Bugsby Property LLC (a company incorporated under the laws of Delaware) v LGIM Commercial Lending Ltd
| Jurisdiction | England & Wales |
| Judge | Robin Knowles CBE J |
| Judgment Date | 27 July 2022 |
| Neutral Citation | [2022] EWHC 2001 (Comm) |
| Docket Number | Claim No: CL-2019-000515 |
| Court | Queen's Bench Division (Commercial Court) |
[2022] EWHC 2001 (Comm)
THE HON Mr Justice Robin Knowles CBE
Claim No: CL-2019-000515
IN THE HIGH COURT OF JUSTICE
THE BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice, Rolls Building
Strand, London, WC2A 2LL
Andrew Twigger QC, Thomas Munby QC and Duncan McCombe (instructed by Signature Litigation LLP) for the Claimant
Orlando Gledhill QC, Mehdi Baiou and KV Krishnaprasad (instructed by Clyde & Co LLP) for the Defendants
Hearing dates: 11–14, 18–20, 25–29 October; 1–4 November 2021
Introduction
The Olympia Exhibition Centre (“the Site”) is a famous and well recognised piece of London. An established exhibition, event, and conference business (“the Business”) is run from it. In late 2015 the then owners, Capital & Counties Properties plc (“CapCo”) put the Site and the Business (together “Olympia”) up for sale.
The likelihood was that a purchaser would develop Olympia. Of a scheme to do so, Savills was later to say in providing a valuation:
“This scheme is a unique opportunity to be involved in one of the most exciting place creations in the leisure sector in living memory. It is an iconic property. The development in prospect has the opportunity to be phenomenal.”
The Legal & General Group attracts and invests pension funds and savings. Its business includes commercial lending as a form of investment. The Group includes the Defendants in this litigation, Legal & General Assurance Society Limited and LGIM Commercial Lending Limited (together “L&G”).
The Claimant in this litigation, Bugsby Property LLC (“Bugsby”) is a Delaware company. It was at all material times in the business of property investment sponsorship and of investment management.
In 2016 Bugsby approached L&G for finance towards a acquisition of Olympia. Bugsby and L&G signed a confidentiality and exclusivity agreement dated 25 January 2016 (“the Bugsby/L&G Exclusivity Agreement”). By the Bugsby/L&G Exclusivity Agreement, L&G agreed to afford exclusivity to Bugsby in relation to the possible acquisition.
In admitted breach of the exclusivity that had been agreed, L&G later became involved in arranging finance for another bidder for Olympia, known as the Yoo Consortium (“Yoo”). Yoo's bid, with finance from L&G, was chosen by CapCo over a bid involving Bugsby.
This litigation has followed. In it, Bugsby claims damages for breach of the exclusivity provisions of the Bugsby/L&G Exclusivity Agreement. It also alleges breach of the confidentiality provisions of that agreement, and claims remedies for alleged breach of confidence.
L&G's position is that its involvement in arranging finance for Yoo made no difference to Bugsby. For a number of reasons, it argues that CapCo would still have sold Olympia to Yoo. Further, it contends that if Bugsby had acquired Olympia, Olympia would have failed.
Each party discusses whether, and if so what, chances were lost by Bugsby. The term “loss of a chance” is used in different ways and with different asserted consequences. The number of actors, the range of possible decisions and actions, the effects of timing and sequence, the options for and prospects of development, the longer term and additional possibilities, all contribute to argument and counter argument that can become very complex indeed. Care is needed to avoid the pursuit of complexity in an attempt to reach a precision that is not in truth possible. The objective is instead a just result.
This is the judgment of the Court on the trial of Bugsby's claims. The trial extended over a month, but with very extensive reading in addition, including after the trial.
Commercial sensitivity
Today, Olympia is being developed by Yoo. Unsurprisingly, some aspects of the case involved points of material commercial sensitivity. Some of the commercial sensitivity affects those, like Yoo, who were not parties to the case, and some of those made representations over the difficulties involved.
Before the trial, progress was made by the use of confidentiality regimes. At trial, with the cooperation of all concerned, including counsel and the press, the commercial sensitivity was managed in a way that kept the parts of the trial that, at the time, had to be in private to a minimum.
A draft of this judgment was then circulated to the parties and some third parties to allow consideration, discussion and, if necessary, representations about the commercial sensitivity of any part of its content before handing the judgment down in public. In the event there were no representations.
