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||Neutral Citation Number:  EWHC 46 (QB)
||Case No: HQ14X05015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Fetter Lane, London, EC4A 1NL
||27 January 2017
B e f o r e :
THE HON MR JUSTICE COULSON
|| Bruce MacInnes
||- and -
||Hans Thomas Gross
Gavin Mansfield QC (instructed by Pitmans) for the Claimant
Tom Weisselberg QC (instructed by DWF LLP) for the First Defendant
Hearing dates: 5, 6, 7, 8, 9 and 13 December 2016
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
The Hon. Mr Justice Coulson:
- In these proceedings, the claimant seeks 13.5 million pursuant to an oral contract said to have been made over dinner in a Mayfair restaurant on 23 March 2011. The claimant's case is that it was agreed that he would personally provide services to the first defendant and/or the second defendant company with a view to maximising the defendants' return on the sale of the business (to which I shall refer generically as "RunningBall"), and would receive in exchange remuneration calculated by reference to a formula which gave him 15% of the difference between the 'strike' (or target) price of RunningBall and the actual sale price. For a variety of reasons, the first defendant denies that there was any binding contract between himself and the claimant, either in the terms alleged or in any terms.
- In the alternative, the claimant has a quantum meruit claim. This claim also seeks to recover the 13.5 million figure, on the basis that, even if there was no contract, he had an entitlement to a quantum meruit, and that the best evidence of the market value of his services was the 13.5 million calculated by reference to the formula that was allegedly agreed on 23 March 2011. The first defendant denies that there is any sustainable basis against him for a quantum meruit, either for the 13.5 million or at all.
- In the written openings, as confirmed on the first day of the trial, it was apparent that there was an issue between the parties as to whether or not the claimant had an alternative quantum meruit claim, for some lesser sum, calculated in a different way. As more fully set out in Section 7.4 below, I ruled on the first day of the trial that there was no pleaded claim for a quantum meruit in any lesser sum, and no admissible or useful evidence to support a proper calculation of any claim other than the 13.5 million. Accordingly, whether by accident or design, the claimant's case was pleaded and presented as an "all-or-nothing" claim for 13.5 million, with no possibility of a halfway house.
- These proceedings were commenced and continued against both the first and the second defendants. The latter is the company which held the first defendant's shares (amounting to 95% of the total shares) in the RunningBall companies. I am told that the claim against the second defendant was compromised on a 'drop hands' basis in the summer of 2016. I explain the potential importance of the second defendant in Section 3 below, and one of the effects of this compromise in Sections 5 and 7 below.
- This Judgment is set out as follows. In Section 2, because it was a matter stressed by leading counsel on both sides, I deal with wider issues of credibility. In Section 3 I set out the factual background. In Section 4 I summarise the law relating to contract formation and, thereafter, in Section 5, I deal with the central issue as to whether or not a binding contract was made at the dinner on 23 March 2011. At Section 6, I deal with the legal principles relating to a claim for a quantum meruit and then, in Section 7, analyse whether, on the facts of this case, the claimant is entitled to a quantum meruit.
- In the written and oral closing submissions, each party subjected the other to a sustained personal attack. It was suggested, at different times and in different ways, that both the claimant and the first defendant were lying, in order to improve their positions in the case and to minimise the evidence that was unhelpful to them. Various examples of these alleged untruths were cited by both leading counsel.
- For my part, having seen both men subjected to rigorous (but entirely proper) cross-examination, I am unable to find that either the claimant or the first defendant was deliberately lying to the court. As set out in greater detail in Sections 3 and 5 below, there are some issues on which I make findings of fact in favour of the claimant, and other issues where I make findings of fact in favour of the first defendant. Overall, I consider that both men strived to tell the truth. In some instances, their recollections were faulty, and neither man was assisted by the absence of anything other than a handful of truly relevant contemporaneous documents.
- The furthest that I would be prepared to go, by way of negative comment on the claimant and on the first defendant, is this. I consider that, over time, the claimant has persuaded himself more and more of the rightness of his case and, in part because of his knowledge of the documents, he was sometimes prone to give answers that appeared to be designed to retro-fit those documents. He was also obliged to rely on various conversations to which he had not previously drawn attention, in order to fill some of the potentially significant gaps in his case. Such a tendency is not uncommon in a case of this kind, where documentary evidence is thin and the stakes are high, but it meant that the claimant's answers were not always reliable.
- As for the first defendant, I find that, throughout, he believed (whether rightly or wrongly) that he had no binding contract with the claimant. In consequence, as time went on, he considered that he was in the dominant position which led him, on occasion, to minimise the nature and extent of the claimant's role in an unattractive way. This again meant that his answers were not always reliable.
- Accordingly, I am unable to deal with this case on the basis that either the claimant or the first defendant was lying, and that the case can be resolved accordingly. It is, as is often the way in commercial disputes of this kind, much more nuanced than that. Putting the point another way, the credibility of the two main protagonists does not provide the answer to this case.
- Finally, on the question of credibility, I should refer to the evidence of Mr Marty, the man who owned the remaining 5% of the shares in RunningBall. In my view, Mr Marty was a clear and careful witness. I accept his evidence without reservation. On two important matters, namely the extent of the claimant's early knowledge of the RunningBall structure and ownership, and what the first defendant was telling others within RunningBall about the nature of any possible arrangement with the claimant, he gave clear evidence, which I accept, and which was of assistance to the first defendant. That is explained in greater detail in Sections 3 and 5 below.
3. THE FACTUAL BACKGROUND
3.1 Individuals and the Relevant Companies
- The claimant is an experienced investment banker. At the time of the dinner on 23 March 2011, and until the end of July of that year, he was an employee of Investec, an investment bank. On the face of it, therefore, all his dealings during this period were as an employee of Investec. For a brief period, between August 2011 and early 2012, he was Chairman of the Board of two of the RunningBall companies, as more fully set out below. There was no documentation of any kind to indicate that he ever had a formal role with the second defendant.
- The first defendant is an Austrian national and the principal figure behind the RunningBall group of companies. His shares in the group were owned by the second defendant, which was previously called HTG Ventures. It owned 95% of the shares in RunningBall Holding AG ("RBHAG"), the principal RunningBall holding company. The other 5% of the shares in RBHAG were owned by a company controlled by Daniel Marty, who also gave evidence at the trial.
- RBHAG then owned a number of subsidiary companies including RunningBall AG ("RBAG"), the principal operating company. As noted above, between August 2011 and early 2012, the claimant was Chairman of both RBHAG and RBAG.
- The claimant and the first defendant first met in 2008. The evidence was that the first defendant had minority shareholders that he wished to buy out and he was looking to raise finances to purchase their interests. On 4 November 2008, the claimant emailed the first defendant to say he was looking forward to taking the project forward "to see what kind of financing we can provide in-house at Investec in the first instance".
- There was a dispute over whether the first defendant suggested to the claimant that he might personally buy shares in RunningBall. However, as with many of the disputes in the case, the difference was only one of emphasis because, although the claimant said that the first defendant did not to go that far, he accepted that the first defendant did suggest to him that "there might be an opportunity" for investment. It therefore seems clear that the first defendant did have in mind, at this early stage, some form of personal investment on the part of the claimant. However, that did not happen, and, for various reasons, Investec did not provide a loan. The two men had no further contact after January 2009.
3.3 The Build-Up To The Dinner On 23 March 2011
- Two years later, on 28 January 2011, the claimant contacted the first defendant again saying that he "had been hearing great things about RunningBall on the grapevine. It would be great to catch up." The first defendant replied on 1 February 2011 in which, amongst other things, he said:
"There is strong interest in my company from some big players in the market but we have reached valuations which now leaves me little options for alternatives and shopping round. RunningBall is still not officially for sale but if some big players with deep pockets which strategically make sense are interested I am open to talks."
- Later the same day, the claimant replied saying he was glad that the first defendant had been able "to buy in all the other shares." He went on to say:
"I only wish that there had been an opportunity to buy shares when we got to know each other three years ago!"
I find that this comment only confirmed what I have found was discussed back in 2008 (paragraph 16 above). The claimant went on to say that he would like to discuss the first defendant's "strategic options" going forward.
- The claimant chased the first defendant on 2 and 5 February 2011. On 17 February, the first defendant emailed the claimant to outline an offer for RunningBall from a company called Unibet, acting through a subsidiary company, Kambi. The offer was calculated by reference to a formula involving 'EBIT' (earnings before interest and tax), and was assessed to be worth about SFr 100 million. He also sent the claimant some very basic information essentially just a spreadsheet concerning RunningBall's financial position. The claimant accepted in cross-examination that this was confidential information and that it was being presented to him as an Investec employee.
- The claimant replied on 18 February to say that his instinct was that the Unibet/Kambi offer "is quite a low offer given the quality of your earnings but it partly depends on the long term growth potential." Again the claimant accepted in evidence that he was giving that advice as an employee of Investec. This email also made plain that the claimant could not reach any conclusions as to the value of RunningBall at this time because he did not have the necessary information. He said that "it is difficult to give a view without talking more about where the business is now" and that he was "looking forward to getting into the detail".
- The follow-up email showed that the claimant was keen to discuss the matter further with the first defendant. In the end, in the company of a colleague from Investec, the claimant flew to Zurich on 21 February 2011.
- I make a number of findings of fact about the meeting in Zurich on 21 February 2011. The first finding is that, again as the claimant accepted in cross-examination, he took part in that meeting as an employee of Investec. They paid his expenses and those of his Investec colleague, Mr Kundrodt.
- Secondly, I find that Mr Marty attended the meeting: there was even a time sheet which showed his attendance. Mr Marty recalled meeting Mr Kundrodt and that was the only occasion on which that could have happened. Mr Marty also said that he recalled telling the claimant that he owned 5% of the RunningBall business. The claimant denied that Mr Marty had said that. I find that it is more likely than not that this conversation took place because:
(a) I accept Mr Marty as a witness of truth. He has no reason to lie about that this claim does not affect him personally and his recollection of the conversation was clear, whilst the claimant accepted that his recollection of that meeting was not.
(b) The claimant's reply to the defence of the second defendant expressly stated that, at the time of the dinner on 23 March, the first defendant owned 95% of RunningBall. The clear inference in the pleading that the claimant knew that at the time, and it is not suggested that the first defendant had told him prior to 23 March.
(c) In a letter dated 4 November 2015, the claimant's previous solicitors asserted that the claimant was aware at the dinner on 23 March that the first defendant only owned 95% of the shares. The claimant could only say in cross-examination that that was an inexplicable error. I find that the letter was written on the claimant's express instruction because that was his understanding, based on what Mr Marty had told him on 18 February 2011.
- Mr Marty also recalled that the claimant said something to him to the effect that he wished he had become a shareholder three years previously and he was jealous because he was not and Mr Marty was. The claimant denied that. However, for the same reasons as before, I find that some light-hearted banter along these lines did take place, in particular because it was entirely consistent with the evidence noted at paragraphs 16 and 18 above. In those circumstances, it was regrettable that, although his own recollection of the meeting was hazy, the claimant felt it necessary to say in his evidence that Mr Marty was inventing these remarks, an unfounded assertion which reflected poorly on him.
- Following the meeting, in an email dated 22 February 2011, the claimant set out in some detail the various matters that they had discussed. This included a lengthy passage which did not appear to summarise what was discussed, but contained the claimant's advice for the future. He said:
"With this as the backdrop, I see the following funding alternatives:
1. Do nothing. Use cash flow from operations to fund growth and pay dividends. Up to SFr 10m in cash generation in 2011 provides cushion to 'de-risk' ownership.
