Dr Nedzad Imamovic v Cinergy Global Trading Ltd
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COOKE,Mr Justice Cooke |
| Judgment Date | 28 February 2006 |
| Neutral Citation | [2006] EWHC 323 (Comm) |
| Docket Number | Case No: 2003/1182 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 28 February 2006 |
[2006] EWHC 323 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Cooke
Case No: 2003/1182
Dr Nedzad Imamovic in person
Alec Haydon (instructed byHerbert Smith LLP) for the Respondent
Hearing dates: 16–19 23–26 30–31 January 2006 1–2 and 8 February 2006
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Cooke:
Introduction:
In this action the claimant (Dr Imamovic) claims damages from the defendant (CGTL) for breach of a contract dated 16 July 2001 (the Contract) and made between Energa SA, a Greek company and himself, when trading as Independent Consultants Group (ICG). Dr Imamovic alleges that Energa was in partnership with CGTL and the Agricultural Bank of Greece (ATE) and that all are equally bound by the Contract. Alternatively, he alleges that, on 29 June 2001, CGTL in the person of Mr Contomichalos represented to him that CGTL was in partnership with Energa and ATE and held out those entities as its partners.
As a further alternative, Dr Imamovic alleges that Energa purportedly concluded the Contract as agent for CGTL and that on 4 October 2001 Mr Contomichalos ratified the Contract on behalf of CGTL, such ratification being confirmed in a fax message from Dr Imamovic to Mr Contomichalos. There was allegedly further ratification by conduct, most of which post dated the 4 October conversation.
The Contract expressly provided that the parties were to 'co-operate jointly in order to be able to supply electric power generated in former Yugoslavia and will be delivered at the Greek borders (via Albania or Serbia – FYROM)' and, subject to certain other provisions, had a duration of three years. Dr Imamovic was to receive a fee equal to 5% of the profits from the sale of the electric power generated in former Yugoslavia, delivered at the Greek borders and sold to the Public Power Corporation of Greece (PPC) or other industrial consumers. In addition there was provision for Dr Imamovic to receive £500 per month as partial reimbursement of operational expenses, in accordance with a particular clause of the Contract.
It is alleged that CGTL failed to co-operate with Dr Imamovic in achieving the supply of electricity for delivery at the Greek borders and that it repudiated the Contract in July 2002 with consequent damage to Dr Imamovic in the shape of loss of commission on supply contracts which were concluded or ought to have been concluded during the three year period. In addition he claims for expenses at the rate of £500 per month for the whole three year period.
The Contract :
The Contract is headed 'Private Agreement', is governed by English law and contains the following relevant wording:-
"Energa S.A., a company established in Greece and having its registered address in Athens, 118B Kifissias Ave. – 115 26, legally represented by Mr Achille Floros, President (hereinafter referred to as "Energa")
INDEPENDENT CONSULTANTS GROUP (ICG), a company established in England and having its registered address 51A Chase Side, London N14 5BU, legally represented by Dr. Nedzad Imamovic (hereinafter referred to as "ICG").
Hereinafter collectively referred to as "the parties".
Whereas ENERGA S.A. is an engineering consultants company engaged mainly in energy business and more specifically in the electric power trading sector in the Balkans and mainly in Greece.
Whereas ENERGA S.A. has signed a co-operation agreement with the British-American company Cinergy Global Trading Ltd. according to which the two companies co-operate to trade electric power in Greece.
Whereas Cinergy & Energa & the Agricultural Bank of Greece decided to set up a power company in which they participate in the following proportion: Cinergy 40%, Agricultural Bank 40%, Energa 20% and they have also submitted an application to obtain a licence for the supply of electric power to Greece.
Whereas ICG is a consultants company which is occupied, inter alia, in the trading of electric power generated in former Yugoslavia (FYROM, Serbia, Montenegro, Kosovo, Bosnia, Croatia and Slovenia) and has high level contacts in this country regarding energy.
The Parties hereby agree upon the following:
They will co-operate jointly in order to be able to supply electric power generated in former Yugoslavia and will be delivered at the Greek borders (via Albania or Serbia – FYROM).
