“as already discussed, we, and Sauber respectively, are very interested in a prominent and sustained partnership with BWT…”
“…Vijay Mallya and Force India would today offer BWT the opportunity in addition to a prominent BWT logo placement, to present the Formula One vehicles (both vehicles) with their basic colour in BWT pink… The costs, if an agreement is reached shortly, would run to between€15 and€20 million per year (term: three years). The matter has been clarified with Vijay Mallya. For 2017 we could get going directly, or indeed have to do. The next step would be the development of draft designs for examination (Force India).”
“I mean my main thing was after Vijay agreed this, to bring the deal together as soon as possible because we were really in a rush because the season was shortly to start and we had to move things very very quickly to be able that in Australia are these cars with another base colour and with this sponsor. So it was significant and we had just no time and yes. This is why we moved very quickly.”
“Q…you hadn’t been asked by any Formula One team to undertake this exercise, had you?” “A. I was in regular contact and business relationship with Sauber. I knew that they are really looking for a title sponsor. And yes, I did my own research, I thought this could fit, and I knew this would fit because I knew, for example, the Sauber sponsors and what technology was not a product category there. So yes.” “Q. Sauber had not asked you to have the designs drawn up, had they?” “A. I mean it was already our understanding that of course I’m on my own risk looking for sponsors and trying to introduce or trying to identify, which is very difficult, and to introduce to Sauber. But in this specific way I did this design and afterwards I get in contact with Monica Kaltenborn and yes, informed her.”
“[49] Generally speaking, it is possible under English law to make a contract without any formality, simply by word of mouth. Of course, the absence of a written record may make the existence and terms of a contract harder to prove. Furthermore, because the value of a written record is understood by anyone with business experience, its absence may – depending on the circumstances – tend to suggest that no contract was in fact concluded. But those are matters of proof: they are not legal requirements. The basic requirements of a contract are that: (i) the parties have reached an agreement, which (ii) is intended to be legally binding, (iii) is supported by consideration, and (iv) is sufficiently certain and complete to be enforceable:...” [56] Factors which may tend to show that an agreement was not intended to be legally binding include the fact that it was made in a social context, the fact that it was expressed in vague language and the fact that the promissory statement was made in anger or jest: ... [63] In determining whether an agreement has been made,whatits terms are and whether it is intended to be legallybinding,English law applies an objective test. As stated by Lord Clarke in RTS Flexible Systems Ltd v Molkerei Alois Muller GmbH and Co KG[2010] UKSC 14 ;[2010] 1 WLR 753 : “The general principles are not in doubt. Whether there is a binding contract between the parties and, if so, upon what terms depends upon what they have agreed. It depends not upon theirsubjective state of mind, but upon a consideration of what wascommunicated between them by words or conduct, and whetherthat leads objectively to a conclusion that they intended tocreatelegal relations and had agreed upon all the terms whichtheyregarded or the law requires as essential for the formationoflegally binding relations.”
“[28] It is well established that when deciding whether a contract has been made during the course of negotiations the court will look at the whole course of those negotiations—see Hussey v Horne-Payne(1879) 4 App Cas 311 .” [29] As Earl Cairns LC observed in that case at p 316: “You must not at one particular time draw a line and say, ‘We will look at the letters up to this point and find in them a contract or not, but we will look at nothing beyond’. In order fairly to estimate what was arranged and agreed, if anything was agreed between the parties, you must look at the whole of that which took place and passed between them.” [30] The rationale of this approach is that focusing on one part of the parties' communications in isolation, without regard to the whole course of dealing, can give a misleading impression that the parties had reached agreement when in fact they had not— see Lord Selborne in Hussey at p 323.”
“mentioned that there might be someone in the marketplace who might be looking to become a title sponsor in Formula One…He said the only difficulty might be that the car would need to be pink. I said that this was not my area of responsibility but if he wanted to get in touch with me I would put him in touch with the right people at Force India.”
“it was good to catch up yesterday, a great way to spend a Sunday afternoon.” “Do you think there may be a chance with the title sponsor you mentioned yesterday? If so I think we should enter into discussions as soon as possible… Therefore if you would like me to arrange anything from this end please give me a shout.”
