"48. In this regard I would say something about the importance of contemporary documents as a means of getting at the truth, not only of what was going on, but also as to the motivation and state of mind of those concerned. That applies to documents passing between the parties, but with even greater force to a party's internal documents including emails and instant messaging. Those tend to be the documents where a witness's guard is down and their true thoughts are plain to see. Indeed, it has become a commonplace of judgments in commercial cases where there is often extensive disclosure to emphasise the importance of the contemporary documents. Although this cannot be regarded as a rule of law, those documents are generally regarded as far more reliable than the oral evidence of witnesses, still less their demeanour while giving evidence. The classic statement of Robert Goff LJ in The Ocean Frost[1985] 1 Lloyd's Rep 1 at p.57 is frequently, indeed routinely, cited: "
“It is not to be forgotten that, in the present case, the Judge was faced with the task of assessing the evidence of witnesses about telephone conversations which had taken place over five years before. In such a case, memories may very well be unreliable; and it is of crucial importance for the Judge to have regard to the contemporary documents and to the overall probabilities.”
"19. The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces. 20. Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness's memory has been 'refreshed' by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events."
"In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose - though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth."
“So, I had a two hour meeting with Anish and laid down a gauntlet. The net result is he will work with Musst Investments and understands how we operate. The specifics of a deal have not been decided, but the essence of the deal has been transmitted, and I think he gets it…. Hence, it is time to morph his pitch book and move the story forward. I have suggested a meeting with the three of us. I have told him, I will write his pitch book, but before that I will ascertain his competition. One of them, who is EU focused is [gives website address] and as it happens is advised by Adosh. The other is [gives website address]. I will get meetings with both of them and ascertain what they do. Will give me ideas for our pitch.” (3) There were encouraging emails between Mr Siddiqi and Mr Mathur including on 17 and18 January 2012 in the following terms: i.17 January 2012 from Mr Siddiqi: “It was really good talking yday, Anish, and I am happy that you are comfortable involving me. From my side, let me assure you … as I mentioned to you yesterday, I would never put my name on anything that I did not completely believe in nor had an interest in. …. Most importantly, I am happy that you feel comfortable trusting me and vice versa. Looking forward to building a big business that is successful and has long term legs”. ii.18 January 2012 from Mr Mathur: “As usual, I am quite amazed with your network and ability to connect dots. I hope we are able to take this forward. Not only am I pleased that you’re keen to be involved, I am actually very happy that you believe in the opportunity and my abilities to capitalized it [sic] for all of us.” (4) After a meeting with Mr Siddiqi, Ms Galligan, Mr Mathur and Mr Shamil Chandaria on8 February 2012 , Mr Reeves sent an email on9 February 2012 setting out what he believed needed to be done, which involved, amongst other things, creating a “pitch book” , a “product structure” , and working out which clients to target. He also gave a few initial thoughts on a sales strategy. At a further meeting the next day, Mr Siddiqi, Mr Mathur and Mr Reeves spent a few hours working on the “pitch”, which resulted in Mr Siddiqi coming up with a “one pager”. (5) In emails in February 2012 and March 2012, Mr Reeves suggested various terms which could apply as between MUSST and Matrix in relation to Mr Mathur’s project, and also on another deal, which involved raising money for an equity fund backed by Mr Shamil Chandaria and run by Octave. He noted that terms needed to be agreed between MUSST and Mr Mathur before agreement could be reached between MUSST and Matrix. (6) More particularly, on15 February 2012 , there was an email from Mr Reeves to Mr Siddiqi and Ms Galligan as follows: “MUST should go for full global distribution requiring min of eg 25% fees. Must could take an override via 2 methods 1) Take 25% mandate and then pay 80% to "sales people" 2) Negotiate a higher mandate eg 30% and receive the 5% spread. 3) Equity component. If not palatable then x% for x around of sales. Sales people defined as Matrix, Rahul etc etc Next stages: 1) Question is how all split at MUST level? 2) Contracts need to be completed for both Must and the manager and then between Must and the sales people - I have templates 3) Timescales 4) Who negotiates contracts? Let me know what u think L Luke Reeves Director - Head of Retail and Institutional Business Development”
“Given time is nigh & we want to close this Fund ASAP, we need to come up with the T&C’s for our agreement … I need financing and this document needs to be in place for Musst to achieve that. Hence, I have put my lawyer on call to start drafting once we have met and finalised our agreement which I would also like to achieve on Wed please.”
“Our understanding of the terms for our contract are as follows - · Musst to receive 25% of Management and Performance fees on all assets raised on Funds managed by Anish Mathur. There continues to be ambiguity on the treatment of 5% of the 25% Performance and Management Fee. · You had initially suggested that the 5% be reinvested to obtain equity, at a valuation metric derived by you. We had requested that we maintain some flexibility on this given our financial predicament. We had suggested that 25% of this 5% could be reinvested for equity and that 2.5% be paid out in order to facilitate the agreement. In terms of the equity component, you have said you would give this some thought … · When we initially started our dialogue you had agreed that Musst have 1% equity in AMCO, after Saleem told you that it was imperative that he have even a small interest. It is vital that Musst have equity in Amco to maintain with investors that we have spoken to and continue to speak to that Musst is not merely a placement agent but has a strategic partnership with AMCO …. · It is something Musst has been saying at every meeting, as you know. We believe this is beneficial to all parties in aiding asset raising. Many doors have been used to open doors with personal introductions due to Saleem’s reputation and network within the industry. This is what has greatly facilitated conversations and this is something that will be of great use in the future. Now with me sitting at Musst, this becomes much easier. · Musst has exclusivity on the marketing of Amco. We are happy to discuss Amco using other 3 rd party distributors should you feel it necessary. Third party conversations are to be co-ordinated with Musst to ensure efficiency and duplication issues.”
