been advanced by Mr Maud for his stance on 12 May and it is not possible for me to resolve the truth or not of that explanation.

The oral submissions for Mr Tchenguiz then turned to the question whether he knew of the existence of a contract. I deal with those submissions in section E2 below. For present purposes I note that the submissions on that question involved assertions which, if right, would suggest that there had not been a contract made on 6 May 2015. The first point falling into this category concerned paragraphs 21 and 22 of the particulars of claim. The context for those paragraphs is that they are preceded by paragraph 20, alleging that on 6 May 2015 Mr Tchenguiz contacted GSO and Centrebridge. The telephone conversation on 6 May 2015 is alleged in paragraph 20 of the particulars of claim to have involved an assertion by Mr Tchenguiz that he had a right to prevent any sale of the Aabar rights to Global by Aabar, and to have involved a threat of litigation against the Aabar group in that regard.

What is asserted in paragraph 21 of the particulars of claim is that on 8 May 2015 Mr Tchenguiz made further contact by telephone with representatives of GSO and Centrebridge, and sought to persuade them to withdraw their support for Mr Maud and instead finance an alternative proposal that Mr Tchenguiz intended to put to the Aabar group. In itself, as it seems to me, this paragraph, like paragraph 20, is not concerned to identify the stage at which Mr Tchenguiz is alleged to have become aware that a contract for the sale of the Aabar rights had been concluded.

It is in paragraph 22 that the particulars of claim deal with Mr Tchenguiz’s awareness of the existence of a contract. The oral submissions for Mr Tchenguiz relied on a passage in sub-paragraph (b) of paragraph 22:

(b)

Mr Tchenguiz, by the threat of litigation or otherwise, has procured [the Aabar group] not to transfer the Aabar rights to [Global] or to conduct any negotiations with [Global] in respect of such a transfer. …

It was said in Mr Tchenguiz’s skeleton argument that the expression “to conduct any negotiations” in paragraph 22(b), together with the use of the words “an alternative proposal” to describe in paragraph 21 what it was that Mr Tchenguiz was proposing to GSO and Centrebridge, involved a recognition that what Mr Tchenguiz was concerned about was the possibility of a contract which would come about in the future or upon the happening of some contingency.

I am not persuaded that the words used in paragraphs 20 to 22 of the particulars of claim can bear the weight which Mr Tchenguiz attributes to them. They appear in a section of the particulars of claim which prefaces not only the contention that Mr Tchenguiz procured a breach of contract, but also the contention that even if a contract had not been made, nonetheless Mr Tchenguiz is liable for other wrongdoing. The use of the expression “alternative proposal” in paragraph 21 is neutral as to whether the reference is to the proposal which Global say had already been accepted by the Aabar defendants, or to Global’s alternative case that if negotiations had not resulted in a contract on 6 May, nonetheless Mr Tchenguiz is liable for preventing them from resulting in a contract after 6 May 2015. As to paragraph 22(b), I have already noted in section D3.3 above that on Global’s own case there were parts of the undated letter which involved an “agreement to agree” and thus would be the subject of negotiations. In any event each of paragraphs 22(a) and (c) contained express assertions of the existence of the 6 May alleged agreement. Moreover the passage in 22(b) complaining of Mr Tchenguiz having prevented transfer of the Aabar rights is capable of encompassing, and in my view has as its natural focus, a transfer of those rights pursuant to the 6 May alleged agreement.

The second point falling within this category began by noting that Mr Maud had corrected the inaccuracy in Maud 218/3, and that Global acknowledged that no deal was done with GSO and Centrebridge. This appears to have been a prelude to drawing my attention to a passage in Maud 218/5 where, in relation to a period which extended up to 10 May 2015, Mr Maud referred to “negotiations having been at an advanced stage with Aabar”. As to that, however, I am not persuaded that this can assist in demonstrating the absence of an agreement on 6 May 2015. Here, too, my reasons are essentially those identified in section D4.5 above.

For the reasons given in sections D4.1 to D4.8 above, I conclude that Global have a realistic prospect of being able to rebut the Aabar defendants’ contention that, even if Global’s account of the 6 May telephone call is correct, no agreement was made on 6 May 2015.

Global’s particulars of claim at paragraph 14 referred to the matters identified at (i) and (ii) in that paragraph as “the Conditions”. I have referred above to the need “to resend the [undated letter] in ‘open and binding form’“ as condition (i). Below I refer to the need “to provide satisfactory evidence of … ability to fund the transaction” as condition (ii).

Global’s case as to satisfaction of these conditions was pleaded in paragraphs 16 and 17:

16.

On 9 May 2015 Mr Maud emailed the First Defendant, attaching:

a.

A version of the [undated letter] which was not marked without prejudice or subject to contract (i.e. which was in open and binding form), and which set out the same “Key commercial terms” as had been agreed.

b.

A letter dated 9 May 2015 from Madison International Realty, LLC, declaring its intention to provide the funding needed to complete the acquisition of the Aabar Rights.

17.

The Conditions have thus both been satisfied.

It was apparent from these paragraphs that Global’s case was that what I have called the 9 May purchase letter met condition (i) and that what I have called the 9 May funding letter met condition (ii). In their defence, however, before dealing with those contentions, the Aabar defendants in paragraphs 12 to 23 advanced a contention which I have referred to in section D4.4 above.

