Benourad v Compass Group Plc

The claimant, Mr Tahar Benourad, operates as a facilitator and introduction agent for business transacted in particular in the Gulf. The defendant, Compass Group PLC is one of the world’s largest food service providers. The issue in this case is whether negotiations by correspondence and at meetings, either in themselves or together with subsequent conduct resulted in a contract between Mr Benourad and the defendant under which he is entitled to commission, and whether, if they did not, he is entitled to a reasonable fee for his services by way of a non-contractual restitutionary quantum meruit.

Compass Group PLC is at the apex of a large group engaged in the catering business. The corporate structure of the group is complicated. The word “Eurest” or “ESS” appears in the names of a number of the defendant’s subsidiaries and associated companies. “Eurest” and “ESS” are Compass’s brand names for many of its catering services. The companies that are relevant in these proceedings are Eurest Support Services (Cyprus) International Ltd (“ESS (Cyprus)”), the holding company for the business of the Eurest Support Services Worldwide Division, and Eurest Support Consultancy Co WLL (“ESS (Kuwait)”). ESS (Kuwait) is a subsidiary of “ACME”, a joint venture established with effect from January 2001 in the UAE between Abu Dhabi National Hotels LLC (“ADNH”) and Compass Group International BV, one of the defendant’s subsidiaries.

Mr Benourad claims that he is entitled to commission for introducing the defendant to the Kuwait Catering Company (“KCC”) because the defendant or one of its subsidiaries subsequently concluded a joint venture agreement with KCC for the provision of catering services in Kuwait and elsewhere. It was suggested by Mr Knox QC, on his behalf, that the gross revenue from the joint venture was in the order of $US 136 million. The earliest date for such introduction is 12 March 2001, when Mr Benourad first suggested KCC as a possible partner to Mr Jerome Marrel. At that time (and until November 2001) Mr Marrel was the General Manager of ACME. Prior to 1 January 2001 Mr Marrel was Vice-President of the defendant’s Middle East and Asia Division. Mr Benourad had dealings with him in that capacity in 1999 about a joint venture with another Kuwaiti company, Safat Catering Services Company and Safat International Hotel Management (“Safat”). The latest date of the formation of a contract between the claimant and the defendant concerning KCC is 27 May 2001 when he and Mr Marrel met representatives of KCC, including Mr Al Bahar, its Chairman, and Mr Loay Al Ibrahim, its Vice-Chairman and Managing Director, in Kuwait.

The hearing was concerned with liability only. Mr Benourad’s principal claim is based on a contract (“the KCC commission agreement”) allegedly entered into in the spring of 2001. The claimant seeks a declaration that he is entitled to commission based on the gross revenues received by the defendant or its subsidiaries from a joint venture it claims the defendant entered into with KCC in last quarter of 2002 or early in 2003. The commission was to be 2% of gross revenues for the first three years, and 1% thereafter. The claimant alternatively claims in restitution for a reasonable fee on the same basis for his services in introducing the defendant to KCC. He also seeks disclosure of particulars of all agreements and documents relating to the agreements between the defendant and its subsidiaries and KCC, including invoices submitted to KCC and details of revenues generated from KCC, and an enquiry into and an account of all the said revenues.

On behalf of the defendant it is submitted that no commission agreement relating to KCC had been concluded with the claimant, and alternatively, if one was, it was subject to the execution of a written agreement which did not happen. Mr Anderson QC, on behalf of the defendant, also submitted; (a) the relationship between ESS and KCC from August 2002 onwards had nothing to do with any introduction by the claimant, that no joint venture or similar contract was concluded between the defendant, one of its subsidiaries, or ACME and KCC; and (b) the defendant did not earn any revenue from such a contract so as to give rise to any entitlement to commission on the claimant’s part. He alternatively submitted that if there is no contractual claim, the claimant “is not entitled to recover through the ‘back door’ of quantum meruit/unjust enrichment that which he cannot recover through the ‘front door’ of a claim in contract” (Opening Submissions, paragraph 23.6).

In relation to the contractual claim these are:

Did Mr Marrel enter into the KCC commission agreement with the claimant?

In relation to the restitutionary claim the issues are:

What if anything would be a fair commission for the claimant’s introduction?

Evidence in support of the claim was given by the claimant (his statements are dated 16 October 2009 and 12 April 2010) and Mr Loay Al Ibrahim who first met the claimant in 1998 at a trade conference organised by the claimant. Mr Al Ibrahim became Vice Chairman and Managing Director of KCC in about May 2001, and left the company about six years ago, that is in about 2004. Before joining KCC he was the General Manager of Safat. He was one of the representatives of Safat who the claimant introduced to the defendant in early 1999 on the basis of an agreement (“the Safat commission agreement”) that he would be entitled to a commission calculated by reference to revenues resulting from a catering services agreement between the defendant and Safat. Mr Al Ibrahim’s witness statement is dated 11 March 2010, a month before the trial. He explained that he was first approached to give a statement six months ago, was at first hesitant to do so, but reconsidered and thought it was the right thing to do.

Evidence on behalf of the defendant was given by Mr Marrel, whose statement is dated 7 September 2009, and Mr John Richardson and Mr Sekhar Seshan, whose statements are respectively dated 10 and 15 September 2009. Mr Richardson was employed by companies in the defendant’s group between September 1997 and the end of December 2005 when he retired. Between 1998 and his retirement he was Finance Director, first of Eurest Support Services Worldwide Division, and, from approximately November 2002 of ESS (Cyprus).

Mr Seshan is now ACME’s Finance and Administration Director. He held the same post between December 2000 January 2003 and reported directly, first to Mr Marrel and, after he left in November 2001, to his successor Mr Mike Moore. When Mr Seshan left ACME he joined ESS (Cyprus) where he worked alongside Mr Dean, the Finance Manager, and reported to Mr Richardson. He gave his evidence via a video link.

The crucial events in these proceedings occurred between 7 and 9 years ago, from March 2001 until the second half of 2003. Inevitably the recollections of those involved differ. It would be surprising if it were otherwise. In these circumstances it is not easy to decide where truth and accuracy lie. As HH Judge Jack QC, as he then was, stated in Loosemoore v Financial Concepts [2001] Lloyd’s Rep PN 235 at 237:

“… Memory, where it is unsupported by documents, must inevitably be suspect. Things which occurred can be forgotten. Things can apparently be remembered which did not in fact occur. What did occur can be remembered with a false slant to it. All of that can happen without dishonesty. So, unless the documents are clear, the court’s task is difficult.”

In the present case, the differences between the parties go beyond what can be explained as normal given the passage of time. Moreover, on the issues between the parties the key documents are in part unclear or need further explanation, and the evidence of that explanation is primarily oral.

There is a sharp conflict between the claimant’s evidence and Mr Marrel’s as to what was said in a number of telephone calls and at and in the margins of a number of meetings between March and June 2001. The conflict is as to whether they agreed that the terms of the Safat commission agreement would apply in respect of KCC; whether on 5 April 2001 Mr Marrel stated he was happy with the agreement and that he would send the claimant a signed copy; whether revisions sought by Mr Marrel on 25 April were to an un-agreed draft still in negotiation or to an existing agreement; and whether, shortly before the meeting with representatives of KCC on 27 May 2001, Mr Marrel said that the signing of an agreement by the board would be a formality and that the claimant was covered by his existing agreement.

On these matters, for the reasons I shall give when making my findings of fact, I preferred Mr Marrel’s evidence. Mr Benourad was not a satisfactory witness. He was often not responsive to the question put to him. On occasion this may have been in part because he was trying to anticipate and answer another question he thought he would soon be asked. But on other occasions this did not seem to be the explanation. For instance, when asked about the absence of any notes or other documents about the research he said he undertook into KCC and other possible partners, his reply did not address the question of documents. He said only that he had met a member of the Kuwaiti royal family and convinced that person that Compass was the right partner for KCC.

Mr Al Ibrahim and Mr Seshan were trying to assist the court to the best of their ability. The number of times the videolink with Mr Seshan dropped made it difficult to adduce his evidence but what he said was clear and reliable. In the case of Mr Al Ibrahim, as a result of the passage of time since the events, his recollection was not reliable on some matters. For instance, (see [80]) there was some confusion on his part between his meetings with the defendant when he was representing Safat and those when he was representing KCC and who it was from the defendant or ESS that he met in 2002: he said his meeting was with Messrs Dyer and Hijazi. He was also confused between the two Memoranda of Understanding (“MOU”) KCC and ESS signed and the Co-operation and Management Agreement for a joint venture which, in his oral evidence, he said for the first time that they had signed. His evidence that Mr Dyer had contacted him directly in 2002 because the claimant had given Mr Dyer his mobile telephone number was mistaken because the claimant’s evidence was that he had not heard of Mr Dyer until January 2003 and had not spoken to him before 28 March 2010.

Mr Richardson accepted that, as a financial person, he was not close to the discussions between and about KCC and the claimant. He was less close to them than Adrian Dyer, then an Executive Director of ESS, Alistair Smylie, then ACME’s Business Development Director, and Peter Harris, then CEO of Compass Africa and Middle East Division and a director of ACME, none of whom gave evidence. In many respects his evidence reflected this distance but on some important matters his evidence was not satisfactory. These included his explanation of the statement in his letter dated 14 October 2003 that he had “no knowledge of any business undertaken by Compass Group with KCC in Kuwait or elsewhere”, and the way he downplayed KCC’s part in the contracts and played up La Nouvelle’s role, for example in relation to whether the proceeds of the United States military contracts were assigned to ESS, and, in relation to a Co-operation and Management Agreement between ESS and KCC, as to whether by early October 2002 unfavourable due diligence by ESS about KCC meant it could not have been signed, and (contrary to contemporary documents) that he intended it to be signed by then.

I first set out the facts that are not disputed, identify the areas of dispute, and record my findings in response, most of them in a broadly chronological way. Where my findings on disputed matters depend on events later in the chronology, I record my findings after dealing with those events.

