DMA Resources Limited v Brazilian Nickel Limited [2026] EWHC 833 (Ch)

[2026] EWHC 833 (Ch)

Case No BL-2025-000370

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

BUSINESS LIST (ChD)

SHORTER TRIALS SCHEME

Venue Rolls Building, Fetter Lane

Date 21 April 2026

London, EC4A 1NL

Before

NICOLA RUSHTON KC

(Sitting as a Deputy Judge of the High Court)

Between

DMA RESOURCES LIMITEDClaimant

BRAZILIAN NICKEL LIMITEDDefendant

Mr Alexander Halban (instructed by Withers LLP) for Claimant

Ms Eleanor Campbell (instructed by Norton Rose Fulbright LLP) for Defendant

Hearing Hearing dates: 9 – 12 March 2026

Approved Judgment

[1]The issue in this case is whether the Claimant, DMA Resources Limited (“DMA”) has a valid claim to commission for re-introducing an investor, Resource Capital Funds (“RCF”) to the Defendant, Brazilian Nickel Limited (“BRN”). BRN, with its Brazilian subsidiary, operates a nickel mining project in Piaui, Brazil (“the Project”) in which RCF invested from August 2021. The re-introduction services are said to have taken place over a period from November 2020 to about March 2021. The claim is made alternatively in oral/implied contract and unjust enrichment.

[2]The claim was issued on 21 March 2025 and has proceeded under the Business and Property Courts (“BPC”) Shorter Trials Scheme (“STS”) set out in Practice Direction 57AB. The trial took place over 4 days from 9 to 12 March 2026. DMA was represented by Mr Alexander Halban and BRN by Ms Eleanor Campbell, and I am grateful to both counsel for their clear written and oral submissions and efficient trial management, all of which has been of great assistance.

The parties

[3]DMA is an investment introducer for energy and mining projects, especially in South America. It has two directors and shareholders, Mr Nigel Read and Mr James Nwankwo, and is essentially their trading vehicle. It is a UK company (number 11596823), although Mr Read and Mr Nwankwo previously operated a similar business through a Brazilian company, DMA Consultoria em Tecnologia Da Informação Ltda (“DMA Brazil”). DMA is not a “regulated” agent, so while it can effect introductions, it is not permitted to negotiate contracts on behalf of clients. Mr Read’s background is in commodities trading in the energy and resources sector, and he was based for an extended time in Brazil. Mr Nwankwo is an English-qualified solicitor, specialising in corporate finance.

[4]BRN (then Brazilian Nickel Plc) (company number 08512513) is a London-based mining company. The Project is BRN’s main venture. It is a nickel and cobalt mine using heap leaching technology which BRN acquired in January 2014 from Vale S.A., when the Project was at a pilot stage. BRN’s founding director and CEO at all material times was Mr Michael Oxley. BRN was seeking investment for the Project in three stages:(a) a bankable feasibility study;

(b) an initial working module, known as “PNP1000” which was planned to begin production and sale of nickel and cobalt, at a rate of about 1,000 tonnes of nickel a year, as proof of concept; and

(c) full-scale production, of up to 33,000 tonnes per year. BRN had been seeking investment for several years from 2014 before the events with which we are concerned in 2020-21.

[5]At trial, DMA relied upon the evidence of Mr Read and Mr Nwankwo, and BRN on the evidence of Mr Oxley. There were no other witnesses of fact.

[6]Each party also relied on expert evidence concerning the market value of the intermediary services which DMA allegedly provided, and as to whether the grant of certain options constituted value on which commission should be payable. The expert evidence was given by written report and oral evidence.

The issues

[7]The issues can be stated fairly shortly (albeit I am condensing the List of Issues in the trial bundle). They are: i) Did DMA and BRN enter into an enforceable express oral or implied agreement on 29 June 2021 that BRN would pay DMA a “reasonable fee” for introducing/ reintroducing RCF to BRN. As part of that issue: a) Was any agreement reached at all? b) If one was, does it fail for lack of consideration? ii) If not, does DMA have a claim in unjust enrichment for introduction services over a period from November 2020 to about March 2021 which resulted in RCF investing in BRN. As a part of that issue: a) Did DMA provide any such services? b) Was DMA the effective cause of that investment? c) Is DMA prevented from making any such claim by the terms of a written contract that it had with BRN regarding another potential investor, Mitsui? iii) If DMA has a valid claim, on what investments should commission be charged and how should those investments be valued? It is agreed that(a) the approach to calculation should be the same, whether the claim is for quantum meruit in contract or for unjust enrichment, and

(b) the correct approach to calculating the amount payable is to apply a commission percentage to sums invested. iv) If so, what percentage commission rate should be applied? DMA contends for 5% and BRN for no more than 2%.

Facts and timeline

[8]Unless otherwise stated, the facts in this section are not in dispute. Most of the basic facts in this case are not disputed – the factual issues are mainly ones of interpretation and nuance.

[9]BRN was seeking investment from a number of possible sources, including private equity, investment banks and government-backed funds, all of which were generally well-informed mining and minerals specialists. RCF was a specialist mining investment fund with experience in Brazil and as such an obvious potential investor.

[10]BRN had engaged a number of different agents and brokers over the years to find investors for the different stages of the Project, and it normally did so under written contracts. An issue is whether and to what extent this was BRN’s invariable practice, as BRN says it was.

[11]The standard approach to payment for broker services in this industry is, and was, for commission only to be paid to the introducer if there is an effective introduction which leads to investment, calculated as a percentage of the sum invested. Brokers are not normally paid for their services in any other way, and in particular are not generally paid a retainer or by hourly or daily rates. Brokers are normally engaged and paid by the company seeking investment, but the commission is effectively funded out of the sums invested. Even though the broker is engaged by that company, the agreement frequently provides that the commission may be paid directly by the investor to the broker, to avoid double taxation, although the liability remains the company’s. There were several examples of this in the agreements before the court.

[12]Several previous approaches had been made to RCF, since as early as 2013, both by Mr Read and others, but they had always been rebuffed. In June 2013 BRN had engaged brokers SP Angel, who approached RCF even before BRN had acquired the Project, but RCF rejected the proposal, as it was too small a deal, with technology that was too new, saying it was already highly exposed to nickel. In April 2014, BRN formally engaged another broker, Mirabaud, jointly with SP Angel, and Mirabaud made another, unsuccessful, approach to RCF. Mirabaud’s engagement was terminated in September 2017, expressly without liability on either side.

[13]Mr Read had various contacts in the mining and commodities industry in London and Brazil and first met Mr Oxley in 2013. They had discussions on and off about BRN’s need for investment, and Mr Read made an early, apparently informal approach to RCF in 2013 (unsuccessfully). Then on 27 September 2018 BRN entered into a 3-month consultancy services agreement with DMA Brazil (“the DMA Brazil Agreement”). This provided for DMA Brazil to approach a number of potential investors, by reference to an approved list. The commission rate was 5% on any new sources of capital brought in. RCF was discussed between Mr Read and Mr Paul Lush (Chairman of BRN) for inclusion on the approved list, but Mr Lush said there was no need to contact RCF because it had declined to invest.

[14]On 14 February 2019 BRN entered into a new Intermediary Services Agreement with Mr Read and Mr Nwankwo’s new company, DMA (“ISA 1”). Again this provided for approaches to be made to a number of potential investors, to be listed in an annex, again not including RCF. ISA 1 was extended but eventually expired on 31 December 2019. By clause 3.1, it provided for commission at a rate of 5% of the value of any equity investment up to US$30M, 2% between US$30M and US$100M; 1% of the value of any debt financing up to US$100M and 0.5% of debt financing between US$100M and US$250M.

[15]Negotiations to extend or replace ISA 1 continued between DMA and BRN in the first few months of 2020. However, on 8 May 2020 Mr Lush sent Mr Read a letter (dated 7 May 2020) saying BRN could not accept DMA’s counteroffer for a services agreement because BRN had received investment proposals on which it needed to focus from TechMet Limited (“TechMet”), a technology metals fund backed by the US International Development Finance Corporation (“US DFC”). Prior to that, in parallel with the contract negotiations between DMA and BRN, there had also been exchanges between them about potential investors who might be added to an “approved” list. In those emails Mr Read had said that his hands were tied without a formal extension.

[16]Unconnected with DMA, in July and August 2020 there was further contact between RCF and BRN, facilitated by an Ed Jack at brokers Audley, but again RCF responded that it was not interested.

[17]DMA did have good contacts with Mitsui, a Japanese natural resources investor with bank backing. Mitsui was interested in investing in BRN, but was mainly interested in marketing and communications (without investment) at the PNP1000 stage, and then investing at the full-scale stage. In July/August 2020 there was contact between Mr Oxley and Mr Naota Furihata of Mitsui, facilitated by Mr Read, with a view to Mitsui becoming involved in BRN.

[18]On 7 September 2020, Mr Oxley told Mr Read and Mr Furihata by email that TechMet had secured a commitment of US$25M from the US DFC for equity investment in BRN. This was mainly for the full-scale stage of the Project, with US$15M still to be finalised for the PNP1000 stage. Mr Read asked whether an investor called Traxys had renewed its agreement to fund part of the PNP1000 stage. Shortly thereafter DMA became aware that Traxys had likely pulled out, so BRN had an urgent need to find replacement PNP1000 investment.

[19]At the same time, in September 2020, Mr Read was asking BRN again about an extension of DMA’s services agreement.

[20]In October 2020, BRN decided to redraft the agreement with DMA so it only focused on investment from Mitsui. Contemporaneous internal correspondence at BRN records an intention by Mr Lush to focus any agreement solely on Mitsui and sharply reduce the commission rates. It also records BRN’s CFO Mr Adrian Harvey expressing concerns about “…DMA’s performance and Nigel’s underhand way of operating…”, saying “… it is better to have DMA pinned down contractually than have them loosely circulating…”.

[21]In an email of 19 October 2020, Mr Read said he recognised that following TechMet’s investment, this affected the risk profile for the full-scale stage, so he accepted that an intermediary agreement should have lower remuneration rates. Following this, BRN negotiated terms with DMA relating solely to Mitsui, leading to an Intermediary Services Agreement dated 4 January 2021 (“ISA 2”). ISA 2 stated expressly that “… BRN now wishes DMA to focus on a single potential investor, Mitsui Group or any subsidiary company…”. By clause 3.1 of ISA 2, BRN agreed to pay a success fee of (among other things) 2% of any equity investment up to US$30M and 0.375% of any debt financing up to US$100M.

[22]On 10 November 2020 Mr Read emailed Mr Martin Valdes, head of private equity in Latin America at RCF, copying Mr Furihata and Mr Nwankwo, telling him about the TechMet investment in BRN, and saying BRN still needed US$15M for the PNP1000 stage. He noted Mitsui’s interest in the final stage, and said Mitsui was interested in a discussion with RCF on commercial collaboration at the earlier stage, with Mitsui obtaining marketing rights. On 16 November 2020 Mr Valdes, Mr Furihata and DMA met on Teams.

[23]On 17 November 2020 Mr Nwankwo emailed Mr Read with a possible solution to BRN’s PNP1000 funding gap, involving RCF issuing US$15M of convertible loan notes to BRN, arranged by Mitsui, convertible at a discounted rate for a fixed period from issue, and also providing security over BRN’s assets. Income from product from the PNP1000 stage would cover the debt repayments. Mr Read then messaged Mr Oxley to arrange a call to discuss with him Mr Nwankwo’s suggestion. That call took place the same day.

[24]On 19 November 2020 Mr Nwankwo emailed Mr Valdes and Mr Furihata, copied to Mr Read, saying they had given some further thought to structure and a joint proposal to BRN, setting out details of the US$15M convertible loan note concept. Mr Nwankwo also said that Mr Read had spoken to Mr Oxley the previous day about the US$15M needed, and how flexible BRN could be regarding structure, saying “Mike confirmed that there remains an ability to come in for the full 15 million and they are willing to look at creative structures in order to secure it.”

[25]At about the same time, on 24 November 2020, Mr Read sent BRN the latest draft, with DMA’s comments, of what would become ISA 2.

[26]On 25 November 2020 Mr Read emailed Mr Oxley saying:

“Good to speak yesterday. As you know we spoke with a couple of groups discreetly around the PNP1000 requirements… We have found a couple of investors that are willing to consider an investment and come in with Mitsui as they see Mitsui’s longer term involvement as offering them liquidity once BRN [h]as removed the technology/process risk. They asked us to check if coming in with up to 15mm USD now as a convertible note with as security of a X% cash sweep on the receivables of the PNP1000 is something you could consider. Our view is that for the projects benefit that once BRN has the BFS attained and technology/process de-risked, they are forced to convert…”

. He suggested Mr Oxley spoke to Mr Nwankwo.

[27]Mr Oxley replied:

“Nigel, James That could work. Could they move to complete by end Jan do you think? James maybe we can have a chat? Today is out but could you do say 11:00am your time tomorrow?”

That could work. Could they move to complete by end Jan do you think?

[28]On 26 November 2020 a call took place between Mr Oxley and Mr Nwankwo during which Mr Nwankwo outlined his proposed convertible loan structure. DMA recorded that call and has disclosed a transcript. (While BRN has stated that Mr Oxley was not aware that this and certain other calls were being recorded, no point has been pursued by BRN about this, and it has proved useful for both parties to have the transcripts).

