Tahar Benourad v Compass Group Plc
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE BEATSON,The Honourable Mr Justice Beatson |
| Judgment Date | 29 July 2010 |
| Neutral Citation | [2010] EWHC 1882 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ08X03310 |
| Date | 29 July 2010 |
[2010] EWHC 1882 (QB)
Before: The Honourable Mr Justice Beatson
Case No: HQ08X03310
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Knox QC and Mr Lewis (instructed by Vyman Solicitors) for the Claimant
Mr Anderson QC (instructed by DLA Piper LLP) for the Defendant
Hearing dates: 14–21 April 2010
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.
The Honourable Mr Justice Beatson:
Part I: Introduction
The claimant, Mr Tahar Benourad, operates as a facilitator and introduction agent for business transacted in particular in the Gulf. The defendant, Compass Group PLC is one of the world's largest food service providers. The issue in this case is whether negotiations by correspondence and at meetings, either in themselves or together with subsequent conduct resulted in a contract between Mr Benourad and the defendant under which he is entitled to commission, and whether, if they did not, he is entitled to a reasonable fee for his services by way of a non-contractual restitutionary quantum meruit.
Compass Group PLC is at the apex of a large group engaged in the catering business. The corporate structure of the group is complicated. The word “Eurest” or “ESS” appears in the names of a number of the defendant's subsidiaries and associated companies. “Eurest” and “ESS” are Compass's brand names for many of its catering services. The companies that are relevant in these proceedings are Eurest Support Services (Cyprus) International Ltd (“ESS (Cyprus)”), the holding company for the business of the Eurest Support Services Worldwide Division, and Eurest Support Consultancy Co WLL (“ESS (Kuwait)”). ESS (Kuwait) is a subsidiary of “ACME”, a joint venture established with effect from January 2001 in the UAE between Abu Dhabi National Hotels LLC (“ADNH”) and Compass Group International BV, one of the defendant's subsidiaries.
Mr Benourad claims that he is entitled to commission for introducing the defendant to the Kuwait Catering Company (“KCC”) because the defendant or one of its subsidiaries subsequently concluded a joint venture agreement with KCC for the provision of catering services in Kuwait and elsewhere. It was suggested by Mr Knox QC, on his behalf, that the gross revenue from the joint venture was in the order of $US 136 million. The earliest date for such introduction is 12 March 2001, when Mr Benourad first suggested KCC as a possible partner to Mr Jerome Marrel. At that time (and until November 2001) Mr Marrel was the General Manager of ACME. Prior to 1 January 2001 Mr Marrel was Vice-President of the defendant's Middle East and Asia Division. Mr Benourad had dealings with him in that capacity in 1999 about a joint venture with another Kuwaiti company, Safat Catering Services Company and Safat International Hotel Management (“Safat”). The latest date of the formation of a contract between the claimant and the defendant concerning KCC is 27 May 2001 when he and Mr Marrel met representatives of KCC, including Mr Al Bahar, its Chairman, and Mr Loay Al Ibrahim, its Vice-Chairman and Managing Director, in Kuwait.
The hearing was concerned with liability only. Mr Benourad's principal claim is based on a contract (“the KCC commission agreement”) allegedly entered into in the spring of 2001. The claimant seeks a declaration that he is entitled to commission based on the gross revenues received by the defendant or its subsidiaries from a joint venture it claims the defendant entered into with KCC in last quarter of 2002 or early in 2003. The commission was to be 2% of gross revenues for the first three years, and 1% thereafter. The claimant alternatively claims in restitution for a reasonable fee on the same basis for his services in introducing the defendant to KCC. He also seeks disclosure of particulars of all agreements and documents relating to the agreements between the defendant and its subsidiaries and KCC, including invoices submitted to KCC and details of revenues generated from KCC, and an enquiry into and an account of all the said revenues.
On behalf of the defendant it is submitted that no commission agreement relating to KCC had been concluded with the claimant, and alternatively, if one was, it was subject to the execution of a written agreement which did not happen. Mr Anderson QC, on behalf of the defendant, also submitted; (a) the relationship between ESS and KCC from August 2002 onwards had nothing to do with any introduction by the claimant, that no joint venture or similar contract was concluded between the defendant, one of its subsidiaries, or ACME and KCC; and (b) the defendant did not earn any revenue from such a contract so as to give rise to any entitlement to commission on the claimant's part. He alternatively submitted that if there is no contractual claim, the claimant “is not entitled to recover through the ‘back door’ of quantum meruit/unjust enrichment that which he cannot recover through the ‘front door’ of a claim in contract” (Opening Submissions, paragraph 23.6).