The background:

In December 1998 Mr Al Ibrahim, then Safat’s General Manager, approached the claimant and asked him to find a British catering company with which Safat could enter into a joint venture in Kuwait and potentially in Saudi Arabia. There is an unsigned draft of a contract between the claimant and Safat dated February 1999 stating that Safat would pay him commission in respect of any business contracted between Safat and any catering company to which he introduced Safat.

To this end in early 1999 the claimant made contact with Mr Watkins, one of the defendant’s Directors, and told him about Safat. At a meeting in February 1999 it appeared that the defendant was interested. The claimant stated that he told Mr Watkins he would be acting for the defendant and not for Safat and it was agreed that the defendant would pay him a commission based on turnover on gross revenue resulting from an agreement between it and Safat. At that meeting the claimant asked for 5% of turnover. In his evidence he said that by about 11 February the commission was settled at 2% for the first three years and 1% thereafter. His witness statement (paragraph 12) states he received a draft contract from his solicitor to this effect on 11 February. However, no copy of such a draft was before the court: the only draft dated February is of a contract to be made between the claimant and Safat. Moreover, paragraph 19 of the claimant’s witness statement states that it was by August 1999 that they had agreed on terms and reduced his commission.

Within the defendant’s group, at the beginning of February 1999 Mr Marrel, then Vice-President Middle East and Asia of the Compass Group and based in Goa, was identified as the person to be the contact with the claimant and Safat. Shortly afterwards, on 22 February the claimant introduced Mr Watkins and one of his colleagues to Mr Al Ibrahim at Compass’s offices in Surrey. Mr Knox invited me to find that at this meeting the claimant gave the defendant Mr Al Ibrahim’s contact details. But there was no suggestion as to why, if both the claimant and Mr Al Ibrahim were at the meeting on 22 February, it was the claimant rather than Mr Al Ibrahim who gave Mr Watkins or his colleagues Mr Al Ibrahim’s number and contact details. Moreover, Mr Al Ibrahim’s evidence was that Mr Dyer had got those details from the claimant, but the claimant’s evidence was that he had not heard of Mr Dyer until January 2003 and first spoke to him in March 2010. I am unable to find that these details were given to Compass at the meeting on 22 February.

Following the meeting on 22 February Mr Watkins told the claimant that the defendant was interested with working with Safat in the Kuwait market and in early March Mr Marrel contacted the claimant and told him he would be the contact for “this joint venture”. Mr Marrel stated in cross-examination that he had a “standing authority” from Mr Alain Dupuis, a Director of Compass Paris, to negotiate an agreement with the claimant to find a partner in Kuwait. He met the claimant for the first time at a conference organised by the claimant in Dubai on 25 April 1999. Either at the conference or shortly afterwards Mr Marrel gave the claimant his business card. This described him as “Vice President Middle East and Asia, Compass Group plc”, working from offices in Goa and with the email address “compass1@vsni.com”.

There were further negotiations and in September 1999 the claimant sent a copy of the contract. Mr Marrel signed it on Compass’s behalf on 15 September and returned it to the claimant. This agreement, the Safat Commission Agreement, was drawn up by the claimant’s solicitor. It was between the defendant and “International Pricebank Group” whose “registered office” was stated to be in City Road but which was a trading name used by the claimant. The agreement provided that, in the event that Compass entered into a catering services contract with Safat, the claimant was to be paid 2% of the gross revenue the defendant received from Safat in the first three calendar years and thereafter 1%.

The agreement also provided that the defendant was to provide to the claimant a quarterly schedule of “all businesses transacted” with Safat with invoices, to make full disclosure to the claimant of all facts reasonably necessary for him “to sufficiently monitor compliance with this agreement” and to provide the claimant with “a copy of the principal contract to be signed with Safat”. Clause 12 of the agreement provided that if there was a variation in “the principal contract which is not envisaged and not provided for by this agreement such variation shall be deemed to be incorporated into this agreement”.

The claimant returned his signed copy of the contract to Mr Marrel on 24 September 1999. He signed “for and on behalf of International PriceBank Group”. The covering letter was on the note paper of “International Pricebank Group” containing International Pricebank Conferences Limited’s company registration and VAT numbers. It asked Mr Marrel to let the claimant know exactly when he intended to visit Kuwait so he could organise a meeting with Safat.

Mr Knox (Closing Submissions Paragraph 7) invited me to find that the Safat commission agreement was not checked by the defendant’s legal team in France at Mr Marrel’s request as he said it had been. He relied on the fact that the agreement was governed by English law, was a simple agreement and showed no sign of input from a lawyer. In particular it did not define the claimant’s obligations, made no provision that the claimant’s introduction must cause the ultimate agreement, and appeared to tie the defendant indefinitely to the commission arrangement once an agreement with Safat was made. He also submitted that there were no material differences between it and the February 1999 draft contract. Mr Marrel’s evidence was that there were English lawyers working in the legal department in France. The claimant’s position is that the Safat agreement was not checked and thus Mr Marrel’s evidence that he couldn’t have agreed the KCC commission agreement because that would have also had to be checked by the defendant’s legal team in France was not credible. Mr Knox’s submission that, because the Safat commission agreement had been sorted out, there was no need to consult lawyers about the draft KCC agreement, appears inconsistent or at least does not sit comfortably with his submission that the Safat agreement was not checked by a lawyer. Moreover, while there are similarities between some of the clauses of the February 1999 draft and the signed Safat agreement, there are material differences apart from the difference as to the parties. These include differences as to the period of the agreement, the reduced commission rate after three years, and the time payment was to be made. While the agreement may not have the hallmarks of a document drafted by English commercial lawyers, it is clear from the various draft agreements before me that a number of the contractual arrangements were more informal and open-ended than is usual in English commercial practice. Accordingly, I reject Mr Knox’s submission.

In the first half of 2000 there were two developments. On 20 March, as a result of a DTI investigation under the Companies Act 1985 the claimant was disqualified for 10 years from acting as a company director and from acting in the management of a company without the leave of the court. The claimant said he had made a mistake fourteen years ago; that he had moved on, and that the events leading to his disqualification were irrelevant to this case. The second development was that the defendant’s group merged with Granada, the well-known and large catering and media business.

Inter alia because Mr Marrel had to attend meetings in London and Paris about the merger with Granada, a plan for him to be in Kuwait and meet representatives of Safat on 30 May was put back. By July when Mr Marrel was ready to approach Safat, Mr Al Ibrahim was on annual leave. The meeting may also have been delayed because of the negotiations between the defendant and ADNH during the autumn that led to the ACME joint venture between them. (At this stage email communications from the claimant to Mr Marrel were sent to “compass@goal.dot.net.in” and “compass@goatelcom.com”.) At any rate Mr Marrel finally met Mr Al Ibrahim at Safat’s offices on 4 November 2000. Safat wanted an equity investment in a joint venture in Kuwait but Mr Marrel stated that Compass was not willing to do this. It wanted an arrangement involving management know-how. Mr Al Ibrahim said that he would take a proposal to Safat’s board and inform them of the outcome. On 11 November Mr Al Ibrahim told the claimant that Safat did not wish to work with Compass for political reasons. The claimant passed this information to Mr Marrel. Mr Marrel asked the claimant to find an alternative reputable private partner in Kuwait.

As for the defendant’s joint venture with ADNH, the joint venture company, ACME, was established on 23 September 2000. The joint venture agreement itself was entered into on 22 November with effect from 1 January 2001 between “Abu Dhabi National Hotels Company” and “Compass Group International BV”. The business of the joint venture was to be the provision of catering and contract food services within “the territory” which included Kuwait. Under both the contract establishing ACME and the joint venture agreement, the defendant was only able to carry on business in Kuwait through ACME or another joint venture company established pursuant to the defendant’s agreement with ADNH: Article 22.1 Contract of Establishment; Article 11.1 of the Joint Venture Agreement. Mr Peter Harris, Chief Executive of the defendant’s Africa and Middle East Division and Executive Director of ESS Worldwide was a member of ACME’s board of directors. At ACME’s first board meeting on 12 December 2000 it was agreed that Mr Marrel would be ACME’s general manager. He assumed this role when the joint venture came into effect on 1 January 2001.

March 2001: KCC comes into the picture

There was no material contact between the claimant and Mr Marrel between 11 November 2000 and 12 March 2001. That was the period in which the agreement between Compass and ADNH was made and ACME was set up. The claimant’s evidence is that during this period he set about finding a Kuwaiti partner for the defendant. He said this required a lot of work, “networking”, and personal recommendations, in particular to enable him to meet the son of the ruler of Kuwait, Shaikh Mubarak Al Sabah, who owned 15% of KCC, and who he said he persuaded that Compass would be a suitable partner for KCC. His evidence (statement paragraph 28) is that he travelled to Kuwait several times to inquire who were the key catering companies and as a result identified KCC. In his oral evidence he also referred to identifying KCC from his database. This appears to have been a reference to a published handbook entitled “Kuwait’s Top List – A Handbook of Kuwait’s Largest Corporations”, 5^th edition, 1999, which was disclosed after the claimant gave his evidence.

It is difficult to gauge how much work was undertaken by the claimant because his evidence on this is not supported by any documentary material indicating any research on Kuwait’s catering companies or KCC. Mr Al Ibrahim’s unchallenged evidence was that it was he who introduced the claimant to Shaikh Mubarak Al Sabah and to KCC’s chairman, Mr Al Bahar. It is perhaps understandable that much of what occurred would have taken place at face to face meetings, but (before March 2001) there are no emails or other communications setting up any meetings, notes by the claimant of what transpired at such meetings or notes of the results of his researches into the market and KCC. There is also no documentary evidence (such as bills for travel or hotel costs) of any visits by the claimant to Kuwait in this period.