[29]During that call Mr Oxley said he needed to speak internally and bring in TechMet on this proposal because the shareholder agreement had not yet been signed, saying “… by all means have your conversations tomorrow, but keep it conceptual…”. There was also some discussion around payment of fees to DMA, as to which there is a dispute as to the meaning, because the call included discussions of Mitsui as well as the convertible loan note idea. No reference to RCF is recorded in the transcript.

[30]On 27 November 2020 Mr Oxley sent an email internally to Mr Lush, Mr Harvey and Anne Oxley, his wife (who was a technical director and shareholder). He said:

“I had a chat with James Nwankwo of DMA yesterday afternoon. Him and Nigel believe, conceptually, they can attract US$ 15 m for the PNP1000 from their contacts in IFU, plus possible [sic] one of AMCI, RCF and Proterra They believe the IFU are looking for convertible debt and security. The IFU are interested because of the DFC investment and the others because of potential Mitsui involvement. James has sent me an NDA from the IFU and said they would like to talk to the DFC I explained to James that we are fully occupied with closing with TechMet and in any event I would need to discuss the above internally and with TechMet. Maybe there is something here but let’s talk about it, ideally before our call with TechMet later today.”

[emphasis added] The potential significance of this email, because of its reference to RCF, was only recognised in the later stages of preparation for this trial.

[31]Also on 27 November 2020 Mr Nwankwo reported back to Mr Furihata and Mr Read by email that he had had a good call with Mr Oxley who had confirmed that the proposed convertible loan structure could work.

[32]On 30 November 2020 Mr Read sent a WhatsApp message to Mr Valdes asking for a call, saying they had spoken to BRN at length and wanted to update him about what the structure could look like, if this was still an opportunity RCF might consider. Mr Valdes replied:

“Hi nigel, this is definitely not for the PE fund but i will connect you [to] [sic] david Halkyard, who leads the credit fund, best.”

Mr Valdes followed this up with an email to Mr Read, copied to David Halkyard, saying:

“Hi James/Nigel, thanks for the email. Unfortunately there is no way that we could do this from our PE fund but I am ccing David Halkyard that heads our credit fund. Maybe he would be able to make this transaction work. I already briefed him on what we were discussing.”

Mr Halkyard led a newly created credit fund for RCF and was based in London. As I understand it, he had not previously been involved in any discussions or approaches concerning BRN.

[33]Mr Read followed up with a call to Mr Halkyard on 1 December 2020. On 10 December Mr Halkyard replied by email to Mr Read and Mr Nwankwo:

“Good to speak to you both last week. Having discussed internally, we think that this would be something that would be worth looking at in a bit more detail. It would be useful if we could have a look at a model and understand the security package further. I guess to do this we should get an NDA in place, happy to send you[r] [sic] our standard template to review if that works for you?”

Mr Halkyard then sent over a proposed non-disclosure agreement (“NDA”).

[34]On 11 December 2020 there was a key exchange of emails between Mr Read and Mr Oxley, on which BRN places particular weight: From Mr Read:

“Mike, Hello. As you know we spoke discreetly with a couple of groups relating to the PNP1000. To help BRN find a solution that removes the total or full need from Traxys, so to then open the path to a discussion on Mitsui being allocated involvement in the M&D. Given our proximity to RCFs head of Latam we raised it during a recent call and whilst he stated for the PE fund it is not something that could be considered, he introduced us to their head of credit funds. We had a general discussion with them and they are interested to speak with you in more detail around what securities could be pledged and understanding the financial model for the PNP1000 specifically. They sent us their standard NDA. Please review and if interested to take further let us know. They are aware of BRNs timelines.”

They are aware of BRNs timelines.” Reply from Mr Oxley:

“Nigel, Thanks. We have been in touch with RCF a number of times over the years, probably introduced by one of the London brokers in which case there may be a legacy intro fee out there. Also TechMet have a strong connection with them. As such, and to be clear, we cannot contemplate any intro fee for DMA here. Hope that’s ok. Having said that, we are due to have detailed discussions on the PNP1000 funding and full-scale financing options next week Tue and Thurs from which I’m intending to develop a shared view with TechMet and to agree the way forward. I will put this potential interest from RCF on the table. I should also be able to provide clarity to Mitsui on our thinking as well. So let me get back to you end of next week. In the meantime let’s finish off the DMA BRN agreement.”

[emphasis added] In the meantime let’s finish off the DMA BRN agreement.” [emphasis added] Reply from Mr Read:

“Re Our agreement Mike, will be over to you this weekend. Very minor adjustments based on our conversation. Let us know how the PNP1000 discussion goes next week.”

Let us know how the PNP1000 discussion goes next week.” Mr Read reported back to Mr Halkyard on BRN’s response on 16 December 2020.

In the meantime let’s finish off the DMA BRN agreement.” [emphasis added]

[35]On 15 January 2021, Mr Read emailed Mr Halkyard, copied to Mr Oxley (and Mr Antony Rowe at RCF), saying:

“I have just spoken with Mike Oxley, BRN CEO on copy. He would like you have [sic] a call with you next week to discuss the possibilities relating to the 15million PNP1000 funding requirement. The DCF funding has now been fully secured and the focus is on a solution for the PNP1000 as we discussed at the end of last year. He is available next week at the following times: Tuesday 19/1 anytime between would work 1300-1600 UK Wednesday 201/1 anytime between 12-1430 UK Please let us know if either of those work for you and we shall circulate a teams invite.”

He is available next week at the following times: Tuesday 19/1 anytime between would work 1300-1600 UK

Wednesday 201/1 anytime between 12-1430 UK

[36]Mr Halkyard responded to this email agreeing to a call. On 18 January 2021 Mr Oxley exchanged a series of WhatsApp messages with Mr Read also agreeing to a call, saying “Yes ok. I have a call at 11 but I can duck out of that. I'd not plan any kind of presentation... just a chat at this stage.”

[37]This Teams call took place on 19 January 2021, attended by Mr Oxley, Mr Halkyard, Mr Rowe, Mr Nwankwo and Mr Read. Mr Oxley followed it up by sending Mr Halkyard and Mr Rowe a summary of the PNP1000 economic model. On the same day Mr Oxley emailed Mr Read saying “… I have sent the model to them. If we get passed this hurdle then I think we have a good chance with them. As I said on the call, they need to be happy the PNP1000 can cover the debt…”

[38]Mr Read replied on 20 January 2021:

“We sense the same. Given DMAs detailed knowledge of the project and our experience we initially pitched it to them in such a way that gave them enough insight to see beyond the stand alone PNP1000 returns which captured their attention and led the head of Latam supporting the conversation internally with the credit team which is a new division, we held some specific meetings with the David and Antony before Christmas carefully laying out the merits of the opportunity, which led us into yesterday’s call. You reiterated and articulated very well in greater detail how this could work for them, which resonated. We always aim to deliver quality opportunities that we have given proper thought and consideration, which gives everyone the maximum chance of success and why our conversion rate is good. BRN can always count on DMA expertise and local presence. Separately Naota-san just called me and they remain interested, few minor u[p]dates from their side that we can catch up on next week. Lets see what comes back from RCF and take it from there.”

Lets see what comes back from RCF and take it from there.”

[39]Communications between Mr Oxley and Mr Halkyard continued, with Mr Halkyard confirming on 22 January 2021 that they thought it was something they could consider further, and sending an NDA. Mr Oxley brought in one of TechMet’s representatives.

[40]On 29 January 2021 Mr Read sent a follow up email to Mr Halkyard and Mr Rowe. Mr Halkyard replied that they had reviewed the BRN model and thought there was an interesting potential opportunity for them.

[41]On 12 February 2021 Mr Read and Mr Nwankwo had a call with Mr Halkyard (of which there is a transcript) during which the latter said he would be recommending that RCF proceed. After saying DMA had a close relationship with BRN and Mitsui, Mr Read said that DMA did not “have a mandate per se” for RCF and he asked “…if there's a way of pricing any potential fee for DMA into the offer that you make to BRN...”. He said he didn’t want that to be something which jumped out at the final minute of the deal. Mr Halkyard replied that he assumed that DMA had some agreement with Mr Oxley and that it was something Mr Read needed to take up with Mr Oxley.

[42]On 23 February 2021 Mr Halkyard said in an email to Mr Oxley that he had had a good discussion “with the head of Fund VII (the PE Fund)”, which was Mr Valdes’ fund.

[43]On 25 February 2021 Mr Oxley reported back internally to BRN, following a call with Mr Halkyard, that any funds (said to be US$45M) would now most likely be coming from Mr Valdes’ private equity fund and not the credit team. He said RCF were looking for exposure to the full scale project, as well as US$15M debt for the PNP1000.

[44]On 1 March 2021 Mr Halkyard sent Mr Oxley an indicative proposal, now to be an equity investment within Mr Valdes’ Private Equity Fund VII, for US$15M debt financing for PNP1000, US$15M equity or warrants for nearer term and US$15M in warrants at a 30% premium on the last share price. An indicative term sheet was included.

[45]On the same day a WhatsApp exchange took place between Mr Read and Mr Oxley. Mr Read asked if BRN had heard anything back from the RCF credit fund and Mr Oxley replied “Yes. Looking good.” Mr Read replied:

“Ok, When we spoke to him last I raised fees, and he was of the view to take it up with BRN and I explained where we were at and fees would need to be possibly paid from them and to price that in to any offer” and “so its something we all need to think about and be clear on”

. Mr Oxley replied: “Yes we will!” – this final reply has been interpreted by DMA as agreement, but by BRN as an ironic expression of scepticism.

[46]On 4 March 2021 Mr Read emailed Mr Oxley pushing for a meeting including Mitsui. He sent a similar email to Mr Halkyard and Mr Rowe at RCF. BRN perceived this as Mr Read trying to interfere. Mr Oxley responded to Mr Rowe, “Nigel has seriously overstepped his mark. I will talk to him” (although no such conversation in fact followed). Mr Lush interpreted it as a potential breach by DMA of ISA 2, and there was a discussion within BRN as to whether they could terminate for breach. Ultimately BRN decided simply to allow ISA 2 to expire, which it did on 30 May 2021.

[47]On 29 March 2021 Mr Read emailed Mr Oxley, Mr Halkyard and Mr Rowe asking for an update on progress and whether they needed anything from DMA. Mr Oxley replied:

“There are various initiatives underway, of which you are not aware. For the time being, please could he leave BRN and RCF to deal with matters on their own. I will talk to you in the coming days when I have clarity.”

[48]On 31 March 2021 there was an internal email discussion within BRN as to who might claim commission on any RCF deal. Mr Lush said Mirabaud had first introduced BRN to RCF but that agreement had been terminated. Mrs Oxley said:

“We will still have to deal Nigel Reed [sic] – he is going think he’s owed something!”

The response from Mr Lush and Mr Harvey was that RCF was not on any agreed DMA contacts list, and past lists should have been terminated under ISA 2. Mrs Oxley replied:

“Indeed and he might think he re-introed us to David H but we’re not going with him and the debt package. Mike and I just discussed this and we think we should be fine, he will whinge but so be it!”

[49]On 15 April 2021 there was a call between Mr Read and Mr Oxley (also transcribed, as far as relevant) at the end of which Mr Read asked if RCF was advancing, and again pushed Mitsui. Mr Oxley replied that the situation had changed and they were probably going to do a full equity deal for PNP1000 with RCF, with no debt. The tone of the call extract is in my view of Mr Oxley trying to hold Mr Read off.

[50]DMA continued to contact RCF, despite Mr Oxley’s request that they leave BRN and RCF to deal with matters on their own. On 16 April 2021 Mr Read and Mr Nwankwo had a call with Mr Halkyard. On 20 April they had a call with Mr Valdes in which Mr Read again brought up the question of a fee for DMA. Mr Read and Mr Nwankwo were quite clearly getting concerned whether DMA would receive any fee, especially as it was looking increasing unlikely that Mitsui would be part of the final deal. On the call with Mr Valdes, in describing the fee position as he saw it Mr Read explained:

“…being totally candid, as things stand right now there is no specific agreement that, that, that represents the presentation of you know, this opportunity, or bringing this back to the table with RCF… but obviously, you know, the reason we put all this thinking and er, and structuring into transactions is ultimately to receive fees when, you know, transactions close…”

Mr Valdes replied only that he would revisit this with Mr Oxley, although he did say “I have been in your shoes, I mean I was an M&A banker for 15 years…”. He made it clear that RCF would not be responsible for any fee. The overall tone of this call in my view is that Mr Read and Mr Nwankwo felt embarrassed raising with Mr Valdes the question of a fee for DMA.

[51]After it became clear that the RCF investment was proceeding, on 8 June 2021 Mr Read emailed Mr Valdes again. He said everyone was pleased to learn of the term sheet being put in place, referred again to the potential for Mitsui becoming involved, and what he described as DMA bringing this back to RCF. He raised the question of DMA’s fees, saying this had been left while RCF better understood the technical side, but now the term sheet was pending it seemed “…the right time to have another call and [align] with RCF DMAs fees so [as] to close this all off at the same time.”