2. Use debt as an alternative or for additional liquidity. Likely debt capacity of SFr 20m or more. Could fund acquisitions and pay dividends. Timing: 2 months.
3. Issue equity for liquidity. Options include:
- Growth equity: an institutional investor providing capital for a minority stake in the business. May require preference share capital rather than ordinary shares, but arguably more straightforward than an IPO, with lower ongoing investor communication requirements. Timing: 2-3 months.
- IPO: recommended route would be London main market listing. Likely strong appetite in compelling valuation for ordinary share capital issue. Minimum size 25% enlarged company. Timing: 3-4 months."
The claimant agreed that the "institutional investor" was something that Investec would want to be involved in, as they would also wish to be involved with the Initial Public Offering ("IPO").
It should be noted that, contrary to the claimant's oral evidence, and consistent with the first defendant's oral evidence, this email demonstrated that the first defendant was interested in raising some money at this stage by encouraging others to invest; that is why the claimant envisaged the possibility of issuing equity "for liquidity". One of the reasons why the first defendant needed what he called "a few million" at this time was a claim against him by a company called Samvo, arising out of a loan taken out by the first defendant in connection with the RunningBall business.
Thereafter, the claimant was endeavouring to set up meetings with various people in connection with RunningBall. He agreed in cross-examination that, in doing so, he was representing Investec because RunningBall was a potential client of Investec.
The claimant said that this position began to change at a meeting with the first defendant at the Sanctum Soho Hotel at the end of February. On this occasion he had a drink with the first defendant, having set up the meeting by an email sent on his Investec account, and which followed a meeting that he had had with a company called Smurfitt in connection with a football technology company called FSB which had also been arranged through Investec.
By the end of the trial, the drink at the Sanctum Soho Hotel had become an extremely important element of the claimant's case. That was because the claimant now said that the dinner at Zuma on 23 March was by way of a follow-up to the drink at the Sanctum Soho Hotel, and that the detailed agreement that he said was reached on 23 March was not arrived at out of the blue, or in a vacuum, but was instead the result of a two-stage process which had begun at the Sanctum Soho Hotel.
I was not persuaded that the discussions at the Sanctum Soho Hotel were at the level of detail or carried the importance now ascribed to them by the claimant. There are a number of reasons for that:
(a) The meeting at the Sanctum Soho Hotel was not pleaded as part of the particulars of claim. Although a meeting with the first defendant in March was referred to in the reply, it was in very general terms. It was only in answer to a request for further information that the meeting and the location were expressly identified. That does not indicate that the claimant originally thought that the meeting was of any great significance.
(b) The first defendant did not consider the meeting to be anything other than an informal social occasion. I consider that that is borne out by the fact that he did not address the meeting at all in his first witness statement.
(c) There is not a single piece of paper which indicated when the meeting took place, or what was discussed there.
For all these reasons, I am therefore reluctant to make any significant findings of fact arising out of the drink at the Sanctum Soho Hotel. Moreover, for the reasons noted below, I do not consider that the claimant's case on the detail of the alleged discussions was borne out by the evidence.
The claimant said that this meeting was when he first raised the suggestion that he might leave Investec and join RunningBall. He said that he discussed his possible remuneration with the first defendant in some detail, including the arrangement whereby he would get 15% of the difference between a strike (or target) price and the actual price achieved. It was suggested to him that this was untrue, and that he could not possibly have decided to leave Investec on the basis of the very few meetings that he had had with the first defendant and the complete absence of any detailed financial information. The claimant responded by saying that he had developed a strong relationship with the first defendant when they met a few years previously, and even though they had not been in touch for a while, they got on very well and he thought this was an exciting opportunity to take up.
It was also suggested to the claimant that he said over drinks that he was unhappy at Investec and that he wanted to make investments for himself. He agreed that he was looking to make personal investments. These were to include an investment of $4 million in a film company which he made a few months later, and another in an internet start-up company. But he denied telling the first defendant that he was unhappy at Investec and he denied saying that he wanted to manage his own portfolio of investments, or that that was why he was interested in RunningBall. On this topic there was separate evidence, from the claimant's superior at Investec, Mr Currie, that the claimant was not necessarily a good fit at Investec and was more of 'a big bank person'. When he left in July, he was made redundant and not replaced.
The first defendant said that the drink at the Sanctum Soho Hotel was simply a social meeting. He said that the claimant told him that he was unhappy at Investec and he wanted to make his own investments, which is why the first defendant thought he was interested in RunningBall. The first defendant denied that, at the drink at the Sanctum Soho Hotel, the claimant had first suggested the 15% strike price arrangement.
Taking into account all the evidence, I find on the balance of probabilities that:
(a) The drink at the Sanctum Soho Hotel was a relatively brief discussion and was primarily a social event.
(b) The claimant indicated in very general terms that he might want to leave Investec. That chimes with the evidence of Mr Currie.
(c) The claimant also said that he wanted to build up his own portfolio of investments. There seems to have been some difficulty with him doing this whilst he was at Investec: his email of 20 April to Mr Currie reveals that he was unhappy with Investec's attitude to one particular investment he could have made on his own behalf, but he had instead "put income into Investec's hands rather than my own". He did make personal investments after he left Investec.
(d) The claimant also indicated, again in very general terms, that he may be interested in the RunningBall business, both as a potential investment opportunity, and as a business which he might be able to assist by directly providing services for them. This last was, however, expressed as no more than a possibility at this stage, particularly given the claimant's lack of knowledge of the details of the RunningBall figures or business.
(e) The claimant did not raise the 15% strike price arrangement in any form. It is wholly implausible that, on the very first occasion when the claimant mentioned the possibility of leaving Investec and the possibility of investing in and/or providing services directly for RunningBall, he expressly set out a detailed, complex and potentially highly lucrative formula for his own remuneration. Had he done so, he would have made at least some reference to it in his subsequent emails and prior to 23 March. He did not do so.
There was a dinner at the claimant's home on 5 March 2011. I find that this had two purposes which were not inconsistent: one was so that the claimant's wife could meet the first defendant in circumstances where it was at least a possibility that the claimant would have a closer involvement with RunningBall in the future, and the other was because, as the claimant accepted, if the first defendant sold the RunningBall business, he would have large sums to invest and the claimant could assist him with those investments.
Throughout this period the claimant was representing Investec in his dealings involving RunningBall. One example is the meeting on 9 March with FSB, which was dealt with in the email of Mr McDowell of FSB of the same date, and which made it clear that the claimant was acting as an employee of Investec.
3.4 The Dinner on 23 March 2011
It was the essence of the claimant's case that, at the Zuma dinner, he and the first defendant agreed that:
(a) He would personally provide services to the first defendant and/or the second defendant in relation to various aspects of RunningBall, but in particular to grow the business to maximise any return on sale;
(b) In exchange for those services, the claimant would be remunerated by being paid 15% of the difference between the sale price of RunningBall and the lower of SFr 100 million or eight times 2011 EBIT;
(c) In consequence of this agreement, the claimant would give notice to Investec and immediately become the CEO of the second defendant.
It is the first defendant's case that this was an informal dinner, at the end of which no agreement was or could have been reached. He accepts that there was discussion about the future of RunningBall and the possibility of the claimant supporting that business. He also accepts that there was a discussion about the possibility of the claimant enjoying the benefit of a sale above an agreed price, but it was the first defendant's case that this discussion was predicated on the basis that the claimant would invest in the RunningBall business by buying shares at a preferential rate based on the strike price, which investment would earn large dividends if the actual sale price was more than the strike price.
I deal with the competing versions of this dinner in greater detail in Section 5 below. But I should say at this stage that the oral evidence of both the claimant and the first defendant reinforced what is apparent from the documents in the case, namely that the two men left the dinner with very different views of what had happened. I think the claimant may have thought that he was at least on the way to reaching an agreement which he always believed would be very profitable to him. The first defendant, on the other hand, did not believe that any agreement, let alone an agreement binding in law, had been or could have been reached. This essential difference in their understanding of their discussion over dinner on 23 March persisted throughout the rest of their dealings and throughout the trial.
After the meeting, when the claimant returned home but before going to bed, the claimant sent the first defendant a lengthy email, covering two pages. It started with the words "Thank you for an excellent dinner this evening. You certainly seem to attract company!". The first page and a half were then concerned with various aspects of the RunningBall business. These included:
(a) Advice about the potential acquisition of a company called Betgenius. The claimant said that he would work to secure debt facilities as a matter of priority to permit that acquisition. The claimant said that he would need a combination of the first defendant's business presentations and financial information as a first step.
(b) Further advice that the terms proposed by Unibet/Kambi were unattractive and the reasons for that view were then explained. On this topic, the claimant advised the first defendant that "The next time you consider the sale of some of your shares, we will make sure that you produce the draft documentation rather than the other side."
Only the last half page was concerned with the claimant's own position. The email said:
"I am delighted that we are agreed on headline terms. I think the role as CEO of HTG Holding is an excellent formula to kick things off, and I appreciate the suggestion that I would be able to elect a strike price for options for 15 per cent of RunningBall at the lower of SFr 100 million or eight times 2011 EBIT.
On salary, I mention, my priority is to make sure that you are comfortable with any given level. At the same time, it would be helpful for this to cover the day-to-day running costs of my family (London school fees etc) which are quite significant. The tax rates here do not help, as we discussed."
This email is the only contemporaneous record of the discussions on which the claimant now relies to assert the existence of a binding contract. I address it in detail in Section 5 below.
3.5 Events Between March and December 2011
After the dinner, the claimant gave notice but continued to work for Investec. He continued to do work for Investec in connection with RunningBall. It is unnecessary to set all of this work out in detail but in the early stages it included:
(a) Setting up meetings and discussions with GTECH, Gamebookers, PartyGaming and Betgenius (see the claimant's email of 25 March);
(b) Further meetings with FSB (see the claimant's email of 28 March);
(c) Passing on comments from Investec to the first defendant (see the claimant's email of 29 March);
(d) Meetings at Investec with Gaming VC (see the claimant's emails of 29 and 30 March).
This work pattern appeared to continue over the next few months. All the arrangements were made on the claimant's Investec email account. Indeed, the claimant was not above using the fact that he still worked for Investec to have meetings which were for the sole benefit of RunningBall: see for example his emails of 28 April, where he said he could contact Boolabus as a representative of Investec rather than as a representative of RunningBall, and went on to do just that. I deal with the potential significance of this in Section 5.4 below.
It is also apparent that the claimant was still very unsure as to RunningBall's financial position. On 24 March the claimant said to the first defendant that he needed "to sit down with Daniel [Marty] asap to look at the numbers".
There were a number of documents emanating from the claimant himself which suggested that any future employment by RunningBall was not entirely certain. Thus in his email to Mr Currie on 20 April 2011 the claimant referred to his "anticipated new role" rather than something which had already happened. In other documents of the same period, the claimant did not say that he was already CEO of the second defendant (although that is what he claimed at trial). Although the claimant said that this was because he was not a director of the second defendant, I consider that the documents of April-July 2011, taken in the round, are inconsistent with the claimant's case now that he was already working for the second defendant. Of particular note was his email of 7 June to Mr Currie, which not only said that this had not yet happened, but instead sought permission to attend one single board meeting as chairman before the end of July. The claimant agreed that he had not told Mr Currie that, on his case as now advanced, he was already working for RunningBall. The claimant accepted that "it might have been better if I had done so".