The claimant met Mr Al Bahar on 11 March 2001 to discuss what he described as Compass’ interest in the Kuwait market. Mr Al Bahar said that he would be in London in early April and would like to meet Mr Marrel to discuss a possible joint venture. On 12 March the claimant emailed Mr Marrel (at eurestme@emirates.net.ae) stating:

“As promised that I will find you the right partner in Kuwait, please be informed that I have identified the top catering company in Kuwait “Kuwait Catering Company (KCC)”. The chairman of KCC Mr Al Bahar is one [of] our good contact[s] in Kuwait…” “I spoke to… [Mr Al Bahar] and he welcomed the idea of the joint venture with Compass – Abu Dhabi National Hotels and he has also agreed with the idea of investment with you in Kuwait.”…

“Jerome, the chairman of KCC is coming to visit me in London in early April. I would like to send him Compass latest brochure and Annual Report…”

“Mr Al Bahar is also willing to meet with you in Kuwait in their offices to show you their operations. What is the most convenient month and date for you? …”

“I believe strongly that this time, there is a potential for a real marriage for Compass with KCC.”

In this and subsequent emails the claimant undoubtedly put a “spin” on the facts in terms of his relationship with Mr Al Bahar. Since he makes his living from his networking and facilitating activities, this is perhaps not surprising. But the claimant’s refusal to accept that this email was other than completely accurate is surprising. Mr Knox’s explanation that this was because he was indignant at what happened to him and wanted to get his story out does not account for his insistence on the accuracy of the email. Setting aside any spin, by this time the claimant knew about ACME but the terms of this email and the reference to a marriage between Compass and KCC show that despite this he was not clearly distinguishing ACME and the defendant.

The telephone conversation on 16 March

On 16 March the claimant and Mr Marrel had a telephone conversation and discussed the terms for the agreement about KCC. The content of their conversation is disputed. The rival submissions as to its content depend in part on later communications. I will set out my findings on this after dealing with those communications. Broadly, the claimant’s case is that he and Mr Marrel agreed about the terms upon which he was to be remunerated for introducing the defendant to KCC and that the agreement then made was either reaffirmed or finalised at a meeting at the Meridian Hotel in London on 5 April. The claimant’s case is that, in that conversation Mr Marrel agreed the terms of the Safat Commission Agreement would apply to the arrangements regarding KCC but with the names changed to reflect that the parties were different. Mr Marrel denied there was any such agreement. He stated that he could not have agreed to this without the document being seen by the defendant’s lawyers based in France. He stated that by this time he was acting solely for ACME and that he told the claimant this and also that the commission could not be a percentage of turnover but was to be based on acquisition values.

The bundle contains a document from the claimant to Mr Marrel dated 16 March and stating “as agreed, please find enclosed our new cooperation agreement, which it will need to be initial (sic) and sent back to us.” The claimant’s case is that this document was faxed to Mr Marrel and that it was also emailed with the cooperation agreement attached. Mr Marrel stated he has no recollection of receiving such a document and Mr Anderson invited me to conclude that the document was either fabricated, not sent, or not received by Mr Marrel.

The claimant’s evidence on this was not satisfactory. He originally stated that this document had been sent by email. But, in his oral evidence, he stated it was sent by both email and fax and also that it was only the co-operation agreement which was emailed and not the document before me. There is nothing on the document to indicate that it was faxed and the enclosure is not before the court. The claimant’s explanation for sending the document by email and by fax to Mr Marrel on the same day was that the fax was sent to “chase” the email. He was unable to give an adequate explanation as to why he would want to chase Mr Marrel on the very same day that he sent the email. In any event the document is not written in terms of a “chaser”. Moreover, what the claimant said about this document is not altogether consistent with his evidence that he did not take copies of the written agreement to the subsequent meeting on 5 April because he did not wish to be seen to “chase” or pressurise Mr Marrel. If he did not wish to “chase” on 5 April, why did he do so almost three weeks earlier? There was no indication, as required by CPR Part 32.19, before the hearing that the authenticity of this document was going to be challenged but the matters to which I have referred mean that I place little, if any, reliance on it.

17 March until the meeting on 5 April

On 17 March Mr Al Bahar informed the claimant that he would be in London on 4 April. The claimant informed Mr Marrel at his “eurestme@emerites.net.ae” email address that Mr Al Bahar “is making an effort to fly to London purely to meet with you for the potential cooperation and joint venture between KCC and Compass Group” (emphasis added). He suggested that the meeting be on 5 April, and that it take place at Compass Group’s headquarters so that Mr Al Bahar could see “where his future marriage partner is based”. Mr Marrel, in an email dated 18 March, stated “… it was my understanding that you already had a meeting with Mr Al Bahar in London and its why I suggested we meet”. He did not correct the claimant’s belief that Compass was to be KCC’s marriage partner. The exchanges also concerned the location of the meeting which was to be on 5 April at the claimant’s office.

There were also a number of other exchanges about the meeting. At some stage (an unknown date though the claimant’s witness statement suggests it was also on 17 March) Mr Marrel asked the claimant for information about KCC including its annual report. On 21 March KCC sent the claimant its Annual Report and financial statements for its holding and other associated companies. On 24 March the claimant emailed Mr Marrel at his “eurestme@emirates.net.ae” address asking for his Abu Dhabi address so he could send the brochures. He also attached “our new co-operation agreement” and asked “if you could initial it and send me two copies for signature please”. He said “the new agreement has got only some minor amendment[s], such as rather than Safat we replaced it by KCC and others”.

I will refer to the draft agreement dated 24 March 2001 as the draft KCC Commission Agreement. It is stated to be between “Gulf Connections and Co” and “Compass Group plc”. It provided that the obligations were:

“Subject and conditional at all times to Compass entering into a Joint Venture (‘The principal contract’) with … [KCC]… for the provision of catering services to Kuwait and elsewhere, … The principal contract will include catering contracts services, Outdoor Catering services, Fast Food restaurant chain services and Foodservice and franchise brands”.

This was broader than the remuneration provision in the Safat Commission Agreement which provided for the claimant to be paid commission if the defendant entered a “catering services” agreement with Safat. The commission rate was the same as that in the Safat Commission Agreement. Clause 2 provided that it was to be “2% of gross receipts received by Compass from the principal contract” for “the first three calendar years of any agreement (or renewal thereof) between Compass and KCC” and 1% thereafter.

Clause 1 provided that “This agreement will be effective… for (i) a period of 36 months starting from the signature of the present agreement”. Clause 4 provided that Compass “will provide to Gulf Connections and Co a schedule of all business transacted with KCC along with copies of all invoices rendered… on a quarterly basis from the commencement of the principal agreement”. Clause 8 provided that Compass “will make full disclosure to Gulf Connections and Co of all facts that are reasonably necessary for Gulf Connections and Co to sufficiently monitor compliance with this agreement”. Clause 9 provided that the agreement “contains the entire agreement between” the parties “relating to the subject matter covered herein” and “no oral explanation or oral information given by either party shall alter the interpretation of this agreement”. Clause 11 is a confidentiality term precluding disclosure of the terms of the agreement to any third party. Clause 12 of the draft agreement was in the same terms as clause 12 of the Safat Commission Agreement (see [22]).

On 24 March the claimant also sent a copy of the Safat Commission Agreement to Mr Marrel. His evidence is that this was a further copy and that Mr Marrel had said he remembered the terms of the Safat Agreement well but could not immediately locate a copy (see witness statement paragraph 39).

Although the claimant said that his agreement was to introduce Compass to KCC and to be paid the commission for the introduction, he agreed that the commission rate was to cover continued support and services after an agreement had been entered into between Compass and KCC. This is reflected in an email dated 25 April 2001 he sent Mr Marrel in which (see [50]) he said his practice was to work on revenue in order to offer “long-term support and assistance” in a joint venture that resulted from his introduction.

On 31 March Mr Marrel emailed the claimant his contact address, ADNH Compass Middle East LLC. The email was from eurestme@emirates.net.ae. The claimant’s evidence was that he understood that Compass was using an office at this address and not that Mr Marrel was sending him ACME’s address.

Shortly before the meeting on 5 April, Mr Al Bahar said he could not attend because he had ‘flu’. The claimant and Mr Marrel, however, met at Le Meridien Hotel in London on 5 April. They agreed that Mr Marrel would visit Kuwait on 5 and 6 May to meet KCC. Apart from this the contents of the meeting are a matter of substantial dispute. The claimant’s case is that Mr Marrel said that he had read the agreement, was happy with it, and asked for a copy to be sent to him so he could sign and return it. He said that the only change requested by Mr Marrel was that a trading name rather than the claimant’s name should appear on the face of the agreement. The defendant’s case is that there was no such agreement and that the claimant’s account of what occurred is implausible and illogical. Since the rival submissions and my finding depend in part on the contents of communications later in April, I will set out the facts on those before making my findings as to what transpired at the meeting on 5 April.

Exchanges between 9 April and 1 May

On 9 April the claimant emailed Mr Al Bahar proposing a meeting on 5 or 6 May. He stated:

“I am coming with Mr Jerome Marrel of Compass Group plc…”

“My only question is: Does KIPCO [Kuwait Investment Projects Company] own fully KCC or [does] it simply own some shares in it. Does KCC [have] other shareholder[s] and who are they?”

“ I am including our confidentiality agreement”.

On 11 April the claimant emailed Mr Marrel at his eurestme@emeriates.net.ae email address informing him that KCC was willing to “see us on the 5 and/or 6 May 2001 in Kuwait”. He also informed Mr Marrel that KIPCO owned 85% of KCC’s shares and Shaikh Mubarak Al Sabah owned the remaining 15%. But on 9 April 2001 the claimant asked Mr Al Bahar who the other shareholder in KCC was. This sits very uncomfortably with his evidence that, after November 2000, when Safat said it did not want to enter into an agreement with the defendant, he had researched an alternative partner and met the Shaikh and persuaded him that Compass was the appropriate partner for KCC: see [28] above. In cross-examination he said that he asked the question in the email because he wanted the answer to be in writing.

On 23 April the claimant emailed Mr Marrel stating inter alia that he had sent him “a copy of our co-operation agreement” by DHL and asking whether he had received it. The claimant’s case is that Mr Marrel told him to enter into a confidentiality agreement with KCC to enable discussions to take place and he entered into one on Compass’ behalf. Mr Marrel accepted that a confidentiality agreement was possibly discussed at the meeting on 5 April.