[52]It is very clear to me from this correspondence that Mr Read was pushing Mr Oxley and Mr Valdes throughout this period from March 2021, to discuss and agree to a fee for DMA at the same time as the deal was finalised, so that a fee for DMA would be priced in. It is equally clear to me that there was resistance from BRN, who had internally decided that they would not be paying a fee to DMA on any RCF investment, and that both Mr Valdes and Mr Halkyard were of the view that any fee to DMA was BRN’s problem, not RCF’s. Insofar as these are not conclusions which the parties were willing to accept at trial (as to which I am not clear), I find that this was the case.

[53]On 29 June 2021 a call took place between Mr Oxley and Mr Read. DMA relies on this call as having resulted in what is said to be either an oral or an implied contract between DMA and BRN to pay DMA a reasonable fee. There is only a transcript of Mr Read’s half of that call, presumably because of the way it was recorded. DMA has also disclosed handwritten notes about it from Mr Read (although it is not clear to what extent these were preparation for the call or notes taken during it, or both).

[54]Conclusions as to what Mr Oxley said and what if anything he agreed to must therefore be drawn by the court from Mr Read’s half of the conversation, the other contemporaneous material including his notes, and the inherent likelihood of events, as well as the evidence of the two protagonists. It is a key event with which I will deal in more detail later in this judgment. DMA say that during this call Mr Oxley agreed to a three way call with DMA and RCF in which DMA’s fees would be discussed and agreed, and he agreed that BRN would be reasonable in relation to those fees. This is all denied by BRN. It is clear from the transcript that Mr Read proposed such a three way call: the issue is what if anything was agreed by Mr Oxley.

[55]No such three-way call in fact took place. On 16 July 2021 Mr Read emailed Mr Valdes saying DMA had deliberately stood back at BRN’s request “… after we reconnected and the parties and got them both interested, so you could get into the details and we are only now raising this point again on fees given a transaction looks highly likely.” After referring again to pricing in fees for DMA he continued:

“We suggested to Mike that we have a three party call with BRN and RCF to finalize this point together, I explained that we had raised this point with RCF and you were aware of this. He agreed that he would raise this with you also, once the complexity of the transactions had been worked out around Mid-July, hence why we are emailing now. Let’s have a short call to discuss this or if you prefer we can jump straight into a three way call with BRN.”

[56]Mr Nwankwo sent a chasing email to Mr Valdes on 27 July 2021, saying:

“Hello Martin. Have you come to a position on this. It was acknowledged and noted at the time of the discussion and authorised disclosure of information to you that the parties would act reasonably and ethically in the event a deal is struck between RCF and BRN. I had assumed the commitment to act reasonably and ethically is a commitment by provided [sic] gentlemen well versed in the nuances of corporate finance. Having personally invested a significant amount of thought capital into the opportunity and specially suggesting DMA takes this opportunity back to RCF, I do hope a fair outcome is had by all to the extent RCF completes on this. Look forward to hearing from you.”

Look forward to hearing from you.”

[57]This was followed on 2 August 2021 by an email from Mr Read to both Mr Oxley and Mr Valdes, copied to Mr Nwankwo, saying:

“As we have all been speaking over recent weeks, it was agreed that once the transaction between BRN & RCF was close or at closure, we would jump on a three way call to discuss and close the renumeration for DMA for bringing this back to RCF in such a way that finally generated interest. Both RCF and BRN were skeptical that a deal could be of interest but through DMAs persistence and well considered structure given our detailed knowledge of the transaction, both parties accepted the reintroduction of the opportunity. DMA participated in all of the initial calls where we laid out in detail the merits of the transaction to RCF and also to BRN why RCF should now be interested. We then stepped out of the discussion at the parties request whilst more detailed technical analysis was undertaken by RCF. We note that BRN and RCF have been in touch before although that had not borne success hence the skepticism at the reintroduction of the parties and opportunity. We can all acknowledge it was only after DMAs reintroduction a transaction has taken place. We have remained in contact with both parties and have always been transparent when raising DMAs remuneration, and it was acknowledged we would act in a reasonable and fair manner should a transaction take place. We are pleased for the parties that you have got a deal done and we look forward to speaking this week again. Please let us know your availability this week so we can have a quick three way call to discuss, align and close off this topic.”

[58]In response to this email, Mr Oxley emailed Mr Valdes (only) in the following terms:

“To be clear on my perspective on this. • I had not agreed with Nigel to a three way call. He called me and suggested it some weeks ago, but I choose [sic] not to respond and certainly did not agree to this. • Nigel did put us in contact with David Halkyard, through, I believe, an introductory email on 15th January this year. BRN and RCF had of course been in touch before. • We have no current contractual agreement with DMA. In fact our only contractual relationship with DMA was signed on 4th January 2021 and is now expired. This specifically only concerned discussions with one party (Mitsui). • No payments to DMA, or any other intermediary, are in the agreed budget. Thus I would not support any payment to DMA. Nevertheless, I’d like to hear your perspective on this. I’m currently at site and generally available Brazil time. Maybe we should have a quick chat?”

[59]Mr Valdes replied to Mr Oxley, also on 2 August 2021: “Hi mike, sorry, just getting to this email. From an rcf point of view we don’t owe anything to dma. The relationship with brn comes from many years and went [sic] dma contacted rcf was to introduce a credit opportunity with mitsui. Pls let me know if you want to chat, tks”.

[60]On 17 August 2021 both RCF and TechMet entered into a formal agreement to invest in BRN. Details of RCF’s investments are set out in the next section of this judgment. Ultimately, in September 2023, RCF sold all of its interests in BRN to TechMet.

[61]On 31 August 2021, BRN issued a press release saying that RCF was investing US$17.5M in BRN.

[62]It appears Mr Oxley and others at BRN avoided further contact with DMA. On 8 September 2021 Mr Read sent a WhatsApp to Mr Oxley, saying “How are you? When are you coming to Brasil be good to meet in person if possible.” Mr Oxley did not reply.

[63]BRN has disclosed a further email exchange between itself and RCF on 24 September 2021, in which potential claims for broker fees were discussed. This includes an email from Mr Halkyard to Mr Lush, forwarded to Mr and Mrs Oxley and Mr Harvey, in which Mr Halkyard rejected a claim a broker called “Julian” was making, but continued:

“… Looking in our system it seems that Audley (Ed Jack) contacted Martin Valdes (PE) in June 2020, at the time the opportunity didn’t work for PE so they passed it onto the Opportunities Fund, who look to have briefly reviewed… and passed on the opportunity to invest. One of our colleagues looks to have sent a note to Ed saying that we were not looking to invest at that point. Our (London) and subsequent PE (Martin’s) engagement came from a call/intro from DMA.”

[emphasis added]

Our (London) and subsequent PE (Martin’s) engagement came from a call/intro from DMA.” [emphasis added]

[64]On 4 November 2021, DMA sent an invoice to BRN for US$875,000, calculated as 5% of US$17.5M (the sum stated in the press release). The accompanying email, which was copied to Mr Valdes, set out DMA’s case as to why it said it was entitled to an introduction fee, sought a meeting, but said that otherwise a claim would be pursued. The email said that DMA would pursue fair remuneration on a “quantum meruit” basis.

[65]BRN did not respond substantively to that email. In due course solicitors instructed on behalf of DMA sent a letter to BRN on 30 March 2022 seeking payment of the invoice. BRN’s solicitors responded, rejecting any liability, on 1 April 2022.

Investments made by RCF

[66]On 17 August 2021, RCF (Resource Capital Fund VII L.P.), TechMet and others entered into a subscription deed with BRN (“the Subscription Deed”). Under the Subscription Deed, RCF agreed to subscribe to the issue of 20,758,701 ordinary shares in BRN (at what is said to be a price of £0.61 per share), for a total consideration of US$17.5M. This is said to equate to £12,662,808 at the exchange rate specified in the Subscription Deed (which was 1.382 – clause 1.1) and in BRN’s financial statements, which it is agreed is the correct exchange rate.

[67]On 26 August 2021: i) BRN only actually subscribed to 12,555,667 shares, for a total consideration of US$10,584,678, or £7,658,957 at that same exchange rate. ii) BRN also granted RCF an option to purchase further shares in BRN in the following events (“the Option Agreement”): a) If BRN floated as a public company (an IPO), RCF could subscribe to shares worth US$12.5M at 90% of the offer price; and b) If there was a sale of BRN, RCF could subscribe for shares worth US$10M at £1 per share.

[68]A year later, by a letter dated 20 July 2022 signed by all parties, the Subscription Deed was amended, reducing the total number of shares to which RCF agreed to subscribe from 20,758,701 to 14,334,985. RCF then subscribed for the balance of the reduced total (i.e. 1,779,318 shares) on 20 July 2022 and 9 August 2022 (according to the dates in the letter). The additional consideration paid was US$1,500,000 or £1,085,384.

[69]Accordingly, the total consideration paid by RCF on the share subscriptions in August 2021 and July/August 2022 was US$12,084,678 or £8,744,341.

[70]As part of the amendments to the Subscription Deed made by the letter of 20 July 2022, BRN also granted RCF a further option, to purchase 8,203,034 shares at a price of 75p per share, exercisable for 12 months (“the 75p Option”), trading its obligation to subscribe for the remaining 6,423,716 shares for this call option. By a further amendment in a letter dated 15 August 2022, the number of shares to which the 75p Option applied was reduced back to 6,423,716. It is common ground that RCF did not exercise that option itself, but instead assigned it to TechMet on 11 September 2023, and that TechMet exercised it on the same day, paying BRN US$6,049,492.79.

[71]On 29 March 2023 RCF made a convertible loan to BRN of US$398,582.85.

[72]The Option Agreement was not exercised by RCF. By an agreement dated 19 September 2023, RCF assigned it to TechMet, at the same time as RCF sold all its shares in BRN to TechMet. This option has never been exercised at all, by TechMet or anyone. Its value to TechMet lay in the fact that RCF could not then exercise it and nullify TechMet’s majority shareholding.

[73]There is no dispute that if DMA has any claim at all, it is entitled to commission on the US$12,084,678 paid for the share subscriptions in August 2021 and July/ August 2022.

[74]DMA also claims commission on(a) the Option Agreement;

(b) the 75p Option and

(c) the convertible loan made on 29 March 2023. BRN disputes that DMA would be entitled to any commission on any of these.

Procedural history

[75]A more detailed letter of claim was sent by DMA’s current solicitors, Withers, on 16 February 2024, to which BRN’s solicitors, Norton Rose Fulbright (“NRF”), responded on 4 July 2024. Following further exchanges of correspondence, proceedings were issued by DMA on 21 March 2025, with Particulars of Claim (“PoC”) pleading a claim in contract and/or unjust enrichment, and served on the same day. BRN served a Defence dated 22 April 2025 disputing any liability. DMA served a Reply dated 6 May 2025.

[76]On 16 July 2025 a case management conference (“CMC”) took place before me, as the designated trial judge.

[77]Under the STS, the PoC are to be accompanied by a bundle of core documents (PD57AB para 2.23). This is generally interpreted as meaning the key documents on which the parties rely. By PD57AB para. 2.32, the Defence is to be accompanied by any further documents on which the defendant intends to rely. I understand both parties served a bundle of key documents on which they relied, with their statements of case.

[78]The usual rules on disclosure in the BPC, in PD57AD, do not apply within the STS – see para. 1.4(5) of PD57AD. Among other things, this means that the obligation to disclose known adverse documents, in para. 2.7 of PD57AD, does not apply. By para. 2.39 of PD57AB, the CPR rules as to disclosure in Part 31.5(2) and 31.7 do not apply either.

[79]Instead, provisions on disclosure in the STS are set out in paras. 2.39 – 2.43 of PD57AB. Para. 2.40 provides that each party shall send the other a request for any document or class of documents of which disclosure is sought, at least 14 days before the CMC. Any disputes as to those requests are to be resolved at the CMC. Unless the court orders otherwise, the parties are to give disclosure by list of(a) the documents on which that party relies as supporting their case and

(b) any documents requested or ordered to be disclosed.

[80]In the present case, both parties served document requests and I resolved some issues on them at the CMC. As to requests for internal documents within BRN referencing DMA or its services, the request was agreed by the parties to be limited to documents dated between 11 December 2020 and 30 November 2021. Disclosure was provided in accordance with those requests.

[81]I also gave permission at the CMC for each party to rely on expert evidence (with permission for oral evidence at trial), addressing: i) the relevant market value of the intermediary services which DMA alleges it performed; and ii) whether the grant by BRN to RCF of options to purchase shares constituted the provision of value to BRN for which DMA should receive remuneration (if it is entitled to receive remuneration generally).

[82]In contrast to disclosure, the provisions as to the preparation of trial witness statements in PD57AC do apply under the STS, since these are BPC proceedings and are not excluded under para. 1.3 of PD57AC. Paragraph 7 of the order made at the CMC expressly acknowledged this.

[83]Witness statements were exchanged by the parties on 13 November 2025. DMA served statements from Mr Read and Mr Nwankwo, and BRN served a statement from Mr Oxley. In accordance with paragraph 3.2 of PD57AC, each statement was accompanied by a list of all the documents to which the witness had referred or been referred to for the purpose of providing their evidence.