Also of note is the email of 20 June 2011 to the first defendant's mother who was also closely involved in RunningBall which is very tentative in its terminology. There the claimant said that he hoped that she was reassured "about the prospect of my joining the company". It was therefore put to him that that had not yet happened. Again he said this was a "grey area". He agreed that it might have been more accurate to say that, as he saw it, he had already joined the company and had been there since March.
There was a good deal of material relating to other agreements with other people which both sides sought to rely on to establish some sort of "similar fact" evidence. Thus the claimant sought to rely on other oral agreements entered into by the defendants, which he said made his case about the Zuma meeting more likely. Similarly, the first defendant sought to identify an arrangement which he said was of a similar type to that asserted by the claimant which had been expressly drawn to the attention of Perform, the ultimate purchaser of RunningBall, unlike the alleged arrangement with the claimant. This was part and parcel of an argument that the first defendant had not drawn that to the attention of Perform because there was no such agreement. As I indicated during the oral evidence, I thought it unlikely that any of this was going to make any significant difference to my conclusions about what happened on 23 March. With one minor exception, that remains my view. I therefore deal with the 'similar fact' points shortly.
The claimant referred to an oral agreement between RunningBall and a Mr Suhartono by which he was paid commission, saying that he was told by the first defendant that this was subsequently converted, at the time of the sale to Perform, into an oral agreement for 5% of the shares. I derive no assistance from this at all. First, the original oral agreement with Mr Suhartono led to payments of commission that were actually paid (which makes this a completely different arrangement to that allegedly involving the claimant). Secondly, the evidence including the email from Perform of 14 December 2011 was that the conversion of the oral agreement into a 5% entitlement to shares was a proposal, and I was not shown a completed agreement to that effect. Thirdly, even if this became a completed agreement, the background was completely different to that pertaining to the claimant, particularly given the length of time that Mr Suhartono had been working for RunningBall. I am confident that none of this had any bearing whatsoever on the alleged contract in this case.
The claimant also sought to rely on an oral agreement with a Mr Marko to which it was said that Mr Marko was contractually entitled to a percentage of the RunningBall group. There was no evidence about that, save that the claimant said that that is what the first defendant told him. The first defendant denied that. Given the absence of any other evidence, or any documents, I cannot make any findings on this issue.
In relation to the agreement relied on by the first defendant, it is clear that Mr Tottoli did have some form of share option agreement, although it was rather vague. It seems that Mr Tottoli chased for this to be resolved by the first defendant, but without much success. It was difficult to see where this ultimately went. However, for what it is worth, I note that the existence of the potential agreement with Mr Tottoli was disclosed to Perform, so they knew about it when they were buying RunningBall, whilst the alleged agreement with the claimant was not similarly disclosed, something of which it seems the claimant may have been aware at the time.
Whilst the claimant sought to distinguish his position from that of Mr Tottoli on the basis that he had a personal agreement with the first defendant, the difficulty with that was that he also alleged that, at the Zuma dinner, he agreed to work for the second defendant. Thus it does appear that, if the claimant had an agreement of the kind now alleged, he should have pointed out the failure to notify Perform prior to the sale. Alternatively, even if the claimant did not know of the failure to disclose his alleged agreement to Perform, the non-disclosure meant, on the claimant's case, that the first defendant was misleading Perform by not telling them about it. I agree with Mr Weisselberg QC that that was highly unlikely in the circumstances. That is therefore a factor of some small importance when I come to consider whether or not there was a binding contract with the first defendant made in March 2011, as alleged by the claimant.
The claimant left Investec at the end of July 2011 and became chairman of RBHAG and RBAG. He chaired his first board meeting on 8 August 2011. The first thing he did was to note that the income figures demonstrated a shortfall against budget. The claimant said that this came as a shock to both him and to the first defendant: it meant that, using the 8 x EBIT formula, the company could be worth as little as 30 million. As a result of this, the claimant went through the contracts that RunningBall had with suppliers, agents and customers and noticed a large series of problems, anomalies and many situations where there was no written contact at all. He was so concerned about this that on 18 August 2011 he emailed the first defendant in alarmist terms, asking him to contact the claimant "if you want to save your company. It is not in good shape".
The claimant was obviously asked why, in all these circumstances, he was not concerned to ensure that his own agreement was in writing. He said that he treated himself differently to how he dealt with others. He said that it was the first defendant's responsibility to draw up the contract and it was not for him to press. But one of the lines of Mr Weisselberg QC's cross-examination was to ask how and why it was that the claimant, an experienced investment banker, had not at any time drawn up a contract along the lines that he said had been agreed at the Zuma dinner, particularly since the claimant's case was that he had left Investec to provide services personally to the first defendant, a man that he had not met that many times and whose business was, by August, apparently in trouble. Surely he would have wanted the security and certainty of a written agreement?
The claimant's answers to this line of questioning were unpersuasive. In part, he repeated his reliance on the bond of trust between himself and the first defendant, but, in all the circumstances of the case, it seemed unlikely that the claimant's scant knowledge of the first defendant and/or the RunningBall figures, could have led to any such bond. The other element of the claimant's oral response, namely that it was the responsibility of the first defendant to draw up the contract, was nonsensical. Since it was the claimant who stood to gain from an agreement along the lines now suggested, it was clearly prudent for the claimant to draw up the relevant agreement, not to wait on the off-chance that the first defendant might do it instead. After all, the claimant had expressly advised the claimant (paragraph 40 above) of the importance of producing draft contracts yourself rather than the other side.
The paucity of this answer may explain why, during his cross-examination, the claimant suggested, for the first time, that he had in fact raised the question of a written contract with the first defendant and the first defendant had promised him that he would produce one. Not only was this not in the claimant's witness statements, it was not anywhere reflected in the contemporaneous emails (as we shall see, I consider that the first defendant's email of 7 December 2011 was actually to the opposite effect). I consider that this belated and unsupported oral evidence was a good example of the claimant seeking to fill in the more obvious gaps in his case after the event. I do not accept that these conversations took place.
There was a certain amount of debate as to the extent to which, from August 2011 onwards, the claimant was occupying his time working for RBHAG and RBAG. At some times the claimant suggested that this was full-time; and other times he accepted that it was not. It seems to me plain beyond doubt that the claimant was not working full-time for those companies at any time. The contemporaneous emails make clear that he had other matters to attend to. In the absence of diaries or timesheets, it is very difficult for the court to reach any conclusions as to the proportion of the claimant's time he spent on RunningBall business between August 2011 and early 2012. The overall impression created by the documents is that his involvement was, at best, sporadic.
In about September 2011, Perform emerged as a potential buyer for the RunningBall business. There was a dispute as to who had introduced Perform: the claimant said that he had; the first defendant said that he did. I find that, on the balance of probabilities, it was the claimant who first introduced Perform to the first defendant, albeit at the time that he did so, in February 2011, it was as a competitor rather than as a buyer. The introduction happened because, as the claimant said in cross-examination, "that is what I do as an investment banker". He had sent the first defendant information about Perform from that time on.
Of course, in February 2011, the claimant was working "as an investment banker" for Investec. Accordingly, I find that, not only was it the claimant that introduced Perform, but also that he did so as an employee of Investec. The claimant repeatedly said that Investec were somehow irrelevant because the reward for the introduction (i.e. the 15% strike price agreement) was unlikely to crystallise until after he had left Investec. In my view, that is both simplistic and wrong in principle. This is a point to which I return at Section 5.4 below.
There was a successful meeting on 13 October 2011 with Perform, attended by (amongst others) the claimant and the first defendant. However, the documents demonstrate that the claimant was less enthusiastic than might have been supposed about the prospective sale. His email of 29 October, suggesting "putting the brakes on" the possibility of a sale to Perform, was the first of a series of documents in which the claimant gave unremittingly negative advice to the first defendant about the Perform offer.
There appeared to be two board meetings of RBHAG and RBAG in November 2011 (although it was unusual for there to be meetings more than once every three months). There are no minutes of either meeting. The meeting on 18 November assumed some importance because the first defendant, and others, criticised the claimant for not attending. This was part of the suggestion that, by then, the claimant had lost interest in the RunningBall business. It is true that the first defendant did not attend and, other than saying that he had other matters to attend to, he did not give an explanation as to why not. That explanation confirms my earlier finding that the claimant was not, as he sometimes suggested, working full time for RunningBall. By the same token, I do not accept that the claimant had somehow lost interest in the RunningBall business. On the contrary, the claimant was still carrying out some work for RunningBall and, in particular, advising on the possible sale to Perform.
There was a further meeting with Perform on 23 November 2011 and a third meeting on 6 December 2011, both of which again went well. It became apparent that there was a real possibility of a sale to Perform. In consequence, there was an important exchange of emails on 7 December 2011.
3.6 The Email Exchanges of 7 December 2011
Doubtless because the possible sale to Perform was beginning to crystallise, the claimant forwarded to the first defendant another copy of the email of 24 March 2011 (paragraphs 40-41 above). In the covering email he said:
"It was good to speak to you just now. This is the note that I sent you after our dinner at Zuma where we agreed terms in March. I am conscious that our agreement set the strike price at the lower of SFr 100m and eight times 2011 EBIT, based on the Kambi deal, has worked in my favour I think you expected the multiple to produce a similar result to the SFr 100m but to give me some protection if you didn't hit the 2011 forecast. The fair thing was that it correlated my potential reward directly to the value I delivered in persuading you against the Kambi deal.
It's really important to us both I think that we a re completely aligned going into this process which seems to be progressing sooner than either of us expected. I am conscious that the reward could be substantial if things go well now, and it is crucial for me that you feel happy about it, not least because I believe that there are great things that we can do together in the years to come."
The first defendant replied to say:
"It was simply a lack of recollection on my part only about 15% part vs 10%. I had the 100 Mio SFr stuck in my head which I thought would be least to be expecting in 2011. I remember making fun over the currency in the eight times multiple as a protection for you which I came up on my part in case of unforeseen developments. Little did I know that my management would be so off and I was a bit out of the loop already. In any case everything turned out to be a bit different than anticipated but overall on the positive side. Most importantly I value the relationship which we built and I believe there is a lot more deals to be done and many more coming from your side which will make us both money.
First we need to cash in anyways and I believe you can create great value in the transaction. Next time we see each other let's make a proper contract. It is time now but rest assured that I don't see this is the last deal to be done but rather like a great start."
Although the first defendant had indicated that a "proper contract" would be made when they next met, the claimant did not respond to that statement. In cross-examination he was unable to explain why not, or what he understood the words to mean if they did not have their obvious meaning: that the first defendant thought that there was, as yet, no proper contract. The claimant did accept that, at this time, he was open to revisiting the matters that had been discussed on 23 March.
The first defendant was cross-examined about the reference in his email to "we need to cash in anyways", the suggestion being that this acknowledged that the claimant was entitled to remuneration on the sale. However, there was some debate with the interpreter and it appeared that, in the original German version, the reference to "we" was a reference to the first defendant, as opposed to a reference to "we two", which would have been a reference to both the claimant and the first defendant. Accordingly, that did not appear to be a point that assisted the claimant.
3.7 The Sale To Perform
It appears that, after 6 December 2011, the claimant was increasingly sidelined in the negotiations with Perform. There was a meeting on 16 January 2012 which the claimant attended. Both the first defendant and the representatives of Perform, such as their lawyer Mr McMorris, gave evidence that the claimant was quoting "grossly excessive" figures for the value of RunningBall which were in danger of scuppering the deal. Both sides agreed that the claimant should not attend any further meetings and he was not privy to the further exchanges of documentation, save for those which the first defendant sent him.
