"The Investec mandate is twofold phase 1 is an assessment of our optimal capital structure, for now through to potential IPO, and identifying potential lenders to approach; phase 2 is to carry out the debt raise, to completion. Phase 2 is, in essence, identical to your proposal, but without the specialist African element if we seek to fish in that pool. Hence, I would need to have you work hand in hand without upsetting either. I think this is possible but we need to broach this with invested [sic] which we shall do this week…"
"I still believe that TRG is effectively doubling its fees and adding an additional layer of complexity as Investec does not have the appropriate track record and the best option would be to cancel Phase 2 of the mandate (or suspend it) so that we can raise the most appropriate funding for the Group, especially as I assume very little work has been done to date. Alternatively, TRG could carve out the list of names I provided in the PP…and we can raise the best financing for the Group without affecting the Investec mandate. That said, it is obviously TRG's choice as to how it wishes to proceed and I've held joint mandates with a number of institutions….though not Investec, which again, points to its not operating in this market and can do so on this occasion. I would recommend that we run the process through to ensure a successful close but again it is TRG's choice…"
"Following recent discussions between the Parties, in relation to [TRG's] intentions to raise the Facilities, we are pleased to set out in this Engagement Letter the terms and conditions under which we are prepared to offer our loan execution support services to [TRG] for the purpose of raising the Facilities."
" 1. Appointment 1.1 By accepting the terms of this Engagement Letter, [TRG] agrees to appoint EMFC to assist in the execution of the Facilities and EMFC agrees to fulfil such appointment. 1.2 EMFC shall be working in conjunction with [TRG's] debt advisor, Investec Bank plc. 1.3 Until this Engagement Letter terminates in accordance with paragraph 14 (Termination), no other person shall be appointed to execute the Facilities without the prior written consent of EMFC. 2. Scope of Work 2.1 EMFC's execution of the Facilities on behalf of [TRG], will entail undertaking certain tasks to be agreed with Investec…as soon as possible after the date of this Engagement Letter (the "
"The difficulty was the result of wanting to approach two different lending markets with different needs by reference to [a] single document using two advisors, each of which exclusively, or very close to exclusively, had experience of each different lending market. It was compounded…by Mr Green's failure to engage timeously in the process…."
"….That was not what he had said nor what Mr Scott understood him to have said and it is not what a reasonable person with all the knowledge of the parties to that call would have concluded him to have been saying from the language used in the email and/or by him in the subsequent telephone conversation as recorded in the notes prepared by Mr Scott."
"…Whatever had been said by Mr Scott and Mr Addington in their earlier conversation on16 January 2016 had been overtaken by [TRG's] internal decision to proceed with Investec alone…"
"64...I do not accept that as is alleged in…the defence, the 16 January email was a repudiation. It was not a refusal to travel to Cape Verde in absolute terms either. As I said earlier, I do not accept that in the conversation following, Mr Addington said no one from [EMFC] would travel to Cape Verde in any absolute sense. The point being made was that in Mr Addington's opinion, it was not in [TRG's] interests that [EMFC] should travel to Cape Verde unless and until the difference between Investec had been resolved. The subsequent call following the internal discussion within [TRG's] management shows that to be [TRG's] understanding. In my judgment, therefore, the repudiation defence fails."