This contention was that the 9 May purchase letter, which it described as the “Second Proposal” was a further proposal made by Mr Maud for the purchase of the Aabar rights. It was said to have superseded the undated letter (described as the “First Proposal”), and to have “again … expressly contemplated further discussion and negotiation between the parties.” Reasons for saying that the 9 May purchase letter contemplated further discussion and negotiation were then identified in sub-paragraphs of paragraph 22. Paragraph 23 asserted that the 9 May purchase letter failed to identify or properly identify the entities which would be selling and purchasing the Aabar rights, did not set out the contractual terms needed to effect such a sale and purchase, and specifically left key terms to be agreed and contractual documentation to be prepared. It was said to be apparent from those matters, and from the matters identified in paragraph 22, that detailed and substantial further negotiations would be required before any terms for purchase of the Aabar rights could be agreed between the parties.

To my mind it is clear that these paragraphs advance a case which cannot assist the Aabar defendants on the present application. There are two reasons for this. The first is that these paragraphs appear to be concerned to rely upon events after 6 May to demonstrate that there was not even a conditional agreement on 6 May: for the reasons given above, I do not accept that such an approach is permissible on the present application. Second, in so far as these paragraphs seek to meet a case that the 9 May purchase letter itself gave rise to a contractual agreement between Global and the Aabar defendants, no such case is advanced.

It was in paragraphs 29 to 32 of their defence that the Aabar defendants addressed the case advanced by Global’s particulars of claim as to the 9 May purchase letter and the 9 May funding letter. These paragraphs comprised a section of the defence headed “C. Alleged ‘satisfaction of the Conditions’“.

In relation to condition (i), paragraph 29.2 took issue with the description in paragraph 15 of the particulars of claim and its assertion that the 9 May purchase letter was a “version” of the undated letter. Two broad reasons were given for disagreeing with this assertion:

In paragraph 30, after denying that there were any “Conditions”, an alternative case in relation to condition (i) was set out. This was that they were not satisfied because, as set out in paragraph 29.2, the 9 May purchase letter did not set out the same proposed terms as the undated letter.

As regards condition (ii), paragraph 29.3 of the defence of the Aabar defendants said that the 9 May funding letter neither provided nor confirmed any commitment by Madison to provide the funding that was needed. In that regard reliance was placed on paragraph 24 of the defence, which stated:

24.

The Madison Letter stated, inter alia, that Madison intended to provide the funding needed to complete the proposed transaction, but that this was subject to satisfactory completion of due diligence and other conditions precedent, and that the Madison Letter did not, and was not intended to, create any contractual relationship or other obligation between any of Madison, GAC, Mr Maud and Aabar.

In paragraph 29.4 of their defence the Aabar defendants denied that any terms had been agreed between the Aabar defendants and Global.

In paragraph 30.2, after denying that there were any conditions, an alternative case in relation to condition (ii) was set out. This was that, for the reasons given in paragraph 24 of the defence (see above) the 9 May funding letter:

did not contain any commitment by Madison to provide the funding required and/or was not satisfactory evidence of Mr Maud’s ability to fund the transaction.

As to the remaining paragraphs in this section of the defence of the first and second defendants, it is unnecessary to deal with paragraph 31, which addressed an assertion that was not advanced by Global. Nor is it necessary to say anything more in relation to paragraph 32, which was concerned to reinforce the assertion that the 9 May purchase letter was inconsistent with the 6 May alleged agreement.

The question whether condition (i) was satisfied was dealt with shortly in the Aabar defendants’ skeleton argument. Noting the “new and/or substantially different terms” which had not appeared in the undated letter, it was said that the 9 May purchase letter was, therefore, not an “open and binding” version of the undated letter. Instead, it was a further and different proposal which superseded the undated letter. The answer advanced in Global’s skeleton argument was that what condition (i) required was an open and binding version of the “key commercial terms”. These were indeed identical: see [U/F1.1] and [U/F1.2] in section B3.1, and [9P/F1.1] and [9P/F1.2] in section B4.2 above. Global accepted that the “other terms” set out at [9P/F2] of the 9 May purchase letter included terms which were either additional to or different from those which had appeared in section [U/F2] of the undated letter. They were matters which could be analysed as invitations to vary or supplement the terms of what had already been agreed. As to what it was that the condition required, Global submitted that the true meaning of the condition could only be determined at trial, after hearing evidence as to the conversation that took place on 6 May 2015 and as to the background. Global’s skeleton argument also dealt with an assertion which featured in section B of the defence of the Aabar defendants, which referred to the wording of the 9 May covering email, in particular the sentence at [2.1] as set out in section B4.1 above. That wording, it was submitted, was consistent with Mr Maud wanting to receive confirmation of the acceptance which had been given on 6 May.

The answer that was given by the Aabar defendants in oral submissions was that on Global’s own case what Mr Al-Husseiny had required was that Mr Maud should “resend” the undated letter. In order to “resend” that letter in “open and binding form” what needed to be done was to send the same letter without the words “subject to contract” and “without prejudice”. That, as it seems to me, is a possible interpretation of the conversation described by Mr Maud as having taken place on 6 May 2015. However, I am not persuaded that I can rule out of account the alternative interpretation advanced by Global. It seems to me that much may turn upon the background to the agreement and the context of the conversation. I am not in a position at this stage to make a ruling one way or the other.

Turning to condition (ii), the Aabar defendants’ skeleton argument advanced two contentions that had not featured in their defence. Nor had they featured in Robinson 1. The first was that whether the 9 May funding letter was satisfactory was plainly a matter for the Aabar defendants to determine subjectively for themselves. The second was that condition (ii) was a condition of such a nature that there would need to be a communication by the Aabar defendants of their satisfaction with the 9 May funding letter before the condition could be satisfied.