The claimant denied saying at the meeting on 16 January 2012 that RunningBall was worth between 200-300 million, although he did accept that he had produced a valuation of £190 million/225 million. He said that that was based on an analysis using various valuation criteria by reference to Perform itself. The figures produced by the claimant's valuation support the evidence of the first defendant and Mr McMorris that he was giving unrealistically high figures, a finding also borne out by his continuing refusal to support the Perform deal.
There was a further meeting at a gaming exhibition in January between the first defendant and Mr Denyer of Perform, at which details of the Perform offer were discussed. The claimant agreed that he was not party to those discussions. This meeting generated the Perform offer of 31 January 2012. The first defendant sent that on to the claimant. His response of 1 February was very sceptical. In particular, the claimant favoured an offer that was much more cash-based, rather than by way of Perform shares. That advice was repeated on 10 and 28 February. Even in April 2012, the claimant was advising against acceptance of the Perform offer: see his email of 2 April 2012. The claimant agreed that at no time had he been enthusiastic about acceptance of the Perform offer. By this time, I find that he was entirely peripheral both in respect of the proposed sale and any continued role at RunningBall.
At paragraph 142 of his written submissions, Mr Weisselberg QC made the point that, when raising these various concerns about the Perform offer, at no time did the claimant suggest that the precise terms of the offer would impact on his own remuneration. That is a fair point. When dealing with the risks inherent in various aspects of the Perform offers, the claimant never at any stage suggested that the terms were relevant to him. If there had been a concluded agreement along the lines he now claims, it would have had a direct impact upon his own remuneration, and I would have expected him to say so.
The terms of the sale were as follows:
(a) 20 million in cash;
(b) Shares in Perform to the value of 50 million, which shares could not be sold for a period just short of 12 months;
(c) Deferred consideration which was to be, depending on the subsequent performance of the company, a minimum of 31 million and a maximum of 50 million;
(d) The deferred consideration was subject to a hold-back of 4.5 million which was paid into an escrow account in order to cover any future warranty claim that might be made. That was only released in November 2013.
3.8 Further Alleged Agreement
The claimant now relies on a further, unpleaded agreement between himself and the first defendant. This was said by the claimant to have taken place during a telephone call on 15 May 2012, when the first defendant agreed to pay him pursuant to the alleged contract, on the expiry of the warranty period in the Perform agreement (November 2013).
This further agreement would amount to a variation of what was allegedly agreed at the Zuma dinner. I accept Mr Weisselberg QC's underlying submission, that the claimant needs this agreement so as to tie in his remuneration to the precise terms of the sale to Perform, and to move from an arrangement based on the alleged 'value' of RunningBall to the actual proceeds of the sale of RunningBall to Perform. The potential significance of this is addressed in Section 5 below.
I find that no such agreement was reached. There is no document to support it. If there had been a discussion along these lines, the claimant would have referred to it in his email of 16 May 2012, but he did not. The emails from June 2013, noted below, are inconsistent with any agreement the previous year.
3.9 The Claimant's Demands for Payment
In late 2012, the claimant mentioned to the first defendant the possibility of them jointly funding a management buy-out of a company called BrandAlley, but there was a disagreement between them when the claimant said that his part of the investment should come from the money he was owed by the first defendant. Although that disagreement led to the first defendant not investing in BrandAlley, the claimant did invest, using other funds. As a result of this disagreement, the claimant made a formal claim for payment based on the alleged agreement of 23 March 2011.
The two men met in Zurich in the early summer of 2013 and the claimant demanded a substantial sum of money, far in excess of that which the first defendant was prepared to pay. On 18 June 2013 the claimant demanded the 13.5 million, saying that he had been patient up until now (which was contrary to his case that, pursuant to the alleged May 2012 agreement, he would not be paid until November 2013). The claim was rejected by the first defendant, who said "there is simply no grounds whatsoever to ask for this crazy amount." Although the claimant maintained that the meeting and exchanges in June 2013 also amounted to some form of agreement between the parties, the contents of the email show that no agreement of any kind was forthcoming at that late date.
The letter before claim was dated 16 September 2013, which was before the expiry of the warranty period under the Perform agreement, and therefore again contrary to the agreement which the claimant now alleges was made in May 2012. For reasons which are unexplained, there was a delay before the commencement of these proceedings on 2 December 2014.
4. THE LAW: CONTRACT FORMATION
The general principles relating to contract formation are set out in the judgment of Lord Clarke in RTS Ltd v Molkerei Alois Muller GmbH and Co KG  UKSC 14;  1WLR 753;
"45. The general principles are not in doubt. Whether there is a binding contract between the parties and, if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations. Even if certain terms of economic or other significance to the parties have not been finalised, an objective appraisal of their words and conduct may lead to the conclusion that they did not intend agreement of such terms to be a pre-condition to a concluded and legally binding agreement."
As Lord Clarke made plain at paragraph 50 of his judgment in the same case, the governing criteria is the reasonable expectations of honest and sensible businessmen.
There are a number of important principles relating to the intention of the parties to create legal relations. In particular:
(a) Where there is an express agreement, in an ordinary commercial context, the burden of disproving an intention to create legal relations is a heavy one: see Chitty on Contracts, 32nd Edition, 2-168;
(b) Where there is no express agreement, the onus is on the party claiming that a binding agreement had been made to prove that there was an intention to create legal relations: see Assuranceforeningen Gard v IOPC Fund  EWHC 3369 (Comm);
(c) One factor which may be relevant to the issue of contractual intention is the degree of precision (or otherwise) with which the alleged agreement is expressed. Vagueness/uncertainty may be a ground for concluding that the parties did not reach any agreement at all: see Chitty on Contracts, 2-147 and 2-194.
The court may conclude that there is no binding agreement because no definite meaning can be given to what was said: see Mamidoil-Jetoil Greek Petroleum Co SA v Okta Crude Oil Refinery AD  2 Lloyd's Rep 76. In this context I also note that:
(a) The more complicated the subject matter, the more likely the parties are to want to enshrine their contract in a written document, thereby enabling them to review all the terms before being committed to any of them: see Cheverney Consulting Ltd v Whitehead Mann Ltd  EWCA Civ 1303 and Benourad v Compass Group PLC  EWHC 1882 (QB) at paragraph 106(a);
(b) The express identification of a 'trigger' event (upon which it is said, for instance, commission becomes payable) is something which the law regards as essential for the formation of a legally binding contract: see Luxor (Eastbourne) Ltd v Cooper  AC 108 and Wells v Devani  EWCA Civ 1106.
5. DID THE PARTIES MAKE A BINDING CONTRACT ON 23 MARCH 2011?
5.1 Overview and Background
Applying the legal principles noted above, and for the reasons set out in this Section, I am firmly of the view that no binding contract was made between the parties on 23 March 2011. I find that there was no intention to create legal relations. I find that there was no agreement on the critical issue as to the nature of the claimant's remuneration. I find that the terms of the alleged contract were both too complex and too uncertain to be enforceable. In addition, I find that there was no binding agreement as to the relevant parties or the relevant workscope. I consider that the evidence, when taken together, consistently points away from the claimant's case and towards that advanced by the first defendant.
I should, at the outset, deal with two underlying factors which, in the particular circumstances of this case, also militate against the finding of a binding contract: the location and nature of the meeting on 23 March, and the language of the conversation. These elements are not, and could not be, decisive of the issue I have to decide, but they are an important part of the background and need to be dealt with at the outset.
The mere fact that the discussion took place over dinner in a smart restaurant does not, of itself, preclude the coming into existence of a binding contract. A contract can be made anywhere, in any circumstances. But I consider that the fact that this alleged agreement was made in a highly informal and relaxed setting means that the court should closely scrutinise the contention that, despite the setting, there was an intention to create legal relations. The claimant himself agreed that, other than this case, he was unaware of any remuneration agreements with investment bankers that had been concluded over dinner in the way in which he now suggested. Further, it is clear that this was not simply a dinner at which business matters were always to the fore. The opening words of the claimant's email (paragraph 40 above), with the reference to the first defendant's ability to attract company, make that clear.
As to language, whilst there can be no doubt that the first defendant was relatively fluent in English, when he gave his oral evidence there were occasions when he required the assistance of an interpreter. Moreover, on at least two separate issues, noted at paragraph 64 above and paragraph 109 below, there was evidence of a particular nuance of German language which meant that a word used in a contemporaneous document, which might be said to have one meaning in English, was shown to have a rather different meaning in German. Accordingly, the fact that the relevant conversation was taking place in a language which was not the first defendant's first language must inevitably sound a further note of caution when I consider whether or not this discussion led to a binding agreement.
5.2 No Intention to Create Legal Relations
In considering this issue, it is appropriate to take as my starting point the claimant's own email of 24 March 2011 (paragraphs 40 and 41 above). The claimant cannot do better than that which he himself put into writing as summarising the agreement which he said was reached only a few hours earlier. As he expressly stated in evidence, "it is the only contemporaneous evidence of what was discussed". In my view, when considered objectively, his own email demonstrates the absence of any intention to create legal relations.
The highest that the claimant puts it in his email was that there was an agreement "on headline terms". Such an expression is often used by businessmen (and lawyers) when at least one side considers that there may be the bare bones of an agreement, which then need to be taken forward and converted, once the blanks have been filled in, into a formal and binding contract. Obviously the claimant did not use the expression "subject to contract", and I quite accept that nothing replaces the force and power of those words: see Regalian Properties PLC v LDDC  1 WLR 212. But given the informal nature of the setting, it seems to me the fact that the claimant himself was only able to say that there was an agreement 'on headline terms' strongly indicates that, at this stage at any rate, there was no intention to create legal relations. He is suggesting that matters remain to be finalised, presupposing the subsequent preparation of a formal contract dealing with everything (as per Benourard).
It is also apparent on the face of the email that there was not yet any agreement on the claimant's remuneration (in many ways, the critical issue in the case). In particular, there was no agreement whatsoever on salary, as the claimant accepted in cross-examination, and yet his email makes clear that the claimant expected to be paid such a salary and set out his reasons (school fees, high rates of tax etc) for that requirement. Thus, as at 23 March, I find that there was no agreement as to the claimant's remuneration, a critical matter which, in the circumstances, would have needed to have been agreed before a binding agreement came into force.
In order to get round this difficulty, the claimant endeavoured to say that there was a subsequent agreement to the effect that he would receive no salary at all. That agreement is not pleaded and was not the subject of his witness statements. There was no contemporaneous document evidencing it. Although as a matter of fact, the claimant was not paid a salary, it does not appear that there was ever any further discussion on this aspect of the claimant's remuneration. In any event, what is clear is that there was no binding agreement on that aspect of the claimant's remuneration going forward from 23 March 2011.
I note in passing that it appears that, at some point, it was agreed that the claimant would be provided with an office in London and be paid his expenses. After July, this is what happened. Neither side attached any great significance to this aspect of the story and, in my view, they were right not to do so.
As to the final element of the alleged remuneration, namely the commission or incentive payment, the highest that the claimant could put it in his email was that he "appreciated the suggestion" that he "would be able to elect a strike price for options". Again, I find that, viewed objectively, this is not the language of a binding and concluded agreement. It is tentative, reflecting a process which is ongoing rather than one which has been concluded. To that extent, it is no different to the first page and a half of the email, which deals with the "right way forward for RunningBall" in similarly tentative terms.
The first defendant regarded the email as the sort of note that an investment banker might make of the discussion at the restaurant. He did not reply because, as far as he was concerned, there was nothing in it which required such a reply.