[84]Perhaps unsurprisingly, given the quite limited scope of disclosure under the STS, those lists included significant numbers of documents which had not previously been disclosed. Both sides then wrote to the other stating that there were additional documents in the lists from their own witnesses on which they also wished to rely. For DMA, this included the recording of the call between Mr Nwankwo and Mr Oxley on 26 November 2020.

[85]This was all agreed, and copies of all such documents were provided. However, in a letter of 20 November 2025, Withers also requested disclosure of copies of a number of documents which Mr Oxley had listed, which BRN had not previously disclosed. It was said that if Mr Oxley considered them relevant to his witness statement, they might also be relevant for cross examination. Those documents were disclosed by NRF on 3 December 2025. Notably, many of those documents pre-dated 11 December 2020, which the parties had previously used as the start date for many of their disclosure requests.

[86]Having reviewed that further disclosure, on 21 January 2026 Withers wrote to NRF asserting that the internal BRN email of 27 November 2020, which I have quoted above, demonstrated that Mr Oxley’s witness evidence was false when he stated that he was “certain that DMA did not mention any approach to RCF to me before [DMA’s email of 11 December 2020]”. More generally, in this letter Withers now claimed that Mr Oxley had approved an approach to RCF during the call with Mr Nwankwo on 26 November 2020 or otherwise prior to 11 December 2020.

[87]By a letter in response of 30 January 2026, NRF rejected this interpretation but agreed to provide further requested documents by reference to a start date of 24 November 2020.

[88]Although a pre-trial review (“PTR”) had been listed for 12 February 2026, this was vacated by consent, at the request of the parties. These issues and their consequences were not therefore explored at a PTR.

[89]On Wednesday 4 March 2026, both counsel filed and exchanged their skeleton arguments for the trial due to start on Monday 9 March. In his skeleton argument, Mr Halban made the argument that BRN had known and approved of DMA approaching RCF in November 2020, that DMA had introduced Mr Halkyard, including steps starting in November 2020, and that this was the effective cause of RCF’s investment in BRN, for the purposes of its unjust enrichment claim.

[90]In a supplementary note filed and served on 6 March 2026, Ms Campbell objected on behalf of BRN to DMA running such a case, which she said diverged from DMA’s PoC. In particular she argued that in the PoC, the services provided by DMA, by which BRN was said to have been unjustly enriched, were limited to a period from January to March 2021. In a note in reply, Mr Halban argued that the approaches in November 2020 had been pleaded in the PoC and in any event BRN was not prejudiced because this issue had been well ventilated in correspondence between Withers and NRF in January/February 2026. Letters were also exchanged shortly before trial as to whether DMA intended to apply to amend its PoC, which DMA said was unnecessary.

[91]Consequently at the start of the trial I was asked to resolve the issues of(a) whether DMA had already sufficiently pleaded matters which took place in November 2020 as amounting to services on which it could rely for the purposes of its unjust enrichment claim (only); and

(b) if not, whether DMA should be given permission for a late amendment to plead the same.

[92]In a ruling given on the first day of trial, I decided that: i) Although paragraphs 18 to 22 of the PoC did plead contact between DMA’s representatives and RCF and the convertible loan note proposal put forward by Mr Nwankwo, the definition of “DMA Services” in paragraph 25 of the PoC on which DMA relied as grounding its unjust enrichment claim did not include the steps pleaded in those paragraphs. ii) However I would give permission to DMA to amend the definition of “DMA Services” in its PoC to extend to the steps pleaded in those earlier paragraphs at 18 to 22, and also the call between Mr Nwankwo and Mr Oxley on 26 November 2020 because BRN had been aware for some time that DMA was making a case which relied on steps taken in November 2020. It was apparent from the fact Mr Oxley’s witness statement and the documents he listed covered these matters in November 2020 that BRN was aware of this. Furthermore, the contacts with RCF in November 2020 had been pleaded even if not included in the definition of “DMA Services”. Permission to amend was limited to allowing DMA to expand the definition of DMA Services to include what was already pleaded plus the call on 26 November 2020.

[93]As I noted in my ruling, this issue had particularly come to light because of the disclosure of the internal BRN email of 27 November 2020. However that did not happen until December 2025, after and indeed as a consequence of the service of witness statements. This was because of the way the disclosure obligations under the STS and the rules about trial witness statements within PD57AC fitted together.

[94]In my view the email of 27 November 2020 was arguably an adverse document. However, because of how disclosure in the STS works, there was no obligation to disclose it as a known adverse document, and DMA did not know to request it. More generally, a significant number of documents dating from November 2020 (including the recording of the call of 26 November 2020) were only disclosed after witness statements had been served, and only because of the requirement in PD57AC to list documents reviewed during preparation of witness statements.

[95]I must say that I regard the absence of any obligation to disclose known adverse documents as being a weakness of the STS. As I observed during the trial, because of the limited disclosure requirements in the STS, I was disinclined to criticise any party for late disclosure where so many documents had only been disclosed at all because they had been listed as reviewed during witness statement preparation. I also considered it necessary in those circumstances to be pragmatic in allowing very late amendments to the parties’ statements of case, where these did not cause prejudice. Fortunately in this trial the parties and their representatives were alert in raising the disclosure and amendment issues and cooperative in resolving them, but this still unhelpfully compressed the time available for the trial itself.

The witnesses

[96]The three main protagonists were the only witnesses of fact. This is a case where it has been necessary to piece together the evidence from lots of emails, messages, records of telephone calls and other contracts as well as the parties’ oral evidence. DMA’s case is not based on any key contract document, and indeed that is part of how BRN attacks it.

[97]Much guidance has been given in authorities about the fallibility of memory and the value to the judge especially in commercial cases of contemporaneous documents, when weighed against witnesses’ recollections, which degrade with time and are often coloured by subsequent events and the emotions of litigation. However this does not mean witness evidence has no value in a commercial case. In the recent case of Mohammed v Daji

[2024] EWCA Civ 1247

Newey LJ (giving the lead judgment in the Court of Appeal) summarised the guidance as follows, at [45]:

“The significance of evidence as to recollection: [45] Judges have for many years remarked on the vulnerabilities of evidence as to what witnesses remember. Popplewell LJ recently discussed human memory and how witnesses can come to give mistaken evidence in his 2023 COMBAR lecture, Judging Truth from Memory: The Science. In Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), [2020] 1 CLC, at paragraph 22, Leggatt J went so far as to suggest that ‘the best approach for a judge to adopt in the trial of a commercial case is … 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’. However, Popplewell LJ explained in his lecture that he did not himself wholly agree with this remark and in Natwest Markets plc v Bilta (UK) Ltd [2021] EWCA Civ 680 the Court of Appeal pointed out at paragraph 50 that ‘it is important to bear in mind that there may be situations in which the approach advocated in Gestmin will not be open to a judge, or, even if it is, will be of limited assistance’. In Kogan v Martin [2019] EWCA Civ 1645, [2020] FSR 3, the Court of Appeal said at paragraph 88 that ‘a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all of the evidence’.”

[98]I have accordingly given careful consideration to the documentary evidence, and also to the inherent probability of events, in testing the accounts of the witnesses. I also bear in mind that the events with which I am concerned took place several years ago, which inevitably affects the reliability of recollections, and indeed whether much can be recalled at all, as Mr Oxley in particular freely acknowledged in his evidence. I consider that the perceptions of all three main protagonists have also been coloured at least to some degree by the position their side has taken in this litigation. I have tried to take account of each witness’s evidence as a whole when assessing them, and even where I have rejected the evidence of a witness on one point, this does not mean I have rejected everything they say.

[99]Furthermore, my assessment is that both sides were anticipating even when the events were still unfolding in 2021 that there could well be a dispute over whether DMA should receive a fee for an introduction of RCF. Even in contemporaneous emails and conversations, the witnesses and others were sometimes in my view trying intentionally to strengthen their position, support an argument or leave a paper trail, and I have borne this in mind when assessing those documents and records. As was openly acknowledged during the trial, both the investor and the company, here RCF and BRN, have an economic incentive to exclude a payment to an introducer if they can, because any such fee comes out of the investment and so reduces the value of the investment to both the investor and the company. Both DMA’s fear of being cut out and BRN’s desire to delineate any obligation to pay a fee in a written agreement and resist paying any other fee, are understandable, predictable and typical of the industry.

[100]What follows is my general observations about each of the witnesses, but these should be read together with my later fact-findings on particular issues.

The Claimant’s factual witnesses

[101]Mr Read clearly had a good recollection of the relevant events and was familiar with the documents. He was confident and made few concessions in cross examination, and it was apparent that he felt strongly that DMA had been wrongly denied a fee to which it was entitled. He was wary of making any concession which might undermine his case, which led him to resist admitting some points which were clearly right, such as that in March 2021, when it had become apparent RCF was likely to invest, he was trying to bring Mitsui in on the deal as well.

[102]Throughout the contemporaneous correspondence it is apparent that he felt he needed to present the case that DMA had been instrumental in bringing RCF to the table. This can be seen as early as his email of 20 January 2021 to Mr Oxley in which he emphasised DMA’s experience, and that it was their convertible note idea which had attracted Mr Halkyard’s interest. In my assessment he was laying a paper trail from the beginning which would support DMA’s claim to a fee, probably as a result of past experience.

[103]Mr Read is a salesman at heart: making connections and persuading unwilling people to take an interest is his lifeblood, and while this is a very useful asset in a broker, it can also rub people up the wrong way. He certainly seems to have annoyed Mr Harvey and Mr Lush at BRN, as can be seen from their internal emails both from October 2020 and later in 2021. It seems to me that Mr Read was fully aware that even while he was using emollient language with Mr Oxley, it was going to be difficult to pin him down into agreeing a fee: for example, when counsel pressed him on the fact that the call of 15 April 2021 included no discussion of DMA’s fees, his response was that that was because Mr Oxley couldn’t get off the phone fast enough.

[104]This need to make his case made its way into Mr Read’s evidence. He was projecting a narrative and resisted questions which undermined it. At the same time, his account was consistent with the documents in a number of key respects, for example that it was DMA’s approach to Mr Halkyard which led to RCF’s engagement with BRN, and Mr Halkyard had acknowledged this.

[105]Overall my assessment is that Mr Read was a persuasive witness with a good recollection of events, but that his strong identification with his cause meant that his evidence was not always reliable. Where there is a conflict, I prefer the documentary record, but his evidence is frequently supported on the points in dispute by the documents which do exist.

[106]Mr Nwankwo was a more measured witness who was willing to make appropriate concessions, but held firm when he considered that what was put to him was wrong. He accepted for example that his original convertible note idea involved Mitsui as an intrinsic part of the concept. He gave convincing evidence about the events in November 2020, when he conceived this idea as a solution to raising funds for PNP1000 because Traxys looked to be pulling out. His evidence that Mr Oxley had given DMA permission to have discreet conversations with funds including RCF was clear, and is consistent with the limited available documents and inherent probability of events. There was no reason to hide the contact with RCF, even though much of the focus was on IFU, who appeared at that point to be the better prospect. Mr Nwankwo was also clear in his evidence that DMA’s expectation throughout was that any fee for RCF’s introduction would be separate from any fee they might earn in relation to Mitsui, that these were two lines of investment, one intended for PNP1000 and one for full-scale.

[107]In some respects his evidence also illustrated the fallibility of human recollection. Mr Nwankwo referred in his witness statement to “our subsequent conversations with Mike about fees”. Ms Campbell asserted in submissions that none of what he said in his witness statement about discussions with Mr Oxley after 11 December 2020 had happened, and that this was astonishing. In my judgment this is unfair to Mr Nwankwo. She had put to him that he had not been on any such calls with Mr Oxley (calls which nevertheless did happen). Mr Nwankwo said he had been on the 29 June 2021 call, but when he was taken to the transcript, he accepted that he had not been, saying he had been mistaken. He then acknowledged that all the calls with Mr Oxley about fees after December 2020 had been with Mr Read alone. It is clear to me that his familiarity with DMA’s case as to the 29 June 2021 call had caused him mistakenly to believe he had been on it, but when it was demonstrated to him that he had not been, he readily accepted the true position.

[108]Overall my assessment is that Mr Nwankwo was an impressive witness on the issues about which he had clear knowledge, and I accept his evidence on those issues. I am however cautious about some of the more generalised descriptions of events in his witness statement. It is apparent to me that his direct knowledge centres on the events in the earlier stages, between November 2020 and March 2021, together with the specific calls about fees with Mr Valdes or Mr Halkyard in April 2021 which he joined.

The Defendant’s factual witness

[109]Mr Oxley was a witness who acknowledged that he had little independent recollection of the material events, and was to a great extent reconstructing them from his review of documents. As Mr Halban submitted, this makes his evidence rather unreliable. There were a number of points where he was forced to concede that what he had said in his witness statement was probably wrong, because it was inconsistent with the contemporaneous documents. Sometimes I think he also simply found it easier to say that he could not remember.

