Trico Ltd v Anthony Buckingham

• Jurisdiction: Jersey
• Court: Court of Appeal
• Judge: Clare Montgomery,James McNeill,Helen Mountfield
• Judgment Date: 11 May 2020
• Neutral Citation: [2020] JCA 67
• Date: 11 May 2020

[2020] JCA 67

COURT OF APPEAL

Before:

James McNeill, Q.C., President;

Clare Montgomery, Q.C., and

Helen Mountfield, Q.C.,

Between

Trico Limited

Plaintiff

and

Anthony Buckingham

Defendant

Advocate H. Sharp, Q.C., for the Plaintiff.

Advocate J. S. Dickinson for the Defendant.

Authorities

Trico Limited v Buckingham [2020] JRC 009.

Trico Limited v Buckingham [2019] JRC 095

Trilogy Management Limited v YT Charitable Foundation (International) Limited and Others [2012] JCA 152.

Abdel Rahman v Chase Bank (C.I.) Trust Company Limited [1984] JJ 127.

HRCKY Limited v Hard Rock Limited and Anor [2019] JCA 123.

De la Haye v De la Haye [2018] JRC 233.

Trilogy Management v YT and Others [2012] (2) JLR Note 19.

Trilogy Management v YT and Others [2012] JCA 152.

La Petit Croatie Limited v Ledo [2009] JCA 221.

In Re Internine Trust [2005] JLR 236.

Royal Court Rules 2004.

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

Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1.

Optaglio v Tethal [2015] EWCA Civ 1002.

Campbell v Campbell and Ors [2016] JRC 190.

Ladd v Marshall [1954] 1 WLR 1489.

Rhesa Shipping SA v Edmunds [1985] 1 WLR 948.

Wood v Capita Insurance Services Limited [2017] AC 1173.

Amy v Amy [2011] JLR 603.

HRCKY Limited v Hard Rock Limited and Anor [2019] JCA 123.

Court of Appeal — dispute — re: an agreement contained in a side letter.

THE PRESIDENT:

INTRODUCTION

1 Each of Trico Limited (“the Plaintiff”) and Anthony Buckingham (“the Defendant”) has appealed a judgment of the Royal Court, Samedi Division (Le Cocq, Bailiff, and Jurats Averty and Hughes) Trico Limited v Buckingham [2020] JRC 009 dated 14 January 2020, on appeal from a judgment of the Master of the Royal Court (Advocate Matthew Thompson) Trico Limited v Buckingham [2019] JRC 095 dated 29 May 2019. The issues in dispute concern an agreement contained in a letter (“the Side Letter”) allegedly signed on 13 February 2014. The Plaintiff's appeal relates to the Royal Court's decision to uphold the decision of the Master that the matter proceed to trial, he having refused to grant summary judgment against the Defendant in damages for breach of the terms of the Side Letter. By his appeal, the Defendant contends that, whether the Side Letter was properly executed, on its true construction it does not apply to the transaction giving rise to the sum claimed by the Plaintiff.

FACTUAL BACKGROUND

2 The factual background is set out in the judgments of the Master and of the Royal Court. For the purposes of these appeals the following summary is a sufficient introduction.

3 The Plaintiff is a Jersey company whose chairman is Terence Ruane (“Mr Ruane”). Its other directors are Matthew Corbin (“Mr Corbin”) and Clare Treharne (“Ms Treharne”).

4 The Defendant is a businessman who, in the early 1990s, founded a company known as Heritage Oil Limited (“Heritage”). In 2014 the Plaintiff and Heritage signed a letter of engagement dated 13 February (the “Advisory Agreement”), whereby the Plaintiff was engaged to introduce Heritage to His Excellency Sheikh Hamad bin Jassim bin Jaber al Thani (“HBJ”), a member of the Qatari Royal Family, or to other (previously agreed) sourced investors, with a view to Heritage obtaining outside investment. Upon the Plaintiff fulfilling its responsibilities and upon certain types of investment being made, Heritage undertook to pay the Plaintiff a success fee of an amount equal to 4.5% of the value of the subject transaction.

5 On the day on which it is alleged the Advisory Agreement was executed, the Plaintiff alleges that it and the Defendant entered into the Side Letter. This is denied by the Defendant.

6 The Side Letter was in the following terms:-

“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.”

