Nasser Kazeminy v Kamal Siddiqi and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Lady Justice Black,Lord Justice Mummery,and |
| Judgment Date | 02 April 2012 |
| Neutral Citation | [2012] EWCA Civ 416 |
| Date | 02 April 2012 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2012/0065 |
[2012] EWCA Civ 416
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Mr. Justice Flaux
201. Folio 920
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Moore-Bick
and
Lady Justice Black
Case No: A3/2012/0065
Mr. Robert Miles Q.C. and Mr. Richard Hill (instructed by Herbert Smith LLP) for the appellants
Mr. Neil Kitchener Q.C. and Mr. David Caplan (instructed by Pinsent Masons LLP) for the respondent
Hearing date : 5 th March 2012
This appeal concerns the construction of a settlement agreement entered into between the appellant, Mr. Kamal Siddiqi, and the respondent, Mr. Nasser Kazeminy, and various companies represented by each of them. Although there were in total ten parties to the agreement, it is convenient for present purposes to refer simply to Mr. Siddiqi and Mr. Kazeminy who were the real protagonists to the dispute.
The agreement, dated 22 nd November 2010, was made on the first day of the trial of claims made by Mr. Kazeminy against Mr. Siddiqi arising out of the provision by Mr. Kazeminy of part of the finance needed to enable the commercial exploitation of certain innovative technologies developed by Mr. Siddiqi. Finance had also been provided by another investor, Mr. Joseph Grano, and companies owned or controlled by him under various agreements, the most recent of which were a series of tripartite agreements made between September 2006 and April 2007 to which he, Mr. Kazeminy and Mr. Siddiqi were all parties. At the time of the trial Mr. Grano had intimated various claims against Mr. Siddiqi, but neither he nor any of his companies was a party to the proceedings. However, at the time the agreement was made he was present in London, having come to this country for the purposes of giving evidence in support of Mr. Kazeminy's case.
The settlement agreement is a detailed document which bears all the hallmarks of having been drafted by lawyers. The critical part as far as this appeal is concerned is clause 5, which provides as follows:
"5. Save as set out in clause 8 below this Settlement Agreement is entered into in full and final settlement of all and any claims, actions, liabilities, costs or demands that the Claimants have or may have against the Defendants or Metrocab Limited ("Metrocab") or Frazer-Nash Technology Limited ("FNT") whether past, present or future and whether or not known or contemplated at the date of this Settlement Agreement arising under or in any way connected with Part A and B and the Counterclaim of the court proceedings in the Commercial Court of the Queen's Bench Division of the English High Court under Claim Number 2009 Folio 1078 (the "Proceedings") or with any dealings between the parties concerning loans to or investments in the Defendants or FNT or Metrocab by the Claimants or by any person whosoever. In particular:
5.1 This Agreement constitutes a full and final settlement in accordance with clause 5 above of all and any claims against the Defendants and Metrocab and FNT in respect of all advances identified in Schedules 1 and 2 of the Re-Re-Amended Particulars of Claim in 2009 Folio 2078, except those advances identified at paragraphs 9 and 22 of Schedule 1.
5.2 The Claimants jointly and severally warrant that they give good discharge in respect of the advances identified as settled at clause 5.1 above."
On 14 th April 2011 Mr. Grano and a company controlled by him, Centurion Holdings LLC ("Centurion"), executed a deed of assignment in favour of Mr. Kazeminy under which they transferred to him all their rights against Mr. Siddiqi and his companies, including Metrocab and Frazer-Nash Technology. Notice of assignment was given to Mr. Siddiqi on 25 th May 2011 and on 29 th July 2011 Mr. Kazeminy started proceedings in the Commercial Court as assignee of Mr. Grano and Centurion against Mr. Siddiqi. The particulars of claim in that action followed closely those in the earlier action between Mr. Kazeminy and Mr. Siddiqi which had been the subject of the settlement agreement.
Mr. Siddiqi's response was to apply to the court to strike out the claim, or to enter judgment against Mr. Kazeminy, on the grounds that the rights he was seeking to enforce had been compromised by the settlement agreement. The application came before Flaux J. who dismissed it on the grounds that the agreement did not extend to any rights of third parties that Mr. Kazeminy might subsequently acquire by assignment or otherwise.
This appeal from the judgment of Flaux J. turns on the relationship between language and context. Mr. Robert Miles Q.C. for Mr. Siddiqi quite properly emphasised the exceptionally broad language of clause 5, in particular the use of the expressions
and"whether past, present or future and whether or not known or contemplated"
"arising under or in any way connected with [the current proceedings] … or with any dealings between the parties concerning loans to or investments in the Defendants … by the claimants or any person whosoever."
These, he submitted, demonstrated a clear intention on the part of the parties to capture every possible claim that Mr. Kazeminy might have against Mr. Siddiqi then or at any time in the future, whether either of them was aware of it or not. They had been chosen as a means of ensuring that Mr. Siddiqi would never need to fear another claim...
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...connected with” to the phrase “ arising out of” and by reference to the judgment of Moore-Bick LJ in Nasser Kazeminy v Kamal Siddiqi [2012] EWCA Civ 416 at [99], the latter phrase is apt to encompass rights and obligations having only the most tenuous link with the subject matter of the di......
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