In my view, confirmation that there was no intention to create legal relations is provided by the claimant's second email of 7 December 2012 (paragraph 61 above). That fairly sets out the advantage to the claimant of the structure which had been "suggested" on 23 March 2011 (because the 2011 EBIT had been unexpectedly low, making the lower of the two alternatives only about half the 100 million SFr).
It is apparent from the email that the claimant himself did not consider that there was already a binding agreement: had he thought that, he would have said so. Instead the claimant said that it was important for both men "that we are completely aligned going in to this process". That strongly suggests that the claimant knew that they had not yet reached a point where he and the first defendant were 'aligned', at least not in any sort of legally binding way. Just to make the same point doubly clear, the claimant reiterated that "it is crucial for me that you feel happy about it". Again, viewed objectively, that is not the language used where there is already a final and binding agreement. It is the language of somebody who, at best, considers that there was a basis for an agreement which he now wishes "to align" with the requirements/wishes of the other party. He was giving the first defendant an open-ended opportunity to continue and conclude the discussions, an opportunity that would not have been available if these matters had already been agreed.
Moreover, I consider that, on any view, the absence of any intention to create legal relations either in March or at this point in December 2011 is confirmed by the first defendant's reply of 7 December 2012 (paragraph 62 above). There the first defendant made plain that, the next time they got together, they needed "to make a proper contract". In my judgment, the only possible interpretation of that statement is that the first defendant did not consider that there was a proper (i.e. binding) contract at that time. On my analysis, neither did the claimant (who did not reply to say that there already was a contract). Accordingly, on an objective consideration of the only three directly relevant contemporaneous emails, I conclude that there was no intention to create legal relations on 23 March 2011.
There was other evidence which supports that conclusion. This included:
(a) The fact that the claimant did not say to anyone else that he had reached a final and binding agreement with the first defendant at the Zuma dinner. On the contrary, the language that he used to others when describing his future relationship with the first defendant and RunningBall was tentative (see paragraphs 44-45 above).
(b) The fact that the first defendant did not say to anyone else that he had reached a final and binding agreement with the claimant at the Zuma dinner. On the contrary, no mention was made of this alleged agreement in any document. The absence of any reference to such an agreement was of some significance in the context of the sale to Perform. As noted in paragraph 50 above, the fact that there was no information provided to Perform which related in any way to the claimant or the alleged agreement is another factor which, objectively, points to the absence of an intention on the part of either man to create binding legal relations.
Of course, the parties' subjective intentions are ultimately irrelevant to the court's resolution of this issue. But it is right to note that, not only do I consider that the first defendant genuinely believed when he left the Zuma dinner that he had not reached any sort of binding agreement with the claimant, but he also believed that, as a matter of Swiss law, he could not have done so because an agreement of this kind would have had to have been reduced to writing. That belief was not challenged.
Finally, I refer back to paragraphs 52-54 above, in which I make the point that at no time did the claimant ever produce a written contract or draft. I regard that as a critical omission. The claimant was aware of the importance of written contracts and, indeed, he was critical of the RunningBall business both because they failed to acknowledge the importance of such written contracts and also used a template which he described as "seriously defective". His email of 23 March expressly pointed out the advantages of producing any draft documentation that may be required. The claimant would have known that, because of all of the potential complexities in this case, a written contract was vital. If he thought he had a binding agreement, he would have prepared a draft contract setting it out. The absence of such a draft, produced by the claimant, is the final reason why, in my view, there was no intention to create legal relations.
Accordingly, for all these reasons, I am confident that, applying the objective test in RTS, the evidence demonstrates that there was no intention to create legal relations on 23 March 2011 and therefore no binding contract came into existence on 23 March 2011.
5.3 Absence of Agreement, Complexity and Uncertainty
It is the claimant's case that he had agreed a deal with the first defendant that, as and when the RunningBall companies were sold, he would get 15% of the difference between the actual sale price and the lower of either SFr 100m or eight times 2011 EBIT. In his evidence, he made repeated reference to this as a "simple" agreement, and expressed a certain amount of exasperation with those who seemed not to understand it.
The overriding difficulty for the claimant in relation to this 'simple' agreement is that it was manifestly not recorded in his own email of 24 March 2011. There is no reference there to the sale of RunningBall. There is no reference to the actual purchase price, or to the proceeds of sale, or even to the value of RunningBall at the time of sale, which were all concepts which, at different times in his evidence, the claimant said were fundamental to the alleged oral agreement. Thus, there is no reference in his email to a potential difference between the purchase price/proceeds/value and the lower of the two figures designed to provide a 'strike price'. There is no reference to the claimant's entitlement being 15% of the difference between the purchase price/proceeds/value and the strike price. As a record of the particular agreement the claimant now alleges, it is a wholly unconvincing document.
I acknowledge that it is not always productive to consider the drafting of a document and say: "Well, if that is what was intended, why does it not say that?" If the document had been clear, the parties would not be arguing about it in court. But here, I consider that that is an appropriate way to test the claimant's case, because he himself made much of this email as being the only contemporaneous record of what was discussed at the Zuma dinner. If, as he repeatedly said, this was simple deal, then it is only fair to point out that that simple deal was not expressed in his own email. The variable commission agreement he asserted is not a difficult matter to express in English, if that is what the claimant believed the agreement to be. Moreover, it is not a question of a word or two out of place, or a semantic quibble over a word or phrase. The whole basis of the contract now asserted by the claimant is simply not recorded in his own email.
In my view, this fundamental failure is sufficient on its own to decide this case against the claimant. I cannot sensibly reach a conclusion about what was said on 23 March without reference to the email of 24 March 2011. The agreement asserted by the claimant is not recorded there: that might be thought to be the best possible evidence that there was no agreement in the terms he now asserts.
In addition, I consider that the key phrase, "a strike price for options", supports the first defendant's case as to the proposal under discussion, and therefore undermines the claimant's case still further. For the purposes of his claim in these proceedings, the claimant needs to say that in some way the "options" being referred to were not share options, and indeed were not options of any kind, but was instead a commission on a successful sale. Yet this part of his proposal hinges on the word "options".
The first defendant said that it was his understanding that this phrase related to share options in RunningBall, because they had discussed the possibility that the claimant would purchase such shares at some point in the future. In my view, it is difficult to see what else the phrase could have referred to: 'options' in this context must mean options to purchase shares. In the world of investment banking, this phrase would ordinarily mean that the claimant would be granted share options which he would be able to realise on the basis of one of his two electable alternatives. The claimant properly accepted in cross-examination that 'options' was a word usually connected to shares.
There was a good deal of evidence about whether or not it made any sense for the claimant personally to be offered the chance to buy shares in the RunningBall business at a preferential rate or at all. The claimant was adamant that this was never his intention and never a realistic or commercial possibility. The first defendant said that he had always understood that the claimant was at least potentially interested in buying shares in the RunningBall business and that, particularly in March 2011, he himself was interested in achieving a 'liquidity event': in other words, receiving some cash from the business which he had worked to build up.
For the reasons given there, I deal with the wider issues of commercial reality in Section 5.5 below. But I find on the balance of probabilities that there was a discussion at the Zuma dinner about the possibility of the claimant purchasing shares in the RunningBall business. It may have been vague and open-ended, as befitted the setting, and the claimant might have been flattering the first defendant without seriously considering this as a course of action for the future. But I find that this was the proposal referred to in the email of 24 March. That is consistent with the earlier references (paragraphs 16 and 18 above) to the claimant expressing disappointment that he had not in the past been able to invest in the RunningBall business.
In my view, there are four additional strands of the evidence, three relating to Mr Marty, that support this interpretation.
First, Mr Marty's witness statement said that he understood from his discussions with the first defendant that there was "the possibility of Bruce acquiring an option entitling him to purchase shares in RunningBall, so that upon a potential sale of the company he would also benefit". Mr Marty was cross-examined about this but he maintained that at no point had the first defendant told him that the claimant would automatically receive a reward on the sale of RunningBall and that it was Mr Marty's understanding that the claimant would only benefit in such a way if he had invested capital.
Although there was a certain amount of confusion (attributable to language difficulties) during Mr Marty's cross-examination, there was this important exchange:
"Q: So was it your understanding, as the Perform transaction agreement was developed, that when there was a sale to Perform, Mr MacInnes would benefit, or potentially benefit, on the sale to Perform?
A: Without having invested capital? No."
That answer was reiterated in re-examination. In my view, Mr Marty's evidence underlines my finding that the discussion on 23 March (and the record of that discussion in the email) centred around the possibility of the claimant investing in the RunningBall business by buying shares, so that he could benefit if the eventual sale price valued the RunningBall business at a higher figure. That was plainly how the possibility had been described by the first defendant to Mr Marty and I find that that was an accurate summation of the possibility that had been discussed by the first defendant and the claimant at Zuma on 23 March 2011.
Secondly, at some time after the dinner at Zuma, the evidence of both the first defendant and Mr Marty was that the first defendant discussed with Mr Marty the possibility of being able to offer an option over shares in RunningBall. It is a reasonable inference that the first defendant made this enquiry because of his conversation with the claimant at Zuma. Mr Marty told the first defendant that it was not possible to create such an option as things then stood and told him what had to be done to make that possible. I find as a fact that this conversation occurred and was the result of the discussion which the claimant and the first defendant had at the Zuma dinner.
Both of these strands of evidence were contrary to the claimant's case. In order to counter them, the claimant suggested for the first time in cross-examination that he had told Mr Marty about the detail of his alleged contract in June 2011 at a scout conference (the third strand of evidence noted above). But when he was told that Mr Marty had not attended the conference, the claimant abandoned this point, saying that he did not have "a clear recollection of the conversation". The alleged conversation was not put to Mr Marty at all.
Fourthly, there was the general evidence that others at RunningBall would have been appalled if the claimant had been able to take a share of the sale proceeds without investing any money himself. The first defendant put it on the basis that there would have been a "revolution" in such circumstances. On that point, there was a highly relevant email in May 2011 from the first defendant's mother expressing concern about the claimant having a "10% holding" in the company. This information had apparently originated from the first defendant. It is again consistent with the possible grant of share options, particularly as the interpreter explained that the original German used by Mrs Pittner was "beteiligung" (which means to have a part or share in something). The word "gewinnbeteiligung" which means a share of profit, was not used in Mrs Pittner's email.
These four strands of evidence, taken together, firmly support my conclusion that what was discussed on 23 March 2011 was the possibility of share options, not the payment of commission or a share of the profit on the sale of RunningBall.
But even if I am wrong about all of that, the plain fact is that the reasonable observer could not and would not have understood the claimant's email to provide for commission being paid by reference to the difference between proceeds of sale and a target price. The first defendant did not understand it as saying that: in that way, the email neatly encapsulates the misunderstanding between the two men. The highest the claimant can then put it is that he thought that his entitlement was based on a calculation involving the actual sale price (even though he did not say anything of the sort in his email) whilst the first defendant thought the proposal related to share options (even if, accepting the claimant's case for a moment, that was not the claimant's intention or capability). On that basis, the reasonable bystander would again conclude that there was simply no agreement in fact between the parties.
The confusion as to precisely what, even on the claimant's case, was agreed at the Zuma dinner carried over into the final submissions. At paragraph 50 of his closing, Mr Mansfield QC said that "the agreement was for 15% of RunningBall". That might be said to be describing the purchase of shares in the company up to 15% of its value, rather than the commission arrangement which the claimant maintained in his evidence.
As noted in paragraph 78 above, the law is that the greater the complexity of any agreement, the greater the need for it to be in writing, and that, if there is a trigger event, that needs to be plainly identified. Both principles are in play in the present case; as set out below, neither assist the claimant. I have already found paragraph 95 above that the absence of a written and/or draft contract pointed towards there being no intention to create legal relations; that lack of a written and/or draft contract also highlighted the uncertainty as to what (if anything) had been agreed at the dinner.