[110]Most strikingly, having said in his witness statement at [27] that he was “certain that DMA did not mention any approach to RCF to me before [Mr Read’s email of 11 December 2020]”, Mr Oxley acknowledged in cross examination, “No, having seen the new email and transcript of the 26th, I've now got some doubts as to whether RCF was mentioned or not.”. He had also said explicitly in his statement at [24] that he did not authorise DMA to approach RCF at all and at [25] that Mr Read “certainly did not speak” to him about Mr Read’s discussions with RCF at that time. However in his oral evidence he acknowledged that he had no independent recollection at all of the call with Mr Nwankwo on 26 November 2020, or a call on 18 November 2020 between himself and Mr Read which Mr Nwankwo’s email to RCF and Mitsui the next day explicitly says took place. I do not therefore accept the evidence in his witness statement on these points.

[111]Mr Oxley was also rather reluctant in evidence to accept that the true position was reflected in the documents, despite his admission that his own recollection was poor or non-existent. For example, although he eventually accepted that it was the introduction of Mr Halkyard that led to Mr Halkyard proposing that Mr Valdes’ fund should invest, he refused to accept that Mr Halkyard was correct in saying in September 2021 that his introduction came from DMA.

[112]I do not consider that Mr Oxley was knowingly giving inaccurate evidence on these or other matters. My assessment is that DMA’s involvement was simply not a priority for Mr Oxley in 2020-21 – his focus was on getting investment from RCF and TechMet – and that is probably why his recollection is much poorer than Mr Read’s or Mr Nwankwo’s. However, the certainty with which he expressed himself in his witness statement about events which he could not really recall was unfortunate. The evidence indicates that even in 2021, BRN’s directors were determined to resist any suggestion that DMA and Mr Read were entitled to a fee, and in my view this has led to Mr Oxley overstating his evidence, including as to what he can truly remember.

[113]It was also apparent both from the documents and his evidence that Mr Oxley is conflict-avoidant. When asked why he had not followed up with Mr Read about having “overstepped” in contacting RCF on 4 March 2021, as he told BRN’s directors in March 2021 he would, Mr Oxley replied that this was “cowardice”. It is also striking that throughout the calls and emails from March to July 2021, Mr Oxley never actually says to Mr Read that BRN will not pay DMA a fee, even though it has reached that decision internally. While it is understandable that Mr Oxley did not want to “rock the boat” with RCF, I think this is an over-used excuse when it was obvious that Mr Valdes and Mr Halkyard were well aware at the time that there was an issue with DMA about whether they should be paid a fee, which needed to be addressed head-on. This tendency has in my view led to Mr Oxley saying inconsistent things to different people, and a lack of clarity in his evidence. Even giving evidence he seemed to find it hard simply to disagree with a proposition put to him in cross examination when he did not accept it.

[114]In my assessment, this is key to what happened in November 2020. My conclusion is that when Traxys threatened to pull out of PNP1000, Mr Oxley was faced with an urgent need to find a replacement. Mr Nwankwo’s concept was a possible solution, and so Mr Oxley was more encouraging than he might otherwise have been with DMA, given his fellow directors’ doubts about Mr Read. When it became clear Mr Halkyard was serious, Mr Oxley back-pedalled with DMA, because others at BRN wanted DMA tied down into ISA 2. My assessment is that his 11 December 2020 email was part of his back-pedalling, but even then he did not follow through consistently, working with DMA to set up the introductory call with Mr Halkyard in January 2021.

[115]Overall, my assessment is that Mr Oxley was a problematic witness, both because his recollection was limited and therefore unreliable, and because his desire to avoid conflict has caused him to behave and respond inconsistently. I have therefore treated much of his evidence with scepticism. However, this does not mean that I reject all his evidence, especially where what he says is inherently probable or is supported by the documents.

Expert evidence

[116]I had the benefit of expert evidence relating to quantum from Mr Bernardo Danesi on behalf of DMA and Dr Peter Bird on behalf of BRN. Mr Danesi’s report was dated 17 December 2025 and Dr Bird’s was dated 15 December 2025. The experts met for a joint meeting and produced a joint statement of their areas of agreement and disagreement dated 12 January 2026. Both gave oral evidence and were cross examined.

[117]Mr Danesi is a transfer pricing and energy economist who works as a consultant in London, advising firms, investors and regulatory bodies on among other things valuation and pricing of assets. Ms Campbell challenged his expertise quite heavily in cross examination, but her main point on this seemed to be that Dr Bird had more practical experience, because Mr Danesi had not worked with intermediaries whereas Dr Bird had worked as an investment banker.

[118]Mr Danesi had carried out a benchmarking exercise reviewing commission rates(1) in fundraising agreements entered into by DMA and/or BRN (i.e. including with others) and

(2) in a large number of intermediary agreements across a wide range of industries. His conclusion from the first set was that 5% commission was both the most common and median rate (with a range of 4.2% to 8%). He actually ignored ISA 2 as irrelevant. His wider sample gave a broader range, of 3.8% to 8%. He also opined on the question of whether share options amounted to provision of value to BRN.

[119]Dr Bird concluded that the amounts paid to intermediaries varied extremely widely, so that he could not identify any single “market rate”. In his view the only relevant source of information was the rate of 2% for equity investment in ISA 2, because the date of that agreement coincided with the period when DMA’s services were said to have been provided. I will also consider below his opinion on the share option issue.

[120]When it was put to Dr Bird that the period for the provision of relevant services had been extended back to November 2020, i.e. pre-dating ISA 2 by 2 months, Dr Bird said that this meant he would have to reanalyse his findings and could not express a view on commission rates. Mr Halban submitted that Dr Bird had therefore retreated from his evidence.

[121]My assessment is that both experts had relevant expertise and both had approached their tasks in an independent fashion. I found Mr Danesi’s analysis of the parties’ contracts significantly more relevant than his analysis of the market more generally. I have concerns that he excluded ISA 2 from his consideration, but I accept it would not have affected his conclusions overall. His conclusion that the commonest commission rate was 5% is clearly supported by the evidence to which he referred.

[122]Although Dr Bird clearly had expertise, I found him somewhat underwhelming as a witness. My conclusion is that he was overly rigid in his approach to what was relevant evidence, in a market where there were plenty of examples of contracts entered into by either or both of the parties, and where commission rates appeared to have been very stable over time. His rejection of any evidence other than ISA 2 was rather convenient for BRN, especially since the pre-contract correspondence showed that the parties explicitly considered that the risk profile of that contract was lower, justifying a lower commission rate. His unwillingness to consider either the effect of this correspondence or what the relevant commission rate might be if the services had been provided slightly earlier than January 2021 was also unimpressive.

[123]Overall therefore I found Mr Danesi’s evidence more useful on the question of the relevant commission rate. I will return below to the question of the options.

Issue 1: the contract claim

[124]The scope of the alleged contract is notably limited. DMA does not allege that it entered into any contract with BRN when it provided any introductory services, let alone before doing so.

[125]In section F of the Amended PoC, DMA alleges that on or around 29 June 2021 it was agreed expressly or impliedly and/or that there was a shared understanding, that if RCF invested in BRN, DMA would receive remuneration for that reintroduction and BRN would be reasonable in discussing and agreeing the amount of that remuneration.

[126]There are a number of difficulties with that formulation, as Ms Campbell pointed out. She objected that a contract cannot be implied from a conversation: either an oral contract was created or it was not. In addition it sounds like an agreement to agree, and also one where any consideration was past. Mr Halban submitted that these difficulties could be overcome.

The law: contract claim

[127]There is no dispute that where there is a contract for work to be done, but no sum is fixed for remuneration, an implied term arises to pay a reasonable sum, unless the parties expressly agree otherwise: s. 15 of the Supply of Goods and Services Act 1982 (“the 1982 Act”) and Barton v Morris

[2023] UKSC 3

[2023] AC 684

(“Barton”) at [138].

[128]There is also authority that where there is no express written or oral contract, the court can infer a contract from conduct, with an implied term that reasonable remuneration would be paid. The focus in such a situation is on determining the intention of the parties, objectively ascertained (Energy Venture Partners Ltd v Malabu Oil & Gas Ltd

[2013] EWHC 2118 (Comm)

at [265], [277]).

[129]Ms Campbell submitted that, at its highest, DMA’s case concerning the agreement allegedly reached during the call on 29 June 2021, was an agreement to agree. She said this was comparable to the alleged agreement in Willis Management (Isle of Man) Ltd v Cable and Wireless Plc

[2005] EWCA Civ 806

; [2005] 2 Lloyd's Rep. 597 (“Willis”). There the Court of Appeal concluded that an agreement to meet to discuss how one party’s share of the other’s loss was to be determined, was a mere agreement to agree and as such not enforceable. It would have been different if they had agreed that one party would bear a reasonable share of the other’s loss, but this was not what they had agreed (see Tucker LJ at [24] and Rix LJ at [33]).

[130]On the requirements for an implied contract, Ms Campbell relied on Modahl v British Athletic Federation (No 2)

[2002] 1 WLR 1192

in which Mance LJ explained at [102] that it must be necessary to imply a contract from the parties’ conduct:

“Where there is an express agreement on essentials of sufficient certainty to be enforceable, an intention to create legal relations may commonly be assumed…. It is otherwise when the case is that a contract should be implied from the parties’ conduct... It is then for the party asserting a contract to show the necessity for implying it…”

[131]With particular reference to contracts for payment of a fee for a successful introduction, Mr Halban relied on the decision in Premia Marketing Ltd v Regius Mutual Management Ltd

[2021] EWHC 2329 (QB)

(“Premia”), where Roger Ter Haar QC, sitting as a Deputy High Court Judge, concluded at [69] that, on the basis of the parties’ conduct:

“… there was a sufficient meeting of minds between the parties to constitute a contract under which in return for effecting an ultimately successful introduction Premia would receive a reasonable fee for that service and any other associated services which Regis requested it to provide.”

[132]On the question of past consideration, Mr Halban relied on the Privy Council case of Pao On v. Lau Yiu Long

[1980] AC 614

(“Pao On”) at 629G where Lord Scarman stated that:

“An act done before the giving of a promise to make a payment or to confer some other benefit can sometimes be consideration for the promise. The act must have been done at the promisors’ request; the parties must have understood that the act was to be remunerated either by a payment or the conferment of some other benefit; and payment, or the conferment of a benefit, must have been legally enforceable had it been promised in advance.”

Ms Campbell agreed that this is the relevant test. The parties’ submissions: contract claim The Claimant’s submissions

The parties’ submissions: contract claim

[133]On behalf of DMA, Mr Halban submitted that on the facts, I should prefer the evidence of Mr Read, to the effect that Mr Oxley agreed with him during the call on 29 June 2021 that BRN would pay DMA a reasonable fee for the services which DMA had provided in reintroducing RCF to BRN, and that they should have a three way call with Mr Valdes at RCF to discuss the amount of the fee. He said that Mr Oxley’s “certainty” that he did not agree to such a three-way call cannot be relied upon, and that I should also place weight on Mr Read’s handwritten note of the call, in which he recorded “Call all three? To discuss. Reasonable.”

[134]He also submitted that the “loose understanding” between them was sufficient from which to imply a contract, comparable to that found in the Premia case.

The Defendant’s submissions

[135]Ms Campbell submitted that there were four issues:(1) whether there was an agreement at all;

(2) whether the consideration was past;

(3) whether this was an invalid agreement to agree; and

(4) whether implied terms can be relied on to save the contract. Her submission was that the claim failed on all four heads, but that the first was the most fundamental: she said there was simply no agreement at all. She submitted that neither Mr Read’s written notes nor the transcript recorded Mr Read saying he expected BRN to pay a fee. She said he was just asking to have a call because RCF had refused to pay a fee.

[136]As to consideration and the test in Pao On, she said that the acts concerned were not done at BRN’s request and the parties did not understand at the time they were performed that the act would be remunerated.

[137]As to (3), she submitted that at its highest, DMA’s case was indistinguishable from Willis.

Conclusions: contract claim

[138]In my judgment no agreement was reached at all between Mr Read and Mr Oxley during the call on 29 June 2021. Neither the transcript, nor Mr Read’s handwritten notes, nor the surrounding documents lead to the conclusion that there was any meeting of minds at all.

[139]On the facts, based especially on statements in and inferences from the contemporaneous documents quoted above, my findings are as follows: i) Mr Read knew BRN was resisting paying DMA a fee and he wanted to set up a three way call between himself, Mr Oxley and Mr Valdes, to try to persuade them to price a fee for DMA into the deal which was being finalised. He expresses that wish on the transcript. His handwritten note (including a question mark) indicates that this was his suggestion, not that this was agreed. ii) Mr Read’s own responses (which are the only ones recorded) do not suggest that Mr Oxley acceded to his request. The references to “I appreciate your candour” and not wanting to take people’s attention away from the deal do not suggest that Mr Oxley was agreeing. The final substantive part of the transcript records Mr Read saying (so far as material):

“… I wanted to call you first, Mike, and… have a sensible chat with you… before… sending over emails that can then…set off flares internally… and just… be reasonable about this and… if there's… something we can find agreement on… all we ask of you is to… just be open to that discussion and then we see where it goes and… hopefully it works out well for everybody.”