“told Mr Mallya that I was working with my business partner from Liechtenstein and that we had this opportunity to bring a significant title sponsorship opportunity to Force India (I said potentially between€15 million and€20 million per year over several years) but that it was conditional upon the car base colour being changed to pink and that this was the basic requirement of the potential sponsor that any deal can be done.… I asked him whether this would interest Force India and whether he would support such a sponsorship introduction.… Mr Mallyaconfirmed that Force India would beinterested and that I shouldtake the matter up with thecommercial team and Mr Curnow toagree the terms.…”
“I said ok but agreed but made clear that we would not be doingthis for free and that as I did not work for him or the team anymore, myself and my partner would be looking for anintroduction fee to be paid based on the overall amount paid bythe sponsor if a deal was done… Mr Mallya confirmed that thiswas “fine” and that “naturally nothing comes for free”
“Mr Ramos casually mentioned to me that there was an unnamed sponsor somewhere lurking around who were in negotiations with Sauber and their condition was that the car they sponsored must be pink. He asked me if I was open to the idea and I said yes.”
“no, it did not, because there was no proposal that Mr Ramos brought me. It was a casual conversation where he said that he heard of the company that was prepared to sponsor a Formula One team who was talking to Sauber but their precondition was a pink car.”
“definitely want to know the name of the sponsor to ascertain the credibility of the sponsor to take such a major decision within the team to paint the entire car pink… It would require the approval of our other shareholders, particularly the Sahara Group, who also held a 42.5% interest in the team, because the sidepods were committed to the Sahara Group.”
“I would not be sitting there casually in my kitchen with my friend Mr Ramos agreeing commission deals on a purely speculative basis, on a no names basis, without knowing the sponsor, the credibility of the sponsor, and in any event that was a prerequisite because I would have to go to my shareholders and they would necessarily ask me fundamental questions.”
“no, the agent can’t keep the identity of a potential sponsor secret because there would have to be some due diligence, particularly in the Formula One context, because there are many people in the Formula One paddock who toss around millions of potential sponsorships which never ever come to fruition.”
“… I have also been active in getting more information on the sponsor and have addressed this very topic to [Dr Mallya] aswellwhen visiting him at Ladywalk today and he shares the same view as you. I have on top of this spoken to my friend and he has gotten in touch with his clients again, which you will see in the next email. In top of this he has sent me over the provisionagreement thathe would like to have in place if this deal gets through, which he had agreed with Sauber before they have turned it down. Please let me know your thoughts as soon as possible, as you can see they are pushing as well from their side. Talk very soon, hopefully to set up a first meeting ASAP”
“I just talked to the potential sponsor with regard to the Sahara Force India title partnership. The sponsor explicit told me to sign the partnership agreement immediately (this week) if we can start the collaboration on the following conditions – the basic colour of the race car needs to be their company colour… … I strongly believe there is great potential to grow the partnership financially in the course of time… We just need toget this startedtoday.”
“do u (sic) want me to pick up with Tara on the title opportunity?”
“… [Dr Mallya] has asked me to pick this up with you following your meeting yesterday. Do we yet know the name of the company and the reasons Sauber turned it down? I’m on WhatsApp if quicker…”
“no he just said he had a sponsor who could spend$20 million but that the livery of the car would have to be changed to purple.”
“its 12.5 million E per year. No title change but want some magenta colour on car.”
“oh okay I am just repeating what Tara told me.”
“Happy to pay 15% if a three-year deal with no breaks.”
“Vijay has approved everything. Will go with a pink pod and pink lines on a silver car. Uniforms will be pink black and silver.”
“Tara said to me that the deal was safe and Mr Mallya had accepted everything including paying the introductory commission to us.”
“where an agent is to be engaged by the team on a commission basis, the agent will be expected to have influence over a potential sponsor and a developed relationship with that potential sponsor.”
“please would you also be so kind and remember the mandate at your earliest convenience” ii) On1 March 2017 at 11.11 Mr Ramos asked Mr Curnow: “just would like to check with you everything is underway with the mandate and if you could send the signed document promptly”
“Would be great to get an update, especially on the signing of the mandate please”
“I think mandate has been sent to emmanuel”
“He hasn’t received anything by email though, so would be great to doublecheck at your earliest convenience.”