On 23 April the claimant also signed a confidentiality agreement between United Company for International Investment Limited (“UCIL”) and KCC. The claimant was a minority shareholder of UCIL. The preamble to the agreement states that UCIL “is representing Compass Group plc who is interested in entering into a joint venture with KCC for the provision of catering services to Kuwait and elsewhere”. The agreement relates to discussions between KCC and Compass. The claimant sent Mr Al Bahar’s assistant the agreement on 26 April and a signed copy was faxed back on 28 April.

The capacity in which the claimant signed this agreement is disputed. His evidence is that he was authorised by UCIL by a power of attorney to sign it for that company, which he referred to as “my company”: statement paragraph 47. His explanation in his oral evidence for referring to UCIL as “my company” was that he said this because he was a minority shareholder in UCIL. In his oral evidence he said that he signed the agreement as a representative of the defendant and also that Mr Marrel authorised him to sign it on behalf of ACME. He accepted that he did not tell Mr Marrel that he would use UCIL as the vehicle through which he would make the agreement.

I reject the claimant’s evidence as to the confidentiality agreement. While the need for a confidentiality agreement was discussed at the April meeting and Mr Marrel may well have agreed that such an agreement would be needed before discussions with KCC started, he certainly did not authorise UCIL to enter into one on behalf of the defendant, or authorise the claimant to use UCIL (about which he did not know) or a different third party for this purpose. Although there was a certain informality in the dealings between the claimant and Mr Marrel, it is, as Mr Anderson submitted, inconceivable that Mr Marrel authorised the claimant to conclude such an agreement on behalf the defendant without seeing its terms. Its purpose, as the claimant told Mr Marrel at the beginning of May when he informed him the agreement had been made, was to enable Mr Marrel to talk freely with KCC. It was therefore important that the terms of the agreement adequately protected the position of those on whose behalf Mr Marrel was acting. The claimant’s evidence that Mr Marrel authorised him to sign the confidentiality agreement on behalf of ACME is also inconsistent with his case that at that time he did not know Mr Marrel was acting on behalf of ACME. Mr Anderson also relied on the fact that the confidentiality agreement was used by the claimant for his own benefit on 21 October 2003 when (after his approaches to the defendant had got nowhere) he told Mr Al Ibrahim the agreement entitled him to full disclosure of trading between Compass and KCC (see [103] below) as showing that the purpose of the agreement was for the claimant’s benefit. I have not taken this into account in reaching my conclusion because the claimant’s later reliance on the agreement by the claimant for his own and not for the defendant’s benefit is not inconsistent with his case that two and a half years earlier he had been authorised to sign it by Mr Marrel. Nevertheless, it is a pointer either to what the claimant regarded as the purpose of the agreement or to what he was prepared to do once the dispute arose.

On 25 April Mr Marrel emailed the claimant about the draft KCC commission agreement. He stated “we would like to amend the contract as follows” (emphasis added). The changes were that: the agreement should be with ACME and the commission should be a percentage of the acquisition values of purchase consideration. He stated “we cannot work anymore on commission on revenue as we have a local partner in the region. Furthermore, we are looking at an acquisition and not a management agreement as previously considered with Safat”. He asked the claimant to “confirm your agreement” so “we can draft a document accordingly”. The email shows that the defendant or ACME had started to consider acquiring KCC at this stage and wanted any agreement to cover this eventuality. The change in the commission basis makes sense in the context of consideration being given to an acquisition but it does not do so in the context of a joint enterprise between KCC and the defendant. The claimant’s reaction to this suggests he did not understand its significance. It is puzzling that neither party corrected what they say are important misapprehensions by the other.

The claimant replied on the same day. He stated the draft agreement indicated Compass Group plc and its subsidiaries but agreed to amend that what he called “the original contract” to include ADNH Compass Middle East LLC as an additional contracting party. He did not accept Mr Marrel’s proposed changes about the basis on which commission should be calculated. The email stated:

“I believe that we have spent all of us a lot of efforts to come to a reasonable agreement for the remuneration of my efforts for introducing Compass Group plc to the Kuwaiti market…. My usual practice on such co-operation is to work on revenue in order to offer you a long term support and assistance in your joint venture with the local Kuwaiti partner as we have consented fairly and reasonably in our original agreement. Therefore I prefer to work on revenue and not on a percentage of the acquisition value.”

It also stated:

“During our last meeting in London, you have only mentioned that I should include my company and not my name which I did understand. But everything apart from that was OK in the agreement as you indicated.”

The claimant’s oral evidence was that the reference in this email to “our original agreement” was not a reference to the Safat Commission Agreement but to an earlier completed agreement with the defendant about KCC. However, his email was a reply to an email from Mr Marrel in which Mr Marrel referred to the fact that what was envisaged was “an acquisition and not a management agreement as previously considered with Safat”. Given that context, I have concluded that the claimant’s reference to “our original agreement” was to the Safat agreement and not to a subsequent agreement about KCC. I also observe, in relation to this email that, over a year after his disqualification as a director and prohibition from acting in the management of a company without the leave of the court, he referred in it to “my company”. His explanation for this in his oral evidence was that he said this because he was a minority shareholder in UCIL.

Mr Marrel replied to the claimant on 29 April. He stated that he understood that the claimant did not want to discuss the matter through email; that they would have a good talk while in Kuwait; and “being both reasonable, we can definitely reach an agreement”. In this email Mr Marrel also sought to reschedule his visit to Kuwait and the meeting with KCC to 26 and 27 May because his board wished to discuss the matter before his meeting with KCC and “our Board Meeting is on 15 May”. Mr Knox relied on this to show that Mr Marrel was holding himself out as dealing on behalf of the defendant because, whereas the defendant had a board meeting on 15 May, ACME did not. Mr Anderson suggested that the material before me showed that there was an ACME board meeting scheduled to be on 15 May but it was cancelled so that Mr Richardson could attend the defendant’s board meeting in the UK. It appears that Mr Marrel was referring to a board meeting of ACME which was scheduled for 15 May but did not take place but the claimant understood the reference to be to a meeting of the defendant’s board.

By 29 April Mr Al Bahar had signed and returned the confidentiality agreement to the claimant. The claimant thanked him, said Compass’s Board wished “to discuss Compass potential joint venture with KCC” at its Board Meeting on 15 May. He asked whether the meeting planned for 15 May could be re-scheduled. This email referred to “a great potential in your co-operation with Compass”. Compass’s board meeting did take place on 15 May but it was not convened in order to discuss a joint venture with KCC and KCC was not discussed. The claimant also sent a draft of the KCC commission agreement to Mr Marrel, adding ACME as a party together with the defendant and an additional basis for commission entitlement based on acquisition values in addition to revenues.

An internal ACME document prepared for its Board of Directors at about this time outlined projects which would require capital expenditure and Board approval. One of these, in relation to Kuwait, referred to two groups, KCC’s owner and the Khofari group. It states KCC was looking for a partner and that the writer would prepare a market survey on Kuwait so the board could decide on a strategic entry in Kuwait.

Mr Al Ibrahim joined KCC on or about 1 May. On 1 May the claimant emailed Mr Marrel stating that the meeting had been rescheduled for 27 May. He also stated: (a) “we have a confidentiality and non-disclosure agreement with KCC which will allow you to talk also with freedom during the meeting”, and that should Mr Marrel require a copy of the agreement he would send him one or bring it with him to Kuwait, and (b) “the rescheduling of our meeting with KCC will also help us to finalise our co-operation before 27 May. I prefer that we stick to our original agreement which we have already spent both of us a time and effort for concluding it”. There were email exchanges between the claimant and Mr Marrel about the practicalities of the visit but not about the agreement and its terms.

The meetings in Kuwait on 27 May:

Mr Marrel planned to arrive in Kuwait at 12.30 on 27 May and to depart for Dubai at 18.10 on the same day after the meeting with KCC. He said he thought it enough for “a first contact”. Although on 26 May Mr Marrel wanted to cancel his trip to Kuwait, in the light of the claimant’s response to this suggestion he did not. The claimant’s case is that, before the meeting with KCC, he discussed the terms of his agreement with Mr Marrel. His evidence is that Mr Marrel told him that he was protected by the original agreement and there was no need to wait for the board to sign the revised draft agreement which had been sent in late April. Mr Marrel’s evidence, first given in cross-examination, is that there was a specific discussion in which both parties expressly repeated their previous positions and were in disagreement.

Messrs Marrel, Al Bahar, Al Ibrahim, Pace, and the claimant attended the meeting on 27 May. It is common ground that KCC made a presentation about its operation in Kuwait, including the restaurants and croissant factory. The claimant’s evidence is that the defendant was very interested in KCC’s restaurants and croissant factory, that Mr Marrel said that he would discuss the matter with his board on 21 June and move to finalise the joint venture with KCC and expansion to Kuwait and possibly Iraq. It was ACME’s Board which was to meet on 21 June. I accept Mr Marrel’s evidence that the meeting with KCC did not last very long and that it became apparent very quickly that it was not a suitable joint venture partner for ACME in particular because of its retail presence and because ACME’s policy was not to operate any retail outlets outside the UAE. His oral evidence on this point is supported by an email he sent to the claimant dated 26 June: see [60].

27 May - 30 June 2001

After the meeting on 27 May there was no material contact or negotiations between the defendant or ACME and KCC during the rest of 2001 or the first half of 2002. Jumping ahead, in November 2001 Mr Marrel was replaced as General Manager of ACME by Mr Mike Moore.

ACME’s third board meeting took place on 21 June 2001. Mr Harris was there and Mr Marrel was in attendance. The minutes inter alia state under “Review of potential development in the region”:

“Kuwait: Received an approach from KCC in Kuwait to penetrate the Kuwaiti market. The Chairman requested to discuss these points during the Executive meeting and submit an overall development plan to the board.”