"68. The opening words of clause 6 make clear that the fees set out in the following sub paragraphs were payable; 'for the delivery of its loan execution support services'. Under clause 6.3, the fee is described as a completion fee calculated on the gross amount of the facilities as referenced in the facilities documents and by clause 6.5 it becomes due on the date of signing of the relevant facilities documents and payable when the proceeds under the facility are first drawn down. 69. If the support services were not to be the or an effective cause of the transaction in respect of which payment of the completion fee was claimed, then an entirely artificial and commercially unreal situation would result in which as here a very substantial fee would become payable for performing work that had no connection at all with the transaction by reference to which payment was claimed. That is an entirely unreal and uncommercial outcome and one that would require clear express wording to achieve that result. As Mr Allen correctly submits it would have been open to the claimant to have terminated the agreement under clause 14.2 the day after it had been concluded and without having done anything significant and still claim the completion fee under clause 14.4. There is no such language nor is there anything in the language of that agreement read as a whole that suggests this outcome was intended by the parties at the date the agreement became binding between the parties. Such an outcome is contrary to business common sense when viewed at that date from the perspective of reasonable people with all the knowledge of the surrounding circumstances that each of the parties to the agreement had. 70. It necessarily follows from what I have said so far that even if I am wrong to conclude that the agreement should be construed as subject to an effective cause requirement as described above, there is nothing within the contract taken as a whole that contradicts or is inconsistent with the implication of a term to that effect. Mere silence does not give rise to inconsistency. 71. It follows that even if I am wrong to conclude that the agreement is to be construed as subject to an effective cause requirement, it is necessary to imply such a term in order to give the contract business efficacy or to give effect to the presumed common intention of the parties. In my judgment, the points I have made already concerning commercial absurdity means that clause 6.3 lacks commercial or practical coherence in the absence of an implied term to the effect that the completion fee would become payable only if "… the delivery of [the claimant's] loan execution support services …" were an effective cause of the facility by reference to which payment was claimed. As has frequently been observed in numerous Court of Appeal decisions in this area such a term to this effect is relatively easily implied."
"Subject to any special terms or other indications in the contract of agency, where the remuneration of an agent is a commission on a transaction to be brought about, the agent is not entitled to such commission unless the services performed were the [3] effective cause of the transaction."
"There is, I think considerable difficulty, and no little danger, in trying to formulate general propositions on such a subject, for contracts with commission agents do not follow a single pattern and the primary necessity in each instance is to ascertain with precision what are the express terms of the particular contract under discussion, and then to consider whether those express terms necessitate the addition, by implication, of other terms…in contracts made with commission agents there is no justification for introducing an implied term unless it is necessary to do so for the purpose of giving to the contract the business effect which both parties to it intended it should have."
"…[TRG] agrees to appoint EMFC to assist in the execution of the Facilities and EMFC agrees to fulfil such appointment". (emphasis added) In clause 2.1 the position is confirmed: EMFC's "execution of the Facilities" was to "entail certain tasks…such Scope of Work to include all tasks typical in a mandate of this type", as illustrated in the schedule. The schedule again indicates that EMFC's services are to assist and support, not deliver the Facilities themselves. Mr Allen pointed to the repeated references to "execution" in the Contract, for example the reference in the preamble to EMFC's offer of its "loan execution support services"
"1. If one party evinces an intention not to perform or declares his inability to perform some but not all of his obligations under the contract, then the right of the other party to treat himself as discharged depends on whether the non-performance of those obligations will amount to a breach of the condition of the contract or deprive him of substantially the whole benefit which it was the intention of the parties that he should obtain from the obligations of the parties under the contract then remaining unperformed…; 2. The innocent party has a choice whether to accept the repudiatory breach or affirm the contract. He must "elect" or choose between these options….;… 7. If a repudiatory breach of contract is accepted, then the innocent party is relieved of any further performance of his primary obligations under the contract - see Chitty Volume One at paragraphs 13.019 and 24-001 and the cases cited therein."
"EMFC shall be working in conjunction with…Investec.."
"64...I do not accept that as is alleged in…the defence, the 16 January email was a repudiation. It was not a refusal to travel to Cape Verde in absolute terms either. As I said earlier, I do not accept that in the conversation following, Mr Addington said no one from [EMFC] would travel to Cape Verde in any absolute sense. The point being made was that in Mr Addington's opinion, it was not in [TRG's] interests that [EMFC] should travel to Cape Verde unless and until the difference between Investec had been resolved. The subsequent call following the internal discussion within [TRG's] management shows that to be [TRG's] understanding. In my judgment, therefore, the repudiation defence fails."