7 A ‘take private’ transaction was completed by June or July 2014 (“the 2014 Transaction”) whereby Energy Investments Global Limited (“EIGL”) acquired 80% of the share capital of Heritage for the sum of £739,187,084.80 following which Heritage was delisted from the FTSE 250 and taken private. In that transaction, the Defendant sold a personal 4.63% shareholding in Heritage; and Albion Energy Limited (“Albion”) sold a 9.41% shareholding in Heritage but retained a 20% shareholding. Also, the Defendant entered into arrangements pursuant to which, among other matters, he agreed to act as a consultant to Heritage and agreed to restrictions upon the sale by Albion of its remaining shares in Heritage for 5 years.

8 After that sale, the Plaintiff sought payment of about £33M, being 4.5% of the sum paid by EIGL. Following negotiations between HBJ and Mr Ruane, the Plaintiff agreed on about 10 July 2014 to accept a payment of £16M. At the same time the Plaintiff and Heritage negotiated an instrument of termination and release which was executed on 21 July 2014 (“the Release”). The Release provided that, in consideration of the payment of the said £16M, Heritage and its shareholders, subsidiaries, employees, directors, consultants and agents were discharged from any claims and duties under, in respect of or in connection with the Advisory Agreement. It provided further that all provisions of the Advisory Agreement were terminated, including those expressly stated as surviving termination.

9 In January 2018, Albion sold its remaining 20% shareholding in Heritage to EIGL for US$100M payable in three instalments during 2018 (“the 2018 Transaction”). EIGL failed to make full payment and Albion issued proceedings against it in the High Court of England and Wales to recover the unpaid sum of about US$13M. We have been informed that Albion was granted summary judgment against EIGL for payment of that sum on 14 February 2020. EIGL has since sought leave to appeal.

10 By the present proceedings the Plaintiff claims that, pursuant to the terms of the Side Letter, the Defendant owes it 3% of US $100M, i.e. US$3M.

11 Although the Defendant initially denied having signed the Side Letter, he later admitted that it bears his signature although he does not recall when and where it was signed and specifically denies that it was signed at the alleged meeting at his home on 13 February 2014. In its appeal, the Plaintiff contends that the only issue is whether the Defendant is bound by the Side Letter in the absence of any pleaded case of fraud or any other pleaded case that would vitiate the otherwise binding nature of the Defendant's signature. The Plaintiff says that, as there is no issue that requires a trial, it is entitled to summary judgment. The Defendant contends that nothing more than a tenable denial is required. The Defendant, in its appeal, contends that, without prejudice to whether it is binding on him, the Side Letter, on a proper construction of its terms, did not apply to the 2018 Transaction. This is contested by the Plaintiff.

THE TEST ON APPEAL

12 On 14 January 2020 each party was granted leave to appeal by the Bailiff.

13 The parties are agreed that the proper construction of the Side Letter is a matter of law in which the court's function is as described by the Court of Appeal in Trilogy Management Limited v YT Charitable Foundation (International) Limited and Others [2012] JCA 152 (at paragraph 68):

“On an appeal raising a question of construction, the Court of Appeal will no doubt, as in all matters of law, give careful consideration to the views expressed by the Court below, but it must itself decide what as a matter of law the relevant words mean.”

14 At this interlocutory stage, we are concerned only with the documentary evidence which has been considered both by the Master and by the Royal Court and it follows that the views expressed by the courts below carry less weight than when a lower court has had the benefit of hearing witness evidence.

15 The test to be applied by this court in relation to an appeal in respect of an interlocutory decision was set out in Abdel Rahman v Chase Bank (C.I.) Trust Company Limited [1984] JJ 127 and approved by this court in HRCKY Limited v Hard Rock Limited and Anor [2019] JCA 123 (at paragraph 7). This court will only interfere with the decision of the Royal Court if:-

• “i. The Royal Court misdirected itself with regard to the principles in accordance with which the discretion has been exercised; or

• ii. The Royal Court, in exercising its discretion, has taken into account matters which ought not to have been taken into account or has failed to take into account matters which ought to have been taken into account; or

• iii. Where the decision is plainly wrong; or

• iv. There has been a change of circumstances after the Royal Court made its order that would justify acceding to an application to vary it.”

THE MASTER'S JUDGMENT

16 The Master's judgment dealt with five different matters:

• (1)...