There was an exchange of emails between the claimant and Mr Marrel on 26 June. The claimant enquired how the Board meeting had gone and said that if “you” are still interested in Kuwait and in a potential cooperation with KCC he would send the last three audited accounts of KCC. Mr Marrel’s reply stated:

“The Board was very non-committal as far as Kuwait is concerned. However, the Board has established an Executive management committee which will meet monthly to review development and future expansion.”

It also stated that KCC’s audited accounts would help the decision process and that he would like a breakdown of KCC’s sales by activity, particularly:

“to understand the weight of the croissant factory and the four high street restaurants. It is in fact the main issue at present as both are not activities managed usually by Compass”.

At the end of June the claimant sent Mr Marrel the accounts and breakdown he requested. After a telephone call from the claimant to Mr Marrel in early July when Mr Marrel told the claimant that he would keep him informed of developments, Mr Marrel did not call back and avoided the claimant’s calls. Kuwait was not an item at ACME’s board meetings between 3 October 2001 and 7 May 2002 although by 11 May (possibly on 6 May) Mr Smylie had met Mr Hijazi in Kuwait, had been introduced by him to the US Forces Catering Unit Chief, and had discussed a joint venture with La Nouvelle.

Was an agreement reached on 16 March or 5 April?

As to the issue of whether the claimant and Mr Marrel reached agreement on 16 March, or alternatively on 5 April, the documentary evidence is only of limited assistance in resolving the conflict of evidence between them. On behalf of the claimant it is correctly said that it is important that Mr Marrel did not directly contradict what the claimant had said in his emails when replying to them. That is, he did not state that the claimant was mistaken (in his email dated 17 March) in referring to Compass as KCC’s marriage partner, and did not put the claimant right after getting the claimant’s email dated 24 March which envisaged an agreement with the defendant and a commission based on a percentage of receipts. Mr Marrel also accepted that at the meeting on 5 April they discussed the need for a confidentiality agreement. However, as was submitted on behalf of the defendant, it is also significant that the claimant did not contradict Mr Marrel’s emails dated 25 and 29 April. In particular, in his email of 25 April the claimant did not assert that an agreement had been concluded and that it was too late to renegotiate.

I have concluded that, for the reasons I shall give, no agreement in relation to KCC was reached between the claimant and Mr Marrel on either 16 March or 5 April. There are factors pointing to such an agreement, in particular that on 17 March the claimant started to make arrangements to introduce KCC to those who Mr Marrel represented. He had similarly started to make arrangements to introduce the defendant to Safat before the Safat Commission Agreement was signed. Secondly, there are references in the emails dated 24 March to “our new co-operation agreement”, and in that dated 25 April to “our original agreement”, and to sending a signed copy by DHL. Moreover, there is the confidentiality agreement. However, while it is perplexing why the claimant should have entered into the confidentiality agreement with KCC before having an agreement with Mr Marrel, for the reasons I have given (see [48]) that is not a very strong indication that he did have an agreement with Mr Marrel. To regard it as such would be to accept that Mr Marrel left it to the claimant to negotiate the terms of a confidentiality agreement with KCC and did not wish to see it before it was settled. Even discounting the way in which the claimant later sought to rely on the confidentiality agreement to require KCC to provide it with confidential information about the defendant (see [103]), it is not plausible that the terms of such an important document would have been left entirely to the claimant.

It is also clear on the evidence that the claimant thought he was dealing with Compass or at least did not make any clear distinction between Compass and ACME. Mr Marrel asked the claimant to find a new partner on about 11 November 2000 when the negotiations with Safat broke down. While ACME had been incorporated at that time, the joint venture agreement between Compass and ADNH had not been concluded (see [27]). Nor had it been agreed that Mr Marrel was to be ACME’s general manager. So the request was made at a time of transitions. Mr Marrel’s evidence was that he told the claimant from the outset of the KCC approach (i.e. in March 2001) that he only had authority to bind ACME and no longer had authority to bind the defendant but I find that Mr Marrel did not make the new position sufficiently clear.

While the existence of ACME was mentioned, the new arrangements were not spelled out in any documentation at all, let alone with any clarity. Mr Marrel himself referred to Compass in the context of KCC in his later email dated 26 June and did not correct the references by the claimant to Compass in a number of emails, in particular those dated 12 and 17 March, and 25 April. The email address he used at the time was “eurestme@emirates.net.ae”. Eurest was the Compass group’s brand name for its catering services. Moreover, the draft agreement sent by the claimant to Mr Marrel envisaged an agreement between himself and the defendant and not one with ACME.

There are factors pointing the other way. I ignore the claimant’s evidence that before he signed the confidentiality agreement between UCIL and KCC on 23 April Mr Marrel had authorised him to sign it “on behalf of ACME”, as either a slip or given for other reasons (see [48]). But the claimant’s first response to Mr Marrel on 12 March was that Mr Al Bahar “welcomed the idea of a joint venture with Compass-Abu Dhabi National Hotels”. However, although Mr Marrel told the claimant that he was working from ACME’s premises in Abu Dhabi and the claimant was aware of the defendant’s joint venture, Mr Marrel did not make the position clear until his email on 25 April. Mr Marrel’s use of a Eurest email address, the loose use of references to “Compass” and Mr Marrel’s failure to correct the claimant’s references to Compass for some six weeks after their first contact in mid-March 2001 do not sit comfortably with Mr Anderson’s submission that it was clear that Mr Marrel did not have ostensible authority to act on behalf of the defendant. Since I have found that there was no agreement on either 16 March or 5 April it is not necessary to resolve this question but I deal with it briefly at [112]. The claimant alleges that he reached a further agreement with Mr Marrel during May but this was after the email of 25 April in which Mr Marrel stated that the agreement should be signed with ACME.

As to the reasons for my finding, I have explained (see [34]) why I do not place reliance on the document dated 16 March which is said to have been emailed and faxed to Mr Marrel. Setting that document aside, if an agreement had been reached on 16 March it is inexplicable that neither the claimant nor Mr Marrel brought the draft sent to Mr Marrel on 24 March to the meeting on 5 April to be signed. Mr Marrel had signed the Safat Commission Agreement. The draft sent to him envisaged that he would sign the KCC Commission Agreement. The claimant’s evidence that he did not think it appropriate to bring the draft to the meeting because he did not wish to chase or to put pressure on Mr Marrel is not plausible. There would have been no chasing and no pressure or any hint of such if an agreement had previously been reached. Moreover, at a later stage the claimant said that he preferred to deal face to face and, in relation to the confidentiality agreement, he offered to send it or bring it to the meeting on 27 May. Secondly, if they had already reached agreement, why did they have a meeting on the 5April after Mr Al Bahar cancelled because of his flu? There would have been very little to discuss.

Thirdly, had they agreed either on 16 March or 5 April, it is inexplicable that Mr Marrel first raised the points contained in his email dated 25 April about the party to the contract being ACME and about the basis of the claimant’s remuneration only at that time. The fact that the draft agreement was not expressed to be with ACME did not become an issue between 16 March and 25 April. ACME had been in existence since 1 January and it was necessary for any joint venture with a third party involving Kuwait to be with ACME. As to the commission, Mr Anderson’s submission that Mr Marrel’s requirement for a commission based on a percentage of acquisition costs rather than revenue is inconsistent with an earlier agreement is less compelling although it does appear that, at that stage, ACME was interested in an acquisition rather than in a traditional joint venture.

The fact that Mr Marrel only asked for a copy of the Safat agreement shortly before the claimant sent one on 24 March is also inconsistent with him reaching an agreement with the claimant on 16 March. It is not plausible that he would have agreed that the terms of the Safat agreement negotiated some 18 months earlier should apply in respect of KCC without sight of the agreement so he could check the terms in the light of current circumstances.

Finally, the statement in the claimant’s email of 1 May stating that rescheduling the meeting with KCC to 27 May “will also help us to finalise our cooperation before 27 May” is, despite the reference in that email to “our original agreement”, inconsistent with an agreement having been reached on 5 April or earlier. Similarly, the statement in Mr Marrel’s email of 29 April that “we can definitely reach an agreement” suggests that there was not an agreement at that date. The reference in the claimant’s email dated 25 April to “our original agreement” is in any event at best ambiguous. For the reasons given (see [51]) I concluded he was referring to the Safat Commission Agreement rather than to an earlier agreement in respect of KCC. Apart from the fact that it was a reply to an email from Mr Marrel which expressly referred to Safat, the email refers to “remuneration of my efforts for introducing Compass Group plc to the Kuwaiti market…”. Those efforts also included the introduction to Safat which did not lead to an agreement between Compass and Safat.

Was an agreement reached between 5 April and 27 May 2001?

I have also concluded that no agreement was reached between 5 April and 27 May. The claimant’s case is that after the meeting on 5 April he sent a signed version of the commission agreement by DHL to Mr Marrel for his signature and that this is shown by the question in his email of 23 April to Mr Marrel asking whether he had received a copy of the agreement. This was on the same day that he chased KCC for its agreement to the confidentiality agreement. His evidence is that in late April he sent out a further draft agreement which sought to accommodate what Mr Marrel had required in his email of 25 April by adding references to ACME and a commission based on acquisition value to the existing terms.

It is common ground that there was a further discussion about the terms of the agreement on 27 May. The claimant’s case is that Mr Marrel told him that he was protected by the original agreement and there was no need to wait for the board to sign the revised draft sent in late April, i.e. that Mr Marrel waived the requirement for an initialled or signed document. He also said that he would not have introduced Mr Marrel to KCC on 27 May without an agreement. Mr Marrel stated that in the discussion the claimant and he repeated their previous positions and were in disagreement. Mr Knox invited me to accept the claimant’s evidence because (a) it accords with what had happened when the Safat Commission Agreement was negotiated, (b) the defendant has never alleged in correspondence that the claimant should have waited for the board to sign the revised draft or that there was express disagreement before the claimant introduced Mr Marrel to KCC, and (c) the first time Mr Marrel said this was in cross-examination. He said that this is the third conversation Mr Marrel did not mention in his statement but which he first recalled in his oral evidence. The other two are that he had told the claimant before the email on 25 April, i.e. before 5 April or on 16 March that the claimant had got the parties and the commission wrong, that he was acting only for ACME, and the commission would not be 2% of turnover but on acquisition value.