“As discussed, I am happy to rely on the expertise of [SRZ], subject only to receiving a letter of comfort from SRZ headed paper certifying that: “Having reviewed the terms of the Introduction Agreement (the “Agreement”) between Octave Investment Management Limited, Octave Investment Management and [Musst], [SRZ] are satisfied that as a matter of US law: 1. The retention by Musst of the services of a US broker dealer are not required for performance of contractual obligations to managed accounts 2. the performance by Musst of the contractual obligations contemplated by the Agreement to 2BLLC will not infringe US legal or regulatory requirements.”
“Re the below [i.e. Mr Murray’s 15.04 email] pls note we are not looking for a formal legal opinion. I think we simply need some comfort from SRZ that an introduction that leads to the entry into an advisory agreement, rather than the issue of a security to the investor, does not constitute brokerage for the purpose of the SEC regulations and would not require broker/dealer cover, and hence that the introduction of 2B LLC would not require broker/dealer cover.” [Emphasis added.]
“Dear all, please find attached the letter from SRZ” “ Dear Saleem, We are writing to confirm that a person such as Musst who introduces an investor to another party who enters into an advisory relationship with such investor is not acting as a broker for the purposes of the Securities Exchange Act of 1934 and thus does not require registration as such. We understand that you may share this letter with Octave Investment Management LLP. However, nothing herein shall create an attorney-client relationship between this firm and Octave Investment Management LLP, or any of its affiliates, and we assume no responsibility for advising any such person as to the adequacy of this letter for its purposes.”
“Alexandra, Many thanks, Let’s sign! P”
“However, as discussed, I feel that we should only be considered if/once you make your decision with Musst as although we have different target audiences, I wouldn’t want to be involved in any turf wars” . (According to Mr Mathur, this was said in the context of “future” introductions.) (2) Mr Mathur, he says, kept Mr Reeves and Mr Elliott updated on progress “for example, in relation to LGT’s due diligence, on the basis they had an economic interest as well …” . (3) On8 August 2014 , Astra LLP entered into a Marketing and Distribution Agreement with LGBR, appointing it to act as “distributor in relation to the Fund(s)” with effect from11 August 2014 , with an initial period of six months, at a monthly fee of£6,666 plus expenses, with Astra LLP to pay 10% of performance fees received over five years from the effective date, with a maximum of$2 million . The fund was the “Astra European Opportunities Fund ”, and the agreement applied to any contract entered into not later than three months after the termination date. (4) According to Mr Mathur, no work was ever done “ in relation to future introductions”
“Hi Agatha, My apologies, I sent you the Crown AAM 2 invoice in error. The Crown 2 account was set up for a new strategy (primarily CLO and CRE) and therefore is not covered by the Introduction Agreement “as it does not substantially replicate the investment securities and risk profile of ASSCF”
“We have moved to our new offices ... today and we are completing some final documentation in connection with the investment manager migration from [Octave LLP] to [Astra LLP]”
“The management and Risk Committee of [Astra LLP] and [Astra UK] will remain identical.”
“Going forward can you please address invoices to [Astra UK]”
“Calculate p fee due to Musst and a deal for final settlement.”
“Hi, One quick thought …. We can state that our view is that they are not due a share of management or performance fees post the 36 month term. But as a gesture of good will we could continue to pay them the same monthly/quarterly amounts (as calculated from the management fees) but deducted from their eventual performance fee payment. As of 31 st March 2016 Crown I has an accrued performance fee of$5,064,535 giving Musst$1,012.907 2B has an accrued performance fee of$8,487,069 giving Musst$1,697,413 For a total fee accrued to Musst of$2,710,320 .”
“Subject: “Musst Accrued P Fees P Fee Accrued ($) Musst Payment ($) Crown 1 - 31 Mar 16 5,064,535.64 1,012,907.13 2B - 31 May 16 8,964,500.78 1,792,900.16 2,805,807.28”
“83. … The November Arrangement was therefore predicated on confirmation from both Luke and Saleem that all individuals would be compensated in accordance with that arrangement for their efforts and that no legal action would be taken against me or my firm as a result. Everybody agreed this point and understood that our arrangement should be kept informal as Luke’s negotiations in respect of LGBR had not concluded and there was uncertainty about what might ultimately happen with Matrix and what action might be taken by its representatives given the amount of work undertaken and expense incurred in connection with marketing my fund. The question of further introductions remained but it was not critical for me to address these at this stage. 84. There were several subsequent meetings. I do not recall when, but sometime after the November Arrangement, Saleem and/or Alexandra requested that I pay Saleem/Musst instead of Luke/LGBR under the November Arrangement. Saleem was concerned that, if the payment was made to Luke/LGBR, he may not receive his fair share. He also confirmed to me that Luke did not object to his proposal. As I understood that Luke had no issue with this change, I was content to proceed this way and assumed it was to protect Saleem’s interest because Musst was simply a one-person company whilst Luke was already in the process of setting up a significant operation.”