As to the first contention, the Aabar defendants relied upon the decision of His Honour Judge Seymour QC, sitting as a High Court Judge, in Humphreysv Norilsk Nickel International (UK) Ltd [2010] EWHC 1867 (QB); [2010] I.R.L.R. 976. This decision was said to support a proposition that where a contract called for something to be done to the satisfaction of a party, the party whose satisfaction was required was the sole judge and it was not necessary for the satisfaction to be objectively justifiable or reasonable. To my mind, however, the first point to note is that this was a decision at trial. It was not an application for striking out or for summary judgment. Second, far from supporting an argument that I can adopt the suggested construction at a hearing of a summary nature, the leading modern authority is the decision of the Court of Appeal in Wishart v. National Association of Citizens Advice Bureaux Ltd. [1990] ICR 794. In that decision, which is discussed by His Honour Judge Seymour in paragraphs 36 to 37 of his judgment, the Court of Appeal concluded that the question whether this construction should be adopted was a matter which needed to be considered at trial. It seems to me that the need for a trial in the present case is even greater than in Wishart, for the present case is concerned with an oral agreement. I add that on Global’s account what Mr Al-Husseiny had as his goal in condition (i) was an “open and binding” document. The contention by the Aabar defendants that condition (ii) gave them the ability to decide for themselves whether or not to proceed may, in my view with a realistic prospect of success, be argued to run counter to the goal which Global says Mr Al-Husseiny wanted condition (i) to achieve.

The second contention relied upon the decision of the Court of Appeal in Stabilad Ltd v Stephens & Carter Ltd (No.2) [1999] 2 All E.R. (Comm) 651 for the proposition that “rights conferred and obligations imposed … are not ordinarily dependent on the uncommunicated internal thoughts of one of the parties for the good practical reason that the other party may never know about it”. The Stabilad case, however, was a case where it was common ground that the rights under the contract were dependant upon the defendant’s subjective decision, rather than an objective assessment. I am not persuaded, at the present stage, that I can hold that the Court of Appeal’s observations in Stabilad would apply if Global were successful in establishing that condition (ii) called for an objective assessment rather than a subjective decision.

Features of the 9 May funding letter which were said to be unsatisfactory were that it was no more than a letter of intent, and that it expressly stated that it was not intended to create any kind of contractual relationship or other obligation of any kind. It does not seem to me to be possible, at a summary stage, to conclude that these features made the 9 May funding letter objectively unsatisfactory.

It was also said that the 9 May funding letter was to be seen “in light of Mr Maud’s earlier attempt” in the bankruptcy proceedings to rely on a letter from Centrebridge and GSO as evidence of his ability to fund the transaction, along with the false claim in the bankruptcy proceedings that Centrebridge and GSO had agreed to fund the transaction. Here, too, it does not seem to me that I can accept this argument at the summary stage.

In these circumstances the Aabar defendants alleged that the email of 10 May 2015 had expressed the Aabar defendants’ dissatisfaction with the 9 May funding letter, and had been entitled to do so. However, for the reasons given above the matters relied upon in support of that entitlement are matters which in my view merit consideration at trial.

I add that the proposed amendment to the particulars of claim in the 4 September draft put forward an alternative case. This asserted that even if conditions (i) and (ii) were not satisfied on 9 May 2015, they could nevertheless be satisfied in future. The draft amended defence prepared by the Aabar defendants contained detailed assertions responding to this alternative case. On the view which I take of the matter, however, the alternative case does not arise. In those circumstances I think it preferable to make no observations about it.

Mr Tchenguiz’s application

Mr Tchenguiz’s application notice was, as noted in section A above, supported by Roscoe 1. Paragraphs 29 to 31 of Roscoe 1 described what Ms Roscoe called a “Primary Case” against Mr Tchenguiz. This was Global’s claim that Mr Tchenguiz had procured the Aabar defendants’ breach of the 6 May alleged agreement, which Ms Roscoe called “the Purported Agreement”.

Paragraph 30 of Roscoe 1 identified four essential elements which must be proved in order to succeed on the claim for procuring breach of contract:

30.

In order to succeed on the Primary Case, the Claimants must, as a bare minimum, prove that (a) that there was a binding contract in place; (b) that Mr Tchenguiz knew that there was a binding contract; (c) that Mr Tchenguiz must have had the intention to interfere with the contract’s performance; (d) that he did so and it has caused the Claimants loss.

In paragraphs 31 and 32 Ms Roscoe explained that Mr Tchenguiz supported the Aabar defendants’ application, and would “ultimately leave it” to the Aabar defendants to make submissions that, even on Global’s own case, it was plain that there was no valid and binding agreement concluded on 6 May 2015.

For the purposes of the present application, paragraph 33 of Roscoe 1 summarised Mr Tchenguiz’s position in relation to the claim that he had committed the tort of procuring breach of contract:

33.

As the Purported Agreement was not valid or binding, Mr Tchenguiz’s position is that the Primary Case must fail.

It seems to me that in this way Roscoe 1 made it clear that Mr Tchenguiz’s challenge in the present application, as regards the claim that he had procured a breach of contract, concerned element (a) in paragraph 30 of Roscoe 1. As regards that claim, striking out and summary judgment were said to be justified because it could be demonstrated that there was no valid and binding agreement concluded on 6 May 2015. If that were indeed demonstrated, then essential element (a) was absent, and the claim for procuring breach of contract could properly be the subject of summary judgment in favour of Mr Tchenguiz.

