Renaissance Capital Ltd v African Minerals Ltd [2014] EWHC 2004 (Comm)

Claim Nos. 2011 Folio 1189 and 2012 Folio 619

[2014] EWHC 2004 (Comm)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

COMMERCIAL COURT

Venue The Rolls Building, Fetter Lane

Date 27/06/2014

London

EC4A 1NL

Before

MR JUSTICE FIELD

Between

Renaissance Capital LimitedClaimant

African Minerals LimitedDefendant

Michael Brindle QC and Adam Kramer (instructed by Signature Litigation LLP) for Claimant

Tom Adam QC and Colin West (instructed by Morrison & Foerster (UK) LLP) for Defendant

Hearing Hearing dates: 17, 18, 19, 20, 24, 25, 26, 27, 31 March 2014, 1, 2, 3, 7, 14, 15, 16 April 2014

Judgment

Introduction

[1]In these proceedings Renaissance Capital Limite (“Renaissance”) claims fees alleged to be due under a number of separate engagement agreements it made with the Defendant (“AML”).

[2]Renaissance is the UK regulated arm of Renaissance Capital, an investment bank which originated in Russia. AML is a company listed on AIM which at all material times owned through subsidiary companies rights to develop and exploit mineral assets in Sierra Leone, including in particular a very large iron ore deposit at Tonkolili and a smaller iron ore deposit at Marampa.

[3]The Chairman of AML is Mr Frank Timis who has had a successful entrepreneurial career founding and developing natural resources companies with assets in Australia, and North and West Africa, and elsewhere.

[4]AML holds its interest in the Tonkolili deposit and the related infrastructure (a railway and a port and a power facility) through three wholly owned Bermudan subsidiaries, respectively, Tonkolili Iron Ore Limited (“TIO”), African Railway & Port Services Limited (“ARPS”) and African Power Limited (“AP”) (together “the Bermudan subsidiaries”).

[5]The first contact between Renaissance and AML was in February 2008 when Mr Toby Mannock, then a young associate in Renaissance’s Metals and Mining Sector, met Mr Timis in Cape Town during an annual mining conference. Business cards were exchanged and it was agreed that contact should be maintained to explore ways in which AML and Renaissance might work together. At this stage AML did not have a mining lease over the TIO deposit but merely exploration rights and was in pressing need of raising large amounts of money to develop the asset and the necessary infrastructure.

[6]In early May 2008, Mr Mannock and Mr Rob Edwards, then Managing Director, Renaissance Metals and Mining Research, travelled to Sierra Leone at the invitation of AML to undertake site visits at the Tonkolili and Marampa deposits and the Nimini Hills Nickel Project as part of a strategic review of AML’s Sierra Leone operations. Mr Mannock and Mr Edwards also visited the port at Pepel from where it was planned to export the ore from the Marampa and Tonkolili iron ore deposits. At this time the port was disused and was linked by a narrow-gauge railway running 80 km from Pepel to Marampa. Tonkolili was a further 120 km inland from the Marampa mine. In the period February to the end of May 2008, Mr Mannock also had a number of conversations with Mr Timis and Mr Timis met Mr Stephen Jennings, Renaissance’s then CEO, to discuss a possible relationship between the two companies.

[7]On 25 April 2008, AML and the Government of Sierra Leone signed a Memorandum of Understanding (“MOU”) with respect to Pepel port, the power facility and the contemplated railway from the port to Marampa and on to Tonkolili.

[8]On 28 May 2008, Renaissance and AML entered into what has become known as the Umbrella Agreement (“the UA”). Under this agreement, Renaissance was appointed exclusive financial adviser to AML for 24 months (“the Engagement Period”) and a further 12 months (“the Tailing Period”) following the end of the Engagement Period, in connection with 3 different defined types of transaction:

“M&A Transaction”, “Alternative Transaction” and “Change of Control Proposal”

. The services Renaissance was to provide were set out in clause 1 and included reviews of AML’s strategy and business prospects, suggesting and reviewing possible transactions of interest to AML and presenting a list of prospective bidders for AML. In consideration for these services AML agreed to pay Renaissance “fees equal to those customarily received by major international investment firms for similar services at such a time”. AML also agreed that if during the currency of the agreement it made an offer of equity or debt securities in AML or any subsidiary or affiliate other than as part of any “M&A Transaction”, or any “Alternative Transaction”, or any “Change of Control Proposal” then, “acting in good faith” it would “give Renaissance the first and a reasonable opportunity to submit a proposal to [AML] to act as exclusive financial advisor and sole manager and lead book runner for such an equity offer and lead arranger for debt securities offer.

[9]A Mergers and Acquisition (“M&A”) Transaction is an example of what is known in the investment banking world as a “strategic transaction”. Such transactions are to be contrasted with “financial” or “capital market” transactions. In strategic transactions the identity of the counterparty is important and the objectives and motives are commercial and not purely financial. Thus the purchase of an equity stake in the owner of an iron ore mine to secure a source of iron ore would be a strategic transaction, whereas the sale of a company’s shares in a widely distributed offer to financial portfolio investors (“an Equity Offering”) would be a financial transaction. As Mr Coates, Renaissance’s banking expert, told the court: A M&A transaction, is typically characterised in the banking industry by direct, bi-lateral and confidential negotiations, culminating in either a bespoke sale agreement, or an offer or scheme document with a strategically interested counter-party with the opportunity for non-public due diligence. Any bank involved acts as an advisor not a manager; in an “Equity Offering”, the investment bank or stockbroker deals with the investors on behalf of the company and manages and delivers the whole deal to the company whereas in M&A the companies deal directly with each other, each as advised - or not - by their investment bankers.

[10]There was also executed on 28 May 2008 an engagement contract between Renaissance and AML under which Renaissance was appointed as its exclusive corporate adviser and sole lead manager and book runner on an offering of ordinary shares in AML of at least $250 million.

[11]Following the execution of the UA, Renaissance carried out a strategic review of AML which led to a presentation to AML on 9 June 2008 that emphasised the need for significant capital expenditure to develop AML’s assets -- a large, high quality iron ore resource at Tonkolili with infrastructure (rail and port) access. The advantages and disadvantages of obtaining capital by debt or equity or a hybrid of the two were also considered, as were the advantages and disadvantages of a full sale of AML (“exit”), a joint venture/farm in, an asset(s) sale or AML raising funds on its own account. Renaissance also identified possible buyers.

[12]On 21 July 2008, AML sent Renaissance its preliminary Sierra Leone railway and port feasibility study dated 10 December 2007.

[13]On 25 July 2008, Mr Timis sent an internal email stating that the dramatic down-turn in the equity and debt markets within the UK and internationally had removed the option of raising funds by issuing new shares in AML and alternative sources of funding now needed to be urgently identified and approached. The email continued: One such alternative is to introduce a strategic partner at the project level. This could be either a base metal mining company or a steel producer. Renaissance Capital has been appointed as corporate advisor to AML and is embarking on a process to identify likely candidates to be approached.

[14]On 25 July 2008 there was a meeting between Mr Roy Pitchford, AML’s then CEO, and Mr Hayes and Mr Mannock at which there was discussion of a written presentation entitled “Project Slam Process Commencement” prepared by Renaissance. In this document, Renaissance set out its views “on a disposal process for African Minerals Tonkolili project in Sierra Leone (the “Businesses” or ““Assets””) and continued “[w]e anticipate that the disposal process will not be straight forward due to the need to address a range of matters including: Interdependent infrastructure assets which could be sold separately or together, or in various permutations; …”.

[15]When describing the project under the heading “Project Description”, the document referred principally to the mineral characteristics of the Tonkolili mine but noted that the deposit was approximately 180 km from port facilities with rail and port facilities currently being refurbished.

[16]In his notes of this meeting, Mr Pitchford wrote:

“Equity funding is not currently an option due to the depressed market – [therefore] a small investment for say 10-15% of Tonkolili + investment in infrastructure is a short-term remedy for the cash constraints”

. It was clear on the evidence that the reference to Tonkolili, was a reference to TIO.

[17]The same day Mr Pitchford sent Renaissance a document entitled “Investment Scenario”. Under the heading “Corporate Structure” the document stated: “To facilitate flexibility in financing options, AML has structured itself with Bermuda subsidiary companies, which in turn have subsidiary companies in the country of operation. This permits investment in specific mining and infrastructure operations without involvement in the parent company, or the requirement for investment authorised by the host country”.

[18]The document went on to propose that funds be raised by selling stakes in the Bermudan subsidiaries as follows: 10% in TIO ($150 million) and 75% in ARPS ($300 million) and 75% in AP ($ 500 million).

[19]On 30 July 2008, Renaissance sent a document entitled “Project Slam – Discussion materials” and a draft “teaser” document to AML. The former recorded the proposal as being to “Sell 10-15% of the Tonkolili project in Sept/Oct, priced around $1.00/Fe unit”. As confirmed by Mr Pitchford in his evidence, “Tonkolili project” was a reference to TIO. There was no reference to a sale of 75% of the infrastructure companies.

[20]The draft teaser document referred to a “sale of a minority stake in Tonkolili at the Bermuda registered subsidiary level (Tonkolili Iron Ore Limited), coupled with minority protection rights that may create a path to full ownership within 18 months. The objective of the sale is to raise capital to contribute to the funding requirement of the infrastructure build out program.”

[21]The teaser also contained a diagram of the relevant corporate structure showing AML and its subsidiaries, both Bermudan and Sierra Leonian, and also showing the new minority shareholder investment going specifically into TIO at a level of 10-15%.

[22]Mr Pitchford responded that there should be an invitation to fund the port, railway, power infrastructure in return for a 75% stake, but the teaser was not amended.

[23]By 1 August 2008, AML had decided on a strategy to sell 20% of TIO because consideration was being given to locating AML in Switzerland and a sale of less than 20% of a subsidiary (TIO) would not be a tax-efficient transaction under Swiss tax legislation.

[24]On 1 August 2008, Mr Timis and Mr Pitchford had a lunch meeting with Mr Mannock and Mr Neil Harvey, Renaissance’s then Managing Director, CEO Africa, at a restaurant named Mosaico. This was the beginning of the negotiations between Renaissance and AML for two engagement agreements, one to cover a transaction to raise funds for the development of the Tonkolili project and the other to cover a proposed sale of the Marampa mine to Cape Lambert Iron Ore Limited (“CLIO”), an Australian mining company. One of CLIO’s major shareholders was a Russian company called Evraz with which Renaissance had an established relationship and it was Mr Timis’ hope that Renaissance would be able to persuade Evraz to support the proposed deal.

[25]I shall return to the lunch meeting at the Mosaico restaurant later in this judgment.

[26]On 4 August 2008, Mr Mannock sent to Mr Dickson and Mr Alpen a draft Tonkolili Agreement and a draft Marampa Agreement he had prepared making extensive use of Renaissance’s standard engagement terms for strategic transactions. He also sent Mr Alpen an updated teaser which again described the proposal as a sale of a minority equity stake in TIO without reference to the infrastructure companies, although this time the proposed stake in TIO is shown as 20%.

[27]The finally agreed Tonkolili Agreement (“the TA”) was signed on 7 August 2008. It is necessary to set out a number of its clauses in full: 1. The Client [AML] hereby engages Renaissance as its exclusive financial adviser in connection with any proposed Sale (as defined below) of the Tonkolili Iron Ore Company (collectively, including any successor entities that may be formed for the purposes of the transactions described herein, the "Company") to one or more financial or strategic investors, (each a “Purchaser”. The proposed Sale is currently envisioned to be conducted in two phases, as follows:a. A Sale, representing 20% of the outstanding shares of the Company, expected to take place in 2008 (herein “Phase One”). The target Consideration (as defined below) of Phase One that Renaissance shall attempt to achieve is not less than US$250 million; provided always that any fees payable hereunder shall not be conditional on such target being met; and,

b. A subsequent Sale, representing either 29% of the outstanding shares of the Company, or 80% of the outstanding shares of the Company (at the election of the Client), expected to take place in 2009 (herein "Phase Two"). For the purposes of this Agreement,

(a) …

(b) A "Sale" shall mean any transaction or series or combination of transactions regardless of the structure or form of such transaction, other than in the ordinary course of trade or business, whereby, directly or indirectly, control of or an interest in the Company or any of its businesses, revenues, income or assets, or those of any of its subsidiary companies, is transferred, directly or indirectly, for consideration, including, without limitation, a sale or exchange of capital stock (whether primary or secondary) or assets, a merger or consolidation, a tender or exchange offer, a leveraged buy-out, the formation of a joint venture, minority investment or partnership, or any similar transaction.

(c) "Consideration'' shall mean the gross value of all cash, securities and other property paid by an acquiring party to a disposing party or parties in connection with the Sale or the gross value of all cash, securities and assets contributed by the parties in the case of a Sale that takes the form of a joint venture or strategic partnership. The value of any such securities (whether debt or equity) or other property shall be determined as follows: (1) where the securities are freely tradable in an established public market, the value will be determined on the basis of the last market closing price prior to the entering into of an agreement for such Sale; and (2) where the securities are not freely tradable or have no established public market, or if the consideration utilised consists of property other than securities, the value shall be the fair market value thereof. "Consideration" shall also be deemed to include the aggregate principal amount of any indebtedness for money borrowed, any unfunded pension liabilities, guarantees assumed, and any other financial liability by the acquiror in connection with a Sale, either contractually or by operation of law. If the Consideration to be paid is computed in any currency other than US Dollars then the value of such currency shall, for the purposes hereof, be converted into US Dollars at the prevailing exchange rate on the date or dates on which such Consideration is paid.