Part II: Issues
In relation to the contractual claim these are:
(1) Did Mr Marrel enter into the KCC commission agreement with the claimant?
(2) If so, was the agreement only an agreement in principle, and subject to the signing of a formal document, or was it a binding oral contract?
(3) If Mr Marrel did agree the KCC commission agreement, did he do so on behalf of the defendant or on behalf of ACME? Did Mr Marrel have actual authority to act for Compass Group plc? If he did not have actual authority, did the claimant know this?
(4) If Mr Marrel was authorised to act only for ACME, did the defendant hold him out as having authority to enter the KCC commission agreement; i.e. did Mr Marrel have ostensible authority to enter into the agreement on behalf of the defendant?
(5) If the KCC commission agreement was entered into, were the arrangements eventually entered into between KCC and ESS a “joint venture” within the meaning of the agreement or did they fall outside the scope of the agreement?
(6) If the arrangements between KCC and ESS were a joint venture or otherwise within the scope of the KCC commission agreement, did the claimant's introduction cause [or facilitate] the conclusion of any such arrangements between ACME or the defendant with KCC, and does the KCC commission agreement require that it should do so? The claimant contends that this issue is not pleaded as a defence to his claim on the contract.
(7) If the arrangements between KCC and ESS fell within the scope of the KCC commission agreement, did those arrangements generate any revenue for ESS?
(8) If the arrangements between KCC and ESS fall within the scope of the KCC commission agreement, what, if any, is the declaration to which the claimant is entitled for the purposes of the proposed account and enquiry?
In relation to the restitutionary claim the issues are:
(9) Was the claimant's introduction effected only as part of the negotiations for the KCC commission agreement, and on the basis that, if none was agreed and/or there was no “joint venture” between KCC and ESS, he would not be paid a commission?
(10) Did the claimant's introduction cause or facilitate the conclusion of any joint venture or other agreement between the defendant or its subsidiaries and KCC such that the claimant is entitled to recompense for his services? In the list of agreed issues this is formulated by asking whether the claimant's introduction was “such that a compensatable benefit was conferred by Mr Benourad upon the defendant”. Save in relation to the requirements of a commission contract, there is a substantial overlap between this issue and issue (6).
(11) What if anything would be a fair commission for the claimant's introduction?
Part III: The factual evidence
Evidence in support of the claim was given by the claimant (his statements are dated 16 October 2009 and 12 April 2010) and Mr Loay Al Ibrahim who first met the claimant in 1998 at a trade conference organised by the claimant. Mr Al Ibrahim became Vice Chairman and Managing Director of KCC in about May 2001, and left the company about six years ago, that is in about 2004. Before joining KCC he was the General Manager of Safat. He was one of the representatives of Safat who the claimant introduced to the defendant in early 1999 on the basis of an agreement (“the Safat commission agreement”) that he would be entitled to a commission calculated by reference to revenues resulting from a catering services agreement between the defendant and Safat. Mr Al Ibrahim's witness statement is dated 11 March 2010, a month before the trial. He explained that he was first approached to give a statement six months ago, was at first hesitant to do so, but reconsidered and thought it was the right thing to do.
Evidence on behalf of the defendant was given by Mr Marrel, whose statement is dated 7 September 2009, and Mr John Richardson and Mr Sekhar Seshan, whose statements are respectively dated 10 and 15 September 2009. Mr Richardson was employed by companies in the defendant's group between September 1997 and the end of December 2005 when he retired. Between 1998 and his retirement he was Finance Director, first of Eurest Support Services Worldwide Division, and, from approximately November 2002 of ESS (Cyprus).
Mr Seshan is now ACME's Finance and Administration Director. He held the same post between December 2000 January 2003 and reported directly, first to Mr Marrel and, after he left in November 2001, to his successor Mr Mike Moore. When Mr Seshan left ACME he joined ESS...
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