For the reasons given in section D above, the Aabar defendants’ application is unsuccessful. I have concluded that Global’s claim of a valid and binding contract has a realistic prospect of success. As this was the only relevant issue identified in Roscoe 1 as being the subject of Mr Tchenguiz’s present application, it must follow that this part of Mr Tchenguiz’s application, as formulated in Roscoe 1, also is unsuccessful.

However, in this respect matters have not rested with Roscoe 1. Additional points were taken on behalf of Mr Tchenguiz at the hearing. I deal with those points in section E2 below.

Roscoe 1 at paragraphs 29 and 34 describes what Ms Roscoe called an “Alternative Case” in the torts of intimidation and/or causing loss by unlawful means. As it seems to me, the case on these torts advanced in the particulars of claim was not a purely alternative case: it was prefaced by the words, “Further or alternatively”, and thus was not contingent on failure of the claim for procuring breach of contract. For that reason I consider it preferable to adopt terminology based on that used in Mr Tchenguiz’s skeleton argument, and to refer separately to “the intimidation claim” and “the pure unlawful means claim”.

As regards the intimidation claim and the pure unlawful means claim Roscoe 1 stated (using Ms Roscoe’s terminology of the “Alternative Case”):

34.

In order to succeed on the Alternative Case, the Claimants must, as a bare minimum, identify and establish unlawful means, as well as actual loss caused by any such unlawful means.

35.

Though I will leave it to Counsel to make submissions in this regard, as briefly explained below, no cause of action has been established in the Particulars of Claim and the claim is therefore unsustainable as a matter of law and liable to be struck out pursuant to CPR 3.4 (2)(a).

36.

Taken at its highest, and accepting for the purposes of this application only that the facts alleged in paragraph 20 of the Particulars of Claim are correct, i.e. that Mr Tchenguiz indicated to certain third parties that he had a right to prevent a sale of the Aabar rights to the Claimants and that he would commence litigation against Aabar if they proceeded with the acquisition, the alleged actions fall well short of anything that could constitute “unlawful” activity for the purposes of the torts of intimidation or causing loss by unlawful means. Neither indicating an intention to commence litigation nor indeed commencing litigation can be said to be “unlawful”.

Here, too, the position has changed since Roscoe 1. There have been two developments. First, on 16 September 2015 Global’s skeleton argument stated that what I have called the pure unlawful means claim would not be pursued. I make reference to that claim below only for historic purposes. The result is that, in addition to the claim for procurement of breach of contract dealt with in section E2 below, the only other economic tort alleged by Global to arise in relation to Mr Tchenguiz is the tort of intimidation.

The second development concerns the tort of intimidation. At the hearing Global contended that certain points taken against them might, if necessary, be met by a proposed amendment to the particulars of claim. At my request, Global set out this proposed amendment, along with an uncontentious amendment to remove the reference to the pure unlawful means claim, in what is referred to in section B7 above as the 12 November draft.

I examine in section E3 below the rival contentions on the tort of intimidation.

I noted in section E1 that, as regards Global’s claim for procuring breach of contract, the challenge identified in Roscoe 1 was unsuccessful. I also noted that at the hearing additional points were taken on behalf of Mr Tchenguiz.

Here it is convenient to recapitulate the analysis in paragraph 30 of Roscoe 1. That paragraph, which is set out in section E1 above, identified four elements which must be proved in order to succeed on the claim for procuring breach of contract, namely:

(a)

that there was a binding contract in place;

(b)

that Mr Tchenguiz knew that there was a binding contract;

(c)

that Mr Tchenguiz must have had the intention to interfere with the contract’s performance;

(d)

that he did so and it has caused the Claimants loss.

As noted in section E1 above, Mr Tchenguiz’s application is unsuccessful in so far as it involves an assertion that Global has no realistic prospect of success on element (a). The additional points fall into two main categories:

In order to deal with the additional points it is necessary to set out some features of the statements of case. I do this in section E2.2. I then turn in section E2.3 to the first category of additional points, concerned with essential elements (b), (c) and (d). In section E2.4 I deal with the second category of additional points, concerned with the position in the future.

Under a heading, “Mr Tchenguiz’s wrongdoing”, the particulars of claim made reference to GSO and Centrebridge, the two hedge funds with which Global was working with a view to financing the acquisition of the Aabar rights. Paragraph 20 of the particulars of claim stated:

20.

On or around 6 May 2015, Mr Tchenguiz contacted by telephone representatives of [GSO and Centrebridge]…, asserting that he had a right to prevent any sale of the Aabar rights to the Claimants by Aabar and threatening litigation against Aabar if they proceeded with the acquisition.

Paragraph 21 made assertions about a telephone call on 8 May 2015:

21.

On or around 8 May 2015, Mr Tchenguiz made further contact by telephone with representatives of [GSO and Centrebridge] and sought to persuade them to withdraw their support for Mr Maud and instead finance an alternative proposal he intended to put to Aabar.

The particulars of claim said in paragraph 22 that from “the facts and matters pleaded above” Global drew what it described as “legitimate inferences”. There were three such inferences:

(a)

Mr Al-Husseiny or other representatives of Aabar informed Mr Tchenguiz of the conclusion of the Agreement some time on or after 6 May 2015.

(b)

Mr Tchenguiz, by the threat of litigation or otherwise, has procured Aabar not to transfer the Aabar Rights to the Claimants or to conduct any negotiations with the Claimants in respect of such a transfer. In consequence, Mr Al-Husseiny sent Mr Maud the email of 10 May 2015 pleaded above.