Nothing about this suggests agreement between them. The plain and obvious conclusion is that Mr Read was trying to persuade Mr Oxley to agree to a call, but Mr Oxley was resistant and did not agree. iii) BRN had already reached a settled view internally in March 2021 that it was not obliged to pay DMA a fee and should not do so, because this was not covered by ISA 2 and/or because BRN had previously had contact with RCF and/or because BRN was not proceeding with Mr Halkyard’s credit fund but with Mr Valdes’ private equity fund. However this was never clearly communicated by Mr Oxley to Mr Read, in my view because Mr Oxley did not want the confrontation. iv) When Mr Read sent his email on 2 August 2021 to Mr Oxley and Mr Valdes saying that it was agreed that once the transaction was near closure, they would jump on a three way call to discuss and close DMA’s remuneration, this was at best wishful thinking on his part, but more likely was an attempt to nudge them into engaging with him. While Mr Read feared that BRN were not going to pay a fee, he did not wish to accept this. v) Overall, BRN would not agree to pay DMA a fee and Mr Oxley knew this, but because he wanted to avoid a confrontation with Mr Read, and did not want anything to disturb closing the deal with RCF, Mr Oxley prevaricated instead of telling Mr Read so directly.

[140]My conclusion is that the contract claim does not get off the ground, because there was never any agreement at all between the parties.

[141]However, even taking DMA’s pleaded case at its highest, if Mr Oxley had agreed to a three way call and to be reasonable about agreeing a fee, this would in my view have been no more than an invalid agreement to agree. Contrary to Mr Halban’s submission, I do not consider that an agreement to be reasonable in having a discussion about a fee is the same as agreeing to pay a reasonable fee. Rather it is directly analogous to the Willis case, as Ms Campbell submitted.

[142]The issue as to whether the Pao On requirements for past consideration are satisfied does not therefore arise, and would raise some rather complex questions given my later findings under unjust enrichment, so I do not consider it any further here.

[143]I am also not persuaded that any implied contract arose. DMA’s contract case is based on the conversation which took place during the phone call on 29 June 2021. If I cannot conclude that an oral contract was reached during that conversation, which I cannot, it seems to me that it would be impossible to conclude that it was “necessary” to imply a contract from that same conversation. This is not a case where it is alleged that there was a combination of that conversation with other conduct. I therefore accept Ms Campbell’s submission that if that conversation did not result in an express oral contract, there can be no scope for a contract to be implied from that same conversation.

Issue 2: the unjust enrichment claim

[144]In contrast, the period over which the services were said to have been provided by DMA which form the basis of its unjust enrichment claim are from November 2020 to March 2021 (by reference to the Amended PoC). I bear in mind that the reasons for which DMA contends that the receipt of a benefit or enrichment by BRN was unjust remain as set out in paragraph 57 of the PoC as originally drafted (but subject to the amended definition of “DMA Services”). I note that those particulars of unjustness are pleaded as alternatives.

The law: unjust enrichment claim

[145]The parties are agreed that where there is no contract, the correct approach to determining whether an introducer has any quantum meruit claim to payment is by reference to principles of unjust enrichment, as summarised by Lord Clarke in the Supreme Court in Benedetti v. Sawiris

[2013] UKSC 50

;

[2014] AC 938

(“Benedetti”), at [10] as follows: i) Has the defendant been enriched? ii) Was the enrichment at the claimant’s expense? iii) Was the enrichment unjust? iv) Are there any defences available to the defendant?

[146]In the present case, the first three questions are all in dispute. It is agreed that the fourth does not arise, no relevant defences being raised.

[147]The parties referred me to a number of authorities on unjust enrichment in the context of claimants claiming commission for introducing an opportunity to the defendant. Many of these concerned work done in anticipation of an agency contract which was never finalised. I have not found those cases especially useful, because particular principles tend to apply where a formal contract was anticipated. There is no question in this case of any introductory work re RCF being done in anticipation of a contract. While BRN argues that any liability for introducing RCF is excluded by the fact ISA 2 was negotiated and signed simultaneously re Mitsui, it is not suggested by either party that it was envisaged that ISA 2 would actually extend to RCF.

[148]In AMP Advisory & Management Partners v. Force India Formula One Team Limited

[2019] EWHC 2426 (Comm)

, the claimant claimed a fee for introducing a sponsorship opportunity and also for providing assistance to facilitate the deal. Moulder J concluded that the claimant was not responsible for introducing the opportunity, so could not claim a fee on that basis. However, as to the other intermediary services, the defendant had received a benefit at the expense of the claimant; those services were not of a kind which would normally be given for free; the services were requested and accepted in the knowledge they were not gratuitous, and the claimant had been given the impression it would be paid, so it had not accepted the risk of no compensation. The judge held it would therefore be unjust if there was no payment. She therefore made an award of the objective value of the other intermediary services (only), a relatively small sum.

[149]In Premia, the judge held at [82] that the claimant would have succeeded in unjust enrichment if he had not succeeded in contract. The claimant had had the idea, made the introduction of the relevant business and contributed to the finalisation of an agreement which was valuable to the defendant. Since both parties had anticipated from the outset that the claimant would be rewarded, it would have been unjust to deny such a reward.

[150]In Fenchurch Advisory Partners LLP v AA Ltd

[2023] EWHC 108 (Comm)

, an implied contract claim failed but an alternative claim in unjust enrichment succeeded. There a broker had assisted the defendant with the sale of a business, although the defendant did not ultimately pursue a sale. Sean O’Sullivan KC, sitting as a Deputy High Court Judge, held that services of value had nevertheless been provided, because they had enabled the defendant to decide whether to pursue the sale. The claimant had provided those services with the knowledge and at the request of the defendant. The claimant was awarded a basic fee for the value of its services but with no “success” element, because the sale did not proceed and such additional fees were contingent on success in that industry.

[151]Ms Campbell submitted that in the industry in the present case, where there was a contract, an agent was only paid if they were the “effective cause” of the investment. No fee was payable for any services in the absence of success. Therefore, Ms Campbell submitted, the same principle had to apply to any unjust enrichment claim. BRN would only have been enriched by DMA’s services if they were the effective cause of RCF’s investment; and only in that scenario would any enrichment be at DMA’s expense. In addition, any enrichment had to be unjust if not paid for.

[152]Mr Halban agreed that given the nature of this industry, whether DMA was the “effective cause” of RCF’s investment, with BRN’s knowledge and approval, was the relevant approach to be taken to the unjust enrichment claim (skeleton argument section E).

[153]Ms Campbell relied for the “effective cause” point on Gray v. Smith

[2022] EWHC 1153 (Ch)

, in which Richard Smith, sitting then as a Deputy High Court Judge, held at [451] that an introducer had knowingly taken the risk he would not be paid for his work unless he was successful, this being consistent with market practice, and that enrichment could not therefore lie simply in the services provided.

The judge there continued:

“… I would have found that such enrichment lay in their end-product in the form of committed investor capital and that the appropriate measure of the value of that enrichment (if any) would have been a fee, commission or percentage share based on the level of capital raised, not the time spent (or expenses incurred) to that end.”

Since the broker had failed to raise any capital, the judge found there could not have been any enrichment.

[154]Similarly, in Matrix Receivables Ltd v Musst Holdings Ltd

[2025] EWHC 2487 (Ch)

, Mr Justice Freedman held at [80] - [86] that in an unjust enrichment claim for services provided, one had to determine whether enrichment was to be defined by reference to the services or the end-product. Since in that industry the provider of the services normally took the risk of no fee if there was no investment, enrichment lay in the end-product of committed investor capital (for limitation purposes). The appropriate measure of value was a percentage based on the level of capital raised, not the time spent or expense incurred.

[155]More generally, on the issue of what amounts to an effective cause, Ms Campbell relied on the decision of the Court of Appeal in Nightingale v Parsons [1914] 2 K.B. 621 (“Nightingale”). In that case, the plaintiff, a house agent, was engaged by the defendant to find either a tenant or a purchaser of a house, for commission. The plaintiff found a tenant and the defendant paid commission by reference to the letting. After 3 years, the defendant agreed to sell the house to the tenant’s wife. The plaintiff had no involvement in the sale, but claimed commission on it. Affirming the decision of the judge, the Court of Appeal held that the plaintiff was not the effective cause of the sale but only of the letting, and was not entitled to a further commission. It was not enough that the introduction was a causa sine qua non (a “but-for” cause); it was necessary to show that the introduction was an “efficient cause” in bringing about the sale. There the plaintiff did effect the original letting but the sale had not been brought about by him in any effective way.

[156]In MSM Consulting Ltd v United Republic of Tanzania

[2009] EWHC 121 (QB)

(“MSM”), Mr Justice Christopher Clarke set out at [171] principles for determining whether unjust enrichment had taken place in particular in the context of an anticipated contract. Of potentially broader relevance, he listed as one of his principles:

“(e) The court may well regard it as just to impose such an obligation if the defendant who has received the benefit has behaved unconscionably in declining to pay for it.”

[157]On the issue of whether the existence of ISA 2 excludes the possibility of any claim in unjust enrichment in respect of any introduction of RCF, since that contract provided only for introduction services in relation to Mitsui, the leading authority on whether a contract necessarily excludes a claim in unjust enrichment is Barton. In that case the claimant was engaged under a contract which provided expressly that he would be paid a fee if the defendant’s property was sold to a buyer whom the claimant had introduced for £6.5M. The price paid on completion was only £6M. The claimant claimed a fee in any event, on the basis of either an implied term or unjust enrichment. The claim failed in the Supreme Court. On the unjust enrichment claim, Lady Rose JSC (in the majority) said at [96] and [107]:

“[96] I disagree with [the Court of Appeal’s] analysis for reasons which mirror the reasons for rejecting the implication of a contractual term. When parties stipulate in their contract the circumstances that must occur in order to impose a legal obligation on one party to pay, they necessarily exclude any obligation to pay in the absence of those circumstances; both any obligation to pay under the contract and any obligation to pay to avoid an enrichment they have received from the counterparty from being unjust. The “silence” of the contract as to what obligations arise on the happening of the particular event means that no obligations arise as Lord Hoffmann made clear in Belize cited earlier. This excludes not only an implied contractual term but a claim in unjust enrichment.” “[107] I do not consider that there is to be found in this court’s judgments on this appeal any fundamental disagreement about the underlying legal principles, although they may be given different levels of emphasis. The real difference between us concerns whether the express term, that [the claimant] was to receive £1.2m if the property was sold for £6.5m to a purchaser introduced by him, was a complete statement of the circumstances in which he was promised some reward under the agreement, or only a partial statement, leaving it to be implied that he would also receive some unspecified reward if the property was sold to such a purchaser, but for less than £6.5m. If it was a complete statement, then a lesser reward for a sale below £6.5m could not be implied, because it would be inconsistent with the condition for the reward expressly agreed. Nor could there be a remedy in unjust enrichment, because a nil reward for such a sale was what the parties had agreed. The enrichment consisting of the benefit to [the defendant] of a sale to a purchaser introduced by [the claimant], for no reward to him, would not be unjust, because it was an outcome provided for by the agreement. Unjust enrichment mends no one’s bargain.”

The parties submissions: unjust enrichment claim The Claimant’s submissions

The parties submissions: unjust enrichment claim

[158]Mr Halban submitted that DMA had been the effective cause of RCF investing in BRN for the following reasons: i) RCF had always previously refused to invest in the Project, having refused to do so on at least five separate occasions, the most recent being in the summer of 2020. Before the material events, RCF had appeared firmly opposed to investing. ii) Mr Nwankwo’s convertible loan idea, presented initially to Mr Valdes, had caused Mr Valdes to put DMA in touch with Mr Halkyard, whose credit fund was new and who had not previously been approached. It was Mr Halkyard who then took this loan note idea forward in conversation with BRN. Although the funding for the credit fund came from Mr Valdes’ private equity fund and Mr Valdes ultimately took over and proceeded with an equity investment instead of debt, this was still as a direct result of Mr Halkyard’s involvement. iii) DMA set up the initial call between Mr Oxley and Mr Halkyard in January 2021. iv) The reasons given by Mr Oxley in his email of 11 December 2020 for DMA not being entitled to a fee were not correct; in particular there was no other broker who was entitled to a fee. v) Mrs Oxley’s perception was that Mr Read would say he was entitled to a fee. vi) In his email dated 24 September 2021, Mr Halkyard had said that the introduction had come from DMA.

[159]In addition, Mr Halban submitted that BRN, through Mr Oxley, had known and approved of DMA’s approach to RCF in November/December 2020, through the telephone calls he had had with Mr Read and Mr Nwankwo in November 2020. The reference to RCF as a potential fund in the internal email of 27 November 2020 supported this conclusion. Further he said BRN had never thought DMA was working for free. He said the reference to payment of fees in the transcript of the call of 26 November 2020 also supported this conclusion. The Mitsui approach was a separate work stream which would have been separately remunerated if it had been successful; ISA 2 did not relate to RCF and did not exclude a claim in respect of that introduction. The email of 11 December 2020 was too late for BRN to rely on because Mr Oxley had already authorised an approach to RCF, and the refusal to pay a fee was not repeated by Mr Oxley and was forgotten at the time.

[160]Furthermore, he submitted that Mr Oxley agreed or recognised that DMA should receive payment in his reply “Yes we will!” in the WhatsApp of 1 March 2021; in the call between him and DMA on 15 April 2021 and during the call on 29 June 2021, as to which he said I should prefer the evidence of Mr Read as to what was said.