The claimant's version of the alleged agreement as to his remuneration was relatively complex (because of the different ways of recording the target price and the different ways in which purchase price/proceeds/value could be ascertained). I find that it therefore needed to be set out in writing. It was not. For that reason too, it cannot be said that there was a binding contract which required the first defendant to pay the claimant 15% of the difference between the actual sale price and the lower of the two alternatives noted in the email. In addition, I note that, during cross-examination, when talking about something else, the claimant said that an option to buy shares was 'a complex arrangement'. That of course is the first defendant's case and part of the reason why he maintained that no contract for a share option could have been made over dinner at Zuma.
On the 'trigger' point, it was the claimant's case that his remuneration would be triggered on a sale of the RunningBall business. Leaving aside the point that this critical matter was not referred to in his email at all, there are further difficulties with the claimant's case on this element of the alleged agreement which leads me to conclude that the trigger was wholly uncertain. This relates both to the date of the trigger and the method of calculation.
As to the method of calculation, the claimant's case was that he was entitled to 15% of the difference between the lower of the two figures that give rise to the so-called 'strike price' and
what? Sometimes the claimant said that the other figure was the value of RunningBall at the time of the sale. It was very unclear as to how that could be ascertained; there was no discussion about that, on 23 March or later, and no attempt to value RunningBall at the time that the claimant relinquished control of the company. Sometimes the claimant said it was the value of the shares that were sold, which is a different thing, because the value would be the value of the particular shares that were sold on a particular date. Sometimes he said it was the actual purchase price. But did that just mean the cash that was paid or did it also include the value of the shares in the purchaser, or both? Sometimes the claimant said it was the proceeds received by the first defendant, which would therefore have included the share options. But what value of the share options was relevant to the claimant's alleged commission: the value of the shares at the time of the sale, or the value when the first defendant chose to sell them? Even more importantly, the expression 'proceeds of sale' was not said to have been used on 23 March or in the email of 24 March: this refinement only arose after the sale to Perform (see Section 3.8 above).
All of the potential alternatives noted above give rise to genuine uncertainty as to how/when, on the claimant's case, the commission was payable. Take for example the actual purchase price. Perform paid various sums in cash but they also transferred to the first defendant a large amount of their own shares. That therefore created a significant risk for the first defendant, because the value of those Perform shares could have gone up or down. The first defendant retained those shares until such time as he deemed it appropriate to sell them. He picked his moment well and made a large amount of money on the Perform shares. The claimant now seeks to include within his claim in these proceedings a share of the profit which the first defendant made, at his own risk, on the Perform shares, so as to take advantage of the happenstance of the precise time when the first defendant decided to sell those shares.
I suppose it is conceivable that two businessmen could agree to such a deal whereby one takes all the risk and the other takes none. But, if so, I consider that such a deal would have to be carefully set out in writing because it would be an essential element of the so called 'trigger'. In the present case, there was no agreement in writing that came close to identifying the trigger in this way.
As to the alleged trigger being the date of the sale, Mr Weisselberg QC made clear, both in his cross-examination of the claimant, and in his closing submissions at paragraph 20.4, that this was also not a straightforward matter and also something which, in the ordinary course of events, would have been reduced to writing. At one point the claimant said that the sale was when there was a change of control. That was not stated in his email of 23 March. A sale could occur without there being such a change. The claimant acknowledged that, because he said that another possibility was that the commission would be triggered when an asset sale occurred rather than a sale of shares. On that scenario, he accepted that his entitlement to payment "would have been an implied term" because he accepted that this was not something that was explicitly discussed. In addition, the claimant accepted that, had a new partner acquired 51% new equity in the RunningBall business, but did not buy any of the old equity, his own entitlement to a commission fee would not have been triggered.
On this last point, the claimant sought to minimise the potential damage of his answer by saying that the sort of arrangement that he said that he had reached with the first defendant would not "envisage every eventuality where entitlement may not arise". I reject that. Anyone with any experience of commercial contracts, particularly those relating to commission and the payment of potentially large sums of money on the happening of future events, knows that the contract needs to be clear as to precisely what events trigger the payment of commission, and what events do not. That is why they are reduced to writing. Again I consider that the evidence in the present case was too vague to allow the court to conclude that there was a binding contract of the sort alleged by the claimant.
For completeness (although I do not consider that it is of any real relevance) I should deal with an issue which arose as to which of the parties first referred to the figures of 200/300 million as the value of RunningBall and the 15%. I find that it was the first defendant who first referred to the 200/300 million valuation. He did so, as he said, in a light-hearted way, it being so much more than he believed the business was worth (a view on which he was proved right). I consider that it was the claimant who first referred to the 15% (a view confirmed by the first defendant's email of 7 December), although from his evidence it appeared that the first defendant was also happy with the 15% because it was a percentage that meant that he retained control of the business.
By way of summary on these aspects of the case what I have called the absence of agreement, complexity and uncertainty I note that, during his cross-examination, when accepting that there was no full remuneration package agreed, because there was no salary, the claimant said that, in some way this did not matter, because the essential element of his remuneration was his entitlement to "a percentage of proceeds on the sale". You look in vain for that essential element of the deal in the email of 24 March 2011.
On a consideration of all the evidence, I also find that there was no enforceable agreement because there was no agreement or certainty as to the relevant parties. On analysis, this affects both sides of the alleged transaction.
I find that the claimant was not in a position to make any sort of immediate contract with the first defendant personally. He agreed in evidence, as was obviously the case, that in the run-up to the dinner at Zuma, he was an employee of Investec and that he was representing Investec. The meetings he had, such as the meetings with FSB, were as an Investec employee. He agreed that, from Investec's perspective, he was establishing contact and building a relationship with RunningBall. He confirmed that the work that he said that he would do in relation to Betgenius on the first page of the email of 24 March 2011 was also work that he was going to do in his capacity as an Investec employee. It is difficult to see how he could have committed to do anything else until after he had left Investec, let alone anything in a personal capacity. The email makes no reference to any personal contract.
After the dinner, the claimant continued to act for Investec and sent emails ostensibly on their behalf in connection with the RunningBall business: see paragraph 42 above. Although he said that in some way there was a "grey area" as to precisely who he was acting for, I consider that, in truth, it was clear: he was acting for Investec and he was representing Investec throughout the relevant period.
The claimant sought to say that in some way he was not representing Investec at the Zuma dinner and that he reached some personal agreement. But his contract with Investec did not permit him to do so. The evidence of Mr Currie did not suggest that he had given the claimant permission to reach any such arrangement.
For these reasons, I find that the claimant did not have the capacity to enter into the sort of agreement which he now alleges in his own name. On 23 March 2011, he could not contract in a personal capacity. He could only have done that for and on behalf of Investec.
The claimant sought to get round this difficulty in two ways. First, he said that he had permission from Mr Currie to carry out work on behalf of RunningBall during his four months' notice period with Investec. Secondly, he said, as noted in paragraph 57 above, that there was no difficulty with him undertaking this work and coming to this agreement before the end of July because the commission that he was going to earn on the sale of the RunningBall business would be paid long after he had left Investec.
There are numerous reasons why neither of these responses stand up to scrutiny. First, although Mr Currie had given general permission to the claimant to do some work on behalf of RunningBall whilst he worked out his notice with Investec, it was quite clear that Mr Currie did not appreciate the amount of work which the claimant was obviously doing. The information provided to Mr Currie on this point was misleading, such as the request to chair a meeting (paragraph 44 above) which suggested that the amount of time this work would take was very small. Mr Currie also said that he thought that it was "odd" that the claimant was using his Investec email account to conduct all of this business.
As to the commission on the sale of RunningBall, Mr Currie confirmed that this was precisely the sort of deal, and precisely the sort of commission arrangement, in which Investec would have been extremely interested. That makes complete sense. The claimant's contrary case, that this commission would not crystallise for some time, and was therefore of no interest or relevance to Investec was, with respect, a nonsense. I have found that the claimant introduced Perform to the first and second defendants at a time when he was employed by Investec. That would indicate that, prima facie, it was Investec who was entitled to any commission on the sale to Perform, regardless of when that commission was actually paid. That can be explained by parity of reasoning with the estate agent cases. When an individual estate agent, whilst working for X firm, introduces Y as a buyer, then sets up his own firm, and Y actually buys the house after the new firm has been set up, it does not mean that X is deprived of the commission earned by the individual when he was their employee, or that the new firm is entitled to the commission instead. Similarly, if an employee employed by company X does a deal with another company which will lead to the payment of commission, it is company X who is entitled to that commission. The fact that the trigger event happens later is irrelevant.
The claimant came close to conceding this point. He agreed that, if the sale had occurred whilst he was still an employee of Investec, he would have accounted to them for the whole sum. It would be absurd then to say that, if the sale was going to go through at the end of July, and had then been delayed for unavoidable reasons for a month, that would have meant that the claimant was entitled to the entire amount and Investec got nothing.
For these reasons, I am not persuaded that the claimant was or could have been acting in a personal capacity at the Zuma dinner. Thus, if there was any binding contract and for the reasons set out above, I have found that there was not it was not made by the claimant personally, but on behalf of Investec.
In relation to the first defendant, I simply cannot see how it could be said that there was any contract with the first defendant personally. There is nothing in either of the emails of 23 March or 7 December 2011 from the claimant to the first defendant which suggests that the agreement was personal to the first defendant. Everything suggests that, if there had been a binding agreement, it would have been with the first defendant as a representative of one or more of the RunningBall companies. It was, after all, the companies' business that the claimant was interested in, not the first defendant personally.
The email of 24 March specifically indicates that the relevant company was the second defendant, then called HTG Ventures. It is the only company to which express reference is made in the relevant paragraph dealing with "headline terms". The claimant's argument that the first defendant was representing the second defendant at the meeting on 24 March 2011 is hardly surprising: at business meetings between commercial men, it is very rare that they are doing anything other than representing their own companies or their clients. It was therefore understandable, on the claimant's case, how and why the second defendant was a party to these proceedings, and on this line of reasoning at least curious that that claim was abandoned on a "drop hands" basis.
Accordingly, I find that, in accordance with usual business practice, the first defendant was at the dinner representing the RunningBall companies, including the second defendant. That chimes with the claimant's evidence: when he denied that he regarded RunningBall as an investment opportunity and part of his own private portfolio of projects, the claimant said: "I was going to provide services to RunningBall". So he was and, up to a point, so he did. He was not providing services to the first defendant personally and he did not say that that was what he was doing or going to do.
Accordingly, I find that, if there had been a binding contract made at the Zuma dinner it would not have been made with the first defendant. Any such contract would have been with the second defendant or, less plausibly, with one of the other RunningBall companies. On that point, the issue arose as to the claimant's knowledge of the fact that the first defendant was not the sole owner of the RunningBall companies and therefore knew that the first defendant could not have made an arrangement that bound them in any event. I have found on the evidence that, prior to the Zuma dinner, the claimant was aware that the first defendant did not own all of RunningBall; that 5% was owned by Mr Marty (see paragraph 23 above).
The significance of this is that it is difficult to see how the claimant could have entered into a binding contract with RBHAG or RBAG at the Zuma dinner without Mr Marty's approval. Nor could he have been entitled to any commission payable on the entire proceeds of sale, because the first defendant was not entitled to 100% of the proceeds. It was not suggested that Mr Marty knew of, let alone approved of, this alleged agreement; all the evidence was that he did not.
