Global Asset Capital, Inc. and Another v Aabar Block S.A.R.L. and Another (3) Robert Tchenguiz (Third Defendant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hamblen,Lord Justice McFarlane |
| Judgment Date | 01 February 2017 |
| Neutral Citation | [2017] EWCA Civ 37 |
| Docket Number | Case No: A3/2016/1191 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 February 2017 |
[2017] EWCA Civ 37
Lord Justice McFarlane
and
Lord Justice Hamblen
Case No: A3/2016/1191
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
COMMERCIAL COURT
MR JUSTICE WALKER
Royal Courts of Justice
Strand, London, WC2A 2LL
Alan Maclean QC and Fraser Campbell (instructed by Paul Hastings (Europe) LLP) for the Claimants/Respondents
Sonia Tolaney QC and James MacDonald (instructed by Freshfields Bruckhaus Deringer LLP) for the Defendants/Appellants
Hearing date: 19 January 2017
Introduction
The Appellants ("Aabar") appeal against the decision of Walker J dated 18 February 2016 whereby he dismissed their applications for summary judgment and/or strike out of the claims made against them by the Respondents ("Global").
Global claim that on 6 May 2015 Aabar agreed to sell to them a package of rights and other debt interests for €250 million. (The "Alleged Contract").
Aabar contend that Global have no real prospects of establishing that a legally binding and enforceable contract was concluded as alleged or at all and that the judge was wrong to conclude otherwise.
Factual and Procedural Background
The judge set out the factual background at paragraphs 13 to 34 of the judgment and the procedural background at paragraphs 36 to 44 of the judgment. Neither party took issue with that detailed summary which I adopt for the purpose of this judgment.
In outline, the relevant parties are as follows:
(1) Aabar Block is a company resident in Luxembourg and an indirect subsidiary of Aabar Investments PJS;
(2) Aabar Investments PJS is a company resident in Abu Dhabi;
(3) The Third Defendant, Robert Tchenguiz ('Mr Tchenguiz') is a businessman and entrepreneur who owns and controls a company called Edgeworth Capital ('Edgeworth').
(4) Global is a company incorporated in Delaware; and
(5) The Second Respondent, Mr Glenn Maud ('Mr Maud') is a property investor who holds an interest in a group of companies, referred to as the Marme Group.
In September 2008, Mr Maud and Mr Derek Quinlan ('Mr Quinlan') acquired an interest in the Spanish headquarters of the Santander Banking Group, 'Ciudad Financiera', through the Marme Group. This acquisition was financed in part by RBS. RBS granted the following loans in respect of this acquisition:
(1) A senior loan to Marme of €1.575 billion (arranged by RBS and others);
(2) A personal loan of €75 million to Mr Maud and Mr Quinlan personally; and
(3) A junior loan of €200 million to Ramblas Investments BV ('Ramblas') which was a company within the Marme Group. Mr Maud and Mr Quinlan provided a personal guarantee of this loan for up to €40 million.
On 30 November 2010, Aabar Block and Edgeworth acquired RBS' interests in the loans made to Mr Maud and Ramblas, hereafter referred to as 'the Aabar rights'. Mr Maud and Ramblas defaulted on payments, following which Aabar Block and Edgeworth obtained judgments against them:
(1) Further to a consent order dated 17 June 2011, Mr Maud agreed to pay Aabar and Edgeworth €52.5 million plus interest and Ramblas agreed to pay Aabar and Edgeworth €216.5 million;
(2) Pursuant to an order dated 30 January 2015 (as varied by the Court of Appeal), Ramblas was ordered to pay to Aabar and Edgeworth over €91 million due under the terms of an upside fee arrangement; and
(3) On 30 November 2015, Aabar Block and Edgeworth obtained judgment against Mr Maud in respect of the €40 million personal guarantee of Ramblas' liabilities.
On 5 June 2014, Aabar and Edgeworth served a statutory demand on Mr Maud. Mr Maud applied to set it aside. This application was due to come on for hearing on 12 May 2015. The hearing was therefore imminent at the time of the Alleged Contract. Mr Maud's application was dismissed by Rose J in a judgment dated 8 June 2015.
Mr Maud claimed that, in the period between June 2011 and May 2015, he made efforts to settle his liabilities with Aabar and Edgeworth but this was continually thwarted by Mr Tchenguiz. Given the resistance of Mr Tchenguiz, Mr Maud said that he decided to seek to purchase the Aabar rights directly from Aabar.
Global allege that on 23 April 2015, Mr Maud sent Aabar a letter which was marked 'WITHOUT PREJUDICE – SUBJECT TO CONTRACT' further to which Global and Mr Maud proposed to pay €250 million for the Aabar rights ("the Offer Letter").