“The Crown 2 account was set up for a new strategy (primarily CLO and CRE) and therefore is not covered by the Introduction Agreement “as it does not substantially replicate the investment securities and risk profile of ASSCF”
“Hi Agatha [Agatha Imiolek of Musst], I did not complete my explanation earlier. I should have asked you to reissue the first invoice using the capped annual fee of$650,000 as you did last quarter”
“ I had a concern, yes. I did explicitly mention to them, saying: I don't want ten people coming to me asking me for payments at a later date, saying, "I introduced you to LGT or I introduced you to (inaudible) and so on and so forth". So there were quite a few other light conversations going on at that point of time that I thought had different sales people involved, but both Mr Reeves and Mr Siddiqi confirmed to me that they will make sure that they will never come back to me and if I make one payment and I did not want to make a payment to multiple parties, if anybody came to me, they will take care of it. They assured me of that, that nobody is going to sue me legally for these payments.” (2) He then went on to say at [T9/67-68] that Mr Reeves was going to take over the Matrix distribution platform and the sales and infrastructure people were going to work under his umbrella. (3) Mr Mathur was given many opportunities to provide a satisfactory explanation why there was nothing in writing, but he was unable to do so: see [T9/65-69]. At [T9/68], he said: “ I asked myself this question every day, but I wish I had done that at that point of time. My overriding idea at that point of time was to make sure that Mr Siddiqi's financing is in place and the idea was for Mr Siddiqi to obtain financing. That was the rush to get it sorted out.”
“calculate fee due to Musst and a deal for final settlement.”
“Subject: “Musst Accrued P Fees P Fee Accrued ($) Musst Payment ($) Crown 1 - 31 Mar 16 5,064,535.64 1,012,907.13 2B - 31 May 16 8,964,500.78 1,792,900.16 2,805,807.28”
“Q. I suggest that in the half an hour that is not actually recorded in the transcript , Mr Mathur has made a proposal and that at the beginning of the meeting before making the proposal, Mr Mathur has said to you that this is a without prejudice conversation? A. That is not correct. Mr Mathur never said the words “without prejudice”
“I can terminate your contract but that’ll only be if you agree to it. Otherwise I won’t terminate it”
“My conclusions are these. There are two bases for the operation of the without prejudice rule. The first rests on public policy and that policy is to encourage people to settle their differences. However, in order for that head of public policy to be engaged there must be a dispute. The concept of dispute is given a wide scope so that an opening shot of negotiations may fall within the policy even though the other party has not rejected the offer. That is the explanation for Standrin . In order to decide whether this head of public policy is engaged, the court must determine on an objective basis whether there was in fact a dispute or issue to be resolved. If there was not then this head of public policy is not engaged. On facts of this case, in my judgment the judge was right to say there was no dispute at the time the communications took place. The other basis for the rule is contractual, that is by contract the parties may extend the usual ambit of the without prejudice rule. In Cutts v Head the dispute was over so the justification was purely in terms of contract. In Unilever the possibility of extending the scope of the rules expressly envisaged and the decision in Unilever is treated as an authoritative exposition.”
“Interpretation 1.1 The definitions and rules of interpretation in this clause apply in this Agreement” “Current Strategy” is to invest primarily in synthetic asset backed securities and on a buy and hold basis with limited or [no] direct leverage, and such that the investments are intended to operate as if they were closed-ended investment pools with capital committed on a locked up basis for several years to be returned to investors in such funds following realisation of the investments therein. “Funds”
"Often there is no obvious or ordinary meaning of the language under consideration. There are competing interpretations to be considered. In choosing between alternatives a court should primarily be guided by the contextual scene in which the stipulation in question appears. And speaking generally commercially minded judges would regard the commercial purpose of the contract as more important than niceties of language. And, in the event of doubt, the working assumption will be that a fair construction best matches the reasonable expectations of the parties."
"25. The matter does not of course rest there because when alternative constructions are available one has to consider which is the more commercially sensible. On this aspect of the matter Mr Zacaroli has all the cards. ... 26. The judge said that it did not flout common sense to say that the clause provided for a very limited level of release, but that, with respect, is not quite the way to look at the matter. If a clause is capable of two meanings, as on any view this clause is, it is quite possible that neither meaning will flout common sense. In such circumstances, it is much more appropriate to adopt the more, rather than the less, commercial construction."