The final judgment as handed down in public gives an unedited account of my decision and essential reasons.
Bugsby
The driving force behind Bugsby was Mr Steven Marcus (“Mr Marcus”). Mr Marcus attended most of the trial, giving oral evidence over two days and providing lengthy written evidence.
I found an energetic individual, committed to his business endeavours and with a natural optimism. He did his best to assist the Court. I accept his evidence as conscientiously given and largely accurate, though he was capable of seeing things more positively than they were.
It appears that in the end, L&G had little time for Bugsby and Mr Marcus. At trial L&G was prepared to describe Bugsby as:
“… wast[ing] several months of CapCo's time with a previous failed bid, causing CapCo to lose faith in Bugsby”.
L&G was prepared to say that:
“… nothing in [Mr Marcus'] background or subsequent career suggest that that any success at all was remotely likely”,
and that Mr Marcus:
“significantly and systematically exaggerated, to UBS, CapCo, HNA, Goldman Sachs and others, his and Bugsby's relevant experience and background.”
I do not consider this attack had force. The “previous … bid” was one of many parts of commercial life affected by the result of the referendum on Brexit. Rather than lose faith in Bugsby, CapCo was in due course to treat Bugsby as a credible competitor to Yoo. Mr Marcus' career was still building, but what Mr Marcus had not yet acquired in terms of his own background and experience was addressed by his involvement of others, including UBS, HNA and Goldman Sachs.
UBS, HNA and Goldman Sachs were each content to work with Bugsby and Mr Marcus. In any event they had an appropriate focus on the acquisition rather than on personalities. L&G itself, when reapproached by Bugsby in December 2016 to provide finance in a proposed second bid, responded to Bugsby that “given 12 months of additional history” they “would consider taking another look”. More expertise and experience still would come from the proposed involvement of an Advisory Board.
For the purposes of this dispute, the points just made are the points that matter. L&G was able to show examples where Mr Marcus had, when engaging with others, at least talked up his record, at times to the point of demonstrable inaccuracy in what he said to them. But these were all satellite points, and most would not have affected the assessment that others made for the purposes of the acquisition. Had there been “significant and systematic exaggeration” UBS, HNA and Goldman Sachs, and CapCo too, would quickly have seen it and would have turned away from Mr Marcus and from Bugsby as a result, but that is not what happened. Others would be happy to deal with him if he had the business proposition.
On L&G's case, Mr Marcus also overplayed his connection with his father (a significant figure in property development in the United States). However, there is ample room for a good faith difference of opinion over what that connection involved or could bring. I do not believe Mr Marcus is to be criticised for his opinion, sometimes optimistically held, and I accept it as genuine.
L&G
For all L&G's experience in investment, which was considerable, the area of property development debt financing in which it would be involved with an acquisition of Olympia was a relatively new area for L&G.
It was however an area L&G wanted to be more involved in. To that end it drew on expertise available to it from two employees in particular, Mr Stephen Boyle (“Mr Boyle”) and Mr Ashley Goldblatt (“Mr Goldblatt”). Each gave oral and written evidence at the trial.
In Mr Boyle I found an individual who was weary of L&G by the time of the relevant events. Frustrated by the way L&G worked, he had settled into a routine of turning propositions down again and again. His lack of interest in events at the time likely affected his recollection.
In Mr Goldblatt I found an individual of long experience and expertise. However, a defensiveness about what happened over Olympia, leading to this litigation, affected the reliability of his evidence. There was a further problem with Mr Goldblatt's evidence in that he claimed at the outset that he had a good recollection of the matters to which this litigation relates, but there were material points he did not recall. In these circumstances, on occasion I had to treat his evidence with caution and at times prefer other evidence to his.
Other witnesses, and documentation
The Court also had the assistance of evidence at trial from Mr Roy Liao (of HNA) and Mr Pieter Idenburg, called by Bugsby, and Mr Stephen O'Mahony, called by L&G.
As appears below, the evidence of Mr Liao was of particular assistance.
The Court had no oral evidence at trial from other key commercial parties, including CapCo, UBS and Goldman Sachs, or external professionals engaged contemporaneously in Olympia, including Savills and Colliers. On the other hand, the amount of contemporaneous documentation at trial was large and...
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