This co-operation is at a mutual exclusivity basis for its duration.
The fee of ICG will be equal to 5% of the profits from the sale of the electric power generated in the former Yugoslavia and delivered at the Greek borders and sold to the Greece energy company P.P.C. or other industrial consumer.
This agreement done with Energa, will be in force under the new legal entity that will result from the co-operation between CINERGY – A.B.G. – ENERGA, based on the expansion of the present agreement.
The above mentioned expansion of the present agreement with the new company will take place by care of Energa.
The duration of the co-operation is three (3) years and can be extended further with the consent of both the parties.
If no commercial act has been reached within six (6) month, this agreement is terminated by right without any claims by either of the parties unless the parties mutually decide otherwise.
Further to the agreement being extended as foreseen in 4 & 5 above and no later than September 15th 2001, ICG will receive the amount of 500£/month as partial reimbursement of its operational expenses. In case the operational expenses exceed the above agreed amount due to extra travel expenses or similar then ICG will inform Energa and these extra expenses can be covered by the company subject to prior agreement. All extra costs of ICG have to be claimed with the company by presenting original receipts and any other further documentation…
The parties agree to exchange information regarding the object of their co-operation which will be ruled by the principle of confidentiality. Energa therefore has already sent on July 12th, 2001 the Bidding Inquiry of PPC Greece for the purchase of a significant amount of electric power for three (3) years.
Given that the final date for submission of offers is September 3 rd, 2001 the parties agree to intensify their efforts in order to be able to participate effectively in the above mentioned bidding Inquiry.
For that purpose ICG is expected to make specific proposals for the possibility to supply electric power from the former Yugoslavia to be delivered at the Greek borders according to the above mentioned bidding inquiry."
It can be seen that the parties are defined specifically as Energa and ICG, the latter being said to be a company established in England with a registered address which is Dr Imamovic's home residence. There is no such registered company and it is accepted that Dr Imamovic was a party to this contract since ICG is only a trading name. The Contract was signed by the president of Energa S.A., Mr Achille Floros and by Dr Imamovic himself 'for and on behalf of ICG'. The preamble to the agreement emphasises the identity of the parties and then spells out, in four sub paragraphs, the background to the agreement, reciting Energa's position as an engineering consultant company engaged in electric power trading in the Balkans and Greece and ICG's position as a consultancy occupied in the trading of electric power generated in former Yugoslavia with high level contacts relating to energy in that country.
The other two recitals refer to a 'co-operation agreement' between Energa and CGTL, to a decision of those two entities and ATE (called ABG in the Contract) to set up a power company and to a submission of an application to obtain a licence for the supply of electric power to Greece. Whilst the wording of this contract was agreed between individuals who are respectively Greek and Bosnian, so that English did not represent the first language of either, it is noteworthy that there is no reference to a partnership between CGTL and Energa but to a 'co-operation agreement' between the 'two companies' who agreed to co-operate to trade electric power. There is also express reference to a decision to set up a new power company with specific shareholdings to be held by Cinergy, ATE and Energa. The Contract wording, as a matter of construction alone, therefore shows some consciousness of the nature of corporate bodies, albeit that it refers to ICG as a company with a registered address in England, which betrays a lack of knowledge of legal personality in English law on the part of Dr Imamovic at the time, a point which was confirmed in his evidence.
The Contract between Energa and Dr Imamovic refers to 'a co-operation agreement' between Energa and CGTL and similarly uses the same word ('co-operate') in setting out the obligations of Energa and Dr Imamovic (the Parties) to one another under Clause 1. That relationship between Energa and Dr Imamovic was not one of partnership as both parties to it obviously appreciated, so that the word "co-operate" could not reasonably have conveyed, and did not convey, to Dr Imamovic the notion of a partnership between CGTL and Energa.
Clauses 4 and 5 of the agreement emphasise that Dr Imamovic is contracting with Energa and make provision for the situation when a new legal entity results from the co-operation between Energa, CGTL and ATE. Clause 5 makes it plain that Energa undertakes to procure that the contractual obligations undertaken by Energa will be binding on the new...
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Dr Nedzad Imamovic v Cinergy Global Trading Ltd
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