“10. The court’s task is to ascertain the objective meaning of the language which the parties have chosen to express their agreement. It has long been accepted that this is not a literalist exercise focused solely on a parsing of the wording of the particular clause but that the court must consider the contract as a whole and, depending on the nature, formality and quality of drafting of the contract, give more or less weight to elements of the wider context in reaching its view as to that objective meaning. In Prenn v Simmonds[1971] 1 WLR 1381 (1383H-1385D) and in Reardon Smith Line Ltd v Yngvar Hansen-Tangen[1976] 1 WLR 989 (997), Lord Wilberforce affirmed the potential relevance to the task of interpreting the parties’ contract of the factual background known to the parties at or before the date of the contract, excluding evidence of the prior negotiations. When in his celebrated judgment in Investors Compensation Scheme Ltd v West Bromwich Building Society[1998] 1 WLR 896 Lord Hoffmann (pp 912-913) reformulated the principles of contractual interpretation, some saw his second principle, which allowed consideration of the whole relevant factual background available to the parties at the time of the contract, as signalling a break with the past. But Lord Bingham in an extra-judicial writing, A new thing under the sun? The interpretation of contracts and the ICS decision Edin LR Vol 12, 374-390, persuasively demonstrated that the idea of the court putting itself in the shoes of the contracting parties had a long pedigree. 11. Lord Clarke elegantly summarised the approach to construction in Rainy Sky at para 21f. In Arnold all of the judgments confirmed the approach in Rainy Sky (Lord Neuberger paras 13-14; Lord Hodge para 76; and Lord Carnwath para 108). Interpretation is, as Lord Clarke stated in Rainy Sky (para 21 ), a unitary exercise; where there are rival meanings, the court can give weight to the implications of rival constructions by reaching a view as to which construction is more consistent with business common sense. But, in striking a balance between the indications given by the language and the implications of the competing constructions the court must consider the quality of drafting of the clause (Rainy Sky para 26, citing Mance LJ in Gan Insurance Co Ltd v Tai Ping Insurance Co Ltd (No 2) [2001] 2 All ER (Comm) 299 paras 13 and 16); and it must also be alive to the possibility that one side may have agreed to something which with hindsight did not serve his interest: Arnold (paras 20 and 77). Similarly, the court must not lose sight of the possibility that a provision may be a negotiated compromise or that the negotiators were not able to agree more precise terms. 12. This unitary exercise involves an iterative process by which each suggested interpretation is checked against the provisions of the contract and its commercial consequences are investigated: Arnold para 77 citing In re Sigma Finance Corpn[2010] 1 All ER 571 , para 10 per Lord Mance. To my mind once one has read the language in dispute and the relevant parts of the contract that provide its context, it does not matter whether the more detailed analysis commences with the factual background and the implications of rival constructions or a close examination of the relevant language in the contract, so long as the court balances the indications given by each. 13. Textualism and contextualism are not conflicting paradigms in a battle for exclusive occupation of the field of contractual interpretation. Rather, the lawyer and the judge, when interpreting any contract, can use them as tools to ascertain the objective meaning of the language which the parties have chosen to express their agreement. The extent to which each tool will assist the court in its task will vary according to the circumstances of the particular agreement or agreements. Some agreements may be successfully interpreted principally by textual analysis, for example because of their sophistication and complexity and because they have been negotiated and prepared with the assistance of skilled professionals. The correct interpretation of other contracts may be achieved by a greater emphasis on the factual matrix, for example because of their informality, brevity or the absence of skilled professional assistance. But negotiators of complex formal contracts may often not achieve a logical and coherent text because of, for example, the conflicting aims of the parties, failures of communication, differing drafting practices, or deadlines which require the parties to compromise in order to reach agreement. There may often therefore be provisions in a detailed professionally drawn contract which lack clarity and the lawyer or judge in interpreting such provisions may be particularly helped by considering the factual matrix and the purpose of similar provisions in contracts of the same type. The iterative process, of which Lord Mance spoke in Sigma Finance Corpn (above), assists the lawyer or judge to ascertain the objective meaning of disputed provisions. 14. On the approach to contractual interpretation, Rainy Sky and Arnold were saying the same thing. 15. The recent history of the common law of contractual interpretation is one of continuity rather than change. One of the attractions of English law as a legal system of choice in commercial matters is its stability and continuity, particularly in contractual interpretation (emphasis added). ”
“Re the below [ i.e. Murray’s 15.04 email] pls n ote we are not looking for a formal legal opinion. I think we simply need some comfort from SRZ that a n introduction that leads to the entry into an advisory agreement, rather than the issue of a security to the investor, does not constitute brokerage for the purpose of the SEC regulations and would not require broker/dealer cover, and hence that the introduction of 2B LLC would not require broker/dealer cover.”
“It is settled that an estoppel by convention may arise where parties to a transaction act on an assumed state of facts or law, the assumption being either shared by them both or made by one and acquiesced in by the other. The effect of an estoppel by convention is to preclude a party from denying the assumed facts or law if it would be unjust to allow him to go back on the assumption … It is not enough that each of the two parties acts on an assumption not communicated to the other. But it was rightly accepted by counsel for both parties that a concluded agreement is not a requirement for an estoppel by convention.”
“(1) It is not enough that the common assumption upon which the estoppel is based is merely understood by the parties in the same way. The assumption must be shown to have crossed the line in a manner sufficient to manifest an assent to the assumption. [In Stena Line , Briggs J said that his first principle should be amended to include that “the crossing of the line between the parties may consist either of words, or conduct from which the necessary sharing can properly be inferred” , as quoted by Lord Burrows at para. 49]. (2) The expression of the common assumption by the party alleged to be estopped must be such that he may properly be said to have assumed some element of responsibility for it, in the sense of conveying to the other party an understanding that he expected the other party to rely on it. (3) The person alleging the estoppel must in fact have relied upon the common assumption, to a sufficient extent, rather than merely upon his own independent view of the matter. (4) That reliance must have occurred in connection with some subsequent mutual dealing between the parties. (5) Some detriment must thereby have been suffered by the person alleging the estoppel, or benefit thereby have been conferred upon the person alleged to be estopped, sufficient to make it unjust or unconscionable for the latter to assert the true legal (or factual) position.”
“The party seeking rectification must show that: (1) the parties had a common continuing intention, whether or not amounting to an agreement, in respect of a particular matter in the instrument to be rectified; (2) there was an outward expression of accord; (3) the intention continued at the time of the execution of the instrument sought to be rectified; (4) by mistake, the instrument did not reflect that common intention.”