For these reasons, I find that there can have been no contract with the first defendant personally. There can have been no contract with the first defendant on behalf of RBHAG or RBAG because he was not the sole owner, as the claimant knew. There could conceivably have been a contract with the first defendant on behalf of the second defendant because he was the sole owner of the second defendant but that claim has been abandoned so it is not now an issue which I am required to decide.
For these reasons, I find that the contract which is alleged, between the claimant personally and the first defendant personally, did not and could not have come into existence. Both men were discussing matters as representatives of their respective companies. If (contrary to all my primary findings) a binding contract was agreed at Zuma, it could only have been between Investec and the second defendant. But even that is not clear-cut: Mr Marty confirmed that the first defendant was not on the board of the second defendant, so it might have been difficult for him to make contracts on their behalf.
For what it is worth, I am also doubtful that there was sufficient certainty as to the services to be provided by the claimant to mean that a binding contract had come into existence. An agreed workscope is usually an essential element of any binding contract.
The proposed services to be provided by the claimant are not set out in the email of 24 March, something which he accepted in cross-examination. There is not even the vaguest outline. He suggested that the workscope was discussed at the meeting but when pushed, the claimant's description of those discussions were very vague. He said he would be performing a "senior strategic leadership function". He went on to say that it was unnecessary that the services were particularised. The first defendant's evidence was to the opposite effect.
I find that there was no discussion at the dinner about the services which the claimant would be providing, and the absence of any such discussion was reflected in the email of 24 March. Most of the email was about the future prospects of RunningBall, and some of it was about the options and the salary. With one possible exception, I find that there was no discussion of what the claimant might do if he came to work for RunningBall and there was no agreement about the scope of any such services.
The possible exception noted above concerns the reference in the email to the claimant acting as the CEO of the second defendant. I have already found that there is no single piece of paper in which any reference is made to the appointment of the claimant to this role. Moreover, the evidence demonstrated that this would have been a complete non-job. The second defendant's only role was to hold the first defendant's shares in the RunningBall business. There was therefore nothing for a CEO of the second defendant to do.
It is difficult to have a contract where the work to be performed under the contract is not either set out with some particularity, or is at least the subject of an agreed process which will identify what it is that is required. Neither applies here. I therefore find that there was no agreed workscope.
5.6 Other Matters
In the light of the views expressed in Sections 5.1-5.5 above it is, I think, unnecessary for me to set out my views on all of the other matters relied on by the parties in support of their respective cases that there was/was not a binding agreement made on 23 March 2011. However, in deference to leading counsel on both sides, it is appropriate to address briefly some of the other matters which appeared to exercise them most particularly.
Both sides argued that the arrangement contended for by the other was uncommercial. Thus the claimant said that it was uncommercial, even absurd, to suggest that he was going to invest in RunningBall, because there was never any suggestion that the first defendant required ready cash prior to the sale of the whole business. On the first defendant's side, it was argued that the arrangement contended for by the claimant was uncommercial because he would be getting what was referred to as "a free ride" and recovering a vast sum without investing or risking a penny of his own money.
In my view, each side's attempts to argue the uncommercial nature of the other side's position was overstated. Depending on the circumstances, there was a degree of commercial common sense about both possible arrangements.
Thus I find that the first defendant was clearly interested in turning some of the value of the RunningBall business in 2011 into ready cash the emails (including the claimant's) show this and that this was so even in December, when the first defendant could not assume that the sale to Perform would go ahead, and he said he still needed investment. So there was commercial common sense in the prospect of the claimant becoming an investor in RunningBall, particularly as he was such a believer in its worth.
Equally, the first defendant could in theory have agreed to a deal along the lines suggested by the claimant because, whilst it would on any view be a generous arrangement, it might be said to have incentivised the claimant to do all that he could to maximise the value of RunningBall prior to sale.
For these reasons, therefore, I reject each side's case that the other's interpretation of the discussions/email was uncommercial or contrived.
As noted above, on behalf of the claimant, Mr Mansfield QC made a number of submissions on the basis that the first defendant regularly made oral agreements with others in connection with RunningBall. This appeared to be part of what I have referred to as the 'similar fact' case. However, for the reasons noted above, I do not consider that this evidence was of any assistance on the issues I have to decide. First, it was not material which the claimant was aware of at the time of the alleged agreement with him. Secondly, many of these oral agreements replaced existing written agreements and/or related to those who were already party to a contract with RunningBall. The claimant fell into neither category. Thirdly, there was no evidence to gainsay the first defendant's assertion that, whatever the nature of other commercial contracts that he had agreed in the past, an agreement of the kind now alleged by the claimant to have been made on 23 March would not have been recognised under Swiss law.
Finally, and more broadly, I should reiterate that it is a fact of commercial life that commercial men do make oral contracts; the issue here is whether or not, in these particular circumstances, they reached a binding oral agreement without needing or requiring to see it in writing. That is the issue which I have addressed above and it is unaffected by other/different contracts that may or may not have been made by the first defendant or RunningBall in the past.
On behalf of the first defendant, Mr Weisselberg QC relied on a number of matters to suggest that it was unlikely that the claimant would have entered into the kind of agreement he now suggests. This was said to be (i) partly because the claimant and the first defendant had only met on a handful of occasions; (ii) partly because the information available to the claimant about the RunningBall business was so scanty on 23 March 2011; and (iii) partly because the claimant would not have entered into a binding agreement without first taking tax advice.
I consider that there was some force in all these points. Whilst commercial men can reach agreements worth more than this without ever meeting at all, I formed the clear view that the claimant, and particularly the first defendant, were people who liked to do their business face to face, against a background of personal contact. The first defendant's business was in part a family affair, with both his mother and his step-father playing an important role. I think it unlikely that either man would have agreed to the alleged deal on so casual an acquaintance.
As to the figures, it might be said that, in March 2011, the claimant was playing a hunch that RunningBall was a valuable entity, and subsequent events have proved him right. But that analysis risks placing too much emphasis on hindsight. At the time of the dinner, the only information available to the claimant about RunningBall's finances was a single spreadsheet containing mainly unaudited and forecast information. The claimant himself said that this was not enough to allow him to value the company or advise (paragraphs 19-20 above) and that even after the dinner he needed "asap to look at the numbers" (paragraph 43 above). There was simply not enough information for the claimant realistically to commit himself to the first defendant in the way alleged.
In some ways, the tax issue was the best point of these three. I consider that the claimant is not the sort of person to enter into an agreement potentially worth millions of pounds without taking tax advice as to how the deal could be structured and formulated in the most tax-efficient way. In his witness statements, he made no reference to having taken such advice prior to (or indeed after) 23 March. When he was asked about this in cross-examination, he indicated vaguely that he had taken tax advice at some stage, but it was unclear when, and no details or disclosure were ever provided. I find that, on the balance of probabilities, he had not taken any tax advice before the dinner on 23 March, because there was nothing fixed on which any advice could have been given. The absence of any documents also points away from such advice having been taken prior to 23 March. The absence of such tax advice was another confirmation that, as at 23 March 2011, the parties did not enter into a binding contract.
Finally, it is appropriate to address the issue as to whether or not the handshake, with which I find the evening was concluded, somehow confirmed a binding contract or was just a friendly goodbye. The claimant remembered the first defendant saying that he was shaking hands because that concluded the deal 'in the Asian way'. In his oral evidence, the claimant placed even greater weight on the handshake by saying that it was "the force of conviction with which he did that that persuaded me to go to Investec to confirm with them that I had agreed terms to leave". The first defendant denied both suggestions.
I find on the balance of probabilities that the first defendant did not refer to 'the Asian way'. There was nothing which objectively supported the making of such a statement: for example, it is not referred to in the claimant's email of 24 March. But I also find that, even if he had, that would not change the conclusions that I have otherwise reached. At one point, Mr Mansfield QC appeared to be suggesting that, whatever else I found, if I concluded that they had performed a handshake when the first defendant referred to 'the Asian way', or had done so with the alleged "force of conviction" noted above, then that somehow indicated a binding agreement. He very fairly rode back from that position once we started to analyse it. In my view it was plainly wrong: if there was no intention to create legal relations prior to the handshake, it is impossible to suggest that a handshake changed everything.
Accordingly, my findings on these other matters provide some further support for my principal conclusions set out above. On any view, they do not assist the claimant. As I have explained, they are not at the forefront of my decision or the reasons for it.
For the reasons set out in this Section, I conclude that there was no binding agreement of the kind alleged by the claimant, or at all. The contract claim must therefore fail.
6. THE LAW: QUANTUM MERUIT
The leading case is Benedetti v Sawiris  UKSC 50. This makes plain that, in order to establish a claim for unjust enrichment, the claimant must prove that:
(a) The defendant has been enriched;
(b) The enrichment was at the claimant's expense;
(c) The enrichment was unjust; and
(d) There are no defences available to the defendant.
A claim for unjust enrichment is not a claim for compensation for loss, but for recovery of a benefit unjustly gained by a defendant at the expense of the claimant, which is sometimes referred to as a "transfer of value": see Boake Allen Limited v MRC  STC 606, CA. The enrichment is valued at the time that it was received by the defendant. The starting point for identifying and valuing any benefit to the defendant is the objective market value, or market price, of the services provided by the claimant: see Cobbe v Yeoman's Row Management Limited  1 WLR 1753, HL. The defendant is entitled to prove that he did not subjectively value the benefit at all or that he valued it as less than the market price in order to reduce the quantum of the claim: see Sempra Metals Limited v IRC  1 AC 561, HL.
It has long been the case that, in certain situations, when considering a quantum meruit claim, the court can take into account any bargain or agreement reached between the parties which seeks to put a value on the services: see Way v Latilla  3 All ER 759, and Vedatech v Crystal Decisions  EWHC 818.
There was a dispute between the parties as to whether a remuneration agreement of the sort alleged by the claimant would, without more, represent the objective market value of the services provided, or whether it was only a factor for the court to take into account and that other material relating to the objective assessment of value would also be required.
For the reasons noted below, this is not a decision which, on my primary findings, I need to make in this case. But my conclusion on the principle, for what it is worth, is that, depending on the evidence, there may be cases in which an agreement between the parties as to remuneration may, without any further consideration, be taken as the best evidence of the objective market value of the services: see Lord Neuberger in Benedetti. However, such circumstances would be fairly unusual and/or limited, and it will usually be the case that the court will require other objective evidence relating to market value over and above the agreement reached between the parties.
7. IS THERE A CLAIM FOR A QUANTUM MERUIT?
The evidence demonstrates that the claimant performed services for the RunningBall companies. Arguably, therefore, he is entitled to be remunerated for the value of the services that he performed. However, for the reasons that I have given, I do not consider that he performed those services for the first defendant personally, so there can be no claim for a quantum meruit against the first defendant. Moreover, even if there was such a claim, it could not possibly be valued at 13.5 million, and there is no alternative claim and no other basis for calculating such a claim. The pleaded quantum meruit claim must fail. My reasons for these views are set out below.
In Section 5 above, I have rejected the claimant's case that he had a contract with the first defendant personally. For similar reasons, I also reject the claimant's claim that the first defendant was unjustly enriched personally as a result of the services performed at the claimant's expense. The services performed by the claimant were performed for either the second defendant, or the two RunningBall companies of which the claimant became chairman. Those are the entities which arguably benefitted from the claimant's services. Thus if there was any claim for unjust enrichment it would have lain against those companies. Again, I assume that that is why the quantum meruit claim was brought against the second defendant.
