Trico Ltd v Anthony Buckingham

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: Matthew Thompson
• Judgment Date: 29 May 2019
• Neutral Citation: [2019] JRC 95
• Date: 29 May 2019

Between

Trico Limited

Plaintiff

and

Anthony Buckingham

Defendant

[2019] JRC 95

Before:

Advocate Matthew Thompson, Master of the Royal Court.

Royal Court

(Samedi)

Disputes — decision

Authorities

Three Rivers dc v Bank of England (Disclosure) No.3 [2002] EWHC 27

Brakspear & Ors v Nedgroup Trust (Jersey) Limited [2018] JRC 121

Makarenko v CIS Emerging Growth Limited [2001] JLR 348

JSC Bank of Moscow v Kekhman [2015] EWHC 3073 (Comm)

De La Haye v De La Haye [2018] JRC 233

Rainy Sky SA v Kookmin Bank [2011] UKSC 50

Wood v Capita Insurance Services Limited [2017] UKSC 24

Royal Court Rules 2004 (as amended)

Amy v Amy [2011] JCA 144

Long v Farrer & Co [2004] EWHC 1774

MacFirbhisigh & Ching v C.I. Trustees & Ors [2017] JRC 130A

2018 Civil Procedure Guide

( BCCI v Ali [2002] 1. A.C. 251

Nasser Kazeminy v Kamal Siddiqi & Ors [2012] EWCA Civ 416

Khanty-Mansiysk Recoveries Ltd v Forsters LLP [2018] EWCA Civ 89).

Officeserve Technologies Limited (In Liquidation) v Anthony-Mike [2017] EWHC 1920 (Ch)

Vilsmeier v AI Airports Int Ltd and PI Power Int Ltd [2014] (1) JLR Note 26

Berezovsky v Hine [2011] EWCA Civ 1089

FM Capital Partners Limited v Marino & Ors [2017] EWHC Civ 3700 (Comm)

Advocate H Sharp for the Plaintiff.

Advocate J. S. Dickinson for the Defendant.

CONTENTS

		Paras
1.	Introduction	1
2.	Background and relevant chronology	2–33
3.	The application to re-amend	34–53
4.	The meaning of the Side Letter	54–88
5.	The application for summary judgment in relation to the Side Letter	89–105
6.	Decision on summary judgment application	106–114
7.	The Release	115–140
8.	The specific discovery application	141–157
9.	Decision	158–165

THE MASTER:

Introduction

1 This judgment represents my decision in respect of the defendant's application to re-amend his answer and the plaintiff's application for summary judgment. This judgment also contains my decision in respect of a specific discovery application by the defendant which was heard at a later date than the defendant's application to re-amend his answer and the plaintiff's application for summary judgment.

Background and relevant chronology

2 The dispute between the plaintiff and the defendant relates to a contract the plaintiff claims to have entered into by a letter dated 13 ^th February, 2014 (the “Side Letter”). It is both in dispute whether the plaintiff entered into a contract based on the Side Letter and, if the defendant did enter a contract, what was the meaning of the Side Letter.

3 The Side Letter provides as follows:-

“I confirm that upon successful completion of a ‘take private’ or any other transaction involving HBJ (as defined in the engagement letter between Trico Limited and Heritage Oil Plc), that I will be responsible to pay Trico Limited a fee calculated as 3% of monies or other consideration received by me (or received by entities legally or beneficially owned or controlled, directly or indirectly, by me —excluding Heritage Oil Plc itself, which is covered by the separate engagement letter between Trico Limited and Heritage Oil Plc) as a result of any and all transaction(s) with HBJ, to the extent that Trico Limited has not received a fee from Heritage Oil Plc directly in respect of the same monies received.

This engagement may be terminated without cause at any time by any party giving written notice to the other party.

The fee arrangement set out in this letter survives the termination of this engagement in the event that any transaction involving HBJ (as defined in the engagement letter between Trico Limited and Heritage Oil Plc) occurs within eighteen months of the date of termination of this engagement.”

4 It was not in dispute that the engagement letter referred to in the Side Letter was an agreement recorded in a letter between the plaintiff and Heritage Oil Plc (“Heritage”), also dated 13 ^th February, 2014. This letter has generally been referred to as the “Advisory Agreement” and so I have adopted this definition.

5 The Advisory Agreement was signed by Mr Terry Ruane a director of the plaintiff and Mr Paul Atherton as Chief Financial Officer of Heritage. The relevant parts of the Advisory Agreement are as follows:-

“1. Objectives of Engagement

…

The target timeline to complete the transaction is 3 months. However, for the purposes of this Engagement the target completion period will be automatically extended for so long as meaningful discussions are taking place between the Company and the Sourced Investors (defined below).