“ There is a new contract and it is therefore essential that the consent of all parties shall be obtained … in this necessity for consent lies the most important difference between novation and assignment. ”
“19-088 Main examples of novation Many of the reported cases in English law have arisen either out of the amalgamation of companies, or of changes in partnership firms, the question being whether as a matter of fact the party contracting with the company or the firm accepted the new company or the new firm as his debtor in the place of the old company or the old firm. That acceptance may be inferred from acts and conduct, but ordinarily it is not to be inferred from conduct without some distinct request. Thus where a banking firm consisted of two partners and one died, the acceptance by a customer from the surviving partner of a fresh deposit note for a balance of a debt due was held sufficient evidence of novation to discharge the estate of the deceased partner, as the customer took the money out of a current account and placed it on deposit at the request of the surviving partner. … 19-090 Novation of part of a contract In principle, there seems no reason why there cannot be a novation of part of a contract while leaving the rest of the contract to survive, although this may require some variation of the original surviving terms. Whether that is what is being achieved in any particular situation will largely turn on the intention of the parties. In principle, it further follows that there can be a novation of the whole or part of a multiparty contract with the original contract being left in place entirely as regards some parties while there is a whole or partial novation as regards other parties.”
“ Novation, which involves the extinguishing of the original contract and the creation of a new contract between different parties, requires the consent of all parties; see Chitty on Contracts (2008) paragraph 19-086. ”
“ We believe that he [Steel J] was indicating that, where there is an established contract in existence, clear evidence of an intention to produce a novation is likely to be needed if that standard of proof is to be discharged. With that proposition we would agree. ”
“i) If the exchange of faxes in March 1996 (a) did not, on their true construction, constitute an agreement to a novation or (b) were ambiguous as to whether or not such an agreement was reached, POL [the Appellant] can only establish that a novation occurred if they can demonstrate that the conduct of the parties after March 1996 has given rise to an estoppel by convention.”
“Octave shall do all such things as may be within their power to ensure (i) that responsibility for the management of the Funds and any managed account is retained by Octave and (ii) that the spirit of this Agreement is given full force and effect. Without limiting the generality of the foregoing, Octave shall to (sic) do all such things and exercise all such rights as may be reasonably within their power so as to ensure that responsibility for the management of any Fund or managed account is not transferred to another party without the consent of Introducer unless such party offers in good faith to enter into an agreement with the Introducer whereby the Introducer continues to receive the revenue share payable hereunder in respect of Eligible Investments on the same terms as (or such of the same terms as remain in force at the relevant time following the Termination Date of this agreement) are contained in this agreement (in which event the consent of Introducer shall not be unreasonably withheld).”
“As part of the Change of Legal Status Application, contracts will be novated to [Astra UK]”
“As to paragraphs 98 to 101, it is admitted and averred that Astra UK had not sent to the Claimant since10 May 2016 the invoices which it had been sending to 2B and Crown (nor had any other Astra entity). It was or should have been clear from this that Astra UK had not offered to take over (or take on) any obligations under the Octave Contract, or that, even if it had done so, such offer had been withdrawn. Paragraphs 98 to 101 are otherwise denied. Paragraphs 140 to 169 above are repeated.”
“ it is not a “variation” of the Octave Agreement, but a new agreement involving different parties ” (ARDCC paras. 125(1), 136(1)) ignores the termination of the existing agreement. Musst’s claim that it waived the need for consent under Clause 17 (paras. 125(2) and 136(2)) is without foundation, but even if this were the case, it does not establish that Octave Ltd and Octave LLP waived their consent or latterly Astra LLP (especially given that this is required to be given beforehand in writing and the formal communication requirements that are expressly set out at Clause 20.1 (para.125(3)). In CEP Holdings v Steni[2009] EWHC 2447 (QB) at para 37 Gloster J observed the importance of complying with the formal requirements of a similar clause at para 35 and noted the difficulty of establishing a waiver of such a clause: “In my judgment there is nothing in the evidence which supports either a waiver of the requirements of clause 7.4, or any estoppel which precludes Steni from denying the alleged novation and assignment…Moreover, clause 7.4 of the EDA requires the clear consent of Holdings. Its effect cannot be avoided by mere vague assertions of estoppel …”
“(1) English law generally adopts an objective theory of contract formation, ignoring the subjective expectations and the unexpressed mental reservations of the parties. Instead the governing criterion is the reasonable expectations of honest sensible businessmen. (2) Contracts may come into existence, not as a result of offer and acceptance, but during and as a result of performance. (3) The fact that the transaction is executed rather than executory can be very relevant. The fact that the transaction was performed on both sides will often make it unrealistic to argue that there was no intention to enter into legal relations and difficult to submit that the contract is void for vagueness or uncertainty. Specifically, the fact that the transaction is executed makes it easier to imply a term resolving any uncertainty, or, alternatively, it may make it possible to treat a matter not finalised in negotiations as inessential. This may be so in both fully executed and partly executed transactions. (4) If a contract only comes into existence during and as a result of performance it will frequently be possible to hold that the contract impliedly and retrospectively covers pre-contractual performance.”