“Really don’t want to stress this topic, but please make sure Emanuel gets the mandate signed”
“also Emanuel really would like to get the mandate signed, that would be just right I think”
“ I urge you to get the mandate signed tomorrow please! This has been up in the air for way too long already. It really took Sauber only 20 minutes to return this via scan to him. This would just be fair and put Emanuel at ease as well. I’ve gone through the requested changes and this will take legal max 15 mins and get it signed by Otmar. All of us have been working on this deal to come true very hard, so all involved shall get rewarded as agreed.”
“would you please kindly take care of the mandate?! Emanuel’s asked me again and there hasn’t been any response from side since his email reply.”
“in the course of their telephone conversation Mr Curnow told Mr Ramos that the Mandate Agreement was agreed. Force India thereby consented to and entered into the Mandate Agreement with AMP.”
“Happy to pay 15% if a three-year deal with no breaks.” ii)At 16.25 on 21 February Mr Curnow sent a further message: “Vijay has approved everything. Will go with a pink pod and pink lines on a silver car. Uniforms will be pink black and silver.” iii)On27 February 2017 at 20.30 Mr Curnow sent a message to Mr Ramos: “All agreed with Andreas. Will sort mandate and other legals in morning.”
“[47] We agree with Mr Catchpole's submission that, in a casewhere a contract is being negotiated subject to contract andworkbegins before the formal contract is executed, it cannot besaidthat there will always or even usually be a contract on thetermsthat were agreed subject to contract. That would be toosimplisticand dogmatic an approach. The court should notimpose bindingcontracts on the parties which they have notreached. All willdepend upon the circumstances… 55. We note in passing that the Percy Trentham case was not a ‘subject to contract’ or ‘subject to written contract’ type of case. Nor was Pagnan , whereas part of the reasoning in the British Steel case in the passage quoted above was that the negotiations were throughout conducted on the basis that, when reached, the agreement would be incorporated in a formal contract. So too was the reasoning of the Court of Appeal in Galliard Homes Ltd v J Jarvis & Sons Ltd (1999) 71 Con LR 219 . In our judgment,in such a case, the question is whetherthe parties havenevertheless agreed to enter into contractualrelations onparticular terms notwithstanding their earlierunderstanding oragreement. Thus, in the Galliard Homes case Lindsay J, giving the only substantive judgment in the Court of Appeal, which also comprised Evans and Schiemann LJJ, at page 236 quoted with approval the statement in Megarry & Wade , The Law of Real Property , 5th ed (1984) at pages 568- 9 that it is possible for an agreement ‘subject to contract’ or ‘subject to written contract’ to become legally binding if the parties later agree to waive that condition, for they are in effect making a firm contract by reference to the terms of the earlier agreement. Put another way, they are waiving the ‘subject to [written] contract’ term or understanding. 56. Whether in such a case the parties agreed toenter into abinding contract, waiving reliance on the ‘subject to[written]contract’ term or understanding will again dependupon all thecircumstances of the case, although the cases showthat the courtwill not lightly so hold…”
“This Contract may be executed in any number of counterparts provided that it shall not become effective until each party has executed a counterpart and exchanged it with the other. ” 81.At [67] of the judgment the court stated: “67. We agree with the Court of Appeal that, before it could beheld that there was a binding contract on the MF/1 terms asamended by agreement, unequivocal agreement that clause 48had been waived would be required. We do not however think that it is necessary for that agreement to be express if by that is meant an express statement by the parties to that effect. Suchunequivocal agreement can in principle be inferred fromcommunications between the parties and conduct of one partyknown to the other.”
“[92]…As Lord Simonds explained in Morris v Kanssen[1946] AC 459 , 475, both the indoor management rule and the doctrine of ostensible authority allow the smooth operation of business by protecting those who are entitled to assume that the person with whom they are dealing has the authority which he claims. But this general principle cannot be invoked if he who would invoke it is put upon inquiry. He cannot presume in hisfavourthat things are rightly done if the inquiry that he ought tomakewould tell him that they were wrongly done. Similarly, Houghton[1927] 1 KB 246 and Rolled Steel[1986] Ch 246 involved an attempt by a third party to rely on the indoor management rule. The attempt failed in both cases because, among other things, the principle of ostensible authority applied to acts of a director acting as an agent of the company and, if the third party had actual or constructive notice that the steps necessary for the formal validity of the acts of the director had not been taken, the third party could not rely upon the principle” “[93] The Board therefore concludes that PT Satria could not rely upon the apparent authority of Mr Joenoes to enter into the HOA on behalf of EACL if it failed to make the inquiries that areasonableperson would have made in all the circumstances inorder to verifythat he had that authority.”