I reject the claimant’s evidence on this. If Mr Marrel had made agreements with the claimant on 16 March and 5 April without reference to the need for Board approval of the terms of the agreement, there was no reason for him to state that Board approval would be required for this particular revised draft. Moreover, the document drafted by the claimant which he said he sent to Mr Marrel for signature, did not meet any of the objections and concerns raised by Mr Marrel. The issues of who was to be the party to an agreement with the claimant and the basis upon which the claimant was to be remunerated were important matters. Why would Mr Marrel have dropped all his objections or accepted a draft by the claimant which elided the points he wanted to be in the agreement with regard to the party and the commission arrangements, in the case of the latter in an unworkable or at least unclear way? As to why the claimant introduced Mr Marrel to the KCC team on 27 May, he may have been confident that he would resolve the differences, or he may have considered that the differences were not on important matters and did not preclude the formation of a binding agreement. But, for the reasons I have given, if it was the latter, he was mistaken.

The involvement of Mr Hijazi and La Nouvelle:

On 11 September 2001 the World Trade Center twin-towers in New York were destroyed. It soon became clear that there would be a large build up of military forces in Kuwait. Compass’s subsidiary ESS, as a major catering company with a record of supplying catering services to armed forces, was interested in this business. As a consequence ESS again became interested in expanding into Kuwait.

At some stage in the first months of 2002 ACME’s Business Development Director, Alistair Smylie, met Mr Ali Hijazi, the Managing Partner of La Nouvelle, a firm which had good contacts with the US forces. Mr Hijazi gave Mr Smylie an introduction to the chief of the US forces catering unit. In email exchanges before and during May 2002 they also discussed a joint venture between ACME and La Nouvelle. In an email dated 27 June Mr Dyer, an Executive Director of ESS, informed Mr Moore at ACME that ESS would not be bidding for the American food supply contract, that he had informed Mr Hijazi, who was not happy with the decision, and that they needed a strategy and a partner to win the US military business. He named KCC as one of the potential partners.

In either very late July or the very beginning of August 2002 Mr Smylie and Mr Hijazi discussed Mr Smylie contacting KCC but decided against it. On 4 August the Kuwait Government Gazette published an invitation by the Kuwaiti Ministry of Defence to tender for a US forces catering contract (the US-Arcent contract) with a closing date of 15 September 2002. By 13 August Mr Hijazi had emailed Mr Smylie the names of the six short listed participants for this contract. KCC was one of these. Mr Hijazi’s email stated that he had met KCC, that it was a powerful company at KMOD (Kuwaiti Ministry of Defence), and that it had no presence at all with US forces unlike Safat which knew people in both. He thought it would be difficult to agree with KCC.

On 13 August Mr Smylie informed Messrs Moore and Dyer that Mr Hijazi had said Safat and KCC are “particularly strong”, that “both are backed by members of the Royal family” and that their “only chance… is to muscle in on one of the … companies to form a JV to include La Nouvelle albeit they recognise the position at the moment to be one of them simply being a strength of contract with the force catering department”. He also said “La Nouvelle are very flexible… and will assist as we require but naturally they would expect to have a reasonable part of any JV”. Of KCC he stated, “Ali [Hijazi] had a meeting with them and says they are somewhat arrogant but maybe with us contacting them it could be different”. Mr Smylie also referred to his earlier conversation about this with Mr Hijazi a couple of weeks earlier. Internally ESS considered that Mr Hijazi was its initial contact in Kuwait: see the email dated 27 October 2002 from Mr Smylie to Mr Moore and Mr Dyer.

Negotiations leading to the September 2002 MOUs between ESS and KCC:

ESS approached KCC in late August or early September. Mr Dyer took the view that a local company would be favoured and that there were problems with La Nouvelle qualifying to tender. In a later email dated 22 September Mr Hijazi said the difficulties had arisen because of the defendant’s delay in creating a joint venture that could be registered.

There were meetings between the defendant and KCC on 10 September and in the previous week. It was agreed to bid for the contract. Mr Al Ibrahim is recorded in Mr Smylie’s notes of the meeting as briefing Messrs Dyer and Smylie on KCC, its ownership and its strong support in the Kuwaiti Ministry of Defence. Mr Al Ibrahim’s evidence was that Messrs Dyer and Smylie had a good working knowledge of KCC. But the fact of the briefing and the contents of the notes are consistent with Messrs Dyer and Smylie knowing relatively little about KCC’s structure and operations.

Mr Al Ibrahim’s evidence was based on his view that Messrs Dyer and Smylie had acquired their good working knowledge of KCC because of a prior meeting he had in the UK. But the only meeting he had in the UK with representatives of Compass was the one in February 1999 when he was working for and representing Safat. Not surprisingly, given the passage of time, he confused that meeting with a meeting with Compass at which he was representing KCC. He may have been thinking of the meeting on 27 May, but that was in Kuwait.

Mr Al Ibrahim is also recorded in the notes of the meeting as supporting a joint approach and stating that he “knows of Compass and our capability and agrees the JV approach boosts confidence with the US forces”. According to the notes, the plan was, after the bid, to “move ahead as a joint force and to exchange [a] confidentiality agreement”, and then an MOU via Cyprus for the JV “for all business in Kuwait”. There is no reference in the notes to the claimant or to the earlier confidentiality agreement between KCC and UCIL which was stated to be representing Compass Group PLC (see [46]). Indeed, a further draft confidentiality agreement, expiring on 31 October, was prepared. Had those involved seen this as a continuation of the process started in March and April 2001 it is difficult to understand why they entered into a further confidentiality agreement.

At some point before 11 September a Mr Nael Barqawi met Mr Harris in Africa and discussed the KCC “issue”. On 11 September he emailed Mr Harris stating that he had met KCC’s Managing Director (although he may have meant Mr Al Essa the Managing Director of KCC’s owner, United Industries Company) who was willing to meet him in Kuwait in the following week. He also met Mr Dyer in Kuwait. On 12 September, after the meeting, he said he was “fully authorised” by United Industries Company, to source a reputable and credible company in catering to introduce to KCC. This appears to be in relation to the defendant, ESS or ACME acquiring a stake in KCC by purchasing shares.

It appears that by 16 September the deadline for the bids for the contract had been extended from 15 to 29 September. At about this time another contract for which both ACME and KCC had bid separately was awarded. Both were unsuccessful: see the report of the US Army Procurement Division dated 16 and 17 September. There were internal exchanges within ESS/ACME about the fact the extended tender was closing on 29September, the need to be clear on the agreement to be reached with KCC, and the view that an MOU made with La Nouvelle was invalidated.

On 18 September 2002 ESS and KCC signed two Memoranda of Understanding, both signed by Mr Harris on behalf of ESS and Mr Al Essa on behalf of KCC. The first MOU concerned the parties’ mutual intent “to operate catering services and other related services” in Kuwait under it. ESS stated (clause 2) that it would “undertake to manage the existing business of KCC, being the provision of food services and related business”. By clause 3 ESS was to “provide management and technical support to KCC” and the consideration for such technical support was to be a management fee of 5% of total sales and 50% of the net profits of KCC to the extent that they exceed 10% of total sales payable to ESS. By clause 6 the parties undertook that during the term of the definitive agreement they would not directly or indirectly… engage in any business in competition with any of the businesses of KCC in Kuwait” apart from excluded business as defined in clause 2, including business in the military and off-shore oil and gas business. The excluded business was the subject of the second MOU.

The second MOU records an intention to agree that ESS and KCC will “jointly tender for future business in Kuwait”, including military, off shore oil and gas business, and services tendered to Chevron Texaco, that if they get it, the business will be operated by KCC, and 50% of the net profits will be paid to ESS (clause 2). The second MOU provides that ESS will provide the same management and technical support as under the first MOU.

Clause 1 of both MOUs is headed “Non-Binding Agreement”, and records that they wish to set forth their “current intent regarding matters which will be the subject of their negotiations”. It states that the statements and terms are an incomplete expression of terms and conditions which the parties intend to set out in an agreement, described as “the definitive agreement”, which the parties “undertake to negotiate… in good faith”.

Clauses 7-11 of the MOUs are, by Clause 13, stated to be binding commitments. Clauses 7 and 8 of each of the MOUs provide that the parties will not use or disclose to any third party any information of a confidential nature acquired from the other which may come to their knowledge through “this agreement” without the consent of the other (clause 7) and that during the term of “this agreement” neither party shall enter into nor participate in (directly or indirectly) any talks or exchanges with any third party regarding the matters referred to in this agreement (clause 8). Clause 12 of both MOUs provides:

“This agreement shall be effective as of the effective date and shall continue until either party gives written notice of its intention to abandon further negotiations”.

Clause 6 provides that “during the term of the Definitive Agreement” the parties shall not compete with each other in Kuwait. That suggests that, until the Definitive Agreement was entered, they were free to compete.

Did ESS and KCC conclude a Co-operation and Management Agreement for Joint Tenders?

At some stage two “Co-operation and Management Agreements” between ESS (Cyprus) and KCC were prepared by ESS’s Cyprus lawyers. One was for ESS to take over and manage KCC’s business in the specified territory. The other was an agreement for joint tenders by ESS and KCC. The latter was later amended to a “Joint Participation Agreement” between ESS and La Nouvelle providing for ESS and La Nouvelle to tender jointly for contracts. As well as the “Co-operation and Management Agreement”, a document headed “Co-operation Agreement between [KCC and ESS Supporting Service Worldwide]” was prepared by ESS to provide the Board of United Industries Company with an outline of how ESS could “improve volumes and margin, increase market share [and] develop specific market sectors.”