“The Introducer shall be entitled to share in all management and performance fees (howsoever described) earned and received by Octave (or any of Octave’s affiliates), provided that there shall be no double counting of revenues earned by one affiliate and paid on to another affiliate by whatever means) in respect of each Prospective Investor who makes (directly or indirectly) an investment in a Fund managed or advised by Octave (an Investor ) for the Current Strategy on or before the Cut-off Date, each such investment being an Eligible Investment . For the avoidance of doubt, additional investments made for the Current Strategy directly or indirectly by an Investor into a Fund whether before or after the Cut-off Date are also Eligible Investments.” [Bold as in the original.] Clause 3.2: “Unless otherwise agreed between the parties, the revenue share shall be 20% of all fees earned by Octave (or its affiliate(s)) in respect of any Eligible Investment. Notwithstanding the generality of the foregoing, the revenue share in respect of performance fees shall be reduced (but not below zero) by an amount equal to£50,000 in aggregate in consideration of the undertaking in Clause 3.4 to reimburse expenses of the Introducer.”
“The parties hereby agree that a) any new investments made by an investor in a fund under the management of Octave or the Investment Manager following a strategy other than the Current Strategy (a “New Fund”) and deriving from the redemption of investments originally made in a Fund following the Current Strategy will not be treated as Eligible Investments under this agreement and this includes a restructuring of ASSCF to turn into a liquid open ended fund following; …” “Clause 13.2: “The Introducer shall continue to be entitled to the revenue share in respect of all Eligible Investments (as defined in Clause 3) for so long as such Eligible Investments in the Current Strategy are maintained by the Investor; provided that, notwithstanding the foregoing, should this Agreement be terminated following a repeated (after written notification) material breach of the Introducer’s obligations hereunder including a sustained failure to comply with its obligations under Clause 2.3, the right of the Introducer to receive revenue share will terminate as of the Termination Date.” (c) Definitions Clause 1.1: “Current Strategy” is to invest primarily in synthetic asset backed securities and on a buy and hold basis with limited or [no] [3] direct leverage, and such that the investments are intended to operate as if they were closed-ended investment pools with capital committed on a locked up basis for several years to be returned to investors in such funds following realisation of the investments therein.”; Clause 1.1: “Funds”
“If this were not the case, then Octave could sell instrument X (a synthetic ABS) for which$10 million had been paid, for, say$30 million ; use the$30 million to buy (say) stocks and shares; put those stocks and shares back into the same fund; and then turn round and say “I don’t have to pay you any performance fees on the previous sale as I have reinvested the proceeds in the same fund, but because the fund, as a result, is no longer following the Current Strategy I don’t have to pay you for that either”
“The Introducer shall continue to be entitled to the revenue share in respect of all Eligible Investments (as defined in Clause 3) for so long as such Eligible Investments in the Current Strategy are maintained by the Investor...”
“Looks like we are there now on the agreement”
“Why else did Octave and then Astra keep paying Musst right up to May 2016, when on Astra’s (now) interpretation, the Octave Contract did not require them to do so?”
“ The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean.”
“It shall be unlawful for any broker or dealer which is either a person other than a natural person or a natural person not associated with a broker or dealer which is a person other than a natural person (other than such a broker or dealer whose business is exclusively intrastate and who does not make use of any facility of a natural securities exchange) to make use of the mails or any means or instrumentality of interstate commerce to effect any transactions in, or to induce or attempt to induce, the purchase or sale of, any security (other than an exempted security or commercial paper, bankers’ acceptances, or commercial bills) unless such broker or dealer is registered in accordance with subsection (b) of this section.”
“23. In our judgment, the function of the expert witness on foreign law can be summarised as follows:- (1) to inform the Court of the relevant contents of the foreign law; identifying statutes or other legislation and explaining where necessary the foreign Court's approach to their construction. (2) to identify judgments or other authorities, explaining what status they have as sources of the foreign law; and (3) where there is no authority directly in point, to assist the English judge in making a finding as to what the foreign Court's ruling would be if the issue was to arise for decision there. 24. The first and second of these require the exercise of judgment in deciding what the issues are and what statutes or precedents are relevant to them, but it is only the third which gives much scope in practice for opinion evidence, which is the basic role of the expert witness. And it is important, in our judgment, to note the purpose for which the evidence is given. This is to predict the likely decision of a foreign court, not to press upon the English judge the witness's personal views as to what the foreign law might be. Thus, in G. & H. Montage G.m.b.H v Irvani [1990] 1 W.L.R. 667 (C.A.), Mustill L.J. said this:- "The fact that the plaintiffs' expert was not able to do more than assert, in this novel situation, his own view on how the German court would react when faced with a similar problem does not disqualify his evidence from being relied upon. There are many fields of law in which the books provide no direct answer and where the skill of the lawyer lies precisely in predicting what answer should be given. If the judge concludes that the expert's prediction is reliable, he is fully entitled to give effect to it" (684G). This passage emphasised that the expert witness is entitled to give opinion evidence in the absence of direct authority, but we would underline the restrictions which it places upon him. His role is to "predict" what the foreign court would decide, and only in this sense should he say "what answer should be given".”
“For the avoidance of doubt, no Investment shall be regarded as an Eligible Investment in the event that a payment of Revenue Share thereto would contravene any law or other regulation applicable in the jurisdictions in which the Investor, Octave and the Introducer operate (and in particular any regulations that require authorisation, registration or regulation of the Introducer which is not held by the Introducer or its delegate in order for such a payment not to contravene securities law applicable in such a jurisdiction). The parties hereby agree that in the event of a dispute arising in connection with clause 3.5 exclusively, the parties will endeavour to work together in good faith to come to a practical mutually agreed solution.”