Global allege that on 5 May 2015, Mr Al-Husseiny, who was at the time CEO of Aabar Investments PJS, informed Mr Maud that the Board would be meeting on 6 May 2015 and would be considering the Offer Letter.
On 6 May 2015, Mr Al-Husseiny telephoned Mr Maud. Global's case is that during the course of this telephone conversation the Alleged Contract was concluded subject to two conditions ("the Conditions"), namely that Mr Maud (1) "resend the Offer Letter in 'open and binding form'" and (2) "provide satisfactory evidence of his ability to fund the transaction".
Later on 6 May 2015 Mr Maud sent Mr Al-Husseiny an email stating: "As discussed on our call please find attached a copy of our letter of offer previously sent to Aabar. I will send funding letter under separate cover shortly".
On 7 May 2015 Mr Maud texted Mr Al-Husseiny stating: "Fully committed binding terms and funding commitment will follow either later today or tomorrow".
Later the same day Mr Maud sent Mr Al-Husseiny an email stating: "… as discussed on our call we expect to provide binding terms and commitments to you no later than tomorrow for your acceptance".
On 9 May 2015, Mr Maud sent an email to Mr al-Husseiny which stated that:
"As requested please find attached binding and committed letters of finance and offer.
If possible, I look forward to receiving your confirmation of acceptance of our offer during the course of Sunday. Thereafter we can meet in either Abu Dhabi or London to suit to agree the mechanics of how to progress to completion as soon as possible".
The attached letter of offer repeated the 'Key commercial terms' of the Offer Letter but also included various additional and different terms ("the 9 May Letter"). The attached letter of finance was a letter from the Managing Director at Madison International Realty LLC ('Madison') which Global contends provided the requisite evidence of its ability to fund the transaction ("the 9 May Funding Letter"). It is Global's case that the Conditions were thereby satisfied.
On 10 May 2015, Mr Al-Husseiny responded by stating that Mr Maud's offer was not accepted and that there were no ongoing negotiations between the parties.
On 8 June 2015, Global issued a claim against Aabar for enforcement of the Alleged Contract. Global sought a declaration that the agreement was valid and binding as well as specific performance of the terms of the contract. Global also sought an injunction against Mr Tchenguiz, restraining him from procuring Aabar's breach of the Alleged Contract.
On 27 June 2015, Aabar applied under CPR Parts 24 and/or 3.4 for the summary dismissal and/or strike out of Global's claims against them on the basis that Global's claims had no real prospects of success. On 30 June 2015, Mr Tchenguiz also brought applications for the summary dismissal and/or strike out of Global's claims against him (these are not the subject of the appeal). Both applications were heard by the judge over 1 1/2 days on 11–12 November 2015.
The judge dismissed both applications in a judgment which was handed down on 18 February 2016. By Order dated 26 April 2016, Christopher Clarke LJ granted Aabar permission to appeal on the papers. He also vacated a CMC in the action and ordered that no further CMC should take place pending the determination of the appeal or further order of the Court of Appeal.
The evidence
Aabar's application was supported by a witness statement from Mr Robinson of their solicitors, Freshfields Bruckhaus Deringer LLP. This set out the background, the nature of Aabar's case and the principal arguments.
Mr Maud provided a witness statement in support of Global's case. This confirmed the case as set out in the Amended Particulars of Claim. In relation to the Alleged Contract this provides as follows:
"The Agreement
12. In light of Mr Tchenguiz's conduct, Mr Maud together with GAC made an offer to Aabar for the acquisition of Aabar's interests alone, without Edgeworth's interests in the Junior Loan, but including Aabar's interests against Edgeworth. That offer was set out in an undated letter to Aabar, marked without prejudice and subject to contract, signed by Mr Maud and on behalf of GAC and sent to Aabar and Aabar PJS on or around 23 April 2015 (the "Offer Letter"). The Offer Letter, a copy of which is annexed hereto, contained the following material, express terms (described in the Offer Letter as "Key commercial terms"):
(1) The offer was to purchase all rights and benefits of Aabar and their affiliates ' in relation to or in connection with' Marme and its holding companies (the "Aabar Rights"), specified at Clause 1 as including: (i) all rights and benefits under the Finance Documents as defined in the Junior Facility Agreement; (ii) all rights and benefits under the Finance Documents as defined in the Personal Loan Agreement; (iii) all right and benefits under any and all arrangements with Mr Quinlan in relation to the Marme Group or otherwise; (iv) any and all rights against third parties in connection with the acquisition of the Junior Loan from RBS; (v) all rights and benefits against Edgeworth and/or any of its affiliates or related parties, including any and all rights and benefits under...
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