(c)

Mr Tchenguiz knew and intended, and knows and intends, that by failing to transfer the Aabar Rights to the Claimants Aabar would and will breach their obligations under the Agreement.

The particulars of claim then asserted in paragraph 23:

23.

In consequence of Mr Tchenguiz’s conduct as pleaded above, the Claimants have suffered loss and damage (including without limitation the costs of these legal proceedings to date) and will suffer further loss and damage if Aabar continues to fail to transfer the Aabar Rights to the Claimants.

It was on this basis that paragraph 24 of the particulars of claim asserted that Mr Tchenguiz was liable to Global in tort for procuring the Aabar group’s breach of contract.

The defence of the Aabar defendants made no admissions to paragraphs 20 and 21 of the particulars of claim. Paragraph 37.1 of their defence said that paragraph 22(a) of the particulars of claim was denied because there was no agreement. The same observation was made in paragraph 37.3 of their defence as regards paragraph 22(c) of the particulars of claim. As to paragraph 22(b) of the particulars of claim, paragraph 37.2 of the defence of the Aabar defendants stated:

37.2

As to paragraph 22(b):

(a)

The allegation that Mr Tchenguiz made a “threat of litigation” against Aabar is too vague and imprecise for Aabar to respond to. It is admitted, however, that on 7 May 2015, Mr Tchenguiz indicated to Aabar that a sale of the Aabar Rights to Mr Maud was not acceptable to him and that he would hold Aabar liable for any prejudice he suffered as a result. It is denied that Aabar sent the 10 May Email because of this. Aabar’s principal reasons for sending 10 May Email to Mr Maud were as follows:

(i)

Aabar did not consider the Madison Letter to be satisfactory evidence of Mr Maud’s ability to fund the Proposed Transaction.

(ii)

Aabar wished to make clear that, contrary to Mr Maud’s assertions in witness statements made by him in support of an application brought by him to set aside the Statutory Demand, Aabar had not indicated that the Proposed Transaction was acceptable to it. (Notably and contrary to the case now advanced by the Claimants in these proceedings, Mr Maud did not claim in those statements that any binding contract had been agreed between Aabar and the Claimants for the purchase of the Aabar Rights, whether on 6 May 2015 or at all.)

(iii)

Aabar also wished to make clear that, contrary to further assertions in Mr Maud’s witness statements and also in the Second Proposal, there were no ongoing negotiations between the parties in relation to the Proposed Transaction.

(b)

Save as aforesaid, paragraph 22(b) is denied.

In relation to paragraph 23 of the particulars of claim, the defence of the Aabar defendants repeated the assertion that there had been no agreement.

In his defence Mr Tchenguiz admitted telephone conversations with Centrebridge on 6 and 8 May 2015. In relation to the conversation on 8 May, Mr Tchenguiz added that he did not seek financial support from Centrebridge during that conversation.

As to the conversation on 6 May 2015, Mr Tchenguiz’s defence stated at paragraph 15:

15.

As to Paragraph 20, it is admitted that on or around 6 May 2015 there was a telephone call between Mr Tchenguiz and a representative of Centrebridge Partners LP during which Mr Tchenguiz identified that he/Edgeworth would hold Aabar responsible in the event that it sold the Aabar Rights to the Claimants. A similar sentiment was communicated directly to Aabar shortly thereafter.

The inferences asserted by Global in paragraph 22 of the particulars of claim were the subject of paragraph 17 of Mr Tchenguiz’s defence. This stated:

17.

As to Paragraph 22, it is denied that the Claimants are entitled to or can legitimately draw the inferences referred to. In particular, it is denied (i) that Aabar informed Mr Tchenguiz of the conclusion of a valid and binding agreement, and/or (ii) that Mr Tchenguiz was aware that a valid and binding agreement had been reached between the Claimants and the First/Second Defendants. Accordingly, it is specifically denied that Mr Tchenguiz knew and intended that Aabar would breach their obligations to the Claimants under the Agreement.

As to paragraphs 23 and 24 of the particulars of claim, Mr Tchenguiz stated in paragraph 18 of his defence:

18.

Paragraphs 23 and 24 are denied. In particular:

(a)

It is not admitted that there was a valid and binding Agreement;

(b)

It is denied that Mr Tchenguiz knew there was a valid and binding Agreement.

(c)

It is denied that Mr Tchenguiz intended to procure the breach of any such Agreement.

(d)

It is denied that Mr Tchenguiz caused the Claimants to suffer loss or damage and the Claimants are put to strict proof in this regard.

The additional point on element (b) involved an assertion that there is no, or no credible, evidence that Mr Tchenguiz knew that there was a valid and binding agreement between Global and the Aabar defendants. If right, it would follow that Mr Tchenguiz would be entitled to summary judgment on Global’s claim of procuring breach of contract, as essential element (b) would be missing. It was submitted that the same would be true of element (c), that Mr Tchenguiz must have had the intention to interfere with the contract’s performance, and element (d), that Mr Tchenguiz did in fact interfere with the contract’s performance and that this has caused Global’s loss. No separate points were taken on either element (c) or element (d).

In this regard the course taken on behalf of Mr Tchenguiz in oral submissions included identifying, and highlighting, features which were said to suggest that no binding contract had been made. I have dealt with these features in section D4.8 above. For the reasons given in that section, none of these points demonstrates that Global’s case as to the existence of a binding contract lacks a realistic prospect of success. For the same reasons, none of them prevents Global from saying, with a reasonable prospect of success, that Mr Tchenguiz knew of that contract.