“The Introducer shall comply with all applicable laws, statutes, regulations and codes relating to the Introducer’s business and procure any licences, certificates, insurance … and all or any regulatory approvals required in any jurisdiction in which the Introducer operates including … theUS Securities Exchange Act 1934 . Without prejudice to the generality of the foregoing where required under theUS Securities Exchange Act 1934 or any other applicable legislation the introducer shall not proceed with any Introduction to a potential investor domiciled in the United States of America unless the Introducer or a duly authorised delegate of the Introducer at the Introducers own cost) is, or is acting under the supervision of, a broker licensed to act as such in the United States of America.”
“Without prejudice to the generality of the foregoing, the Introducer, its contacts or intermediaries will not proceed with any distribution of Materials or promotion of funds where such distribution, use or promotion is likely to contravene any law, code, or regulation of any jurisdiction.” “Clause 10.1.2: “Each party hereby represents and warrants to the other parties as follows … Prior to the performance of any obligations under this Agreement, in any specific jurisdiction, it has obtained all authorisations of any governmental or regulatory body required in connection with this Agreement in such jurisdiction and such authorisations are in full force and effect.”
“ have modelled the concept of common enterprise around fact patterns in which an investor’s fortunes are tied to the promoter’s success ”
“It is important to note that, in contrast to the position with funds, Octave and Astra performed investment management services in respect of the Managed Accounts but at no point owned or controlled them or the bonds and swaps purchased within them. 10. Accordingly, The Observatory, LGT and their representatives retained full visibility and control in respect of the Managed Accounts. In addition, LGT retained at least one third party (NAV Consulting) to undertake on-going monitoring and both The Observatory and LGT appointed custodian banks for the Managed Accounts at which bonds and swaps purchased were held.”
“Q. Yes, but what do you say to my point about "solely". Because if you focus on the word "solely", it is plain that the profits are not going to come solely from the efforts of Octave and Astra. They are going to come partly from Octave and Astra, aren’t they? A. Yes, so courts have dealt with the issue of an investor retaining some level of control, and what they have done is looked past the technical retention of control and looked to see what the economic realities of the situation are. Q. If we are dealing here with a very sophisticated investor indeed, that would obviously be a factor in favour of saying that the sophisticated investor is indeed retaining a reasonable degree of control over the account, isn't it? A. That would be a factor, yes. Q. Can I suggest quite a significant factor? A. It would be a factor but what actually occurred in the day-to-day management of the account would also be an important factor.”
“We agree that a party who hires an intermediary who is unregistered in violation of Section 15, and pays them a share of management or performance fees as compensation, is at risk of being held liable for aiding and abetting the Section 15 violation—provided that the legal test for aiding and abetting liability under Section 20 of the 1934 Act is otherwise satisfied.”
“in identical terms to the words complained of that Mr Mathur was a ‘one trick pony’ and that ‘maybe it is a good time to get out’”
“detailed questions of Mr Mathur and Dr Adler about the business, portfolio, new investment opportunities and the overall performance”
“LGT to transfer assets to another low vol vehicle. When the transfer is paid made [sic] fees will crystallise.”
“Q: Surely you would have appreciated, Mr Mathur, that the sooner your solicitors can get on to the record in writing an allegation relating to an oral conversation, and precisely what was said in that conversation, the sooner you do that the better, actually? A. I didn't know actually. Q. Well, it is obvious? A. Not to me. But okay. Q. I suggest to you that it would have been obvious then that if you are relying on slanderous statements of which there is no actual record then the sooner you get these statements on to the record, the better your case is, if ever you need to prove it later. That's right, isn’t it? A. I am enlightened now but I didn't know that before. Q. I suggest you are a highly intelligent man and it would be absolutely obvious to you that it would be a good idea to get these statements in writing as soon as possible. A. I am an intelligent man, I accept that. But the point is I had no intention of following it through, through a litigation, at that point of time. I told my solicitors I would like to stop, please do whatever you can in your power without identifying the identity of the investors to make it stop.”
“It seems to me that selective snippets of hearsay from individuals who have not been called, particularly where it has been ‘cherry picked’ from material which casts it in a different light, provides an obviously unsatisfactory evidential basis upon which to invite a court to find facts and/or draw adverse inferences. In a sense, it is Hamlet without the Prince . There may be cases where hearsay evidence and/or the contemporaneous documents in combination provide persuasive evidence but in my judgment, they did not do so here. It is no answer to the problematic nature of the hearsay evidence relied on in this case for the Defendant to suggest as Mr Warby did that it was open to Mr Miller either to call the relevant individuals himself, or require their attendance for cross-examination. The burden is on the Defendant to prove its case; and the tendering of hearsay evidence which lacks weight for various reasons doesn’t cast any burden on a claimant to require the witness concerned to be called for cross-examination let alone to call the person concerned as his or her own witness .”
“Where there is no admission by the defendant that he spoke the words complained of or words to like effect, the claimant must call evidence of what the defendant said and of who heard him… The witnesses will usually be those who were present, but hearsay evidence is in principle admissible of what the witness was told by someone present that the defendant said .” (Emphasis added)
“…the difficulties sometimes encountered in proving the exact words spoken […] and the fact that spoken words are, as a rule, less likely than written publications to cause serious harm to reputation.”