On 22 September Mr Hijazi emailed Messrs Smylie and Dyer blaming ESS for La Nouvelle’s failure to register in time and qualify to tender for the US forces catering contract. He said this was because of ESS’s delay in creating a joint venture. He also stated that it was La Nouvelle which arranged the last minute meeting with KCC (which it would have taken ESS days to arrange) and that they had done so to help both the companies not to lose the opportunity.

On 25 September Mr Dean, ESS’s Finance Manager, sent Mr Richardson, ESS’s Finance Director, an email reporting on the trip to Kuwait between 20 and 23 September. The email states that the initial objective of the visit was to review KCC’s tender submission for the provision of catering services in five United States armed services camps based in Kuwait and that ESS’s involvement was based upon a proposed 50:50 joint venture agreement with KCC for this contract. This shows that at that stage a KCC/ESS joint venture was still under consideration. Mr Dean’s email also stated that the scope of their visit was widened on Sunday 22 September to include a due diligence review of KCC based upon an MOU signed by Peter Harris. This was a reference to the first of the MOUs, that to manage KCC’s existing business. There was also discussion of ESS/Compass acquiring KCC but, although further negotiations took place, nothing came of any of these projects.

Amended drafts of the two co-operation agreements were sent by ESS’s Cyprus lawyers to Mr Richardson on 27 September. On that day Mr Dyer wrote to Mr Al Irbrahim attaching what is referred to as “the priced document” for “your signature”, stating that the British Embassy was in full support and that a retired US officer, employed by ESS, would be visiting Mr Al Ibrahim before he started lobbying people at the base. This letter was sent very shortly before the closing date for the bid.

It is clear that at this stage ESS intended to make a co-operation agreement with KCC. But there is no signed copy of such an agreement for joint tenders by them. Mr Knox invited me to conclude that they had concluded and signed an agreement in the terms of the unsigned Co-operation and Management Agreement before the court. He relied on Mr Al Ibrahim’s evidence, their (albeit unsuccessful) joint tender to the Kuwaiti Ministry of Defence for the US army camps (the US Arcent bid), the email dated 22 October from ESS Support Services Worldwide’s Regional Director to Colonel Ulysses Brown, and the references in the documentation to exchanges of information which he submitted would not have happened absent a concluded agreement. He also relied on the minutes of the ACME Board meeting of 29 September which state that “the Joint Venture Agreement has been signed for US forces business” and “signature of the final contract will take place on 30/9/2002 in Kuwait”, and an email from Mr Richardson dated 7 October and a note he made dated 21 October. The email indicates that Mr Richardson expected the contracts to be signed by early October and the note states “I would suggest we continue our relationship on the basis of the co-operational agreement we have already signed…”. Mr Richardson accepted in cross examination that this could not have been a reference to the Memoranda of Understanding which had never been referred to as a “co-operational agreement” and which he considered were not binding.

On this issue, I accept Mr Anderson’s submissions. Mr Al Ibrahim’s witness statement does not refer to the Co-operation and Management Agreement for joint tenders. He first said that it had been signed when giving his evidence in chief. The claimant’s evidence (paragraph 54) is that in mid-November 2002 Mr Al Ibrahim told him that Compass had “recently” signed an MOU with KCC for providing catering services to the US army. This is borne out by his contemporaneous notes. The MOUs had been signed two months earlier. Had there been a further agreement since then, that agreement would have been the recent development of which Mr Al Ibrahim would have informed the claimant. Mr Al Ibrahim’s evidence on this was not satisfactory. At times he regarded the MOUs as legally binding and confused them with the Co-operational and Management Agreement. I conclude that he did so in this context. Secondly, his later conduct, when there were difficulties between KCC and ESS, is not consistent with the execution of the Co-operation and Management Agreement. In a letter dated 8 February 2003, he stated that “ESS must pay to KCC” a Co-operation and Partnership fee of between 5 and 10% of ESS’s net sales. In fact ESS refused to pay this fee: see Mr Dyer’s letters dated 10 and 22 February. Why would Mr Al Ibrahim have required this if there was then a concluded agreement giving KCC (as the unsigned draft did) 50% of all the profits of “catering and other related services relating to military establishments”?

Other documents also indicate that no Co-operation Agreement was signed with KCC. For example, an internal ESS memorandum “Kuwait – Financial Overview” from Mr Richardson to Messrs Dyer and Harris about a visit by him to Kuwait stated with regard to KCC that “the sooner we sign the better”. Before then, on 10 January, a draft sub-contract between KCC and ESS contemplating a very different relationship to a joint venture was drawn up and concluded. This was stated to replace and supersede “the MOU and all previous agreements whether oral or in writing”.

Albeit more indirectly, the change in the relationship between ESS and Mr Hijazi and La Nouvelle also indicates that no Co-operation Agreement for joint ventures between KCC and ESS was signed. Towards the end of 2002 ESS came to consider that Mr Hijazi had access to privileged information and contacts with the US army and that it may have lost opportunities through Mr Hijazi’s non-involvement. An example is contained in the email dated 27 October 2002 in which Mr Smylie, referring to Mr Hijazi, stated it “seems from what I hear so far we have to include him”.

Business jointly won by ESS and La Nouvelle and KCC’s role:

In January 2003 ESS and La Nouvelle obtained a contract to supply the US Marines at Camp Coyote, apparently without tendering. Mr Knox submitted that ESS and KCC entered into a sub-contract. He submitted this was the first of a number of sub-contracts, and reflected an agreement by KCC to drop out of being a direct party to the contract on the basis it would still provide the catering and other services. It did so, and the services it provided included; seconding staff to ESS, performing payroll and human resource functions, providing of tourist visas in the name of KCC to enable staff to enter Kuwait, and providing office space. Save for the Camp Coyote sub-contract and the purchase agreement for lunch boxes there are no written contracts, but Mr Knox submitted that KCC performed services under other contracts including that for the APOD at Kuwait airport and US Arcent contract. He argued that this arrangement also constituted a joint venture between them. The difficulty with this submission is that Mr Al Ibrahim’s evidence was that he did not know about these contracts or that La Nouvelle was involved and that KCC did not have any role in the winning of the US and UK military contracts awarded to ESS-La Nouvelle. Given what he said about La Nouvelle and Mr Hijazi, and his treatment of Mr Hijazi when they met in about August 2002, he would not have agreed to such an arrangement had he known about it. By March 2003 ESS’s “Financial Notes” describe KCC as being “used by us for backup support and assistance”. In April KCC was being paid a fixed price per lunch box under a Purchase Agreement: see the signed purchase agreement dated 27 April 2003 returned by KCC to ESS Worldwide. The ESS-La Nouvelle contracts with US and UK armed forces were very substantial. It was suggested that by September 2003 they had yielded gross revenues of approximately $US 136 million.

The claimant’s involvement from November 2002:

I have referred to the claimant’s evidence that he was told about the ESS/KCC MOU by Mr Al Ibrahim in mid to late November 2002. After telephoning Compass’s head office in Surrey on 29 November to speak to Mr Marrel, he emailed him asking for a copy of the MOU with KCC for the US army project “as per our co-operation understanding for introducing Compass to the Kuwaiti market and particularly KCC”. At some stage he was advised by Compass’s head office to speak to Mr Moore.

On 3 December the claimant emailed Mr Marrel stating that after the Safat deal did not go through, he had, as Mr Marrel had asked, found Compass PLC “a reputable catering company in Kuwait”, had “put you in one table with the management of KCC”, and asked Mr Marrel to tell Mr Moore about their “agreement and understanding”. On 16 December the claimant sent a fax to Mr Moore asking about the KCC position and for copies of the MOU and Compass/KCC joint venture for the US army.

In a fax dated 14 January 2003 Mr Moore informed the claimant that “the joint venture between KCC and ADNH Compass for American services work was unsuccessful”. He also stated that he had spoken to Mr Marrel but was “unable to find” copies of the agreement between Compass Group or ADNH Compass and the claimant. He asked the claimant to send him copies of any such agreements. The claimant did not.

On 17 February the claimant sent a fax to Mr Al Ibrahim thanking him for his “assistance and co-operation in our introduction process of Compass plc to [KCC]”. The letter states: “as a result the fruit of all that is coming now where Compass and KCC started their first step of business co-operation”. Mr Al Ibrahim replied on the same day thanking the claimant for introducing Compass ESS to KCC. On 23 February Mr Al Ibrahim sent the claimant another fax. This stated: “Please allow me to thank you on behalf of our Chairman, Board Members, myself and the KCC management for introducing Compass ESS to Kuwait Catering Co. We are optimistic towards our mutual co-operation”. On 8 May the claimant responded and asked Mr Al Ibrahim for a copy of the entire file of correspondence and communications between KCC and Compass.

At some stage the claimant engaged Mr Sohale Rahma of Sohba Consulting to assist him. In a letter dated 19 August 2003 to Compass Group’s Chief Executive, Sohba stated the claimant was engaged by Compass to propose introductions to suitable companies in Kuwait and that as a result of his efforts a commercial agreement was entered into between ESS and KCC in relation to the US Marines. The letter asked for clarification of gross revenue streams. Mr Harris, the CEO of Compass’s Africa and Middle East operations and a Director of ACME, replied in a letter dated 23 September. He stated:

“…neither Compass Group nor ADHN Compass, our joint venture in the Middle East, has made any agreement with Kuwait Catering Company (KCC) relating to an acquisition, management agreement or any other form of commercial agreement. Indeed, none of our current or past revenue streams in Kuwait have originated from KCC or through KCC as we have a completely different sponsor/partnership with Kuwait.”

This response is simply untrue. Although the proposed acquisition agreement did not come to fruition, and there was no management agreement, there certainly were at least two commercial agreements. Mr Harris did not give evidence and there has been no satisfactory explanation for this letter.