In oral submissions on behalf of Mr Tchenguiz it was then said that when Mr Tchenguiz spoke to GSO and Centrebridge he would have been told that they had not done a deal with Mr Maud. This was a prelude to asserting that in the light of Mr Al-Husseiny’s email of 10 May 2015, there was no reason to suppose that Mr Tchenguiz would have been told by the Aabar group that a deal had been done. I am not persuaded by this submission. Global’s case is that the email of 10 May represented an about turn on the part of the Aabar group from what had been said on 6 May 2015. One of the matters for determination at trial will no doubt be whether this was so. The Aabar defendants accept that their application must proceed on the basis that Global’s account of what was said on 6 May 2015 is correct. Mr Tchenguiz is in no position to take a different stance.

More generally, it was contended that there was no basis for an inference that Mr Tchenguiz would have been told by the Aabar group that a deal had been done. At the present stage, however, I am concerned only with whether Global has a realistic prospect of being able to show that such an inference should be drawn. If Global is successful on its case that there was indeed a valid and binding contract made on 6 May, then it seems to me that this will at least give a possible basis for an inference that the Aabar group would take the logical next step of telling Mr Tchenguiz about this. I do not consider that this possible basis is so weak as to deprive Global of a realistic prospect of success.

The skeleton argument for Mr Tchenguiz added that if there were to be an agreement between the Aabar group and Global in the future, then there was no reason to think that Mr Tchenguiz would procure the breach of any such agreement. On this ground it was asserted that there would be no basis for granting the injunction sought by Global. In my view this contention is premature. Whether there is any basis for an injunction is a matter which will need to be decided in the light of the findings of the court at trial.

A further assertion was made in the skeleton argument for Mr Tchenguiz. It was said that if the court were to conclude that there was a valid and binding agreement, and were to grant the remedy of specific performance, then the claim for procuring breach of that agreement would fall away. Even assuming this to be right, it is not a matter which calls for any action on my part at the present stage.

For the reasons given above, as regards Global’s claim for procuring breach of contract, it is not merely Mr Tchenguiz’s challenge as identified in Roscoe 1 that is unsuccessful. His additional points, too, are unsuccessful. My conclusion on this aspect is that Global’s claim for procuring breach of contract should neither be struck out nor be the subject of summary judgment.

The intimidation claim was pleaded in paragraph 25 of the particulars of claim. It is convenient to set out that paragraph here. In doing so, I ignore the final words of the paragraph, as they concerned the pure unlawful means claim which is now of historic interest only. On this basis, paragraph 25 stated:

25.

Further or alternatively (and even if contrary to the Claimants’ primary case the Agreement were not valid and binding):

(a)

It is a legitimate inference in the premises that Mr Tchenguiz in threatening litigation to prevent the transaction from proceeding intended and intends to cause the Claimants loss, in that his intention is to maintain or improve his position in his attempt to gain control of Ciudad Financiera by preventing the Claimants from acquiring any interests in the Junior Loan or Personal Loan and he knew and knows that the corollary of his so doing is that the Claimants have and/or will suffer loss.

(b)

Mr Tchenguiz’s threats of litigation against Aabar and others are threats of litigation for the collateral and improper purpose of maintaining or improving his position in his attempt to gain control of Ciudad Financiera and are in consequence unlawful.

(c)

But for those threats, Aabar would have transferred or would transfer the Aabar Rights to the Claimants, alternatively there is a significant chance that it would have done so or might do so, and the threats have therefore caused the Claimants loss and damage.

(d)

Mr Tchenguiz is therefore liable to the Claimants in the [tort] of intimidation ….

The response of the Aabar defendants to paragraph 25 of the particulars of claim appeared in paragraph 39 of the defence of the Aabar defendants. Among other things, it repeated paragraph 37.2 (see section E2.3 above). It stated:

39.

As to paragraph 25:

39.1

As to the repeated allegations that Mr Tchenguiz has made “threats of litigation” against Aabar, paragraph 37.2 above is repeated.

39.2

It is denied (if it is alleged) that Aabar had any obligation to transfer the Aabar Rights to the Claimants. It is not admitted that, but for any conduct of Mr Tchenguiz, Aabar would have entered into an agreement with the Claimants to transfer the Aabar Rights to them, or that there was a significance chance that it would or might have done so.

39.3

Save as aforesaid, paragraph 25 is not admitted.

Mr Tchenguiz’s response to paragraph 25 of the particulars of claim appeared in paragraph 22 of his defence. Among other things, it made reference to paragraph 15 of his defence (see section E2.3 above). It stated:

22.

Paragraph 25 is denied. In particular:

(a)

As to sub-paragraph (a), it is denied that Mr Tchenguiz’s actions (as described at paragraph 15 above) were intended to cause loss to the Claimants. Mr Tchenguiz was at all times seeking to protect his own legal and commercial position, which he is entitled to do.

(b)

In sub-paragraph (b), it is denied that Mr Tchenguiz’s actions (as described at paragraph 15 above) are collateral or for an improper purpose, and the Claimants have not identified the extent (if at all) to which they are unlawful (which is denied in any event).

(c)

The allegations in sub-paragraph (c) are excessively vague and speculative, and it is denied that the plea contains proper particulars to establish causation and/or to establish that any such losses (which are denied) were caused by Mr Tchenguiz. The Claimants are put to strict proof in this regard.

(d)

In the premises, sub-paragraph (d) is denied. The Claimants have failed to identify the intimidation and/or unlawful means allegedly adopted by Mr Tchenguiz.

It is an essential element of the tort of intimidation that there is coercion by threat. The claimant will often assert that the threat was made to the claimant with a view to causing loss to the claimant. But that need not be the case: liability can arise where there is what is known as “three party intimidation”. For ease of exposition it is convenient to refer to the person alleged to have threatened as “the alleged coercer”, to the person alleged to have been threatened as “the alleged coercee” and to the person allegedly intended by the coercer to suffer loss as “the alleged intended victim”.

In the particulars of claim Global advance a case of three party intimidation. They identify Mr Tchenguiz as the alleged coercer, who is said to have threatened the Aabar group as alleged coercee, with the intention of causing loss to Global as the alleged victim.

Mr Tchenguiz submitted that the alleged threat had not been adequately particularised, and added that Global could prove no more than what the skeleton argument called “the Indication” set out in paragraph 15 of Mr Tchenguiz’s defence. I do not consider that these submissions assist Mr Tchenguiz at the present stage. As can be seen from section E2.3 above, paragraph 15 of Mr Tchenguiz’s defence admits that the sentiment he conveyed to the Aabar group was “similar” to his indication to Centrebridge “that he/Edgeworth would hold Aabar responsible in the event that it sold the Aabar Rights to the Claimants”. In everyday usage such an “indication” would commonly be considered to involve a threat of litigation. At the present stage it is not necessary for Global to go beyond this in order to demonstrate a realistic prospect of being able to show that there was indeed a threat of litigation.

It is common ground that the mere making of a threat to the coercee will not suffice to establish the tort of intimidation. Among other things, in a three party intimidation case, the alleged coercer’s threat must be of something which would be actionable if the alleged coercee had suffered loss.

In this regard Roscoe 1 asserted that “[neither] indicating an intention to commence litigation nor indeed commencing litigation can be said to be unlawful”. I would not necessarily agree, for in rare cases there can be particular circumstances where commencing litigation will be unlawful. To my mind the problem with the original particulars of claim is more fundamental: they did not assert that the alleged threat by Mr Tchenguiz to the Aabar group was of unlawful conduct. This might not have mattered if the allegedly threatened conduct had been identified in a way which made it clear that it would have been unlawful – but the original particulars of claim did not do this either.

Global’s skeleton argument did not confront this problem. It accepted the need for the threat to be of “unlawful means”. It made reference to torts of abuse of process and malicious prosecution. It also drew attention to Mr Tchenguiz’s failure to identify any specific right to prevent the Aabar group from selling the Aabar rights. Paragraph 51(b) of the skeleton argument added that there was a natural inference:

… that any litigation he threatened would have involved: (1) the false assertion of a non-existent right; and/or (2) the assertion of a separate, unconnected right, for the purpose of pressuring Aabar into granting him a type of pre-emption right which he did not actually possess.

What this did not acknowledge was that the particulars of claim had made no assertion of this kind.

In oral submissions for Global it was no longer contended that the alleged threat might have entitled the Aabar group to make a claim against Mr Tchenguiz of malicious prosecution. It was strongly maintained, however, that unlawfulness was present because Mr Tchenguiz’s threat of litigation amounted to an abuse of process.

As to the particulars of claim, it was said that by alleging a threat of litigation for “a collateral or improper purpose” they had asserted that Mr Tchenguiz was threatening litigation in circumstances where he had no right to litigate. I cannot accept that the original particulars of claim were adequate in that regard. What was said in the original pleading was that Mr Tchenguiz had the “collateral and improper purpose of maintaining or improving his position in his attempt to gain control of Ciudad Financiera”. As was rightly pointed out in Roscoe 1, in Mr Tchenguiz’s skeleton argument, and in oral submissions for Mr Tchenguiz, maintaining or improving a commercial position by enforcing legal rights is not unlawful. The original particulars of claim did not say that Mr Tchenguiz was threatening litigation which he knew he had no right to bring.

In these circumstances I do not need to deal with a further point relied on by Mr Tchenguiz, namely that previous allegations by Mr Maud of “collateral purpose” had failed. I comment only that the previous allegations were of a different kind and in a different context.

It was submitted for Global that Mr Tchenguiz could have asked for further information about the assertions in paragraph 25. I do not think that Mr Tchenguiz was obliged to do this. It sufficed for him to give notice of an intention to apply to strike out.

Thus I conclude that paragraph 25 of the original particulars of claim, unless the claim of intimidation can be saved by a suitable amendment, must be struck out.

As noted in section E1, however, Global have drafted a proposed amendment. I shall refer to it as “the contentious amendment”. The only other amendments in the 12 November draft are uncontentious: they comprise the omission of a reference to a tort of pure unlawful means, and the inclusion of the amendments in the 4 September draft. I turn to consider the contentious amendment in section E3.4 below.

Global’s contentious amendment would add to paragraph 25(b) of the particulars of claim a sentence as follows:

Specifically, the threatened litigation would be for a collateral and improper purpose in circumstances where, as Mr Tchenguiz knew and knows, he and Edgeworth in fact had no legitimate right to prevent the transfer of the Aabar Rights to the Claimant and any litigation would be vexatious and solely intended to pressurise Aabar into breaking off its dealings with the Claimants.

If the court were to grant permission to amend in this way then, to my mind, the defect would be cured: paragraph 25(b) would constitute an assertion by Global that the alleged threat to the Aabar group was a threat of litigation when it was known to be groundless. The bringing of litigation in those circumstances would be capable of constituting the tort of abuse of process. The reply submissions for Mr Tchenguiz did not contend otherwise.

The contentious amendment was, however, strongly opposed, not on the ground that it would be inadequate in law, but on the ground that it lacked any factual foundation. On behalf of Mr Tchenguiz it was said that the proposed additional sentence was so lacking in foundation as to be “improper” and “shocking”. It was added that Global relied on a negative inference based solely on Mr Tchenguiz having declined to made out a positive case, and that this was unjustified in circumstances where, as I have now held, the particulars of claim were inadequate, and thus there was no issue to be joined. Moreover in all the circumstances the absence of adequate justification for the assertion in the proposed amendment was not difficult to see. Mr Maud had acknowledged that the relationship between the Aabar and Edgeworth groups was complex. Mr Maud had also acknowledged in the 9 May purchase letter that amendments might be necessary to that relationship in order to effect the sale. The assertion had come at a very late stage. All of this was relied upon as justifying a conclusion that it was hopeless to say that Mr Tchenguiz “could not honestly have believed that he could enforce his rights”.

It was further added that a positive inference could be made that Mr Tchenguiz had “the right of the sort to which he referred”. Reliance was placed on four matters in support of such an inference:

I am not unsympathetic to Mr Tchenguiz’s complaints in this regard. Paragraph 25 of the particulars of claim was poorly drafted. A claim based on a pure “unlawful means” tort was not abandoned until service of Global’s skeleton argument in mid-September 2015. The skeleton argument appeared to make a suggestion, among other things, that malicious prosecution might constitute the unlawful means needed for the tort of intimidation. That suggestion was not abandoned until the hearing.

On the other hand, the course of events is not inconsistent with the proposed amendment. Mr Tchenguiz accepts that on 6 May 2015 he told Centrebridge “that he/Edgeworth would hold [the Aabar group] responsible in the event that it sold the Aabar rights to [Global]”. It would be understandable in these circumstances if the response of GSO and Centerbridge was that they “backed away” without investigating whether Mr Tchenguiz was entitled to do what he said he would do. Turning to the change of course by the Aabar group, both the extent of the change and the reasons for it are in issue as between the Aabar defendants and Global. I cannot assume at the present stage that the Aabar defendants will succeed on the issues that arise in that regard. The complexity of the relationship between the Aabar and Edgeworth groups does not demonstrate that Mr Tchenguiz in fact believed that he was entitled to prevent the sale of the Aabar rights. Nor is this demonstrated by the wording used in the 9 May purchase letter (as to which see section D5 above).

Moreover, Global’s contentious amendment does not, in my view, come as a complete surprise. Maud 264/1 had not pulled any punches when seeking to answer Mr Tchenguiz’s application. In particular, it alleged that Mr Tchenguiz had told GSO and Centrebridge “that he had a "last look", or a right to match any proposed sale by Aabar of its rights” and described this as “a fabrication by Mr Tchenguiz”. Global’s skeleton argument, in the passage cited in section E3.3 above, had asserted an entitlement to advance a case that litigation threatened by Mr Tchenguiz would have involved the false assertion of a non-existent right. On this aspect, both Maud 264/1 and Global’s skeleton argument re-iterate an assertion which had been forcefully made by Mr Maud in his email of 10 May 2015: see section B5 above.

Of particular importance, as it seems to me, are three factors:

When the points made for and against permission to amend are set in that context, I conclude that it would be contrary to the overriding objective to shut out Global, at the present stage, from asserting that if what was known to the Aabar group led them to hold the belief described at point (1) above then this may give reason to think that what was known to Mr Tchenguiz led him to hold a similar belief.

For these reasons I will grant permission to amend. With the benefit of that amendment, Global will have a realistic prospect of showing that the alleged threat was a threat of conduct actionable by the Aabar defendants because it would amount to the tort of abuse of process.

It is common ground that the threat must be made by the alleged coercer to the alleged coercee with the intention of causing loss to the alleged victim. It was said in Mr Tchenguiz’s skeleton argument that the claim of intention to cause loss relied on inference, and that there was no realistic prospect of establishing such an inference.

I am not persuaded that the inference is as weak as Mr Tchenguiz suggests. It is important to bear in mind that it is not necessary, as regards this particular element of the tort, to show malice in the sense of ill will. To my mind if Global’s case is made good on other aspects, then they will have a realistic prospect of demonstrating the necessary intention of causing loss to Global.

A further point advanced in Mr Tchenguiz’s skeleton argument was that an abuse of process by Edgeworth, if it had knowingly issued groundless proceedings against the Aabar group, would not have been actionable by the Aabar group against Mr Tchenguiz. In that regard, however, it seems to me that Global has a realistic prospect of showing that an abuse of process by Edgeworth, if instigated by Mr Tchenguiz, would entitle the Aabar group to sue Mr Tchenguiz. Indeed, Mr Tchenguiz’s own account of the “Indication” drew no distinction between Mr Tchenguiz and Edgeworth.

A submission was made for Mr Tchenguiz that Global could not show that in the absence of the alleged threat Global would have acquired the Aabar rights. As to that, it is said that there may have been other reasons why the Aabar defendants would not have sold the Aabar rights to Global. Whether that would have been so, however, cannot be decided summarily.

In these circumstances I conclude that but for the proposed amendment the claim for intimidation would be struck out. I will, however, grant permission for the amendment proposed by Global. This will enable Global to continue to maintain the claim for intimidation. It will be incumbent upon Global to keep this claim under regular review, and to abandon it if it becomes clear that the serious assertions that it involves cannot be made good.

Overall conclusion

For the reasons given above I refuse both the Aabar defendants’ application and the application by Mr Tchenguiz.