(d) "Completion" of Phase One shall be deemed to have occurred on the date of receipt of any Consideration pursuant to a definitive agreement for the Sale under Phase One. “Completion” of Phase Two shall be deemed to have occurred on the date of receipt of any Consideration pursuant to a definitive agreement for the Sale under Phase Two. 2. (a) Subject to clause 2(c) below, Renaissance hereby accepts the engagement described in clause 1 above and in that regard agrees to: i. develop with the Client and present to the Client a list of prospective Purchasers; ii. assist the Client with necessary analysis of the business and financial conditions of the Company; iii. advise with respect to the structuring of the Sale; iv. advise on the proposed purchase price and other terms and conditions of the Sale; v. advise on and assist in negotiations and related strategy concerning the Sale; vi. co-ordinate and assist the Client's other professional advisers in the preparation and negotiation of related documentation; and vii. provide any other advice, service or assistance that may be reasonably requested by the Client of Renaissance in its capacity as exclusive financial adviser in relation to the Sale (b) … (c) … 3. … 4. (a) The term of Renaissance's engagement to conduct Phase One, hereunder (the "Phase One Term") shall extend from the Commencement Date until the earlier of Completion and 6 months after the Commencement Date, unless extended by mutual written consent. The term of Renaissance's engagement to conduct Phase Two, hereunder (the “Phase Two Term”) shall extend from the Completion of Phase One until the earlier of Completion of Phase Two and 12 months after the Completion of Phase One, unless extended by mutual written consent. Either party may terminate this Agreement at any time, with or without cause, by giving to the other party at least 10 days' prior written notice. Notwithstanding the termination or expiration of this Agreement, clauses 3(b), 4, 5, 6(b), 7 to 9 (inclusive) and 11 to 14 (inclusive) shall remain in full force and effect. It is expressly agreed that following the expiration or termination of this Agreement, Renaissance will continue to be entitled to receive fees that have accrued prior to such expiration or termination but are unpaid, as well as reimbursement for expenses. It is further agreed that if any Sale similar in nature to Phase One is consummated within 6 months after the Commencement date of the Phase One Term, or if a definitive sale agreement is entered into with a party that Renaissance was in discussions with and has introduced to the Client during the period of the Phase One Term or within 6 months after the Commencement date of the Phase One Term which results in the Sale similar in nature to Phase One, Renaissance shall be entitled to its full Phase One Base Fee as described below. It is further agreed that if any Sale similar in nature to Phase Two is consummated within 12 months after the Completion date of Phase One, or if a definitive sale agreement is entered into with a party that Renaissance was in discussions with and has introduced to the Client during the period of the Phase One Term or Phase Two Term within 12 months after the Completion date of Phase One which results in the Sale similar in nature to Phase Two, Renaissance shall be entitled to its full Phase Two Success Fee as described below. Renaissance and the Client agree that the term of the mandate for both Phase One and Phase Two may be extended, entirely at the discretion of the Client, where any delay in the Sale process has been outside of the control of Renaissance. 5. (a) As compensation for the services to be rendered by Renaissance hereunder the Client shall pay Renaissance a fee (the "Fee") as follows … (i) At the completion of Phase One… (ii) … (iii) At the completion of Phase Two … (b) … (c) The Fee shall become due and payable to Renaissance within 10 (ten) business days from Completion. (d) … 6. – 13. … 14. … (c) This Agreement represents the whole agreement between the parties relating to the matters referred to herein and supersedes all previous agreements and understandings between them in such specific connection and may not be amended or modified except in writing and signed by the duly authorised officers of the Client and Renaissance. (a) … (b) A "Sale" shall mean any transaction or series or combination of transactions regardless of the structure or form of such transaction, other than in the ordinary course of trade or business, whereby, directly or indirectly, control of or an interest in the Company or any of its businesses, revenues, income or assets, or those of any of its subsidiary companies, is transferred, directly or indirectly, for consideration, including, without limitation, a sale or exchange of capital stock (whether primary or secondary) or assets, a merger or consolidation, a tender or exchange offer, a leveraged buy-out, the formation of a joint venture, minority investment or partnership, or any similar transaction. (c) "Consideration'' shall mean the gross value of all cash, securities and other property paid by an acquiring party to a disposing party or parties in connection with the Sale or the gross value of all cash, securities and assets contributed by the parties in the case of a Sale that takes the form of a joint venture or strategic partnership. The value of any such securities (whether debt or equity) or other property shall be determined as follows: (1) where the securities are freely tradable in an established public market, the value will be determined on the basis of the last market closing price prior to the entering into of an agreement for such Sale; and (2) where the securities are not freely tradable or have no established public market, or if the consideration utilised consists of property other than securities, the value shall be the fair market value thereof. "Consideration" shall also be deemed to include the aggregate principal amount of any indebtedness for money borrowed, any unfunded pension liabilities, guarantees assumed, and any other financial liability by the acquiror in connection with a Sale, either contractually or by operation of law. If the Consideration to be paid is computed in any currency other than US Dollars then the value of such currency shall, for the purposes hereof, be converted into US Dollars at the prevailing exchange rate on the date or dates on which such Consideration is paid. (d) "Completion" of Phase One shall be deemed to have occurred on the date of receipt of any Consideration pursuant to a definitive agreement for the Sale under Phase One. “Completion” of Phase Two shall be deemed to have occurred on the date of receipt of any Consideration pursuant to a definitive agreement for the Sale under Phase Two. i. develop with the Client and present to the Client a list of prospective Purchasers; ii. assist the Client with necessary analysis of the business and financial conditions of the Company; iii. advise with respect to the structuring of the Sale; iv. advise on the proposed purchase price and other terms and conditions of the Sale; v. advise on and assist in negotiations and related strategy concerning the Sale; vi. co-ordinate and assist the Client's other professional advisers in the preparation and negotiation of related documentation; and vii. provide any other advice, service or assistance that may be reasonably requested by the Client of Renaissance in its capacity as exclusive financial adviser in relation to the Sale (b) … (c) … (i) At the completion of Phase One… (ii) … (iii) At the completion of Phase Two … (b) … (c) The Fee shall become due and payable to Renaissance within 10 (ten) business days from Completion. (d) … (c) This Agreement represents the whole agreement between the parties relating to the matters referred to herein and supersedes all previous agreements and understandings between them in such specific connection and may not be amended or modified except in writing and signed by the duly authorised officers of the Client and Renaissance.

[28]The Marampa Agreement (“the MA”) was also signed on 7 August 2008. This was on mostly identical terms to those contained in the TA save that:(i) the “Company” was Marampa Iron Ore Company Limited (“MIOC”);

(ii) the term extended to the earlier of completion and 3 weeks from the commencement date;

(iii) one transaction was contemplated, not two (Phase One and Phase Two); and

(iv) Renaissance’s fee was expressed to be a simple percentage (3.5%) of the total consideration for the sale rather than a fixed percentage of the total consideration plus an additional 1.5% if the consideration exceeded a stipulated level ($2 billion) as provided for in the TA. Both agreements provided that the governing law was the law of England.

[29]When the MA was signed a deal with CLIO for the purchase of 100% of MIOC was in prospect but because of Evraz’s opposition to the deal, the transaction came to be structured as a sale of 30% of MIOC (which did not require the consent of CLIO’s shareholders) with CLIO having an exclusive option to purchase the remaining 70% at a later date. It was AML’s belief that Evraz would not object to the later purchase of 70% if the first transaction had already been done. Completion of the deal was to be subject to conditions precedent, including due diligence and the receipt of all regulatory consents, including that of the Bermuda Monetary Authority.

[30]On 31 August 2008, Mr Mannock sent Mr Dickson a draft agreement extending the MA to the earlier of completion and 30 September 2008.

[31]On the evening of 31 August 2008, Mr Timis, Mr Mannock and Mr Hayes flew to Moscow in Mr Timis’s private jet to attend a meeting with Evraz the following morning. During the flight the draft MA extension agreement was raised with Mr Timis who said that there was no need for it since the deal with CLIO had been done and Renaissance would be paid its fee. At the meeting the next morning, Evraz repeated its opposition to the transaction but there was nothing it could do to stop it. Following the meeting, the sale of 30% to CLIO was announced shortly after 11.00 am, UK time. The sale agreement completed one month later on 1 October 2008.

[32]On 9 October 2008, Renaissance, together with Mirabaud Securities Limited (“Mirabaud Securities”), entered into an agreement with AML (“the Project Green Placing Agreement”) under which AML appointed Renaissance and Mirabaud Securities its placing agents in respect of up to 26,666,700 common shares in AML at 75p per share. This placing raised £20 million, with all of the shares being placed with AML’s existing shareholders. The fees for this equity raise (4%, plus 1% warrants) were split 50/50 between Renaissance and Mirabaud Securities, with the result that Renaissance received $680,000 in cash, plus warrants to buy 133,333 shares in AML at 75p per share.

[33]On 23 October 2008, Renaissance sent AML an invoice for its fee under the MA in the sum of $1,511,185.21. Towards the end of November 2008, Mr Timis requested time to pay and on 30 November 2008 Renaissance and AML entered into an amendment agreement (“the MA Addendum”) which:(i) extended the term of the original MA to the earlier of completion of the sale or 31 December 2008;

(ii) increased Renaissance’s fee to 4% of the total consideration;

(iii) provided for payment of $750,000 within 5 days, with the remainder of the fee to be paid upon the earlier of completion of the sale of the remaining 70% of the Company or 31 May 2009; and

(iv) provided for a fee of $6,286,000 to be paid in accordance with Clause 5 (c) Fee to be paid within 30 business days of Completion. of the original agreement if completion of the sale of the remaining 70% occurred. The sum outstanding in respect of the first 30% was finally paid to Renaissance on 22 October 2009 following a further agreed deferral, and the fee due in respect of the later 70% was paid in March 2010.

[34]Following the execution of the TA, Renaissance (principally Mr Mannock under the supervision of Mr Hayes) did a great deal of work to progress a transaction for the raising of a large amount of capital. This work included contributing to and assisting in the formulation of an operational development plan of the Tonkolili mine and associated infrastructure and producing a financial model, specific to the operational development plan, for use, inter alia, in evaluating different operational scenarios including the mine, rail, port and power projects. In addition, there were frequent meetings and operational workshops with AML personnel.

[35]One of the potential investors approached by Renaissance was Eurasian Natural Resources Company plc (“ENRC”) which expressed an interest in acquiring a stake in AML itself. On 16 December 2008, AML and ENRC concluded a confidentiality agreement. At a meeting with ENRC attended by Mr Hayes and Mr Timis, ENRC were told that AML was considering all options: a sale of AML, a sale of an asset and a sale of a stake.

[36]Another potential investor approached by Renaissance was Vale SA (“Vale”), a large Brazilian mining company. This led to a confidentiality agreement between AML and a company in the Vale Group, Rio Doce South Africa, which was directed specifically to the Tonkolili Exploration Licence and the related infrastructure lease granted by the Sierra Leone Government.

[37]The TA’s term expired on 7 February 2009, at which point no capital raising transaction had been agreed. On 31 March 2009, Mr Hayes sent Mr Alan Watling, the recently appointed new CEO of AML, a proposed addendum to the TA. Two days later, on 2 April 2009, Mr Hayes had a 3 hour meeting with Mr Timis during which the Renaissance/AML relationship was discussed in some detail as was the progress being made with potential bidders for a stake in the Tonkolili project, including ENRC. Mr Timis proposed a revised fee structure for the TA under which Renaissance’s fee would be larger if the consideration exceeded around $1.6 billion, but lower if the consideration was less.

[38]In the evening of 6 April 2009, Mr Hayes and Mr Mannock went to see Mr Timis at his London flat and discussed with him the proposed TA Addendum and a bid by ENRC for a stake in AML which it was thought was imminent. The following afternoon Mr Hayes sent a revised draft TA Addendum to Mr Timis for signature on behalf of AML but Mr Watling and Mr Timis wanted the tail period of the TA to be reduced from 3 years to 1 year, which led to the despatch to AML of a further draft agreement signed on behalf of Renaissance amending the term in accordance with AML’s requirements.

[39]In the evening of 8 April 2009, Mr Hayes and Mr Timis had a further discussion at Mr Timis’s flat about the TA Addendum in the amended form proposed. Thereafter, the TA Addendum was signed by Mr Timis and Mr Watling on behalf of AML. I shall return to the 8 April 2009 meeting below.

[40]The TA Addendum amended the TA in the following respects:(i) the second sentence of clause 1, a and b, was deleted in its entirety;

(ii) Clause 1 (d) was amended to read: ‘“Completion” shall be deemed to have occurred on the date of receipt of any Consideration pursuant to a definitive agreement for any Sale. In the case of a series of transactions representing a Sale, Completion shall be deemed to have occurred on the date of receipt of any Consideration pursuant to a definitive agreement for any single transaction in the series’.

(iii) Clause 4 (a) was amended to read: Either party may terminate this Agreement at any time, with or without cause, by giving to the other party at least 10 days' prior written notice. Notwithstanding the termination of this Agreement, clauses 3(b), 4, 5, 6(b), 7 to 9 (inclusive) and 11 to 14 (inclusive) shall remain in full force and effect. It is expressly agreed that following the termination by either party of this Agreement, Renaissance will continue to be entitled to receive fees that have accrued prior to the termination but are unpaid, as well as reimbursement for expenses. It is further agreed that if any Sale is consummated within one (1) year of the date of any termination by the Client, Renaissance shall be entitled to the fees as set out in Clause 5.

(iv) Clause 5 was amended to read: (a) As compensation for the services rendered by Renaissance hereunder the Client shall pay Renaissance a fee (the “Fee”), net of any value added tax, withholding tax or similar tax if applicable. Where 100% of the Company is sold in a Sale, the Fee shall be calculated as a percentage of the Consideration as follows: Consideration: Fee: At or: below US$1,500m 1.5% At US$1,750m 2.0% At US$2,250m 2.5% For every US$500m above US$2.250m An additional 0.5% is added to the Fee If the Consideration is between these thresholds, then the Fee will be calculated on a pro rata basis. For example, if the Consideration is US$1,625 million, then the Fee will be 1.75% of the Consideration. Likewise, if the Consideration is US$2,000 million, then the Fee will be 2.25% of the Consideration. Similarly, if the Consideration is US$3,000 million, then the Fee will be 3.25% of the Consideration. If less than 100% of the Company is sold in a Sale, then the Fee will be calculated by applying the Fee as indicated in the table above for the Consideration that would have been received if 100% of the Company had been sold, to the actual Consideration received by the Company in the Sale. For example, if 25% of the Company is sold for US500 million, then the Fee will be 2.25% of the Consideration, being the Fee for an equivalent 100% transaction at US$2,000 million. In addition to the above Fee, if the Client considers, in its sole discretion, Renaissance to have provided a high level of service, then the Client will pay an additional fee (the “Discretionary Fee”) up to an amount in cash equal to 0.5% of the Consideration”. “(c) The Fee shall become due and payable to Renaissance within 10 (ten) business days from Completion”.

[41]The TA Addendum further provided: Except as otherwise stated herein, the terms, conditions, obligations, representations and agreements of the parties in the Engagement Letter [the TA] shall continue to apply to this letter agreement and shall be incorporated herein. The parties agree that terms not defined in the letter agreement shall have the definition given to them in the Engagement Letter. This letter agreement shall be governed by and construed in accordance with laws of England.

[42]Meanwhile, discussions with ENRC continued and in May 2009 there were site visits to Tonkolili by Mr Mannock and Mr Steve Allard of AML with ENRC’s consultants and advisors. On 16 May 2009, Mr Timis received from Clyde & Co a draft term sheet regarding a transaction whereby ENRC would acquire, as a first step, 25% of TIO and the infrastructure subsidiaries, by acquiring existing shares directly from AML. The term sheet had been discussed between Mr Dickson (AML’s General Counsel), Renaissance and Clyde & Co earlier that day.

[43]On 1 June 2009, AML concluded a Consulting Services Agreement (“the MEI Agreement”) with a Singapore company, Metal Exchange International Pte Ltd (“MEI”) which provided that MEI would seek principal investors from the Far East and that if it introduced investors who subscribed for new shares in AML or acquired 100% of “the Tonkolili Project” it would be paid a fee of 3.5% of the total consideration paid.

[44]In July 2009, Renaissance acted as AML’s exclusive corporate advisor and sole lead manager and lead book-runner on a placing of AML shares (“Project Red”) to fund:(i) further drilling to delineate the extent of the magnetite and hematite ore mineralisation at Tonkolili;

(ii) a definitive feasibility study; and

(iii) the development of the Tonkolili port, rail and power infrastructure projects. This placing raised £63.8 million. It was handled not by Mr Hayes and Mr Mannock (who worked on the M&A side) but by members of Renaissance’s Equity and Capital Markets (ECM) team. The placing fee (4%) was split between Renaissance, Mirabaud and Pali Capital and Renaissance received an additional 1% discretionary fee, bringing the total fee received by Renaissance to $2.4 million.

[45]On 23 July 2009, Mr Timis reported to the AML Board that discussions were continuing with ENRC although no formal offer had been received for either AML (TopCo) or the Tonkolili project.

[46]On 17 September 2009, AML announced that it was in advanced discussions with ENRC and several large industrial corporations in Asia which could involve an offer for AML or the funding of the development of its iron asset at Tonkolili.

[47]In late 2009, following an introduction by Mr Watling, AML commenced negotiations with China Railway Materials Commercial Corporation (“CRM”), a leading Chinese steel trader, with a view to concluding:(i) long-term off-take agreements for iron ore under which CRM would purchase prescribed quantities of iron ore annually from AML for a minimum of 20 years;

(ii) an investment by CRM in AML; and

(iii) the procurement of equipment for AML for developing the Tonkolili project. In December 2009, Mr Mannock and Mr Hayes travelled to Beijing to assist in negotiations with CRM over a Memorandum of Understanding and in January 2010 Mr Mannock went to Hong Kong to meet CRM’s financial advisors, Merrill Lynch, to discuss the Tonkolili financial model.

[48]On 6 January 2010, AML released an announcement stating that it had entered into a “conditional strategic agreement” with CRM covering (i), (ii) and (iii) above. The announcement stated that CRM would subscribe for approximately 30.5 million new common shares in AML at a price of £5 per share for a cash consideration of approximately £152.6 million, which would be equivalent to 12.5% of AML's enlarged share capital. CRM's proposed investment in AML was subject to the completion of satisfactory due diligence, appropriate representations and warranties being given and necessary government and regulatory consents being received by both parties. The parties anticipated concluding an investment agreement by 31 March 2010.

[49]On 10 January 2010, Mr Timis and Mr Jennings met over dinner at the Rib Room Restaurant. Renaissance contends that, in the course of a wide-ranging conversation covering Renaissance’s performance as AML’s financial adviser and the prospect of future remunerative deals, it was agreed between Mr Timis and Mr Jennings that Renaissance would be paid a 1.5% fee for the CRM transaction instead of the fee to which it was contractually entitled. I return to this meeting later in this judgment.

[50]In February 2010, AML undertook a further equity raising by which it raised £80 million through a placing of common shares. Renaissance was not given a role by AML in this transaction but instead AML appointed Dundee Securities Corporation, GMP Securities Limited, Macquarie Capital Markets and Mirabaud Securities to handle the placing. Renaissance waived any entitlement to a fee for this transaction at the request of the underwriters’ Canadian lawyers.

[51]On 31 March 2010, CRM and AML concluded a definitive subscription agreement under which:(i) CRM agreed to subscribe for 33,579,474 common shares in AML at a price of £5.00 per share for a total consideration of £167,897,370 which equalled 12.5% of AML’s enlarged share capital; and

(ii) CRM was given the right to maintain a shareholding of 12.5% in AML in the event of any future equity placings issued by AML. The contemplated off-take agreement was signed at the same time. This CRM transaction is referred to hereafter as “CRM1”.

[52]In May 2010, ENRC revived its expression of interest in acquiring AML and the parties came close to a deal for the sale of 50.7% of AML split between new and existing shares.

[53]At a meeting on 14 May 2010 at Mr Timis’s flat attended by Mr Timis, Mr Hayes, Mr Mannock and Mr Watling, Mr Timis said that he wanted to cap Renaissance’s fee for the likely deal with ENRC at 2%, a proposal Renaissance resisted.

[54]Mr Timis and Mr Hayes met again at Mr Timis’s flat on 16 May 2010 when Mr Timis said that based on the proposed ENRC deal Renaissance’s fee would be between $80-$90 million under the current letter of engagement and proposed that instead Renaissance should agree to a fee of 2.5%. Mr Hayes rejected this proposal: Renaissance was entitled to a fee for the CRM1 transaction and AML was close to a deal with ENRC. I return to the meetings on 14 and 16 May 2010 later in this judgment.

[55]On 8 June 2010, the CRM1 transaction completed and by letter dated 16 June 2010 to AML’s Board ENRC stated that the discussions between the two companies had ended.

[56]In the meantime, AML had entered into negotiations with Shandong Iron & Steel Group Company Limited (“SGC”) for the sale of a stake in the Tonkolili project and a long term off-take agreement at discounted prices. SGC had been introduced to AML by Mr Poon of MEI.

[57]On 8 July 2010, SGC and AML signed an initial Memorandum of Understanding (“MOU”) which contemplated a Subscription Agreement under which SGC would acquire a 25% stake in TIO, ARPS and AP in 3 stages for a total consideration of $1.5 billion and an off-take agreement for 10 million tons per year of iron ore from the Tonkolili mine at prices below a benchmark FOB price.

[58]On 23 July 2010, Renaissance sent AML an invoice for a fee of $3,701,763.36 in respect of the CRM1 transaction (1.5% of $246,784,224 – the total consideration). This invoice was not paid. At this time the AML Board was putting pressure on Mr Timis not to pay Renaissance a fee if the transaction with SGC went ahead, which at this stage seemed likely and in the relatively near future. At a breakfast meeting on 29 July 2010, Mr Timis told Mr Jennings he wanted to cap Renaissance’s fee on a transaction with SGC. Mr Jennings said this was unacceptable and at a meeting with Mr Hayes and Mr Mannock, Mr Timis said that there was no way that AML would pay a fee to Renaissance on the SGC deal. Mr Timis took the same line with Mr Jennings at a further meeting on 30 August 2010 at which Mr Jennings stated that Renaissance would enforce its rights vigorously and would make the requisite investment in time and legal resources to make sure it was ultimately successful.

[59]By letter dated 2 September 2010, AML gave notice of termination of the UA In fact the term of the UA had already expired and the amended TA (“the ATA”) effective from 13 September 2010.

[60]On 15 September 2010, AML and SGC executed a restated and amended MOU. This and the first MOU contemplated a subscription agreement and off-take agreement to be concluded simultaneously, with both being subject to Chinese Government and regulatory approvals and satisfactory due diligence.

[61]In November 2010, AML undertook another equity raise, this time placing 45 million of its common shares, thereby raising $307 million (£191 million). AML did not appoint Renaissance to assist with this funding exercise but appointed instead Canaccord, Dundee, GMP, Mirabaud Securities and EAS, paying them a total of $9.18 million in fees.

[62]The consequence of the November 2010 equity raise was that CRM’s 12.5% in AML was at risk of being diluted and accordingly on 7 January 2011, CRM exercised its anti-dilution rights and paid £29.7 million for new shares in AML to maintain its shareholding at 12.5%. At the trial, this transaction was referred to as “CRM2”.

[63]In February 2011, AML raised a further $417.7 million via a debt raising through a secured loan facility announced in November 2010. AML appointed the same advisers to handle this transaction as they had appointed for the November 2010 Equity Raise; as then, Renaissance was not one of the chosen few.

[64]A further restated and amended MOU was concluded by AML and SGC on 3 May 2011. In contrast to the first and second MOUs, the proposed transaction contemplated in the third MOU was:(1) a one-off (as opposed to three-stage) investment of US$1.5 billion by Shandong in return for 25% of the increased share capital of AML’s Sierra Leonian subsidiaries, Tonkolili Iron Ore (SL) Limited (“TIOSL”) (the holder of the mining lease for the Tonkolili iron ore deposit); African Railway and Port Services (SL) Limited (“ARPSSL”) (the holder of the lease conferring the right to own and operate Pepel Port and the railway to Tonkolili); and African Power (SL) Limited (“APSL”) or, at SGC’s option, 25% of the Bermudan subsidiaries; and

(2) a discounted off-take agreement for the life of the Tonkolili Mine pursuant to which SGC would be entitled to purchase iron ore from AML at a discounted price from the Benchmark FOB price prevailing in the market.

[65]On 29 July 2011, AML and SGC signed the following agreements in relation to the proposed Shandong Transaction :(a) A subscription agreement (the “Shandong Subscription Agreement”) which provided for the purchase by SGC of 25% of each of TIOSL, ARPSSL and APSL for $1.5 billion and which was subject to numerous conditions precedent;

(b) Shareholders’ agreements relating to each of TIOSL, ARPSSL and APSL which were to become effective on completion of the Shandong Transaction (as defined in the Shandong Subscription Agreement); and

[66]Under Clause 2.2 of the Shandong Subscription Agreement the consideration paid by Shandong was allocated between the Sierra Leonian subsidiaries in the ratio 55.6% to TIOSL, 43% to ARPSSL and 1.4% to APSL. The consideration was allocated between the Sierra Leonian susidiairies (rather than the intermediate Bermudan parents) because the investment took place at project company level. The consideration paid in connection with the sale of TIO was therefore 55.6% of $1.5bn, namely $834 million. Since SGC thereby acquired a 25% stake, the implied value of TIO for the purposes of the fee provision in the TA is $3.336 billion which, applying the appropriate percentage of 3.586%, gives a total fee of $29.9 million in respect of the sale of TIO.

[67]Renaissance has not sought to challenge the allocation of the consideration in the Subscription Agreement or suggested that it does not represent an appropriate or good faith allocation as between TIOSL and the other Sierra Leonian project companies.

[68]The conditions precedent to which the Shandong Subscription Agreement was subject included:(i) the delivery by AML to SGC of iron ore from the Tonkolili Mine for production trials and confirmation in writing by SGC that it was satisfied with such iron ore (clause 3(b)(iv));

(ii) the execution of an iron ore off-take agreement by AML, SGC and TIOSL (“the Off-take Agreement”); and

(iii) the obtaining by SGC of all requisite PRC governmental and regulatory approvals and the obtaining by AML and the Bermuda and Sierra Leone subsidiaries of any other requisite governmental and regulatory approvals or filings, required for the Shandong Transaction.

[69]Pursuant to the Shandong Subscription Agreement, ‘Completion’ would occur on the ‘Completion Date’, being “3 Business Days following the day on which the last of the Conditions is satisfied or waived in accordance with this Agreement (save for any Condition which, by its nature, may only be satisfied on the Completion Date), being in any event no later than the Long Stop Date” (31 December 2011).

[70]In fact, the satisfaction of the Conditions took longer than initially anticipated and the parties agreed to extend the Long Stop Date to the end of March 2012.

[71]It was because it was anticipated that a definitive off-take agreement would take some considerable time to finalise that the parties executed the Framework Off-take Agreement. This agreement set out the principles to govern the definitive off-take agreement and was intended to constitute a contractual document that could be submitted for preliminary review to the National Development and Reform Commission (“NDRC”), together with the Shandong Subscription Agreement and the Shareholders’ Agreement. Thus, in addition to stipulating for samples of iron ore to be provided for analysis, the Framework Off-take Agreement provided that the types and quantities of iron ore products to be the subject of the final agreement were to be as set out in Schedule 1 and specified the principles applicable to the negotiation of a pricing mechanism and the agreed benchmark price calculation methodology.

[72]Heads of terms for the Off-take Agreement setting out the core commercial terms were signed on 14 December 2011 and the definitive Off-take Agreement was executed on 28 March 2012. Under this agreement, SGC was entitled to purchase 2 million tons of ore per year from the Tonkolili mine down to 2013, and thereafter 10 million tons per year at prices discounted by reference to an FOB benchmark. The agreement also gave SGC a put option for the sale of its 25% interest in TIOSL, ARPSL and APSL at fair market value without requiring SGC to relinquish its rights to purchase the agreed quantities of iron ore at the agreed prices if Mr Timis ceased to be a director of AML.

[73]By 30 March 2012, the requisite government and regulatory approvals The parties agreed to waive the requirement of approval in respect of guarantees under the Shandong Subscription Agreement. had all been obtained and the Shandong Transaction completed on 2 April 2012 when the funds due from SGC were received by AML.

[74]On 17 April 2012, Renaissance sent an invoice of the same date to AML requesting payment of a fee under the ATA in the sum of $93.75 million in respect of the Shandong Transaction. This invoice has not been paid. AML contends that nothing is due to Renaissance under the ATA in respect of the Shandong Transaction.

Renaissance’s claims

[75]Renaissance makes the following claims: 1. A claim for $93.75 million in respect of the Shandong Transaction under the ATA (“the Shandong Claim”). Renaissance also claims expenses in the sum of $68,247.32 in relation to the Shandong transaction under the ATA. 2. A claim for £2.4 million in respect of CRM1 pursuant to an alleged oral agreement made between Mr Timis and Mr Jennings on 10 January 2010 that AML would pay Renaissance a fee of 1.5% for this transaction (“the CRM1 Oral Agreement Claim”). Alternatively, Renaissance claims a fee of £3.7 million in respect of CRM1 under the TA (“the CRM1 TA Claim”), alternatively under the UA, alternatively by way of quantum meruit. Renaissance also claims £9,036.30 in expenses in relation to the CRM1 transaction under the ATA or the UA. 3. A fee of approximately £730,000 in respect of CRM2 under the TA, alternatively under the UA, alternatively by way of quantum meruit (“the CRM2 Claim”. 4. In respect of the November 2010 Equity Raise, damages under the UA (“the November 2010 Equity Raise Claim”). 5. In respect of the February 2011 Debt Raise, damages under the UA (“the February 2011 Debt Raise Claim”). The Shandong Claim AML’s case

The Shandong Claim

[76]It is common ground that the sale of the 25% stake in TIOSL to SGC is a Sale for the purposes of the TA Addendum. AML contends that the sale of this interest was not “consummated” within one year of the date of the termination of the ATA under clause 4(a) on the ground that “consummated” means “completed”, alternatively the satisfaction of all conditions precedent. AML further submits that if “consummated” means the conclusion of an agreement, rather than completion, then:(i) a conditional agreement is not a consummated sale until all conditions precedent stated therein have been satisfied;

(ii) if (i) is not upheld, the sale of the 25% interest was not “consummated” within one year of the termination of the ATA because the Shandong Off-take Agreement was not executed until 28 March 2012; and

(iii) the ATA applied only to sales of shares in or assets held by TIO or its subsidiaries with the consequence that the sale of 25% in ARPSSL and APSL (or a sale of shares in AML (“TopCo”)), was outside the scope of the ATA.

Renaissance’s case

[77]Renaissance’s primary construction argument (unaided by any estoppel or agreed meaning) is that a sale is “consummated” for the purposes of clause 4(a) of the ATA when all or all of the material terms of the agreement for the sale transaction have been agreed; alternatively, when the definitive agreement for the sale transaction has been executed. Renaissance further submits that: (a) the Off-take Agreement was separate from the Shandong Subscription Agreement for the sale of a 25% stake in TIOSL, ARPSSL and APSL and it is only the latter transaction that is a sale for the purposes of clause 4 (a) of the ATA; and

(b) the sale of the 25% stake in those companies was consummated on the signing of the Third MOU on 3 May 2011 or just prior to or on the signing of the Shandong Subscription Agreement on 29 July 2011, both of which events occurred within one year of the termination of the ATA.

[78]In addition, Renaissance submits that when construed against the relevant background facts known to each of the parties, the ATA applies to:(1) the sale of a stake in any company that was part of the Tonkolili project (ARPS, AP, TIOSL, ARPSSL and APSL) if an interest in the “Company” (TIO) was also being sold; and

(2) the sale of a stake in AML itself (a TopCo transaction).

[79]In the alternative, Renaissance advances an estoppel argument that as a result of:(a) the way in which the parties dealt with each other over the MA; and

(b) oral, mostly telephone, conversations between various representatives of Renaissance and AML, it was agreed and understood, and AML are estopped from denying, that: (i) a sale was “consummated” under clause 4 (a) of the TA and the ATA when the material terms of the deal in question were agreed; (ii) the TA and the ATA applied to the sale of a stake in any company that was part of the Tonkolili project (ARPS, AP, TIOSL, ARPSSL and APSL) if an interest in the “Company” (TIO) was also being sold; and (iii) the TA and the ATA applied to a TopCo transaction.

Discussion of and decision on Renaissance’s estoppel case

[80]I deal first with Renaissance’s estoppel case and I begin with some general observations. First, given that the conversations relied on occurred several years ago and none is evidenced by a contemporaneous note, it is well to have in mind Popham CJ’s observation in Countess of Rutland’s Case (1604) 5 |Co. Rep. 25b at 26a: it would be inconvenient if matters in writing, made by advice and upon consideration, and which finally import the certain truth of the agreement of the parties should be controlled by averment of the parties to be provided by the uncertain testimony of slippery memory. Lord Goff’s words in Grace Shipping v. Sharp & Co [1987] 1 Lloyd's Law Rep. 207 at p. 215–6 are also apposite: … it is not to be forgotten that, in the present case, the Judge was faced with the task of assessing the evidence of witnesses about telephone conversations which had taken place over five years before. In such a case, memories may very well be unreliable; and it is of crucial importance for the Judge to have regard to the contemporary documents and to the overall probabilities.

[81]Second, in respect of the alleged oral agreements as to the meaning and effect of the TA and the ATA, Renaissance must prove that there was an exchange between the parties which an objective observer, possessed of the knowledge known to both sides, would conclude constituted a clear acceptance by AML that the TA and where appropriate the ATA was to have the meaning and effect alleged by Renaissance.

[82]Third, to establish its estoppel case founded on the performance of the MA, Renaissance must establish that an objective observer possessed of both sides’ background knowledge would conclude that the conduct in question was explained wholly or mainly by a common understanding as to the scope and effect of the MA and, by extension, the TA and the ATA.

[83]Fourth, the estoppels relied on were an after-thought in that they were not pleaded at the outset of the Shandong and CRM Claims but were first mentioned in evidence adduced by Renaissance to resist respective applications made in May and August 2012 by AML to strike out the claims.

[84]It is necessary now to give my assessment of the relevant witnesses.

Renaissance’s estoppel/oral agreement witnesses

[85]The two principal witnesses called by Renaissance in support of its estoppel case were Mr Mannock and Mr Hayes. Reliance was also placed on evidence given by Mr Jennings as to his conversation with Mr Timis at the Rib Room Dinner.

[86]Mr Mannock has a substantial financial interest in a successful outcome for Renaissance in these proceedings – he is entitled to 7% of the recoveries as a whole – and he well appreciated the importance of Renaissance’s estoppel case. Also, it was he who was responsible for the wording in the TA and ATA that is sought to be glossed by the estoppels so as to have effect in a manner it would not otherwise have. Whether as a result of these matters, or for some other reason, he has come in my view to convince himself that he has a clear recollection of statements he and Mr Dickson and Mr Alpen and Mr Timis made on different occasions as to the scope and effect of the TA and ATA when, given that the relevant conversations occurred long ago and are uncorroborated by the contemporaneous documents, such a clear recollection is very unlikely to be reliable. This is not to say that Mr Mannock was knowingly untruthful. He was not. He honestly believed that he was giving accurate evidence when relating these conversations, but honesty, whilst a necessary condition for the acceptance of evidence based on memory, is not enough. The evidence must also be reliable.

[87]Mr Hayes was also an honest witness but again the conversations he related happened several years ago and he too has a substantial interest in the outcome of these proceedings. Under a consultancy agreement with Renaissance he is entitled to 20% of the net fees arising from “the Sale of Tonkolili”. I therefore approach his evidence with very considerable caution looking for corroboration in the contemporaneous documents or the unchallenged background to the conversations.

[88]In regard to Mr Jennings, for the reasons I give below when dealing with the Rib Room dinner, I find that he was an accurate, reliable and truthful witness.

AML’s estoppel/oral agreement witnesses

[89]The AML representatives alleged to have been party to the conversations relied on by Renaissance for its estoppel and oral agreement case were Mr Dickson, Mr Alpen and Mr Timis. Mr Alpen testified that he did not remember other than in the most general sense what was said in his conversations with Mr Mannock. In my view he was an honest if somewhat unhelpful witness.

[90]Mr Dickson’s witness statement was in large part an exercise in advocacy rather than a straightforward account to the best of his recollection of what was said and done on the relevant occasions. He was, however, a truthful and reliable witness who gave his oral evidence with considerable care in a genuine effort to assist the court.

[91]Mr Timis was an honest but excitable witness. He is not a “detail man” but is someone who operates at a higher, more general level, concentrating on matters of policy and strategy. As a result, on matters of detail his memory was not good, as was borne out by his departure in cross-examination from his account in his witness statement of his meeting with Mr Hayes on 8 April 2009. He also on several occasions gave oral evidence that went beyond what was stated in his witness statement, for example in respect to his dealings with ENRC and with Evraz. In my view, his evidence should not in general be accepted unless it is corroborated by contemporaneous documents. He was adamant that he had not telephoned Mr Mannock on 7 July 2010. He genuinely believed that this was the case, but for reasons I give below, I prefer the evidence of Mr Mannock as to what occurred on this date. The conversations/conduct relied on: The Mosaico lunch on 1 August 2008.

The conversations/conduct relied on:

[92]At this stage no draft engagement letter had been put on the table and there is no doubt that there was a discussion at this lunch concerning the Tonkolili project, the sale process, the phasing of the transaction and Renaissance’s fees. Mr Mannock testified that he recalled that Mr Harvey asked Mr Timis “on what part of the Tonkolili Project Renaissance would we be mandated” and that he (Mr Mannock) “distinctly remembered FT replying ‘the whole thing’ because FT – being rather a colourful character – threw his arms up and wide above the table (to emphasise ‘the whole thing’) when he said this”. Mr Timis said in his first witness statement and in his oral evidence that he did not recall saying ‘the whole thing’ but if he did say it he would have been referring to the Tonkolili mine only. When pressed in cross-examination that the words ‘the whole thing’ could not sensibly refer to the mine, Mr Timis said:

“I refer to ‘the whole thing’ because discussions with Renaissance was that we might sell 10,15 per cent to bring an investor, or we might sell the whole of AML, or we might sell the whole Tonkolili project, the whole to sell it as a sale, so we can distribute funds to the shareholders …”

[93]Mr Mannock referred to an exchange of emails between himself, Mr Harvey and Mr Hayes prior to the lunch which he said raised the question whether the sale of infrastructure would be included in Renaissance’s mandate. A contact of Mr Harvey, Mr Sam Hao at China Railways, had expressed interest in a possible deal under which China Railways would build the infrastructure in exchange for an off-take agreement relating to the ore at the Tonkolili mine. In an email sent on 27 July 2008 at 18:22 by Mr Harvey to Mr Mannock and Mr Hayes, Mr Harvey said:

“Frank wants to raise idea of China building port, rail and power infrastructure in return for offtake. Nothing to do with sale process. China Railways are interested I just need some info”

. In a responsive email to Mr Hayes, Mr Mannock said:

“… Any inf [infrastructure] deal will affect M&A prospects as projects interdependent.”

On 1 August 2008 shortly before the Mosaico lunch, Mr Hayes said in an email to Mr Harvey and Mr Mannock:

“Neil, presumably any infrastructure deal would result in the Chinese having an off-take agreement, which could scupper any sale of an interest in tonkalili (sic). I would have thought we try to fold in any discussion with china railways in the process for the sale of a stake in tonkalili (sic). Toby, therefore, we should try to expand the mandate to cover the infrastructure vehicle also if possible.”

Mr Mannock then emailed Mr Hayes:

“Andrew, presumably same fees apply to inf? 4 pc of minority stake sold in 08, then 2 pc of EV on sale of control in 09 (less fee already paid for minority stake sale in 08). Inf could also be big: $300 for port + rail, $500 for power. Af Min seeking to retain 25 pc of all inf.”

To which Mr Hayes replied: “Yes try for that.”

[94]I do not accept Mr Mannock’s evidence that Mr Harvey asked the question and Mr Timis answered as related by Mr Mannock. After the meeting, Mr Hayes asked by email how the meeting had gone and in reply Mr Mannock made no mention of Mr Timis agreeing that Renaissance was mandated for “the whole transaction” or for the sale of a stake in the infrastructure companies, which I would have expected him to do if this had been agreed. Nor did Mr Mannock make any mention of any agreement as to the extent of Renaissance’s mandate in a further email to Mr Hayes, Mr Harvey and other Renaissance executives sent later on 1 August 2008 in which he reported on the meeting. I would also have expected Mr Mannock to have worded the draft engagement letter he sent on 4 August 2008 to Mr Dickson and Mr Alpen so as to ensure that the mandate extended to a sale of part or all of the infrastructure companies and to a sale of part or all of AML. This, however, he did not do.

[95]As to the emails related in paragraph 93 above, I agree with the submission of Mr Adam QC for AML that these show that:(i) Mr Mannock regarded the possible China Railways deal as a transaction separate from those to be covered under the contemplated Tonkolili engagement letter and thus required a separate potential mandate; and

(ii) Mr Hayes did not understand that the mandate being planned for the TA covered infrastructure vehicles. The Mannock/Dickson conversation on 4 August 2008.

[96]It was at 13:46 on 4 August 2008 that Mr Mannock emailed the first drafts of the Tonkolili and Marampa engagement letters to Mr Dickson and Mr Alpen. Later that day at 18:16, Mr Dickson emailed Mr Mannock stating, inter alia, that from a cursory look at the letters he was not sure they reflected the agreement since they included a reference to Enterprise Value (“EV”) in the calculation of the fee but EV was irrelevant. At the conclusion of the email, Mr Dickson stated that it had been written without the input of Frank [Mr Timis]. Mr Mannock called this “the heart attack email” and told the court that it was Mr Dickson’s statement that he was not sure that the agreements reflected what had been agreed rather than anything else said in the letter that caused him to describe the email in this way.

[97]Upon receiving the email, Mr Mannock rang Mr Dickson to discuss it and he testified that during this conversation Mr Dickson agreed:(i) that it had been agreed that the mandate should cover “everything”; and

(ii) that the clause providing that the agreement covered any deal “whereby” an interest in TIO was sold meant that the agreement was not limited to a sale of an interest in TIO itself but covered any transaction in which TIO was involved.

[98]In his 3rd witness statement, Mr Mannock said: I also recall explaining to ID that the Agreement covered not only a sale of TIO but also any deal "whereby" (to quote the Tonkolili Agreement) TIO was sold. ID is a very sharp man and understood how it worked immediately. I remember him saying, as to what was covered:

"but not uranium or diamonds, presumably because it is not sold whereby TIO… yeah, yeah, yeah"

. His voice dropped in volume at the point of the comma, just before "presumably". This was ID thinking out loud (hence the "presumably" and the "yeah, yeah, yeah") and agreeing with my understanding that any deal at any level, providing TIO was in the deal, would be covered by the Agreement because of the word "whereby", but that it would not cover a sale of a separate division (uranium or diamonds for example) in which TIO was not involved at all.

[99]In his 4th witness statement, Mr Mannock stated that his recollection of the conversation with Mr Dickson was very clear because the lead up to the TA and MA was a pivotal point in his career; he had principal responsibility for the relationship with AML; and he knew the AML mandate was receiving attention at the highest levels in Renaissance.

[100]In the course of his cross-examination, Mr Mannock said: A. What I'm saying now I think is what I have been trying to say the whole time is that the cause of my alarm was his opening statement. Yes, there are discrepancies in the way he sees the mandate below in the email, but upon receiving that email immediately afterwards I called him up and we did a full page flip of the document, both of us with the documents in front of us. It is absolutely natural we would discuss the scope of the mandate but we also discussed the fees and other things like that. Q. Why would you discuss the scope of the mandate with Mr Dickson who was not a commercial man? A. Well, very clearly I wasn't seeking to agree or negotiate any commercial point at all, be it fees or scope with Mr Dickson. What I was doing was describing to him the way the commercial agreement worked and how the letter that was a Renaissance template, how that captured it. Once he understood that it was left as is in the agreement. We were discussing the operation of the engagement letter not the commercial points.