…

Our responsibilities

Mr Ruane of Trico had a meeting in Paris last week at which he described Heritage's business and activities to a private investor from Qatar whom Mr Ruane has had a relationship for over 25 years who, directly or indirectly and with a partner, is interested in acquiring a strategic stake in Heritage or alternatively may seek to enter into an investment or funding transaction with Heritage or through any joint venture or partnership with Heritage (for the purposes of this Engagement Letter it is agreed that this private investor or any other investor introduced by Trico making a direct or indirect investment in Heritage as a result of the involvement of this private investor will be a Sourced Investor).”

6 Clause 2 contained provisions as to the basis upon which the plaintiff was to be paid by Heritage as follows:-

“Investment success fee:

A success fee is payable by Heritage to Trico on completion of an Investment by Sourced Investor(s) (including any joint venture, syndicate or consortium that a Sourced Investor(s), or their nominated affiliate, participates in) equal to 4.5% of the gross value of the offer to shareholders in Heritage, and will exclude the market capital of any shareholders who retain an equity interest in the company post the Investment.

In the event that the Investment is structured as a public offer to acquire all or part of the shares in Heritage by one or more Sourced Investors (including, for the avoidance of doubt, in a ‘take private’ situation involving a Sourced Investor and one or more existing shareholders of Heritage) you shall pay us a success fee equal to 4.5% of the total value of the offer if the offer successfully completes, and will exclude the market capital of any shareholders who retain an equity interest in the company post the investment.

In the event that the Investment is structured as an offer to the Company to acquire shares held in treasury or to participate in a new issue of shares, Heritage shall pay Trico a success fee equal to 4.5% of the total value of the transaction if the transaction successfully completes.

In the event that the Sourced Investor(s) provide alternative funding or investment to Heritage, for example and not an exhaustive list (i) by contributing assets to Heritage in return for shares, (ii) by providing funding for one or more asset acquisitions by Heritage, (iii) by acquiring one or more assets currently owned by Heritage, (iv) by providing debt or equity funding to Heritage in any other form including, for example, in the form of a preferred bond, you shall pay us a success fee equal to 4.5% of the total value of the funding, investment or transaction value as appropriate, if the relevant funding or investment transaction successfully completes.”

7 By the time the matter came before me, it was no longer in dispute that the defendant's signature appeared on the Side Letter. I address later in this judgment the procedural history of this matter but by the time of the hearing of the application for summary judgment what remained in dispute was whether the Side Letter was executed on 13 ^th February, 2014, as claimed by the plaintiff. I note that the plaintiff does not allege that the Side Letter was executed on any other date. The defendant denies that the Side Letter was executed on 13 ^th February, as alleged, and therefore argues there is no contract as claimed by the plaintiff.

8 In support of its application for summary judgment, the plaintiff relied on the affidavit of Matthew Corbin a director of the plaintiff sworn on 5 ^th November, 2018, and four affidavits of Terence Ruane sworn on 7 ^th November, 2018, 4th January, 2019, 14th February, 2019 and 4th March, 2019.

9 The defendant relied upon his second affidavit sworn on 17 ^th October, 2018, his third affidavit sworn on 9 ^th November, 2018, his fourth and fifth affidavits both sworn on 30 ^th January, 2019, and the affidavit of his partner Anna Sosnowska also sworn on 30 ^th January, 2019.

10 The proceedings were commenced by order of justice dated 14 ^th May, 2018, and served on 25 ^th May, 2018. Paragraphs 6 to 8 of the order of justice plead as follows:-

“6. At the time the Advisory Agreement was entered into, Mr Buckingham was the CEO of Heritage and the beneficial owner (through Albion) of some 34 per cent of its total issued share capital (the Initial Shareholding).

7. In light of inter alia his significant role in the business, it was contemplated by all relevant parties (including Trico, Heritage and Mr Buckingham) at the time the Advisory Agreement was entered into that Mr Buckingham was likely to retain his beneficial interest in some or all of his Initial Shareholding immediately following the Investment, but may subsequently transfer such to the Sourced Investor at a later date and/or in such a manner that fell outside the terms of the Advisory Agreement.

8. Accordingly, Trico entered into an agreement with Mr Buckingham on or around the same date as the Advisory Agreement (the Buckingham Agreement).”

11 The order of justice then alleges that on an unknown date in 2018, the defendant sold his shares in Heritage which sale the plaintiff argues was covered by the terms of the Side Letter. Therefore the plaintiff claims 3% of...