[161]BRN had been benefitted and enriched by RCF’s investment, which was caused by DMA’s work in introducing RCF and pitching the Project, including suggesting the new investment structure. This was at the expense of DMA. It would be unjust for DMA not to be paid where the investment had proceeded, Mr Oxley had approved the approach and BRN knew DMA was not working for free. It would be unconscionable for DMA not to be paid, which was a free-standing reason for a finding of unjustness according to principle (e) in MSM.

[162]On the question of whether ISA 2 excluded any liability for an introduction of RCF, Mr Halban submitted that(a) the introduction of RCF had already happened before ISA 2 was finalised and

(b) it was not intended to apply to an introduction of another investor other than Mitsui, especially since RCF was interested in PNP1000 and Mitsui was interested in the full scale stage.

The Defendant’s submissions

[163]Ms Campbell submitted of behalf of BRN that DMA had not been the effective cause of RCF’s investment in BRN, which, given that payment for any services in this industry was contingent on making a successful introduction, meant there was no unjust enrichment claim. She submitted this for the following reasons: i) Although DMA set up the call between Mr Halkyard (RCF’s credit fund) and Mr Oxley in January 2021, ultimately that fund did not invest. The investment was by Mr Valdes’ private equity fund, which had had many previous contacts with BRN and was already familiar with BRN. ii) DMA’s idea had been for a coordinated investment between RCF and Mitsui, an idea which was never discussed between RCF and Mitsui. The eventual investment was with TechMet. iii) DMA’s idea was for a convertible loan, whereas RCF had subscribed for shares, i.e. an equity investment. Mr Oxley had not been very interested in the convertible loan idea at all. iv) The Options ultimately granted to RCF formed no part of any proposal by DMA. v) More generally, after the call on 19 January 2021, DMA contributed nothing further to the discussions between BRN and RCF. vi) Nightingale therefore applied and excluded any claim by DMA. vii) The key event which influenced RCF’s decision to invest, after many years of not being interested in the project, was TechMet deciding to invest US$25M. viii) Mr Valdes’ perspective on what had been the cause of RCF’s investment was to be preferred to Mr Halkyard’s since Mr Valdes had been involved for longer.

[164]In addition, Ms Campbell submitted that any enrichment would not be unjust in the absence of a joint understanding that DMA would be paid. She said there was a mismatch in timing in that the alleged services were performed before the alleged basis for those services had been reached between the parties. None of the occasions on which Mr Halban relied for agreement (1 March 2021, 15 April 2021 and 29 June 2021) were ones where there was actually any agreement, and anyway they were all too late since any services had been provided by then. The warning in Mr Oxley’s email of 11 December 2020 told DMA that any involvement was at their own risk. This was a case of a disappointed risk-taker. Furthermore, the main reason DMA wanted RCF to be involved was to facilitate an investment by Mitsui, where they would receive a fee. Therefore, she submitted, since any work was ultimately with the aim of bringing in Mitsui, it would not be unjust for DMA not to receive a fee if only RCF invested and not Mitsui: the relevant contingency had not arisen.

[165]More generally, she submitted that Mr Read knew that if DMA were to make an approach to a potential investor, this had to be formally agreed – hence his comments during early 2020 about his hands being tied in the absence of such approval. Similarly, when he said in conversations with RCF that DMA had “no mandate per se”, this was a recognition that DMA had had no authority. “Keep it conceptual” (from the call on 26 November 2020) was not enough. DMA did not ask for a contract re an approach to RCF, and it could have done, especially since it was in negotiations for a contract re Mitsui at the time. DMA could have asked for ISA 2 to be expanded to cover RCF. Also, after 7 May 2020, BRN had expressly told DMA that it was not getting a contract extension because BRN did not need them. BRN had worked with DMA for a number of years by this time, and BRN knew they wanted to control what DMA did through contracts. However Mr Read would continue to make approaches anyway even if he was asked not to, as happened in relation to RCF later in 2021.

[166]In any event, she submitted that the terms of ISA 2 precluded any claim in unjust enrichment. Applying Barton, she said the terms of the express contract ISA 2 between the parties, which were that DMA was solely engaged to seek investment from Mitsui, necessarily excluded any obligation on the part of BRN (whether in contract or unjust enrichment) to pay any fee in other circumstances, and in particular in respect of any introduction of any other investor.

Conclusions: unjust enrichment claim

[167]In my judgment, DMA’s claim in unjust enrichment succeeds, because it made a reintroduction of RCF to BRN which was the effective cause of RCF investing in August 2021, and it would be unjust for DMA not to be paid a fee, in particular because Mr Oxley knew of and approved the approach in November 2020, and BRN knew that any such services were not intended to be gratuitous. My reasons are as follows: i) Although RCF was well aware of BRN’s Project, it had very firmly rebuffed all approaches previously made to it, up to and including in the summer of 2020. In my view an agent can be the effective cause of an introduction (or reintroduction) even where the investor previously knew of the opportunity, if the investor had always previously refused to invest and the agent persuaded it to change its mind. In my view, that is what happened here, through the agency of DMA. ii) In October/November 2020, Mr Oxley and BRN were faced with a fairly urgent problem. Traxys, which had been going to fund PNP1000, was threatening to pull out. Mr Oxley needed to find a replacement investor for PNP1000, and his email of 25 November 2020 suggests he ideally needed to find one by January 2021. TechMet were contributing part of the PNP1000 cost, but the rest of their investment towards the next stage was dependent on filling the hole in the funding for PNP1000. iii) Mr Oxley discussed this problem with, amongst others, Mr Read and Mr Nwankwo. This is apparent from the emails in November 2020. His fellow directors at BRN might have had doubts about Mr Read’s style, and have wanted to pin DMA down into a contract at reduced rates which related only to obtaining investment from Mitsui for the full-scale stage, but by October 2020 that was yesterday’s problem. Mr Oxley’s immediate need was to find a replacement for Traxys in PNP1000, and if DMA could help, he was willing to and did encourage them. The tone of the emails between Mr Oxley and Mr Read/Mr Nwankwo is noticeably friendlier at this time than at any other time, before or after. iv) Mr Nwankwo was willing to brainstorm that problem, and he came up with the convertible loan note idea, which was a hybrid between debt and equity, and as such might bridge the gap for a reluctant investor. He originally conceived it as a solution involving both RCF (or another fund) at the PNP1000 stage plus Mitsui at the later stage. v) Two things in my view unlocked the investment from RCF. One was the convertible loan note idea and the other was the involvement of Mr Halkyard and his credit fund. When DMA presented the convertible loan idea to Mr Valdes of RCF (in Latin America), he said he was not interested. The impression one gets is that he was resistant to any proposal concerning BRN by that time. However he did suggest passing it on to Mr Halkyard and his new credit fund, based in London. He provided Mr Halkyard’s contact details and Mr Read contacted Mr Halkyard. Right from the start, Mr Halkyard was much more interested in BRN than Mr Valdes had been, rapidly setting up a call to discuss BRN, including PNP1000 and the convertible loan idea, and suggesting entering into an NDA with BRN in early December 2020. It is perhaps not surprising that a convertible loan note concept was more attractive to a credit fund than a private equity fund, but in any event, this is what sparked RCF’s original interest. vi) Mr Read and Mr Nwankwo discussed the convertible loan note idea with Mr Oxley in some detail, in particular in the call between Mr Oxley and Mr Nwankwo on 26 November 2020, but also a call between Mr Read and Mr Oxley on 18 November 2020. Although Mr Oxley had doubts as to whether it would work, he authorised DMA having “conceptual” conversations with potential investors. The concept, as then put forward by Mr Nwankwo, involved one fund for the earlier stage and Mitsui and/or TechMet at the final stage. Mr Oxley’s internal email of 27 November 2020 to others at BRN refers explicitly to “[James] and Nigel believe, conceptually, they can attract US$ 15m for the PNP1000 from their contacts in IFU, plus possible [sic] one of AMCI, RCF and Proterra.” vii) For what it is worth, I consider that the express references to fees in the transcript of the call of 26 November 2020 are more likely to relate to Mitsui. However I am also quite sure that Mr Oxley did not in general expect any introduction services from DMA to which he agreed and which were successful to be provided gratuitously. viii) My inference from the email of 27 November 2020 is that it is much more likely than not that Mr Read and/or Mr Nwankwo mentioned all of IFU, AMCI, RCF and Proterra as possible providers of up to US$15M via convertible loan notes to fund the PNP1000 stage, filling the hole left by Traxys, and that Mr Oxley approved and probably encouraged them to approach any of those four. He was concerned not to disrupt the relationship with TechMet, but he also needed a solution to the Traxys problem. Mr Oxley can remember little or nothing of what was said at that time, and on this point, I place weight on the contemporaneous emails, which support the account of Mr Read and Mr Nwankwo. This is also inherently the most likely. ix) The interest from Mr Halkyard was probably stronger and swifter than Mr Oxley was expecting. Mr Oxley seems to have been expecting any interest to come from IFU rather than RCF, who had been persistently uninterested. It is true that the tone of Mr Oxley’s email of 11 December 2020 is surprise that this introduction of Mr Halkyard at RCF is coming from DMA, and he is immediately concerned about possible liability for commission fees – which in itself indicates that what DMA had done was make an introduction that might normally be expected to lead to a commission if it resulted in investment. x) However I do not consider that Mr Oxley’s statement in that email, that “As such, and to be clear, we cannot contemplate any intro fee for DMA here. Hope that’s ok”, prevents DMA from making a successful unjust enrichment claim, for a number of reasons. First, I have found that he had already approved an approach to RCF among others, so this was too late. Saying that any discussions were to be discreet and conceptual does not, in my judgment, prevent an introduction from resulting when Mr Halkyard is then put in contact with Mr Oxley. Second, his concern that there might be a legacy fee to another broker was misplaced. No other broker has been paid a fee for introducing RCF. Mirabaud (apparently the broker Mr Oxley had in mind) had had their contract terminated with no liability on either side. In any event, I do not see that any other broker could have claimed to have been the effective cause of Mr Halkyard’s introduction, based on what I have seen. Third, although BRN had indeed been in contact with RCF many times over the years, this had been to no effect. In my view, what matters is that it was DMA’s intervention which changed a “no” to a “yes”. Fourth, similarly although TechMet knew RCF, they had not introduced RCF in any effective sense either. Fifth, Mr Oxley continued to use DMA’s services, to set up the introductory call on 19 January 2021 (which the emails and Teams invitations clearly show was set up by DMA). Sixth, DMA is correct that Mr Oxley did not thereafter refer to his email of 11 December 2020 as meaning that DMA was not entitled to a fee. Rather his approach later was to dodge any difficult conversations about DMA’s fees. xi) DMA is an introductory agent. In my view BRN was well aware throughout that any introduction by DMA of an investor which it had approved, which ultimately led to an investment, was not the provision of a gratuitous service. Furthermore, after making a successful introduction, the agent might very well have no further involvement in making the investment happen, but this did not mean that BRN would not expect to be liable for a fee. The value of such an agent’s work is not in the hours worked but the success of the introduction. The “effective cause” analysis is obviously applicable in the present case: this is a very clear example of an industry where value is in the “end product”, not the services themselves. The standard practice is payment by results, and working out which broker had been the “effective cause” of an investment was a familiar challenge (as later emails show). This reflects the fact that a company like BRN pays agents out of monies invested, because that is the economic model. xii) It is entirely understandable that a company like BRN would therefore wish to regulate and control the actions of agents by entering into formal contracts with them, and defining which investors an agent was approved to approach. However in my view there was no relevant contract in place here. ISA 1 was long since terminated, and in my judgment ISA 2 was conceived and entered into for a different purpose, aimed only at engaging one investor, Mitsui, for investment at the full-scale stage. In my view ISA 2 is irrelevant to what happened in relation to RCF. I do not consider that either DMA or Mr Oxley ever intended ISA 2 to have any application to the conversations they had in November 2020 about finding a solution to the PNP1000 funding issue, and the Funds who might offer a convertible loan note. I do not consider therefore that Barton has any application here, not only because ISA 2 was entered into after the introductory steps had commenced, but also because nothing in ISA 2 necessarily excluded BRN incurring a liability for an introduction fee in relation to a different investor for a different stage of the Project. xiii) Clearly having a written contract in place also benefits the agent, in that it avoids the very difficult conversations about fees and mandate which happened in this case. However, as Mr Read and Mr Nwankwo said in evidence, negotiating such a contract takes time, and in November 2020 Mr Oxley had a problem which needed a solution quickly. People do just proceed on a basis of trust in such situations, and my assessment is that that is what happened here. xiv) However, I do not find that Mr Oxley subsequently said to Mr Read (or Mr Nwankwo) that he agreed that DMA were entitled to a fee, whether in March, April or June 2021. As I held under issue 1, my assessment is that at the end of March 2021, BRN decided internally that DMA were not entitled to any fee, but BRN did not communicate this to DMA. Thereafter Mr Oxley’s approach was to prevaricate and avoid difficult conversations with Mr Read, who was becoming increasingly insistent in pushing for a fee to DMA to be agreed and priced into the deal. I consider that the “Yes we will!” message on 1 March 2021 was an ironic comment, and another attempt by Mr Oxley to put off any fee discussion, not an agreement to pay a fee. In my assessment, Mr Oxley’s aim throughout the period from March until August 2021 was to close the deal with RCF and then ignore DMA, which is what he did. xv) Through the period until the start of March 2021, the conversations with RCF were conducted with Mr Halkyard or his team. When it came to the production of a term sheet, any funding was in practice going to come from Mr Valdes’ private equity team, which would have funded the credit fund. By that stage it is apparent both that Mr Valdes had become more enthusiastic about investing in BRN (I infer he was probably persuaded by Mr Halkyard), and that it suited all parties to talk about an equity investment rather than loan notes, equity being a superior form of investment from BRN’s point of view. Nevertheless, the timeline is in my view clear: it was plainly Mr Halkyard who brought in Mr Valdes, and the form of equity investment which was ultimately made in August 2021 had its roots in Mr Halkyard’s original interest. xvi) Furthermore, in my view it is therefore Mr Halkyard who was in the best position to say who originally introduced him, and so RCF, to BRN, and in his email of 24 September 2021, he says in terms that it was DMA (and nobody else). That is an important piece of independent evidence on which I place weight. I place much less weight on Mr Valdes’ assessment in his email of 2 August 2021 that they owed nothing to DMA. I say that because(1) Mr Valdes was not involved in the critical early stages, when the effective introduction was actually made;