After further communications from Sohba, in a fax dated 14 October 2003 Mr Richardson stated to the claimant that he had “no knowledge of any business undertaken by Compass Group with KCC or elsewhere”. The claimant passed this to Mr Al Ibrahim on 21 October. He asked Mr Al Ibrahim to comment on Compass’s denial of any trading activities with KCC bearing in mind “that we have as you know a confidentiality agreement with KCC and we are entitled to have your fully (sic) disclosure from KCC”. On 11 November 2003 Mr Al Ibrahim replied, stating “we have been working with ESS which is a subsidiary company of Compass. There is no doubt that they have obtained several contracts within Kuwait and within Iraq through Kuwait”.

Lawyers became involved during 2004 and, following a letter before claim dated 24 April 2008, these proceedings were launched on 22 August 2008.

For the reasons I have given ([62]-[73]), I have concluded that no agreement in relation to KCC was reached between the claimant and Mr Marrel on either 16 March or 5 April, or by 27 May. That resolves issue (1). Accordingly the remaining contractual issues, issues (2) to (7), do not fall for decision. Since they were the subject of full submissions, before turning to the restitutionary issues, I deal with them briefly. However, I first summarise the possible legal positions in the not uncommon situation in which A and B negotiate by correspondence and meetings about a transaction, in this case a commission agreement, under which A will be paid for introducing B to C if B and C subsequently make a specified agreement and there is subsequently a dispute between A and B about A’s entitlement to any payment.

B may either be liable to A in contract or in restitution, or may not be liable. The position in a given case is highly fact sensitive and, adapting what Nicholas Strauss QC stated in Countrywide Communications Ltd. v ICL Pathway Ltd. [2000] CLC 324, at 349, it is difficult to formulate a clear general principle which satisfactorily governs the different factual situations which have arisen. The parties may or may not have reached an agreement. Where they have done so, it may be an immediate binding oral agreement even if the parties intend that it will later be recorded in writing, or it may be an agreement “subject to contract”, either because further terms are to be agreed or because the parties contemplate it will not be legally binding until a formal written contract has been duly executed. Where the parties have not reached an agreement, but one of them has rendered services (or delivered goods) to the other a non-contractual restitutionary obligation may arise. I derive the following from the authorities:-

“[T]he more complicated the subject matter the more likely the parties are to want to enshrine their contract in some written document to be prepared by their solicitors. This enables them to review all the terms before being committed to any of them. The commonest way of achieving this ability is to stipulate that the negotiations are ‘subject to contract’. In such a case there is no binding contract until the formal written agreement has been duly executed …. But it is not necessary that there should have been an express stipulation that the negotiations are to be ‘subject to contract’. …”: Cheverney Consulting Ltd v Whitehead Mann Ltd [2006] EWCA Civ 1303 at [42], per Sir Andrew Morritt C; Investec Bank (UK) Ltd v Zulman [2010] EWCA Civ. 536 at [17]. Where there is no such stipulation, this (see e.g. Winn v Bull (1877-78) LR 7 Ch 29, 32, per Jessel MR) is a question of construction. The fact that a draft contractual document or a covering letter to it invites a party to initial or sign a copy and return it to the other party, or contemplates that a party would obtain legal advice before signing are telling indications that the parties do not intend to be bound until the document is signed: Investec Bank (UK) Ltd v Zulman [2010] EWCA Civ. 536 at [19-20].

Although the parties may initially have intended that their oral agreement is not to be legally binding until a formal written document has been duly executed, if “it can be objectively ascertained that the continuing intention of the parties changed” at some point there will be no need for a written document to be executed: Cheverney Consulting Ltd v Whitehead Mann Ltd [2006] EWCA Civ 1303 at [46]. For example, the requirement of an executed written agreement may have been waived by communications between the parties or by the conduct of one party known to the other: see Galliard Homes Ltd. v J Jarvis & Sons Ltd. (1997) 71 Con LR 219, at 236; The Botnica [2006] EWHC 1300 (Comm) at [90] and RTS Flexible Systems Ltd. v Molkerei Alios Müller GmbH [2010] 1 WLR 753 at [55], [67] and [87]. Alternatively, a party may be estopped from relying on his non-execution of the document: Cheverney Consulting Ltd v Whitehead Mann Ltd at [46].

One situation in which it can be objectively ascertained that the continuing intention of the parties has changed is where work has begun before the formal contract is executed: see Trentham (G Percy) Ltd v Archital Luxfer Ltd. [1993] 1 Lloyd’s Rep. 25, per Steyn LJ. In this situation it will often be unrealistic to say that there is no intention to enter into legal relations or that the performer takes the risk of the document not being executed. However, it does not follow that those legal relations will be contractual or, as Lord Clarke of Stone-cum-Ebony JSC, delivering the judgment of the Supreme Court in RTS Flexible Systems Ltd. v Molkerei Alios Müller GmbH at [47] stated, if they are, that the contract “will always or even usually be a contract on the terms that were agreed subject to contract”. That he stated, “would be too simplistic and dogmatic an approach”, and “all will depend upon the circumstances”. As to the line between contractual and non-contractual legal relations, in Whittle Movers Ltd v Hollywood Express Ltd. [[2009] EWCA Civ. 1189Waller LJ, with whom Dyson and Lloyd LJJ agreed, stated (at [15]) that Professor McKendrick’s suggestion ((1988) 8 OJLS 197) that in these situations “a court should not strain to find a contract because a restitutionary remedy can solve most if not all of the problems” was the “correct approach”.

Where the case is not a “subject to contract” or “subject to written contract” type of case, the fact that the services have been rendered is a particularly important factor and there is likely to be a contract on the terms that were agreed: Pagnan SpA v Feed Products Ltd. [1987] 2 Lloyd’s Rep. 601; Trentham (G Percy) Ltd v Archital Luxfer Ltd., and RTS Flexible Systems Ltd. v Molkerei Alios Müller GmbH at [55].

Where the terms were agreed to be “subject to contract” or understood to be, a court will not “lightly” hold that the parties have waived reliance on the “subject to contract” term or understanding, although it may do so: RTS Flexible Systems Ltd. v Molkerei Alios Müller GmbH at [56]. Where all the essential or important terms have been agreed and substantial services have been rendered, however, a court is likely to find that there is a contract without the necessity for a formal written agreement. In such circumstances the fact the services have been rendered is “a very relevant factor pointing in that direction”: RTS Flexible Systems Ltd. v Molkerei Alios Müller GmbH at [54]. The contract will be either on the terms originally agreed “subject to contract” or those terms as varied by a subsequent agreement. But if there is “neither complete agreement on important terms nor any indication that either party was resiling from the requirement that negotiations were clearly subject to contract in the sense not only of requiring a formal document but in the sense of nothing being binding until a written contract is signed” it is unlikely that a contract can be found: Whittle Movers Ltd v Hollywood Express Ltd. [2009] EWCA Civ. 1189, at [10] per Waller LJ.

Where certain terms of economic significance to the parties have not been agreed, the parties may be held to have agreed “to be bound now while deferring important matters to be agreed later” although the more important the un-agreed term, “the less likely it is that the parties will have left it for future decision”: see Pagnan SpA v Feed Products Ltd. [1987] Lloyd’s Rep 601, at 619, per Lloyd LJ; cited with approval in RTS Flexible Systems Ltd. v Molkerei Alios Müller GmbH at [48]. If so, “a separate preliminary contract comes into existence … when one party begins to render services requested by the other, so that under this contract the former party will be entitled to a reasonable remuneration for those services”: Chitty on Contracts 30^th ed, § 2-116, citing Smit International Singapore Pte Ltd. v Kurnia Dewi Shipping SA [1997] 1 Lloyd’s Rep. 553 at 559 and Galliard Homes Ltd. v Jarvis Interiors Ltd. [2000] CLC 411. Note that, while in Pagnan’s caseLloyd LJ stated that there is “no legal obstacle” to the parties agreeing to be bound while deferring agreement on important matters, he upheld Bingham J’s finding (at 613) that the parties in thatcase regarded the unagreed terms as “relatively minor details which could be sorted out without difficulty once a bargain was struck”: on this, see RTS Flexible Systems Ltd. v Molkerei Alios Müller GmbH at [48]. In Whittle Movers Ltd v Hollywood Express Ltd. the fact that there was no complete agreement on a number of important terms was held to preclude what was termed a “limited contract”. The finding of a separate “preliminary” or “limited” contract in Pagnan’s case must therefore be seen in the context of the nature of the terms that were not agreed and how the parties regarded them.

If the nature of the matters on which agreement has not been reached precludes there being a binding contract, the performance of services by one party at the request of the other may give rise to a non-contractual restitutionary claim for recompense: William Lacey (Hounslow) Ltd v Davis [1957] 1WLR 932; British Steel Corp. v Cleveland Bridge and Engineering Co Ltd. [1984] 1 All ER 504, and Whittle Movers Ltd v Hollywood Express Ltd. [[2009] EWCA Civ. 1189. The facts of the British Steel case illustrate the way the line between contractual and non-contractual legal relations may be drawn. Cleveland wanted BSC to manufacture cast-steel nodes it required but the parties had not agreed about price, delivery dates, and liability for loss arising from late delivery, and were in dispute as to whose standard terms were to apply. For instance, BSC’s terms excluded liability for delay but Cleveland’s did not and provided no limit to BSC’s liability. Pending a formal sub-contract, Cleveland sent BSC a letter of intent asking it to commence work. BSC did the work and delivered 137 nodes to Cleveland. Robert Goff J held that the areas of disagreement between the parties precluded there being a contract, but awarded BSC a restitutionary quantum meruit for the work it had done. His Lordship stated:

“it is difficult to infer from [BSC] acting on [Cleveland’s] request that [it] is assuming any responsibility for [its] performance, except such responsibility as will rest on [it] under the terms of the contract which both parties confidently anticipate they will shortly enter into. It would be an extraordinary result if, by acting on such a request in such circumstances, [BSC] were to assume an unlimited liability for [its] contractual performance, when [it] would never assume such liability under any contract which he entered into.”

As to the application of these factors in a given case, in MSM Consulting Ltd v United Republic of Tanzania Christopher Clarke J concluded the claimant in that case was not entitled to recompense for work done in anticipation of a contract. He took into account the following: