Dr Nedzad Imamovic v Cinergy Global Trading Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOOPER |
| Judgment Date | 30 March 2007 |
| Neutral Citation | [2007] EWCA Civ 284 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 March 2007 |
| Docket Number | Case No: A3/2006/0549/PTA, A3/2006/0549(A)/SLJ, A3/2005/2664/PTA |
[2007] EWCA Civ 284
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
The Honourable Mr Justice Cooke
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hooper
Case No: A3/2006/0549/PTA, A3/2006/0549(A)/SLJ, A3/2005/2664/PTA
DR NEDZAD IMAMOVIC in person
This application for permission to appeal the decision of Cooke J dated 28 February 2006 was listed before me for oral hearing on 24 th November 2006. At the conclusion of the hearing which lasted for more than a morning, the appellant asked permission to put in further submissions. I gave him permission and later further extended the time during which the submission had to be served on the Court. The 165 page submissions arrived on 23 January 2007. There is considerable repetition in the written submissions but I bear in mind that the appellant is not a lawyer. Much of the material is a re-arguing of the case.
I make it clear that I have not read any submissions from the Respondent which were not available to Cooke J.
In paragraphs 1 and 2 of his judgment, Cooke J briefly describes the nature of the appellant's claims.
1. 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.
2. 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.
During the course of his necessarily extensive judgment Cooke J rejected the primary case and the two alternatives: representation and ratification.
It is the case of Dr Imamovic that Energa was in “partnership” with CGTL and the Agricultural Bank of Greece (ATE) and that all are equally bound by the Contract. Throughout the appellant's pleadings there is reference to the defendant being in “partnership” with Energa and the Bank. Before the trial judge he relied on many public notices in Greek newspapers and other public representations showing, so he claimed, that there was a partnership between Energa, the respondent and the Bank. He relied on those documents before me to show that there was in Greek law a 'kinopraxia' formed by them.
In his amended particulars of claim dated 13 May 2005 the appellant wrote (9.9) that he “was aware that the contractual relationship between the Defendants and Energa was governed by the English law”. In paragraph 10.8 the appellant alleged:
The Contract provides that in case of any dispute the arbitration would be carried out in London as the Claimant was resident in the UK and wished the Contract to be governed by the English Law as the contract between the defendants and Energa is governed by the English Law.
The thrust of the appellant's primary case as developed before Cooke J was that the respondent was, in English law, in partnership with Energa and thus bound by the terms of the July 16 agreement.
The 16 July Contract is headed 'Private Agreement', Athens, July 16 th 2001. It is, as the judge found, governed by English law. The first part of the contract, signed by Achille Floros and the appellant, reads as follows:
1. “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”)
2. 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 reference to a co-operation agreement is a reference to what the judge was to call a second Joint Co-operation Agreement dated 7 November 2000, to which the Bank was not a party. I set out the terms of that below.
Both that agreement and the earlier one were governed by English law (see paragraph 12).
The penultimate recital (the reference to the decision to set up a power company) is a reference to an agreement dated 15 February 2001, to which I turn later.
The contract continues:
The Parties hereby agree upon the following:
1. 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).
2. This co-operation is at a mutual exclusivity basis for its duration.
3. 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.
4. 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.
5. The above mentioned expansion of the present agreement with the new company will take place by care of Energa.
6. The duration of the co-operation is three (3) years and can be extended further with the consent of both the parties.
7. 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.
8. Further to the agreement being extended as foreseen in 4 & 5 above and no later than September 15 th 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.
9. In case ICG proposes other energy or investment projects in the former Yugoslavia or the wider area, there will be a separate agreement as the case may be.
10. In case of dispute this will be resolved by arbitration according to the standards of London Chamber of Commerce.
11. 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 12 th, 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.
Cooke J said, about the July 16 contract:
10. In my judgment the terms of the Contract with Dr Imamovic do not themselves give rise to any suggestion that any entity other than Energa undertook obligations towards him. The agreement specifically draws attention to the three distinct entities, Energa, CGTL and ATE, refers to the nature of the agreement between them as one of co-operation and requires Energa to ensure that, if a joint venture company is formed, the agreement will then become binding upon that company. It is clear that if Energa should fail to procure such liability on the part of the new joint venture company, when formed, Energa would be liable for such failure. There is express provision for Energa's obligation in this respect, in the context of the Contract which contains reference to the co-operation agreement between CGTL and Energa and the new joint venture company resulting from co-operation between the three distinct entities. Clause 4 thus draws a distinction between the 'private agreement' between Energa and Dr...
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