It would be a very unusual situation in which a claim for a quantum meruit would lie, not against the legal entities which allegedly benefited from the claimant's services, but against the majority shareholder of those companies. That is particularly so when the work that was done for those companies was done in order (so it is said) to increase their value prior to their sale. I consider that clear evidence of a personal obligation or liability, as opposed to one owed by the relevant company or companies, would have to be provided, because it is so contrary to ordinary business practice. As I have said, there is no cogent evidence that the claimant agreed to, or did, provide personal services to the first defendant, much less that he agreed to provide personal services for the first defendant which would see him remunerated on the sale of the companies for which, on his case, he was working.
In addition, there is also the point, noted at Section 5.4 above that, at the time of the dinner at Zuma, the claimant was also not in a position to offer personal services to anyone. That is of particular resonance when considering the quantum meruit claim because, as set out in paragraph 52e of Mr Mansfield QC's closing submissions, the claimant's case is that the principal 'service' he performed was the advice not to accept the Unibet/Kambi offer. That was advice given at a time when, as the claimant agreed, he was acting for Investec.
Objective Market Value
Now let us assume that I am wrong about those conclusions, and there was a quantum meruit claim against the first defendant personally. What is the objective market value of the services that the claimant provided to the first defendant? It is the claimant's case that this was represented by the agreement that was reached at the Zuma dinner and that therefore, by way of a quantum meruit claim, the claimant is entitled to 15% of the difference between the lower strike price (which because of the low 2011 EBIT was around 52 million) and the full amount recovered by the first defendant (in part because of when he sold his shares in Perform) of 142 million. In my view, that claim for a quantum meruit is misconceived.
The first reason is because, for the reasons set out in Section 5.3 above, I have concluded that there was no agreement to that effect between the parties. Leaving aside the absence of any intention to create legal relations, I have separately found that there was no agreement that the claimant would come to work for the first defendant and, in exchange, would receive 15% of the difference between the actual sums realised by the claimant on the sale of RunningBall, and the lower of the two strike price options. Because, as a matter of fact, there was no agreement along these or remotely similar lines, the claimant cannot say that there was an agreement that the 13.5 million represented the objective market value of his services. The absence of an agreement to that effect means, not only was there no contract which contained that as a term, but there can be no secondary claim for a quantum meruit in that amount.
I also consider that a quantum meruit claim put in these terms offends against common sense. In the absence of any objective evidence as to the market value of the claimant's services, I could not possibly rely on the 13.5 million figure alone. There is nothing against which that figure can be measured or otherwise assessed by the court. That reflects Mr Weisselberg QC's submission that, in an ordinary case like this, that which was agreed can only ever be one factor in the court's assessment and my conclusion that, at least in the ordinary case, that submission is correct.
But there are other practical reasons why I would not be prepared to accept this figure as the objective market value of the claimant's services. The reason why the amount of this claim is so large is because there is a 90 million difference between the lower of the two strike price options and the amount eventually realised by the claimant on the sale of RunningBall. But that difference, and therefore the 13.5 million, has been artificially inflated by two factors which had nothing whatsoever to do with the claimant or the services he provided. On that basis alone, the figure cannot represent the objective market value of his services.
First, the lower of the two strike price figures is extremely low (42 million) only because the 2011 EBIT was itself extremely low: the former is the product of the latter. Nobody suggests that this was a representative or realistic figure: it was, to use the vernacular, a 'blip'. The blip makes this alternative version of the strike price artificially low; that would mean that, in a case of unjust enrichment, the claimant would not be entitled to be compensated for his services by reference to that oddity.
Similarly, the amount realised by the first defendant was much higher than it would otherwise have been because the first defendant accepted a large amount of Perform shares, took the risk that they would not reduce in value and held on to them, but saw them increase in value and then sold them at the right time. That also artificially increased the difference between the first defendant's proceeds of sale, and the figure produced by the lower strike price. Again, that had nothing whatsoever to do with the value of the services provided by the claimant. Therefore, the difference could not possibly be said to give rise to an objective market value of those services.
Accordingly, even if there had been an agreement along the lines suggested by the claimant (and of course my primary conclusion is that there was not) that agreement could not, in the absence of any other evidence, amount to the objective market value of the services provided by the claimant. For all those reasons therefore, the quantum meruit claim for 13.5 million must also fail.
An Alternative Quantum Meruit Claim?
The quantum meruit claim fails for the reasons set out in Sections 7.2 and 7.3. However, for completeness, I need to deal briefly with the possibility that I am wrong about the parties (Section 7.2), and right to dismiss the claim for 13.5 million (Section 7.3). Is there an alternative quantum meruit claim?
During the course of his oral opening, Mr Mansfield QC made a passing reference to an alternative quantum meruit claim, in a lesser (unidentified) sum than the 13.5 million. I queried that, because it was not clear to me whether, on the face of the pleadings, there was any such claim. Indeed, that issue lay behind the first defendant's application, also heard on the first day of the trial, to strike out certain passages of the claimant's evidence because they comprised a half-hearted attempt to advance an unpleaded, alternative quantum meruit claim. I acceded to that application and gave an oral ruling explaining why. However, it is necessary to set out those matters in some detail to explain why, in this case, and perhaps surprisingly, there was no alternative quantum meruit claim for a lesser amount.
There was no pleaded claim for a quantum meruit other than for the 13.5 million. Although Mr Mansfield QC argued that an alternative was open to the claimant, because the particulars of claim asked for 'a quantum meruit to be assessed', I rejected that submission. A proper quantum meruit claim has to be set out in full services provided, value ascribed, explanation for that value in order that a defendant can consider it and join issue with those parts of the claim to which it takes objection. The court then has a claim, properly broken down, together with a detailed response to it, and will then have some proper material to work on in order to assess the quantum meruit claim. In the present case, there was no pleading of such a claim, and therefore no response of any kind from the first defendant.
The claimant was aware of the need to plead a proper quantum meruit claim if he sought a sum that was less than the 13.5 million and/or was calculated in a way other than by reference to the Zuma meeting. That is apparent from paragraph 31 of the claimant's reply, which said that particulars of the services provided and the value attached to them could not be provided until after disclosure. Disclosure happened, but there were no subsequent particulars or amendments. Accordingly, there has been no pleading in which the alleged services provided by the claimant have been set out, and no pleading of any values allocated or apportioned to those services.
As to the evidence, there was minimal material in the claimant's lengthy first witness statement about the services that he provided. There were no time sheets, no diary entries, and no list of tasks performed or services provided. The references in the statement were not intended to be comprehensive, and were designed to show generally what the claimant said he was doing as a consequence of the alleged contract, rather than providing the bare bones of an alternative quantum meruit claim.
As the authorities noted above make plain, there has to be objective evidence of the market value of the services in question. In a case of this sort, that is normally provided by way of expert evidence. In the present case, the first defendant made clear in his defence that this is what he expected the claimant to provide. Furthermore, the claimant was aware of the need for such expert evidence, because he expressly referred to his provision of such expert evidence, again after disclosure, in an answer to a request for further information from the second defendant. Again, however, no expert evidence was produced after disclosure. In my view, any alternative claim for a quantum meruit in the present case could not have been advanced in any way other than by way of an expert's report, because arrangements of this sort are complex, and the court has no experience of the relevant market and so is quite unable, from its own knowledge, to fix a market value for the services provided.
Sometimes in cases like these, where a claim is advanced for a quantum meruit based on an alleged agreement between the parties, a claimant is unwilling to provide a "bottom-up" claim, because such a claim will usually be for a much lesser amount. I am unable to say definitively whether or not that is the position here. But I find that:
(i) On one view, the main benefit conferred by the claimant was the firm advice not to sell to Unibet/Kambi: that is how it is put in Mr Mansfield QC's closing submissions. That advice was given when the claimant worked for Investec, so it is difficult to see how it could be part of his personal claim for a quantum meruit.
(ii) To reflect the work done by the claimant subsequently, the first defendant made an open offer of 300,000, which the claimant rejected as 'derisory'. But following that offer, the claimant did not produce any sort of time-based or non-global claim, even if only to demonstrate why the offer was indeed derisory.
(iii) In the absence of diaries and time-sheets, the evidence of what the claimant actually did for RunningBall between August 2011 and early 2012 is very limited.
(iv) Even recognising that at times the first defendant wrongly sought to play down the claimant's role, the general impression created by the documents available to me is that the claimant did surprisingly little from August 2011 onwards. He attended two board meetings, prepared the schedule of contracts, and attended some meetings in the early stages of the negotiations with Perform. He was not involved in the latter part of those critical negotiations. On the evidence, it is difficult to say that he did much else during the period he worked for RunningBall.
(v) In those circumstances, the claimant cannot realistically maintain that he was and should be remunerated as if he was the CEO of a major company. He simply did not do enough to warrant any such title.
In his first witness statement, and in a short second witness statement, the claimant sought to state his own opinion of the value of his services. This evidence was not linked to the services he provided (the evidence of which, as I have said, was very limited) but appeared to be a belated attempt to plug the gap and provide some vague evidence of market value which, on the claimant's case, would have kept some sort of alternative claim alive. The difficulty with this evidence was that it was discursive ("privately held firms owned by shareholders focused on maximising shareholder value typically seek to incentivise management primarily by the increase in value which they can achieve for their companies on a sale or IPO") and tangential (reference to an American study showing that the mean equity ownership for CEOs of privately held companies was 7.80%, compared to 3.57% for CEOs of public companies, by reference to data from 1996 to 2004). The claimant's opinion evidence produced no hard figures of any kind and, being unrelated to the services performed, did not usefully advance an alternative calculation. It did not provide any solution to the underlying difficulty with the pleaded quantum meruit claim, namely that it was presented as a global, all-or-nothing claim.
The first defendant objected to the admissibility of the opinion evidence in the claimant's witness statements. That was the matter on which I had to rule on the first day of trial. For the reasons noted above, I allowed that application. In summary, that was because:
(i) The valuation evidence, such as it was, did not go to any pleaded issue, there being no pleaded claim for an alternative sum by way of the quantum meruit.
(ii) It was evidence of opinion from the claimant himself, and there was nothing to suggest that any of the exceptional rules that sometimes allow that kind of (otherwise inadmissible) evidence applied here. Certainly nothing was drawn to my attention that would have put the claimant in one of those exceptional categories.
(iii) Even if there had been no pleading point, and even if the evidence had otherwise been admissible, I would not have allowed it because it would not have been of any utility to the court. It was much too vague: a series of generalised assertions about what might generally be an appropriate approach in other circumstances, which was unlinked to the services actually performed by the claimant in this case.
For all these reasons, therefore, I struck out the offending parts of the claimant's statements. Thus, there was no pleaded claim for an alternative amount, no proper schedule of services provided or value to be attached to them, and no relevant or admissible evidence in support. In those circumstances, whether by accident or design, the claimant has not put forward any alternative claim for a quantum meruit. Although in his closing submissions, Mr Mansfield QC sought to maintain that I could still find some lesser sum due, I reject that submission for the same reasons noted above.
In addition, there was a somewhat half-hearted suggestion that I should do what Jacob J did in Vedatech and send the alternative quantum meruit claim off for assessment by a third party. That would be wholly inappropriate in the circumstances as I have found them to be. First, there is no quantum meruit claim against the first defendant personally. Secondly, the claimant has always been aware of the possibility that, in these proceedings, he may need to advance an alternative quantum meruit claim which did not rely on the 13.5 million, and has deliberately chosen not to do so. It would be unjust and contrary to the overriding objective to give him the opportunity to do so now, following the failure of his pleaded claims.
For the reasons set out above, I dismiss the claimant's claims and enter judgment for the first defendant.
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