[101]Mr Dickson testified that whilst he could recall speaking to Mr Mannock about the draft agreements, he could not remember what was said, if anything, about the scope of the Tonkolili mandate. If any commercial misunderstandings had emerged he would not have tried to resolve them himself but would have told Mr Mannock to discuss them with Mr Timis. It was not his role and he would not have felt comfortable about reaching a consensus with Mr Mannock about what the contract meant: it was not something he would have done. If the conversation had gone as Mr Mannock said it did, he (Mr Dickson) would have put his (Mr Mannock’s) position down in an email to him to record it and he would have expected Mr Mannock to amend the draft to provide that it covered entities other than TIO.

[102]Despite the detail of Mr Mannock’s claimed recollection, I do not accept that his evidence about the conversation with Mr Dickson is reliable. No doubt he honestly believed that the conversation proceeded as he related it but that is because, in my judgment, he has convinced himself that this was how things went without having an independent accurate recollection of what was said and by whom.

[103]Following the conversation both Mr Mannock and Mr Dickson sent internal emails dealing with what had transpired. Thus at 23.15 on 4 August 2008, Mr Mannock emailed Mr Harvey setting out the fee section in the draft TA because he wanted to check it was consistent with his understanding from the Mosaico lunch meeting. In an email to Mr Alpen at 21:29 Mr Dickson was concerned to report what had been said about the Marampa draft agreement: I had a long talk with Toby this evening. Rencap want to use EV in order to avoid the “threshold” risk – ie they get to USD 199M for Marampa but, because they fell short, they miss out on all their commission. I told him to talk to FT since we had a wide difference in understanding. I also said the rest of the letter should, where possible, reflect the M&A deal already struck. No doubt we will talk tomorrow.

[104]If Mr Dickson had agreed that a TopCo transaction and the sale of a stake in the infrastructure were within the mandate, it is strange to say the least that neither Mr Mannock nor Mr Dickson reported this in their respective emails.

[105]Even if, contrary to my primary finding, Mr Mannock did relate to Mr Dickson his view of the scope of the mandate, I do not think that Mr Dickson’s indication (as related by Mr Mannock) that he understood what Mr Mannock was saying would amount to a binding acceptance on AML’s behalf that the agreement was to have the meaning advanced by Mr Mannock. Something considerably more clear-cut would have been necessary before the objective observer in possession of the facts known by both sides would have concluded that Mr Dickson was agreeing and accepting that the agreement was to have the meaning that was being championed by Mr Mannock.

The Mannock/Timis discussion on 5 August 2008 about fee calculations

[106]To assist in negotiating the incentive fee payable under phase 2 of the Tonkolili transaction, Mr Mannock created a “calculation tool” on about 5 August 2008. He testified that:(i) this tool allowed for a calculation of the fee payable under the TA on the basis that consideration received by AML was for the Tonkolili project as a whole, including infrastructure whether from a TopCo level transaction or a subsidiary/asset level transaction; and

(ii) he would have discussed the calculations derived from the tool with Mr Timis over the telephone on 5 August 2008.

[107]Mr Mannock provided no detail as to the discussions he had with Mr Timis. In particular, he did not say whether he explained to Mr Timis that the calculation he was using proceeded on the basis that the whole project including infrastructure was sold; nor did he relate what Mr Timis said during this discussion. Thus, whilst this evidence might possibly suggest that Mr Mannock believed that a sale of the whole Tonkolili project was within the Tonkolili mandate, it is incapable of establishing an estoppel precluding a denial by AML that the TA and the ATA did not cover a TopCo transaction or the sale of a stake in any of the infrastructure subsidiaries.

The Mannock/Alpen 6 August 2008 conversation

[108]On 5 August 2008, Mr Mannock and Mr Alpen had a 1 ½ hour conversation over the telephone during which, whatever else may have been mentioned, there was a discussion about fees in which Mr Alpen accepted that whilst the fee percentages included in the draft agreements should remain the same, they should apply to the consideration AML received and not the “Enterprise Value” as provided for in the draft agreements.

[109]The next day Mr Mannock and Mr Alpen spoke again on the telephone. Mr Alpen wished to shorten the “tail” period that was to operate after the agreements had been terminated. Mr Mannock testified: When discussing the tail paragraph, I specifically remember JA saying that “consummation” (in the draft letter) was a strange word and in effect asking me what it meant. I explained that it meant the point at which the “deal is agreed” (which I am fairly sure were the exact words I used). JA accepted this and the remainder of our discussion was on this basis.

[110]Mr Alpen testified that he could not recall the details of these negotiations and he did not believe that he would have reached any agreement with Mr Mannock as to the meaning of “consummation” in the TA.

[111]In my judgment, if Mr Mannock had explained to Mr Alpen that consummation meant the point at which the deal is agreed and Mr Alpen had said that that meaning was agreed:(i) Mr Mannock would have recorded this significant fact in an email to Mr Hayes (and possibly also Mr Harvey) for no other reason than to protect himself, given the potential impact the alleged agreement could have had on fees if a deal were done but was not completed in the tail period; and

(ii) Mr Alpen would have informed Mr Dickson and/or Mr Timis and/or Mr Pitchford of what he had agreed. However, no such actions were undertaken by Mr Mannock or Mr Alpen. I also think that Mr Alpen would not have regarded himself as having sufficient authority within AML to agree the meaning of “consummated” or “consummation” without first seeking and obtaining the approval of Mr Timis and possibly also Mr Dickson. Accordingly, for all the above reasons, I decline to accept Mr Mannock’s evidence as to his alleged conversation with Mr Alpen.

The performance of the MA

[112]Renaissance contends that the way in which the MA was performed shows that the parties had a common understanding that a transaction within that agreement (and by extension, the TA) was “consummated” for the purposes of the respective tail provisions once the main terms of the transaction had been agreed.

[113]The MA expired on 28 August 2008 and the outstanding counter signature on the term sheet for the deal under which CLIO acquired 30% of the enlarged share capital of MIO (“the Marampa Transaction”) was inscribed on 1 September 2008. Thereafter, completion took place on 1 October 2008.

[114]The acts of performance relied on by Renaissance for the alleged common understanding are:(i) the assurance given by Mr Timis during the flight to Moscow on 31 August 2008 that Renaissance would be paid for the Marampa transaction and there was no need for an agreed extension of the MA;

(ii) the submission to AML by Renaissance of an invoice for a 3.5% fee under the MA on 23 October 2008;

(iii) the execution of the MA Addendum on 30 November 2008 extending the term of the original MA and increasing the fee to 4% in exchange for delayed payment; and

(iv) the payment of the first $750,000 of the Marampa fee on 12 December 2008.

[115]In my judgment, Renaissance’s common understanding contention must fail since the MA had not been terminated prior to the expiration of the term and therefore there never was a tail period under that agreement. The term and the tail ran concurrently, the tail only kicking in if the agreement was terminated before the end of the term, and no such early termination occurred. The trigger for entitlement to a fee for the MA was therefore not a “consummated” transaction, but completion of the transaction.

[116]Quite apart from the reason just given, I am of the view that Renaissance’s contention fails in any event for the following reasons. First, I conclude that when the MA was signed there was a reasonable possibility of the then contemplated transaction for a sale of 100% of MIOC completing within 3 weeks. This was the view expressed by Mr Dickson in the witness box and I agree with it. At the point the MA was signed, negotiations between AML and CLIO were at a very advanced stage: the principal outstanding matters were the obtaining of Evraz’s consent and the approval of the Australian FIRB. As to the former, there is nothing to suggest that Evraz had a lengthy decision-making process; and as to the latter, I accept Mr Timis’s evidence that since the asset was not in Australia, the transaction was likely to be dealt with quickly by the FIRB.

[117]Second, in my judgment Mr Mannock did not proceed in late August/early September 2008 in the belief an agreement had been reached prior to 1 September for the Marampa Transaction such as to entitle Renaissance to a fee under the MA. This is clear in my view from the email Mr Mannock sent on 27 August 2008 to a Russian colleague, Nikolay Vasilkov, stating: Nikolay, I don’t know if AH has updated you on this but fyi, we have agreed the sale of the asset from African Minerals to CLIO and are now awaiting a signed binding term sheet. Once we have this in place we will contact Evraz and offer them a “done deal”. If they approve (which they should because they gain at virtually no cost) then we earn our fee. We are aiming to contact Evraz before the end of the week (but I estimate this will get pushed to next week). [Emphasis supplied]

[118]Third, when Mr Mannock sent the draft Marampa extension letter to Mr Dickson on 31 August 2008 in which he used the tail period wording “if the Sale is consummated by 30 September 2008 …Renaissance shall be entitled to its full fees” he did not believe, as he admitted in cross-examination, that the agreement for the Marampa Transaction had yet been consummated.

[119]Fourth, I find that it was for commercial reasons Mr Timis agreed to pay Renaissance a fee for the MA on the flight to Moscow and agreed the MA Addendum and not because he believed that Renaissance was contractually entitled to a fee under the original MA and AML had no legal basis for refusing to pay up. He adopted this commercial approach because whatever might have been the strict legal position, he wanted to keep Renaissance incentivised to get Evraz to agree to the CLIO deal and to find a purchaser to take a stake in the Tonkolili project. He also felt it was just and appropriate that Renaissance should be rewarded for the very considerable amount of work Mr Mannock and Mr Hayes had done for AML over the previous months.

[120]As to the MA Addendum, Mr Timis agreed to this because he had given his word that Renaissance would be paid for the Marampa Transaction and also for the same commercial reasons that lay behind his earlier assurance that a fee would be paid.

[121]Fifth, I find that an objective observer of the way in which the parties acted in respect of the Marampa Transaction would not have concluded that they were proceeding on a common assumption that Renaissance was entitled to a fee because the transaction had consummated before 28 August 2008 but would have concluded that Mr Timis agreed to pay a fee and agreed to the MA Addendum for the commercial reasons I have identified in paragraph 119 above. The Hayes/Timis meeting on 2 April 2009.

[122]The background to this meeting is as follows. The TA had expired on 7 February 2009 and on 31 March 2009 Mr Hayes had sent Mr Watling a proposed addendum to the TA to extend its term. Earlier, around 12 March 2009, it had appeared likely that ENRC would make a TopCo offer to acquire AML which had not been looked on favourably by Renaissance.

[123]On 26 March 2009, Renaissance had a meeting with ENRC and it was 6 days later, on 2 April 2009, that Mr Hayes had a 3 hour meeting with Mr Timis during which, as recorded above, the Renaissance/AML relationship was discussed in some detail, as was the progress being made with potential bidders, including ENRC. Mr Timis proposed a revised fee structure for the TA under which Renaissance’s fee would be larger if the consideration exceeded around $1.6 billion, but lower if the consideration was less. I find that in adopting this approach, Mr Timis had specifically in mind ENRC’s $1.6 billion TopCo bid for AML and proceeded on the basis that an ENRC TopCo deal would be within the TA. I further find that Mr Hayes also assumed that the ENRC proposed deal was covered by the TA and that it was readily apparent to him that Mr Timis was acting on the same assumption and was discussing fees by reference to ENRC’s TopCo bid.

The Hayes/Timis meeting on 8 April 2009

[124]Mr Hayes’ account of this meeting in his witness statement was as follows: On the evening of 8 April 2009 I had another discussion with Mr Timis at his flat. I recall Mr Timis saying to me that he didn’t want to pay a fee if the Sale consummated but never closed (i.e. completed). I explained that this could not happen as the condition for payment was that AML itself received payment. Mr Timis then said words to the effect of "what is consummation?" and I answered that the term 'consummation' was there because we did not know what type of deal would take place and this word allowed for all possibilities (hence Renaissance's choice in keeping with that trigger when drafting the addendum). When he asked the question, it sounded like he knew the answer but just wanted me to articulate it and, again, I recall feeling a sense of frustration as we had spoken about the workings of the tail period only the previous day on the phone which had led to his request for the tail period to be reduced. I explained that if there was a UK takeover of AML (and at exactly that time we were talking about a possible sale of some or all of AML to ENRC being covered by the Tonkolili Agreement) there may not be a clear “definitive agreement" (not to be confused with the alternative trigger as described above i.e. introduction) at the time of announcement (because the process instead involved a board-approved offer to shareholders and not an agreement as such) and so where the particular structure of the deal was unknown "consummation" was used as the trigger instead of "agreement". I remember explaining this to Mr Timis in these terms, drawing an equivalence between "agreement" and "consummation" but explaining that "consummation" applied in broader situations (one of which being "agreement"), which was how it had been explained to me at Merrill Lynch several years earlier. This was what I had always understood was the reason for use of the term "consummation", but in any case it was clear from our discussion that we agreed that the trigger in a private sale was the reaching of agreement and that consummation was effectively interchangeable with agreement in the private sale situation but also had a broader reach. We then had a discussion about whether AML was in fact subject to the UK Takeover Code in a public sale situation (Mr Timis thought not). I was not sure about that, but thought that in any case the point still applied (that there would not be a clear agreement so "consummation" was a better word) and we agreed to keep "consummation" as the trigger on that basis. Mr Timis had no problem with this, either as to understanding it or agreeing it. Indeed, if the Tonkolili Agreement had not covered the ENRC deal, it would have been amended so that it did.

[125]In his oral evidence, Mr Hayes said that he and Mr Timis had available the most recent draft of the Addendum It was executed by Mr Timis later that day which Mr Timis read somewhat quickly. Mr Hayes also said in cross-examination: He then said … "What does "consummation" mean?" -- he might have said "What does consummated mean?", I don't know, but what does consummation mean and I said exactly as I have said in my statement and I'm so clear on this conversation… I said it means agreement but the reason we are using the word "consummation" is because we may have a transaction where there is not an agreement as such, for example a UK takeover deal, and he said, "Well, you know, we are not subject to the UK takeover code anyway" -- and we had had previous conversations about this, and I wasn't entirely satisfied with the -- necessarily the advice or the position that been taken …So I said to him, "Look, that may or may not be the case but I still think consummation is the right word to use", and he accepted that and we moved on and that's how that conversation took and I have tried to set it out as best I can…

[126]In his first witness statement, Mr Timis said that he did not recall a meeting with Mr Hayes at his flat on 8 April 2009 or ever having discussed the meaning of “consummation” with Mr Hayes or with anyone else. In the course of cross-examination, however, he said that he did now recall that there had been a discussion with Mr Hayes about “consummation” during which he had asked Mr Hayes what “consummation” meant and Mr Hayes had not himself known and had said that he believed it meant “closing”. Mr Timis then said “Let’s leave it to the lawyers”.

[127]I broadly accept Mr Hayes’s evidence as to this meeting subject to two qualifications. First, I think it very doubtful that Mr Hayes went beyond saying consummation meant “agreement” and the word was deliberately chosen to cover a situation where there was a takeover of AML since in such a case there would not be a definitive agreement. I say this for two reasons:(i) I think it inherently unlikely that Mr Hayes could accurately recall this sort of detail so many years after the event; and

(ii) the draft agreement was in front of Mr Hayes and it provided that “‘Completion’ shall be deemed to have occurred on receipt of any Consideration pursuant to a definitive agreement for any single transaction…” which is flatly inconsistent with a suggestion that the notion of consummation was adopted because definitive agreements played no role in public share offers. Second, I decline to hold that Mr Timis went any further than simply not disputing Mr Hayes’s statement that “consummation” meant “agreement”. I say this because: (i) there is no evidence that Mr Hayes asked Mr Timis to agree that “consummation” meant “agreement”; and (ii) Mr Timis is a highly experienced businessman who makes full use of legal advice and I cannot imagine him positively agreeing to accept Mr Hayes’ meaning of “consummation” without first taking legal advice from Mr Dickson.

[128]In my judgment, merely to listen without dissent to a proposed meaning of a contractual term does not give rise to an agreed meaning: the objective observer witnessing the conversation between Mr Hayes and Mr Timis as I have held it to have been would not have concluded that Mr Timis was agreeing that consummation meant an agreement for the purposes of the TA but was merely signifying that he understood what Mr Hayes was saying.

The Rib Room Dinner on 10 January 2010

[129]It is not disputed that Mr Jennings and Mr Timis had a lengthy meeting over dinner at the Rib Room Restaurant on 10 January 2010. Mr Jennings testified as follows. There were two dominant themes to the discussion at the meeting: Mr Timis’s great satisfaction with the work Renaissance had been doing for AML and the prospect of Renaissance earning substantial fees on future transactions mandated by AML, including in particular a large Tonkolili project M&A deal. In the course of the discussion, Mr Timis said that he needed help to reduce the fee due to Renaissance on the CRM transaction [CRM1] in order to keep his colleagues happy. Mr Timis said that if Mr Jennings agreed to a fee of 1.5% he would ensure immediate payment on completion and would ensure that Renaissance continued to be retained on all AML deals. Mr Jennings agreed that Renaissance would accept a fee of 1.5%. It was unusual for him to agree a fee reduction but he did so:(i) in light of what Mr Timis had said about future AML deals;

(ii) because he wanted to develop the business relationship with AML and trusted Mr Timis to ensure that AML honoured its commitments to retain Renaissance under the Umbrella and Tonkolili agreements; and

(iii) because he took into account Mr Timis’s expressed keenness to develop a broader relationship with Renaissance. On the day following the meeting, Mr Jennings orally informed Mr Cornthwaite, then Renaissance’s Head of Investment Banking of the agreement to accept a reduced fee.

[130]In his first witness statement Mr Timis said that he did not recall making an agreement to pay Renaissance 1.5% on the CRM1 transaction and was certain he would remember if he had made such an agreement. He also denied making any statements he was happy with Renaissance and intended to retain Renaissance on all future deals. He took a somewhat different line in his oral evidence. In the witness box he said he might well have praised and said positive things about Renaissance but he insisted that he had no recollection of any talk about a 1.5% fee.

[131]I accept Mr Jennings’ evidence as to what happened at this meeting. He was an impressive and convincing witness who gave his evidence in a measured, clear way. He has severed any link with Renaissance and therefore has no financial interest in the outcome of Renaissance’s claims. In addition, there is documentary support for Mr Jennings’s version of events as follows: (1) In an email to Mr Jennings dated 29 January 2010 Mr Hayes stated in relation to “Deal with CRM”:

“Deal is schedule to complete by end of March. CRM team of 15 were in SL last week conducting DD. We were there assisting the AMI team led by Alan Watling. CRM were extremely upset about the dilution effect of the fundraising and were threatening to walk away… Otherwise the DD went very well. The project gets better and better…. Frank has agreed to pay us 1.5% on CRM if it completes, which is about $3.6m.” [Emphasis supplied]

(2) In an email from Mr Hayes of 19 March 2010 to Mr Cornthwaite in relation to negotiations of Mr Hayes’consultancy fees, Mr Hayes stated:

“We have agreed verbally with Frank Timis that Renaissance would receive a fee of 1.5% of the capital raised in the event of this transaction completing. This project is advisory in nature…” (3) Renaissance’s CRM invoice dated 21 July 2010 was for 1.5% and the covering letter of 26 July 2010 from Renaissance’s CEO Renaissance Asset Management to Mr Timis stated: “I understand from Stephen [Mr Jennings] that in light of our ongoing relationship he has agreed a fee for [the CRM] deal … The invoice is attached on the basis agreed with Stephen for the CRM deal…”

[132]Realistically, it was not suggested on behalf of AML that if the court found that the pleaded agreement in respect of CRM1 was proved, the agreement would not give rise to an enforceable debt. Accordingly, having found that Mr Timis did agree on behalf of AML that upon completion Renaissance would be paid a fee of 1.5% of the consideration received for CRM1, I uphold Renaissance’s CRM1 claim for £2,404,992 and award the agreed sum of $8,493.78 by way of expenses. The ENRC fee discussions between Mr Hayes and Mr Timis on 14 and 16 May 2010

[133]The background to the meetings between Mr Hayes and Mr Timis on 14 and 16 May 2010 was profound unease on the part of AML’s Board, particularly Mr Watling, at the prospect of Renaissance being paid a very large fee if the 50.7% ENRC TopCo transaction that appeared to be imminent went through. It is not in dispute that at the end of the meeting on 14 May 2010 Mr Timis told Mr Hayes that AML’s Board wanted him to negotiate Renaissance’s fee on the ENRC deal down to 2% and I accept Mr Hayes’s evidence that he told Mr Timis that 2% was significantly lower than what Renaissance was entitled to under the TA.

[134]As to the meeting on 16 May 2010, I accept Mr Hayes’s account of what happened at that meeting as recorded by him in the following note made in his diary shortly after the event. “AH raised fee point as FT had said board has asked him to renegotiate fee so capped at 2.0%. FT said that if he agreed to 2.5% then not a lot the board can do about it… AH said CRM deal caught by EL plus why would RC renegotiate if believed close to a deal with ENRC. FT indicated that fee based on current letter would be in the order of $80-90m based on EL and board have put pressure on him to address. They have left it with FT, but Murray [NED] has chased FT.”

[135]On 14 May 2010, Mr Hayes prepared a spreadsheet for the figures on the ENRC 50.7% deal on the basis of a price of 684 pence per share. As he explained, whilst this spreadsheet does not itself calculate Renaissance’s fee on the ENRC deal, the fee can be calculated using the figures it contains by taking the total consideration paid and scaling that up to an implied value for 100% of AML ($3,913 million) to which, pursuant to the TA, 4.163% should be applied, which comes out at $82.61 million.

[136]In my judgment, the fee discussions on both dates proceeded on the common basis that it was the TA, not the UA, that would apply in respect of the fee payable if the proposed ENRC TopCo transaction went through.

The alleged telephone conversation between Mr Mannock and Mr Timis on 7 July 2010

[137]Mr Mannock testified that he received a telephone call from Mr Timis on 7 July 2010. Mr Timis was exultant having had a very positive trip to China to meet potential investors in the Tonkolili project. He went on to mention Shandong who, he said, was still considering both TopCo and asset level transactions and would be in a position to sign binding agreements. Mr Timis spoke about the potential size of the transactions mentioning figures between $500 million and $1.5 billion for an equity stake of between 10% and 25% and there was the possibility of a separate off-take agreement. Mr Timis sounded very happy and positive about the proposed deal. He volunteered that Renaissance’s fee of between $50 million and $80 million would be paid. Mr Timis also said that he had told ENRC’s CEO Africa of the discussions with Shandong and that ENRC would have to move very quickly as Shandong was close to signing.

[138]Mr Mannock testified that during the telephone conversation he made a brief note of it on a mining lease application he was working on that was readily to hand and supplemented the note once the call had finished. He had forgotten about this conversation when he made his first two statements deployed at the strike out hearing but during an office clean-out over the weekend of 24/25 August 2013 he had discovered the annotated mining lease application amongst some other hard copy documents and his notes had jogged his memory. The annotated application was part of the trial documentation. The notes are headed “FT comments on China visit: 07 Jul 10 and include the words “AML close to consummating deal”.

[139]In his 3rd witness statement, Mr Mannock said:

“I note that at the top of my annotations I have written the date “07 Jul 10”

. This would have been the day I received the call from FT. FT had just finished his trip to China … and he wanted to provide someone on the deal team at Renaissance with an update…Immediately after the call I proof read my call note, adding some further detail that I had not had time to record while on the phone. I then rang Mr Hayes and relayed the entire conversation to him…” In cross-examination Mr Mannock stated Mr Timis was calling from China.

[140]Mr Hayes gave no evidence in his 2nd or 3rd main witness statements corroborating Mr Mannock’s evidence that he rang Mr Hayes and reported the entire conversation to him. In cross-examination, Mr Hayes said that he had a vague recollection of a call from Mr Mannock relating the conversation and was quite dismissive of it and relied on Mr Mannock’s note for the date of the call.

[141]In his 2nd witness statement, Mr Timis points out that he was in Jinan, China, on 7 July 2010 negotiating with SGC and states that he does not think he would have called Mr Mannock on that date. He then goes on without positively denying he made the alleged call to state by reference to certain matters recorded in Mr Mannock’s note that it would be surprising if he said what is recorded in the note.

[142]In cross-examination, AML’s counsel accused Mr Mannock of having fabricated his note and lying in the witness box. After Mr Mannock’s oral evidence had finished, AML disclosed Mr Timis’s itemised mobile phone bill for the date in question and Mr Timis pointed out in his 3rd witness statement that these records showed that he made no call on his mobile to any number habitually used by Mr Mannock on 7 July 2010. In cross-examination Mr Timis went further: he strongly denied that he made the alleged call and he called Mr Mannock a liar.

[143]Mr Timis’s mobile phone records show that whilst he made 24 calls on his mobile on 7 July 2010 he made no call to Mr Mannock from his mobile phone on 7 July 2010. Mr Timis testified orally that he did not use the hotel landline to make this or any other call and on 7 July 2010 he was in a negotiation from the morning until the small hours of the following morning at SGC’s offices in Jinan. No records of what if any telephone calls may have been made from the hotel landline on 7 July 2010 are now available, since they had been destroyed by the time that Mr Mannock’s note was disclosed.

[144]Mr Mannock’s UK mobile phone records do not itemise the numbers of incoming calls. They show a call at 18:00 GMT on the date in question lasting 12 minutes 54 seconds but Mr Timis’ records (whose timings are also GMT) show that at 18:12 he was on his mobile to Mr Sage, CLIO’s Executive Chairman. The records relating to Mr Mannock’ South African mobile and landline phones were not available. (Mr Mannock was in South Africa on 7 July 2010).

[145]Mr Timis’ travel records show that he returned to the UK from China on 11 July 2010. On 8 July 2010 the first Shandong MOU was signed which contemplated a 25% asset level deal for $1.5 billion and an off-take agreement.

[146]In June 2011, Mr Dickson had to prepare a “first knowledge” document with respect to the Shandong transaction. The entries in this document in respect of Mr Hayes and Mr Mannock read: Mr Hayes:

“Precise date [of first knowledge of Shandong transaction] unknown, but likely to have been by telephone call from or discussion with Frank Timis between 18 June 2010 and 12 July 2010. Disclosure made in context of RenCap’s role of financial adviser to AML.”

Mr Mannock:

“Precise date [of first knowledge of Shandong transaction] unknown, but likely to have been between 18 June 2010 and 12 July 2010. Disclosure made in context of RenCap’s role of financial adviser to AML.”

[147]Mr Dickson testified that that he probably obtained this information from Mr Mannock and Mr Hayes themselves, although he could not categorically state this.

[148]Having given long consideration to the evidence relating to the 7 July 2010 phone call, I conclude that Mr Timis did call Mr Mannock on that date and that Mr Mannock’s note is a genuine, contemporaneous (albeit brief and incomplete) record of what Mr Timis said. Bolstered by the telephone records, Mr Timis honestly believed that he made no such call to Mr Mannock on 7 July 2010 but there is no doubt that Mr Timis had access to other phones, including the hotel’s landline, and I find that he called Mr Mannock as Mr Mannock testified. I therefore acquit Mr Mannock of the allegation that his evidence about the conversation was knowingly untrue and that he had fabricated the note made on the application for a mining lease.

[149]The legal significance of this call is Mr Timis’ reference to a possible TopCo transaction in light of the conversations with Mr Hayes on 2 April 2009 and 14/16 May 2010 and Mr Timis’ readiness to pay Renaissance a fee if a deal with Shandong were done. Given the spontaneous and conversational nature of the call and the uncertainty as to whether there was going to be a TopCo or project level transaction, I do not think that Mr Timis’ reference to a fee of $50-80 million gives rise to an estoppel debarring AML from contending that a sale of the infrastructure companies was not within the ATA mandate.

Conclusions on Renaissance’s estoppel case

[150]By reason of my findings expressed above:(1) I reject Renaissance’s contention that the parties agreed that a transaction was “consummated” for the purposes of the TA and the TA Addendum once the main or all of the terms of the transaction had been agreed.

(2) I also reject the contention that the parties agreed or proceeded on a common basis that the TA and the TA Addendum covered a sale of a stake in one or more of the Tonkolili infrastructure companies if at the same time there was an agreement for the sale of a stake in TIO.

(3) I reject the contention that the parties proceeded on the basis of a common understanding and AML is estopped from denying that the sale of a stake in AML was covered by the TA.

(4) I find that the parties proceeded on the basis of a common understanding and AML is estopped from denying that the sale of stake in AML was covered by the TA Addendum and the ATA.

The meaning of “consummated” in Clause 4 (a) of the Amended Tonkolili Agreement

(a) of the Amended Tonkolili Agreement

[151]As will be recalled, clause 4(a) of the ATA provides: Either party may terminate this Agreement at any time, with or without cause, by giving to the other party at least 10 days' prior written notice. Notwithstanding the termination of this Agreement, clauses 3(b), 4, 5, 6(b), 7 to 9 (inclusive) and 11 to 14 (inclusive) shall remain in full force and effect. It is expressly agreed that following the termination by either party of this Agreement, Renaissance will continue to be entitled to receive fees that have accrued prior to the termination but are unpaid, as well as reimbursement for expenses. It is further agreed that if any Sale is consummated within on (1) year of the date of any termination by the Client, Renaissance shall be entitled to the fees as set out in Clause 5.

[152]The task of the court is to determine the meaning that the word “consummated” would have to a reasonable person in the position of the parties with all their shared background information, see Investors Compensation Scheme v West Bromwich Building Society

[1998] 1 WLR 896

(HL) at 912-913.

[153]Admissible background information does not include pre-contractual negotiations where, for instance, drafts of agreements are exchanged between and commented on by the parties, see Chartbrook Ltd v Persimmon Homes Ltd

[2009] AC 1101

[154]Where two meanings are possible, the court is permitted to adopt the commercially more sensible, and not only where the alternative produces an extremely uncommercial result, see Rainy Sky SA v Kookmin Bank

[2011] 1WLR 2900

[155]The contra proferentem rule affords no assistance to AML. True it is that the draft wording of the engagement letters (mainly of a boiler plate character) was put forward by Renaissance, but there followed genuine negotiation between parties of equal bargaining power with ready access to specialist legal advice.

[156]The relevant background includes the UA and the TA and the background to both those agreements. It also includes the background as it existed at the time the TA Addendum was executed on 7 April 2009. As Chadwick LJ observed in Portsmouth City FC v Sellar Properties (Portsmouth) Ltd

[2004] EWCA Civ 760

(at paras 47-8): The correct approach, as it seems to me, is to construe the amended clause in the light of the background knowledge reasonably available at the time when the amendment is agreed; but to recognise, of course, that that background knowledge includes the knowledge that the new clause is to take the place of an existing clause… The parties having reached agreement in the terms of the amended clause, the task of the court is to construe, and give effect to, that agreement.

[157]The following features of the immediate contractual context are to be noted.(1) The ATA provides for a success fee which is the normal way of remunerating investment banks but entitlement to the fee was not conditional on Renaissance having introduced a counterparty to the transaction.

(2) Tail period clauses are commonly found in investment bank engagement letters: their purpose is to protect the bank against the client seeking to avoid paying a fee by terminating the engagement before the entitlement to a success fee has accrued.

(3) By reason of clause 5 (c) of the ATA and the definition of Completion in clause 1 (d), whatever be the meaning of “consummated” and whenever consummation happens, no fee is payable unless and until the transaction completes and AML receives some of the consideration.

[158]Mr Brindle QC for Renaissance submitted that the manner in which the MA was performed not only gave rise to a conventional estoppel but was also relevant background to the TA. I reject this submission for the reasons that I have given for rejecting Renaissance’s estoppel case founded on the same facts and matters.

Renaissance’s construction submissions in detail

[159]Mr Brindle submitted that the parties having used the word “Completion” (as defined) as the trigger for payment, the presumption must be that they intended “consummated” to mean something else, the more so since the concept of “completion” of transactions is well known and well understood in the world of commerce, and yet completion was not specified as a trigger event in the tail. Further, if “consummation” means something different than completion, consummation must arise earlier, not later than completion and the obvious pre-completion stage intended was when agreement was reached on the transaction.

[160]It is true that the definition of Sale in the ATA is “any transaction … whereby directly or indirectly control of or an interest in the Company or any of its businesses, … or assets … is transferred …for consideration …”, but this definition must implicitly include all the elements that occur along the way to completion, including agreement because in different places in the TA and ATA there are express and implicit references to an agreement for a sale (see e.g. the definitions of Consideration and Sale and clause 2 (iii) and (iv)).

[161]In Mr Brindle’s submission, most commercial people will know when a deal has been agreed, as is exemplified by the AIM rules that require an announcement “as soon as the terms of any substantial transaction are agreed,” notwithstanding that no definitive sale agreement has yet been executed.

[162]The reason “consummation” rather than “agreement” or the execution of a definitive agreement was chosen is because the definition of “Sale” includes “tender or exchange offer”, with result that the TA and the ATA cover both private sales and public takeovers. In a non-hostile public takeover there is in a sense an “agreement” between the offeror and the board of the offeree, but this is documented in a publicly announced offer document rather than a contract; strictly, what is happening is the recommendation of a binding offer by the board to shareholders, followed by individual contracts of sale between the shareholders who accept the offer and the offeror.

[163]In cases of private sales, there will almost always be a definitive agreement before completion and there will usually be agreement on all material terms before this step. Thus, in these cases consummation will have definitely occurred on the execution of a definitive agreement and may have occurred beforehand. The definition of Completion should not be read over prescriptively because it is a “deeming provision”. Where there is a public offer for shares completion occurs for the purposes of the TA and ATA in the ordinary way by mutual performance, regardless of the absence of a definitive agreement.

[164]As for AML’s alternative argument that consummation means not only agreement but also the satisfaction of all conditions precedent to performance, this meaning would bring consummation so close to completion that, the choice having been made against completion being the trigger, the parties cannot have intended the word to have this meaning.

AML’s construction submissions in detail

[165]Mr Adam submitted that the trigger for entitlement to a fee where the operative period is the main term of the ATA is completion of the transaction (receipt of any consideration pursuant to a definitive agreement) and that the parties must have intended the fee entitlement trigger applicable to the 12 month tail to be the same, namely completion. Otherwise, Renaissance would have different rights in the term and the tail which would be illogical.

[166]Mr Adam further argued that “if any Sale is consummated” could not mean “if a definitive sale agreement is entered into” because:(i) Clause 4 (a) of the original TA drew a distinction between a situation where a definitive sale agreement is entered into with a party introduced by Renaissance and a situation where a sale is consummated, thereby indicating that the parties intended “consummated” to mean something different from “definitive agreement”, namely something that occurred after the execution of a definitive agreement and

(ii) the parties must have intended “consummated” to have the same meaning in the ATA as in the original TA. In addition, if the parties had intended that “consummated” meant “agreed”, one would have expected them to use the word “agreed”, this being a commonly used word whose meaning is readily understood, in contrast to “consummated”.

[167]Mr Adam further drew attention to the fact that it is a sale which must have been “consummated” and submitted that a sale is not an agreement or a negotiation but is defined in the ATA as meaning a transaction by which control of or an interest in a company “is transferred” for consideration.

[168]Mr Adam also argued that Renaissance’s proposed meaning of consummation – agreement of material terms – should be rejected because this introduced unacceptable uncertainty. How is one to tell when agreement on material terms has been reached and what terms are material and what terms are not? By contrast, if consummated meant completion (which meaning was consistent with its dictionary meaning The Oxford Dictionary defines the verb “to consummate” as “To bring to completion; to accomplish, fulfil, complete, finish”. The New Oxford Dictionary definition is “to complete (a transaction)”, giving as an illustration “the property sale is consummated”). ) the parties would know where they stand.

[169]As to Renaissance’s contention that “consummated” was used because the definition of Sale contemplated an acquisition of shares by a public offer, Mr Adam argued that the TA and the ATA were only intended to cover a sale of TIO and there was never any question of a sale of TIO taking place by way of a takeover.

Discussion and decision

[170]In my judgment, the words “if any Sale is consummated” in clause 4 (a) of the ATA mean if the terms of an agreement for a sale, or the main terms thereof, are agreed, for the reasons advanced by Mr Brindle. As Diplock LJ said in observed in Prestcold (Central) Ltd v Minister of Labour

[1969] 1 WLR 89

at 97B (CA): [T]he habit of a legal draftsman is to eschew synonyms. He uses the same words throughout the document to express the same thing or concept and consequently if he uses different words the presumption is that he means a different thing or concept. Lord Diplock was referring the draftsman of a piece of subsidiary legislation but his observation applies equally to the drafting of detailed commercial agreements such as the TA and ATA.

[171]In the instant case there is on AML’s case synonymity at two levels:(i) Completion (as defined) is used in several places within the agreement; and

(ii) outside the agreement, the concept of completion of an executory sale agreement by mutual performance is well known in commercial circles and would have been well known to Renaissance and AML. The presumption that “consummation” had a different meaning from “Completion” is therefore a strong one here and in my opinion it is not displaced by any of Mr Adam’s submissions, attractively presented as they were. In particular: (1) I am doubtful that Mr Adam’s building-block submission that Completion is the fee entitlement trigger during the main term is correct, but even if it is, I think that the use of a different word than Completion in the relevant part of clause 4 (a) in the ATA shows that the parties did not intend that the fee entitlement trigger should be the same in the tail period as during the main term. It would, after all, have been simplicity itself for the word Completion to have been used, but instead the unusual word “consummated” was adopted. (2) I agree with Mr Brindle that all the elements of a sale, including agreement, are necessarily included in the definition of Sale and thus this definition does not point to “consummated” meaning “Completion” rather than agreement. (3) Mr Adam’s submission contrasting “consummated” and “definitive agreement” where Renaissance has introduced the buyer in clause 4 of the original TA was not a strong one, given the excision of the definitive agreement provision where Renaissance has introduced the buyer from clause 4 in the ATA.

[172]If, as I hold to be the case, consummation has a different meaning from Completion, I think that it must mean something that occurs prior to completion, and the only realistic candidate is agreement, whether or not the agreement is subject to any conditions precedent. Consistent with the presumption against synonymity, I do not think consummation means the execution of a definitive agreement and I agree with Mr Brindle that “consummated” was likely to have been chosen over “definitive agreement” having regard to the inclusion of “tender or exchange offer” in the definition of Sale, which is a boiler plate provision.

[173]In my opinion, in the great majority of cases it will be readily apparent from a practical commercial point of view when all the terms or the main terms of a deal have been agreed. As Mr Brindle submitted, this approach is strongly supported by the requirement in the AIM rules that there be an announcement as soon as the terms of any substantial transaction are agreed, whether or not a definitive agreement has been executed.

Is a sale of the infrastructure companies covered by the ATA?

[174]By virtue of clause 1 of the ATA, Renaissance was engaged “in connection with any proposed Sale (as defined below) of the Tonkolili Iron Ore Company It is common ground that the word “Limited” was unintentionally omitted and should be read in to the clause. … to one or more financial or strategic investors …” AML contends that by reason of those words the ATA covered only a sale of an interest in TIO and/or TIO’s subsidiaries A sale of an interest in any of TIO’s subsidiaries is within the mandate by reason of the words “any of its subsidiary companies” in the definition of Sale. and did not cover a sale of an interest in the Tonkolili infrastructure companies, ARPS, AP, ARPSSL and APSL.

[175]Renaissance’s pleaded primary case is that “the Tonkolili Iron Ore Company” in clause 1 of the ATA means, when construed against the relevant background, TIO, AML and the aforementioned Tonkolili infrastructure companies, ARPS, AP, ARPSSL and APSL. However, when it came to its closing submissions, Renaissance’s primary case was founded on the words “… whereby, directly or indirectly, control of or an interest in the Company … is transferred, directly or indirectly, for consideration …” in the definition of Sale. Mr Brindle submitted that the effect of these words was that, so long as an interest in TIO was part of what was being transferred under an overall sale transaction or series of sale transactions, the transfer of interests in other companies under the overall transaction or series of transactions was also covered by the ATA. The words relied on by Mr Brindle were called the “whereby trigger” at the trial and I adopt that sobriquet in this judgment. By a separate but linked point Renaissance also relied on the definition of “Consideration” as covering all money paid to “a disposing party or parties in connection with the Sale” (rather than simply for a Sale).

[176]I hold below that the Tonkolili infrastructure companies are not to be read into clause 1 of the ATA, but AML is. I so hold because on the evidence I am entirely satisfied that the parties intended that the ATA should apply to a sale of an interest in TIO and AML but not to a sale of an interest in or asset owned by any other company, including the Tonkolili infrastructure companies. Read literally, the whereby trigger would bring within Renaissance’s commision entitlement the sale of an interest in any company or asset of any company, however distant the relationship between each of TIO and AML and that other company. It need hardly be said that that outcome would be fundamentally inconsistent with the parties’ intention that the mandate should cover only the sale of an interest in TIO and/or AML and for this reason I reject Mr Brindle’s “whereby trigger” contention. I also reject Mr Brindle’s submission based on the definition of Consideration because, if a sale falls outside the mandate, money paid in respect of that transaction is not paid “in connection with” a mandated Sale (e.g. the Sale of TIO) but rather in connection with a separate sale not covered by the mandate.

[177]I turn then to give my reasons for finding that clause 1 is not to be construed as including the Tonkolili infrastructure companies. I have already decided that AML is not estopped from contending that a sale of the infrastructure companies is not covered by the TA or the ATA and thus at this point it is Mr Brindle’s factual matrix argument that I am addressing.

[178]Mr Brindle submitted that the following background emerged from the evidence:(1) TIO was always really a one project company with one major project – the Tonkolili project, especially by the time the TA Addendum was signed, by when the Marampa mine had been disposed of.

(2) The infrastructure necessary to get the ore from the Tonkolili deposit to Pepel port was essential for the exploitation of the Tonkolili deposit.

(3) The mine and the infrastructure were inextricably linked and part of one unitary project.

(4) It was well known that the infrastructure had to be developed.

(5) An investor would likely want an interest in the infrastructure.

(6) Renaissance was always going to have to do, and did, work on the infrastructure aspect of the Tonkolili project, as exemplified by the financial model developed by Mr Mannock.

(7) In the two weeks before the TA was executed: (a) at a meeting between Mr Dickson, Mr Timis, Mr Alpen, Mr Walsh (Renaissance’s head of infrastructure), and Mr Mannock, AML stated that it was looking to raise funds at the Bermuda subsidiary level including TIO, MIO, ARP and AP; (b) Mr Pitchford in his document “Investment Scenario” sent to AML’s Board and Renaissance contemplated investment in all three Bermuda subsidiaries – 10% in TIO ($150 m); 75% in Port and Railways ($300 m); 75% in Thermal Power Station ($500 m), and it was this proposal that he related to Renaissance during Renaissance’s presentation on 25 July 2008; (c) Mr Pitchford responded to Renaissance’s teaser of 30 July 2008 that referred only to a “sale of a minority equity stake in Tonkolili at the Bermuda registered subsidiary level (Tonkolili Iron Ore Limited)” by saying: “There should be an invitation to fund the port, railway, power infrastructure in return for a 75% stake but with all revenue accruing to the investor until capex is repaid; (d) There was no positive evidence that AML had decided against the idea of selling stakes in the infrastructure companies.

(8) As at 7 April 2009 when the TA Addendum was signed: (a) the parties were much further on with their infrastructure thinking: the lease for the port and railway had been signed in November 2008 and preliminary work had begun; and (b) The TA Addendum (clause 1) did away with any contemplated deal structure and the engagement was made indefinite in term.

[179]Although Mr Pitchford had championed the idea of a sale of an interest in the Bermudan infrastructure subsidiaries down to 1 August 2008, I conclude on the evidence that this idea was overruled by others on the AML Board and that, as Renaissance knew or ought to have known, the mandate settled upon in respect of the TA was a mandate to sell an interest in TIO and no other company. My reasons for this conclusion are:(i) Mr Pitchford made it clear in his evidence that his suggestion of selling stakes in the power and rail and port Bermudan subsidiaries was not taken up by AML. A. My Lord, I don't recall why we changed from my recommended, or my suggested solution, ie 10 to 15 in one, 75 and 75. I can perhaps guess that the level of investment, because of the depressed situation in the mining sector, would not enable us to get that kind of money and that if we did sell a minority stake in the iron ore company, or the mining company which was the real asset, the easier one to sell -- Q. Sorry, why would that have been easier to sell? A. Because it has the most value. … Q. And you would have looked and if you had still been keen on the idea, or even contemplating the idea of selling 75 per cent you would have made sure it was on this teaser, would you? A. My Lord, it wasn’t my decision only. …There was a group of us working on it. My views didn’t sway the other members and finally this is what we agreed. A. My Lord, I don't recall why we changed from my recommended, or my suggested solution, ie 10 to 15 in one, 75 and 75. I can perhaps guess that the level of investment, because of the depressed situation in the mining sector, would not enable us to get that kind of money and that if we did sell a minority stake in the iron ore company, or the mining company which was the real asset, the easier one to sell -- Q. Sorry, why would that have been easier to sell? A. Because it has the most value. …

(ii) The Project Slam document sent by Renaissance to AML on 30 July 2008 referred to a proposal to sell 10-15% of TIO and made no mention of the infrastructure companies.

(iii) Renaissance’s 30 July 2008 teaser referred to “sale of a minority stake in Tonkolili at the Bermuda registered subsidiary level (Tonkolili Iron Ore Limited)” and contained a diagram showing the new minority shareholder investment going into TIO at a level of 10-15%.

(iv) Notwithstanding Mr Pitchford’s emailed response to the 30 July teaser stating that there should be an invitation to fund the infrastructure companies in return for a 75% stake, Renaissance did not amend the teaser to include a reference to a plan to sell a stake in the Tonkolili infrastructure companies.

(v) In an email sent on 1 August 2008 in reply to Mr Pitchford’s email to Renaissance, Mr Alpen said:

“I agree with Roy’s points but as we discussed yesterday a disposal of less than 20% of a subsidiary is very tax inefficient from a capital gains perspective under Swiss tax legislation i.e. 10% to 27% (depending on our ability to achieve holding company status) vs <1% (reduction for participation). This compares to 28% in the UK. Frank is aware of this and is looking to sell 20% of Tonkolili Iron Ore Limited to a suitable bidder at a higher value” [Emphasis supplied]

(vi) Finally, as I have already held in paragraph 95 above, Mr Hayes did not think on 1 August 2008 that the mandate for Tonkolili included the infrastructure companies.

A. Because it has the most value. …

[180]I accordingly conclude that the background to the TA does not support Renaissance’s construction of clause 1 of the TA and that that clause is not to be read as including the Tonkolili infrastructure companies.

[181]Is the position in respect of the TA Addendum any different so far as the infrastructure companies are concerned? In my judgment it is not. Whilst there were some very relevant conversations concerned with the possible sale of an interest in AML in the lead up to the TA Addendum, I cannot find anything in the background to support the contention that, when it came to the TA Addendum, the parties’ position had changed and they were contracting on the basis that the infrastructure companies were now within the mandate.

[182]I therefore find that the sale of the interests in ARPS, AP, and ARPSSL under the Shandong Subscription Agreement was not within Renaissance’s commission entitlement under the TA Addendum. Was the sale to SGC of a 25% interest in TIO consummated before 13 September 2011?

[183]The Shandong Subscription Agreement was signed on 29 July 2011 and Renaissance contends that all of the terms of the agreement for the sale of a 25% interest in TIOSL, ARPSSL and APLSL were agreed at the latest at this time and that, accordingly, the sale was consummated before 13 September 2011.

[184]AML submits that even accepting that consummated means agreed and not completed, no sale of the 25% interest in TIOSL, ARPSSL and APSL was consummated until the Off-take Agreement was executed on 28 March 2012, which was well outside the 12 month tail period. In support of this submission, Mr Adam relied, inter alia, on the evidence of Mr Coates, Renaissance’s expert witness, to the effect that:(i) under the Shandong Subscription Agreement and the Off-take Agreement SGC was buying equity in the Sierra Leone subsidiaries in return for security of iron ore supply;

(ii) the discounted pricing of the iron ore agreed in the Off-take Agreement was critical to the value of the deal as a whole; and

(iii) there was effectively no deal until the Chinese regulatory authorities approved the overall package. It followed, submitted Mr Adam: (a) that the investment purchased by SGC as a whole consisted of a series or combination of transactions (the Shandong Subscription Agreement and the Off-take Agreement) within the definition of Sale in the ATA, that definition applying to assets of TIOSL (iron ore) as well as to “interests” in companies; and (b) thus it was only when the Off-take Agreement was executed on 28 March 2012 that the sale of the interest in TIOSL under the Shandong Subscription Agreement was consummated.

[185]In my judgment, in deciding this point, the structure of the transactions is what is determinative, not the underlying economic and financial realities. The Shandong Subscription Agreement is a separate legal transaction from the Off-take Agreement. It provided for the sale of a 25% interest in TIOSL, ARPSSL and APLSL for the price of $1.5 billion and those terms did not change upon the execution of the Off-take Agreement. The performance due under the Shandong Subscription Agreement was conditional on the conclusion of an off-take agreement but the consummation of the share sale agreement as a set of mutually binding obligations was not, as I have held, dependent on the satisfaction of any conditions precedent. Further, in my view, the Shandong Subscription Agreement is the only transaction within the definition of Sale in the ATA arising from SGC’s investment in TIOSL, ARPSSL and APLSL. The Off-take Agreement was not a Sale of an asset since no interest in any iron ore was transferred by virtue of that agreement and nor was any intended to be; and, even if it were a sale of an asset, it was in my opinion outside the definition of Sale by reason of being in the ordinary course of business.

[186]The agreement that preceded and/or is embodied in the Shandong Subscription Agreement was consummated at the latest on 29 July 2011, which was within the 12 month tail period. The Shandong Subscription Agreement completed on 30 March 2012. It follows that Renaissance’s Shandong Claim succeeds in respect of the sale of the 25% interest in TIOSL for which it is entitled to a fee of $29,907,000 million and the agreed sum of $46,000 by way of expenses.

The CRM2 Claim

[187]On or about 11 January 2011, CRM exercised the anti-dilution option it was granted under the CRM Subscription Agreement dated 31 March 2010 and thereby acquired 6,991,450 new common shares for a total consideration of £29,713,662. Renaissance claims that it is due a fee in respect of this transaction under the ATA, alternatively the UA, alternatively under a quantum meruit.

[188]I have already held in paragraph 150 (4) above that AML is estopped from denying that the ATA covered the sale of an interest in AML. I would add that the meetings between Mr Hayes and Mr Timis on 2 April and 8 April 2009 at which both participants proceeded on the basis that a sale of a stake in AML was within the TA were part of the background to the ATA, and as a matter of construction against that background, AML is to be read into clause 1 of the ATA.

[189]Was the exercise by CRM of the anti-dilution option within the definition of Sale in the ATA? Both of the banking expert witnesses, Mr Coates and Mr Moxon, were of the view that the exercise of a conventional unilateral option granted as part of an initial transaction within the mandate would be treated by investment bankers as part of the initial transaction. The experts did not, however, have experience of whether a shareholder maintenance option which, although granted under the original transaction, is not an option exercisable freely at any time but rather is an option the power under which is only triggered by a possible dilution by an equity raise, is likewise treated as part of the initial transaction.

[190]In my judgment, the exercise of the anti-dilution option is to be treated as part of the initial CRM1 transaction – the CRM Subscription Agreement dated 31 March 2010. I say this because in my view the words “any transaction or series or combinations of transactions” in the definition of Sale allow for later transactional stages including under options and the definition of Completion refers to the receipt of “any” and not “all” consideration, thereby allowing for the possibility of further Consideration on which a fee would be payable being received later.

[191]Accordingly, I hold that Renaissance has made out its CRM2 Claim under the ATA and is entitled to a fee of £727,217 calculated in accordance with that agreement.

The November 2010 Equity Raise Claim and the February 2011 Debt Raise Claim

[192]The November 2010 Equity Raise Claimwas pleaded to arise under the ATA, alternatively under the UA. However, in his closing submissions Mr Brindle stated that Renaissance would not advance this claim under the ATA because it was clear that, despite the reach of the whereby trigger, the parties had not intended an equity raise to be covered by the TA.

[193]Both claims are therefore now made under clause 3 of the UA that provides:

[3]Other Services In the event that, during the Engagement Period or the Tailing Period, the Company makes any public or private offer of equity securities of the Company or any subsidiary or affiliate of the Company, other than as part of an M&A Transaction, any Alternative Transaction or any Change of Control Proposal, it will, acting in good faith, give Renaissance the first and reasonable opportunity to submit a proposal to the Company to act as exclusive financial advisor and sole lead manager and lead book runner for such an offer. In the event that, during the Engagement Period or the Tailing Period, the Company makes any public or private offer of debt securities or other debt financing of the Company of the Company or any subsidiary or affiliate of the Company, other than as part of an M&A Transaction, any Alternative Transaction or any Change of Control Proposal, it will, acting in good faith, give Renaissance the first and reasonable opportunity to submit a proposal to the Company to act as exclusive financial advisor and lead arranger for such an offer.”

[194]Renaissance’s pleaded case is that:(i) if Renaissance had made a proposal under clause 3, then on the clause’s proper construction, AML could not exercise its discretion (whether or not, following Renaissance’s proposal, to appoint Renaissance) perversely or dishonestly, in bad faith, for an improper purpose, or so unreasonably that no reasonable person in AML’s position would have so acted;

(ii) and accordingly, in the event Renaissance made a proposal to provide relevant financial services under clause 3 in respect of any future public or private offer of equity securities of AML or debt securities or debt financing of AML, AML were bound to engage Renaissance so to act absent any proper justification for exercising its discretion not to do so.

[195]However, in its closing submissions, Renaissance contended that in addition to the above, the effect of the clause was to give Renaissance a right of first refusal under which it had the right to receive and accept an offer on terms AML was prepared to accept, or a right to match any third party offer which AML might be minded to accept.

[196]In my judgment, even if it were open to Renaissance to advance this new case, it is a case that is bound to fail because I can see no basis on the wording of clause 3 for finding that it conferred such a right of refusal. Mr Brindle relied strongly on the decision in Astrazenca UK Ltd v Albemarle International Corporation

[2011] EWHC 1574 (Comm)

. There, a pharmaceutical supply agreement contained the following clause:

“In the event that at any time BUYER reformulates or otherwise changes its Diprivan brand to substitute propofol for the PRODUCT, BUYER will so notify SELLER and will give SELLER the first opportunity and right of first refusal to supply propofol to BUYER under mutually acceptable terms and conditions.”

[197]Flaux J held that on this wording, the Seller had a right to contract to supply propofol on whatever terms the Buyer was minded to accept. However, clause 3 of the UA says nothing about a right of first refusal and in my view it confers on Renaissance no such right. On the contrary, in my judgment, clause 3 obliged AML to do no more than to give Renaissance a first and reasonable opportunity to submit a proposal during which time AML would not receive or consider any third party proposals. Thus whilst the clause gave Renaissance a potential advantage over competitors in that Renaissance’s proposal would be the first made to AML, the clause did not oblige AML to engage in negotiations with Renaissance and AML were free not to accept a proposal from Renaissance for any reason. Further, even if the clause obliged AML to negotiate with Renaissance in good faith, which it did not, the clause would be unenforceable on grounds of uncertainty, see eg Barbudev Eurocom Cable

[2012] EWCA Civ 548

[198]I am also satisfied that if Renaissance had made a proposal having been given the opportunity to do so by AML pursuant to clause 3, AML would not have accepted it. I say this because I find that by at least late June 2010, Renaissance and AML had fallen out because the AML Board did not want to pay Renaissance a fee for any transaction where Renaissance had not introduced the counterparty, including in particular the Shandong transaction. Further strain was then put on the relationaship when, on 1 October 2010, Renaissance’s solicitors wrote an aggressive letter addressed to Mr Timis, Mr Watling and the AML Board asserting Renaissance’s entitlement to a fee under the ATA for the Shandong transaction. It was therefore not surprising that on 2 September 2010 AML gave notice of termination of Renaissance’s engagement under the TA. The AML Board clearly felt that Renaissance should not be paid a fee for the Shandong transaction and I am satisfied that the Board would not have permitted Mr Timis to agree to appoint Renaissance to act on either the November 2010 equity raise or the February 2011 debt raise.

[199]It follows in my opinion that clause 3 affords no foundation for a claim in damages by Renaissance for being excluded from acting on the November 2010 Equity Raise and the February 2011 Debt Raise and therefore Renaissance’s claims in respect of these transactions must be dismissed.

Conclusion

[200]For the reasons given above:(1) The Shandong Claim succeeds in respect of the sale of the 25% interest in TIOSL but otherwise is dismissed.

(2) The CRM1 and CRM2 claims succeed.

(3) The November 2010 Equity Raise Claim and the February 2011 Debt Raise Claim are dismissed.

Post Script – the witness statements

[201]There has been increasing trend in Commercial Court trials for factual witness statements to get longer and longer and to indulge in speculation, advocacy and submissions rather than relate concisely what the witness did or heard or observed. This trend was all too obvious in this case. Mr Mannock’s 3rd witness statement was far too long, consisting of 112 closely typed pages. So too was Mr Hayes’ 87 page 3rd witness statement, a significant section of which consisted of submissions rather than the relation of matters of fact in which Mr Hayes had a direct involvement. And as I have observed in the body of the judgment, much of Mr Dickson’s statement of 49 pages consisted of conjectural submissions. Paragraph H1.1(ii)&(v) of the Admiralty and Commercial Court Guide states that a witness statement should be as a concise as the circumstances of the case allow without omitting any significant matters and should not engage in (legal or other) argument. The witness statements of Mr Mannock, Mr Hayes and Mr Dickson were grievously in breach of these provisions. The impact of all this on the trial was considerable. The statements took a very long time to read out of court and cross-examination was gravely prolonged because counsel no doubt felt that they had to deal with almost everything deposed to by the witnesses in their statements.

[202]This trend to produce over lengthy and argumentative witness statements must stop. It is wasteful of costs and the court’s valuable time. The profession should not be surprised if in the near future the Commercial Court Guide is amended so as to:(i) limit the length of witness statements, requiring the leave of the court to exceed the limit; and

(ii) require the parties to confirm in a report to the court post CMC that the witness statement rules have been complied with.