(2) Mr Valdes’ statement that the relationship with BRN came from many years is pretty meaningless when RCF’s response throughout that time had been to turn down any investment opportunity; and

(3) while Mr Nwankwo’s idea was originally framed as a credit opportunity with Mitsui, from the point of view of an introduction of RCF it was irrelevant whether the other partner was Mitsui or TechMet. xvii) Given the antipathy of some of his fellow directors to Mr Read, as well as the lack of any written contract covering any introduction of RCF, it is unsurprising that Mr Oxley played down the significance of DMA’s involvement once the introduction to Mr Halkyard and RCF was secure. In my view this has contributed to muddying the waters as to how the introduction of RCF came to be made, even as it was happening. xviii) However, given the clear involvement of DMA in first attracting the interest of Mr Halkyard and then introducing him, with the approval of Mr Oxley, and what I see as the direct line from that introduction through to the equity investment in August 2021, I have reached the conclusion that it would objectively be unconscionable within the meaning of paragraph (e) of the principles in MSM for BRN to decline to pay commission for the benefit of that introduction and the resulting investment. While I understand how BRN came to believe it had no such liability, when one sees the full picture, DMA’s right to commission in unjust enrichment is in my view clear.

[168]Accordingly, I consider that all of the three heads of the test in Benedetti are satisfied, and DMA has established its unjust enrichment claim to payment calculated on a commission basis.

Issue 3: Quantum – on which investments should commission be charged?

[169]It is agreed in those circumstances that commission is payable on the equity investment of US$12,084,678 or £8,744,341 paid for the share subscriptions in August 2021 and July/ August 2022.

[170]This leaves three other categories of options or loans on which DMA also seeks a commission payment: i) As set out at paragraph 67 above, on 26 August 2021 RCF also entered into the Option Agreement under which it was granted an option to purchase further shares in BRN on defined terms, in the event of an IPO or sale of BRN. Neither of those events happened. Instead, on 19 September 2023, RCF assigned the Option Agreement to TechMet, at the same time as transferring all its shares in BRN to TechMet. It is agreed that that option has never been exercised by anyone. ii) In an amendment to the Subscription Deed, on 20 July 2022, BRN granted RCF the 75p Option, to purchase 8,203,034 shares (subsequently reduced to 6,423,716 on 15 August 2022), at 75p per share, exercisable for 12 months. Again RCF did not exercise that option; rather it assigned it to TechMet on 11 September 2023 and TechMet exercised it on the same day, paying BRN US$6,049,492.79. iii) Finally, on 29 March 2023 RCF made a convertible loan to BRN of US$398,582.85.

[171]The basis on which DMA claims that commission should be payable on each of these loans and options is as follows: i) As to the Option Agreement, it is said that once TechMet had been assigned and exercised the 75p Option, if RCF had exercised any part of the Option Agreement, this would have deprived TechMet of the controlling interest which it had by then acquired in BRN. No doubt for this reason, taking an assignment of the Option Agreement was part of TechMet’s purchase of the whole of RCF’s investment in BRN in September 2023 for US$18M. Thereafter TechMet invested heavily in BRN, having cemented its position. Mr Danesi’s opinion was that while this may therefore have provided value to BRN by facilitating TechMet’s additional equity investment, he could not estimate the quantum of that benefit. However DMA submits that I should nevertheless seek to estimate the value of that benefit. ii) As to the 75p Option, it is said that DMA is entitled to a fee in respect of the assignment of that option by RCF to TechMet and its exercise thereafter by TechMet, because DMA was the cause of that transaction and BRN has been enriched at DMA’s expense. It is said that if RCF had exercised that option itself, that would have been an investment in BRN by RCF on which DMA would indisputably have been entitled to a fee. It is said that BRN has received the same benefit, in the form of the US$6,049,492.79 which it received from TechMet as assignee, as it would have received from RCF. DMA says that the commission should be calculated by reference to the amount of the investment which TechMet made. Mr Danesi expressed a similar opinion in his evidence. Dr Bird’s opinion was that it would be unjust to ignore the fact that RCF had chosen to trade away the obligation which it would otherwise have had to subscribe to the remaining 6,423,716 shares at 61p a share for the call option at 75p per share, and that just market practice would be to allow a fee on the sum which RCF would have otherwise had to pay, which at 61p per share was £3,918,467 (in sterling). iii) As to the convertible loan made in March 2023 (on which DMA claims commission of US$3,935, at 1%), DMA says that BRN only received the benefit of that loan because DMA had introduced RCF in the first place.

[172]On behalf of BRN, Ms Campbell submitted that: i) The issue of whether DMA was an “effective cause” must also be applied at the quantum stage, in relation to each type of investment on which commission is claimed. She submitted that all of these three categories of option/loan are too remote to have been effectively caused by DMA’s introduction. ii) As to the Option Agreement, this has never been exercised by anyone, so BRN has had no benefit from it anyway. Further, since it was a call option, effectively it had either nil value or a negative value to BRN. iii) As to the 75p Option, this was not exercised by RCF, so did not result in any investment by RCF. Instead RCF assigned it, and its exercise by TechMet was too remote. iv) The convertible loan was much too late in time now to be treated as having been effectively caused by DMA’s introduction of RCF. v) In addition, Mr Danesi had said in evidence that he had not seen any examples of commission being payable on option agreements in the contracts that he reviewed.

[173]My conclusions on these issues are as follows: i) I agree that it is necessary to consider whether DMA’s introduction was an effective cause of each of the types of investment in respect of which commission is claimed. This is well illustrated by Nightingale itself, where the agent was entitled to commission on the letting in which he was directly involved, but not the sale which happened 3 years later and in which he was not involved, even though the sale would not have happened but for the letting. In my judgment, Mr Halban’s approach was in essence simply to apply a “but for” test in each case, arguing that if RCF had not been introduced, none of these options or loans would have happened. However, this is not in my view sufficient. ii) It is also striking that Mr Danesi had not seen any examples in the contracts reviewed by him of commission being granted on an option agreement (as opposed to on the investment made following exercise of an option). iii) The Option Agreement was granted in August 2021, very shortly after the Subscription Deed was agreed, so in that sense it is sufficiently closely connected with RCF’s original investment. However it was never exercised by RCF and has now been assigned to TechMet, which has not exercised it either. The experts consider its intrinsic value is either nil or negative, and that its value to BRN in a broader sense was at best very difficult to quantify. In my judgment this is not an investment on which any commission is therefore payable. iv) The 12-month 75p Option was granted in July/August 2022, in substitution for part of RCF’s original subscription obligation. If it had been exercised by RCF, I would have concluded that that had resulted in value to BRN at the point of exercise, and that DMA’s introduction had been the effective cause of that investment. However, it was not so exercised; it was assigned to TechMet over a year after it was granted, who then exercised it, in September 2023. In my judgment, the exercise of an option by a different investor, more than 2 years after the original investment, is too remote from the original introduction. While it satisfies “but for” causation, I do not consider that the introduction can properly be said to have been the effective cause of TechMet’s subscription. TechMet’s decision to subscribe will have had separate motives unrelated to RCF. It is analogous to the house sale in Nightingale, which was motivated by new reasons unrelated to the original letting. v) Nor does the fact that RCF chose to trade in its obligation to subscribe to the remaining shares, for the 75p Option, mean in my view that DMA is entitled to commission on an investment which RCF had thereby agreed with BRN not to make, as Dr Bird effectively posits as an alternative. There are many vagaries in how investment agreements develop: in this case, for example, the number of shares to which RCF was obliged to subscribe was reduced by agreement between 17 and 26 August 2021, and then again in July/August 2022, but no one is now suggesting that commission must be calculated by reference to the original agreed consideration of US$17.5M. In my judgment, at least on the facts of this case, commission should be calculated by reference to the investments actually made by RCF of which DMA was the effective cause, and not putative investments that might otherwise have been made in a different scenario. I therefore do not accept Dr Bird’s alternative way of ascribing a value to the 75p Option which RCF assigned (and did not itself exercise), either. (There is no suggestion that the investments were restructured or assigned in the way they were to avoid paying DMA a fee.) vi) The convertible loan was not part of the original investment in August 2021, but was agreed separately 18 months or so later. I agree with Ms Campbell that DMA’s introduction cannot therefore be said to have been an effective cause of it.

[174]My conclusion therefore is that the only investment on which commission is payable is the equity investment of US$12,084,678 or £8,744,341 made in August 2021 and July/ August 2022.

Issue 4: Quantum – what commission rate applies?

[175]I am therefore only concerned with the appropriate rate of commission to apply to the equity investment.

[176]On this issue, the parties’ submissions were as follows: i) Mr Halban submitted that the appropriate rate was 5% because: a) This was the rate in ISA 1 and the DMA Brazil Agreement, both of which were concerned with finding investors from multiple sources before PNP1000 was funded, which is comparable to identifying RCF; b) Mr Danesi’s conclusion was that 5% was both the median and commonest rate in the introduction agreements which involved either of the parties, and this conclusion was also consistent with his more general market review. c) ISA 2, which provided for a rate of 2% on equity investments, was not comparable because it related to a de-risked project, where full scale funding was being sought and a single investor (Mitsui) was being approached. This was also the basis on which the parties had negotiated a lower commission rate under that agreement. ii) Ms Campbell submitted that the appropriate rate was 2% because: a) This was the rate under ISA 2. If Mitsui had invested in PNP1000, this is also the rate which would have applied to that. b) ISA 2 was the most comparable agreement because it had been entered into at the same time as the relevant services had been provided, in early 2021. c) Dr Bird also supported this view.

[177]On this issue, I have concluded that 5% would clearly be the appropriate commission rate, essentially for the reasons given by Mr Halban. In summary: i) Of the contracts between the parties, I consider ISA 1 and the DMA Brazil Agreement to be the comparable ones, because they both concerned searching for multiple investors at a stage before the Project had been de-risked. In my view this is more comparable to the task of finding a PNP1000 investor than the subject of ISA 2, which was to seek to persuade a single investor, Mitsui, to invest, at a later and less risky stage of the Project. The rate under those earlier agreements was 5%. ii) Pre-contractual correspondence on ISA 2 shows very clearly that the rate under that contract was negotiated down because BRN said, and Mr Read accepted, that it had been de-risked. Indeed, my impression is that the rate under this contract was an outlier because the internal BRN correspondence suggests BRN was seeking deliberately to reduce DMA’s commission rates because it was not keen to retain DMA as an intermediary. iii) Mr Danesi’s conclusion, which was amply supported by the contracts he reviewed, was that 5% was both the median and the commonest rate in the contracts involving either of the parties. This was also supported by his broader contract review, although I regard this as being of significantly less weight. Although Mr Danesi had excluded ISA 2 from his consideration, it would have made no difference to his conclusions even if he had included it, because it was an outlier. iv) In contrast, I found Dr Bird’s conclusion that there was no pattern in the market evidence unpersuasive. Furthermore, under cross examination he retreated from his conclusion that ISA 2 was relevant, when it was put to him that the services had started in November 2020 and when he was referred to the pre-contractual correspondence on ISA 2. Effectively this left him putting forward no opinion on the relevant market rate. v) Contract commission rates appear to have remained quite stable over time from all of the evidence I have seen, in particular that considered by Mr Danesi. The fact that ISA 1 and the DMA Brazil Agreement were somewhat older does not therefore appear to be important.

[178]Accordingly, I conclude that DMA is entitled to commission at 5% on the equity investment of US$12,084,678. It is agreed that this commission amounts to US$604,233.90.

[179]There will therefore be judgment for the Claimant in the sum of US$604,233.90 or the sterling equivalent, plus interest.

[180]I invite submissions from counsel on consequential matters, including if disputed the appropriate exchange rate, and the appropriate rate and period of interest under s.35A of the Senior Courts Act 1981, if these cannot be agreed.