“Had an allegation … been made as alleged in the First Slander, I would have expected the Claimant to have confronted the Defendant about it very shortly afterwards. There is no trace of any such complaint from the Claimant about what would have been a serious and baseless allegation”
“Those contemplating slander actions would be well-advised to prioritise the gathering of evidence in support of their claim whilst events are still fresh in witnesses’ minds.”
“There are good reasons for these requirements, which are long-established. The actual words spoken are critical, because everything else flows from the words: meaning, whether defamatory, defences and damages […]. Put another way, these requirements protect freedom of speech by requiring a claimant to prove strictly the factual basis on which the court is asked to interfere with that freedom. Only then is the court able reliably to evaluate whether such an interference is necessary . One must not be too precious about this. Proof that words close to those specifically alleged were used will be enough. But it has never been acceptable to call evidence of the gist or meaning of the spoken words, rather than the words themselves.”
“In large part I uphold his claims in slander. But not entirely. The reason is a shortage of evidence: in some respects he has - as is quite common in slander - fallen short of proving to the court's satisfaction the publication of particular words defamatory of him. Proof of the exact words spoken is crucial: see Bode v Mundell[2016] EWHC 2533 (QB) [12]-[16]. When witnesses are asked to recall spoken words some time after the event, memories can fail .” (Emphasis added)
“Serious harm (1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. (2) For the purposes of this section, harm to the reputation of a body that trades for profit is not ‘serious harm’ unless it has caused or is likely to cause the body serious financial loss.”
“In an action for slander in respect of words calculated to disparage the plaintiff in any office, profession, calling, trade, or business held or carried on by him at the time of the publication, it shall not be necessary to allege or prove special damage, whether or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade, or business.” (2) Section 3(1) (b) of the 1952 Act provides as follows: “(1) in an action for slander of title, slander of goods or other malicious falsehood, it shall not be necessary to allege or prove special damage: […] (b) if the said words are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication.”
“The financial loss envisaged here is not the same as special damage, in the sense in which that term is used in the law of defamation. Section 1 is concerned with harm to reputation, whereas (as I have pointed out) special damage represents pecuniary loss to interests other than reputation. What is clear, however, is that section 1(2) must not refer to the harm done to the claimant’s reputation, but to the loss caused or is likely to cause. The financial loss is the measure of the harm and must exceed the threshold of seriousness. As applied to harm which the defamatory statement “has caused”, this necessarily calls for an investigation of the actual impact of the statement. A given statement said to be defamatory may cause greater or lesser financial loss to the claimant, depending on his or her particular circumstances and the reaction of those to whom it is published. Whether that financial loss has occurred and whether it is ‘serious’ are questions which cannot be answered by reference only to the inherent tendency of the words.”
“Q. That is all we have to go on? A. At the moment yes.”
“5.1 [Musst] shall at all material times act in good faith towards Octave.” “5.7 [Musst] agrees that it will not, and shall procure that its employees, officers, members, directors and agents will not, disparage, slander, comment maliciously or make any accusation of any nature whatsoever against or in relation to the business of Octave, the Manager or their affiliates, or any officers, members, directors or employees of the foregoing, and, without limiting the generality of the foregoing, will not procure anyone to do the same or acquiesce in anyone’s doing so on its behalf.” 12.2 Without prejudice to any rights that have accrued under this Agreement or any of its rights or remedies, any party may at any time terminate this Agreement with immediate effect by giving written notice to the other parties if: … 12.2.2 another party commits a breach of any term of this Agreement (other than failure to pay amounts due under this Agreement) and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so … 13.2 The Introducer shall continue to be entitled to the revenue share in respect of all Eligible Investments (as defined in Clause 3) for so long as such Eligible Investments in the Current Strategy are maintained by the Investor; provided that, notwithstanding the foregoing, should this Agreement be terminated following a repeated (after written notification) material breach of the Introducer’s obligations hereunder including a sustained failure to comply with its obligations under Clause 2.3, the right of the Introducer to receive revenue share will terminate as of the Termination Date. ”
“The question then is what is meant in this context by the word ‘remedy’. It could mean obviate or nullify the effect of a breach so that any damage already done is in some way made good. Or it could mean cure so that matters are put right for the future. I think that the latter is the more natural meaning. The word is commonly used in connection with diseases or ailments and they would normally be said to be remedied if they were cured although no cure can remove the past effect or result of the disease before the cure took place, and in general it can only be in a rare case that any remedy of something that has gone wrong in the performance of a continuing positive obligation will, in addition to putting it right for the future, remove or nullify damage already incurred before the remedy was applied. To restrict the meaning of remedy to cases where all damage past and future can be put right would leave hardly any scope at all for this clause. On the other hand, there are cases where it would seem a misuse of language to say that a breach can be remedied. For example, a breach of clause 14 by disclosure of confidential information could not be said to be remedied by a promise not to do it again. So the question is whether a breach of Wickman’s obligation under clause 7 (b) (i) is capable of being remedied within the meaning of this agreement. On the one hand, failure to make one particular visit might have irremediable consequences, e.g. a valuable order might have been lost when making that visit would have obtained it. But looking at the position broadly I incline to the view that breaches of this obligation should be held to be capable of remedy within the meaning of clause 7. Each firm had to be visited more than 200 times. If one visit is missed I think that one would normally say that making arrangements to prevent a recurrence of that breach would remedy the breach .”
“As you know, all our credit vehicles have pursued a very similar if not identical strategy so far; forward ASCIL (another entity) will invest in slightly more liquid credit assets to reflect its changed liquidity profile.”