“We are not aware of any cases in which commissions have been paid in the absence of a signed agency agreement. We are aware that some agency agreements have been signed after the brand has signed an agreement with the team, but these are exceptions to the rule.”
“please would you also be so kind and remember the mandate at your earliest convenience.” ii) on the same day Mr Ramos sent an email to Mr Curnow: “I would kindly ask you to sign the mandate for the sponsorship deal as soon as possible, so that all of us feel comfortable.” iii) on 27 February at 20.07 Mr Ramos sent a message to Mr Curnow: “it would really be great as well, if you could get the mandate signed” iv) on 1 March at 20.17 Mr Ramos sent a further message on this topic: “would be great to get update, especially on the signing of the mandate please.” v) on 7 March at 22.09 Mr Ramos sent a message to Mr Curnow: “I urge you to get the mandate signed tomorrow*please*! This has been up in the air for way too long already.….”
“… I have on top of this spoken to my friend and he has gotten in touch with his clients again, which you will see in the next email. In top of this he has sent me over the provisionagreementthat he would like to have in place if this deal getsthrough, which he had agreed with Sauber before they have turned it down.”
“Vijay has approved everything. Will go with a pink pod and pink lines on a silver car. Uniforms will be pink black and silver”
“sounds promising” and “as soon as you have a mock up, please send it through. ”
“I just talked to the potential sponsor with regard to the Sahara Force India title partnership. The sponsor explicit told me to sign the partnership agreement immediately (this week) if wecanstart the collaboration on the following conditions - the basic colour of the race car needs to be their company colour… ”
“The decision whether or not a Formula One team will enter into a sponsorship agreement with a sponsor at this level is almost always made by that team’s CEO often with the approval of the board. Only they or equivalent such as a COO would have authority to sign agency agreements on behalf of the team.”
“ …I asked [Dr Mallya] whether [the title sponsorship opportunity] would interest Force India and whether he would support such a sponsorship introduction… Mr Mallya confirmed that Force India would be interested and that I should take the matter up with the commercial team and Mr Curnow to agree the terms.…”
“It is now well-established that a court must first ask itself four questions when faced with a claim for unjust enrichment as follows. (1) Has the defendant been enriched? (2) Was the enrichment at the claimant's expense? (3) Was the enrichment unjust? (4) Are there any defences available to the defendant?...”
“Thirdly, as the judge observed in the present case, in remarks with which Lord Clarke expressed agreement in Menelaou (para 19), Lord Steyn's four questions are no more than broad headings for ease of exposition. They are intended to ensure a structured approach to the analysis of unjust enrichment, by identifying the essential elements in broad terms. If they are not separately considered and answered, there is a risk that courts will resort to an unstructured approach driven by perceptions of fairness, with consequent uncertainty and unpredictability. At the same time, the questions are not themselves legal tests, but are signposts towards areas of inquiry involving a number of distinct legal requirements. In particular, the words "at the expense of" do not express a legal test; and a test cannot be derived by exegesis of those words, as if they were the words of a statute.”
"Mr Weissenbacher said that he had a dream, and that dream was that BWT would sponsor two cars in pink in Formula One."
"my team came up with some design suggestions which we thought may fit the brief (from recollection pink bubble imagery put on the front wing and elsewhere on the car)."
“Mr Wolff recommended to me the candidate Force India… Mr Wolff connected me with Mr Otmar Szafnauer.” “During all my personal negotiations, neither Mr Tara Ramos, Mr Emanuel Moser nor any other representative of AMP had an involvement whatsoever in my decision to become sponsor of Force India. They did not introduce BWT to Force India; MrWolff was solely responsible for that introduction…”
“Toto’s friend who currently sponsors DTM is interested in sponsoring the team for a significant amount of money.”
“with regard to Sauber there will shortly be an interesting opportunity arising, as from the 2017 season, for Formula One vehicles to be implemented prominently in BWT design.…”
“With regard to a possible BWT Formula One project in 2017 or 2018, following detailed discussions and involvement of my Formula One contacts (naturally without mentioning BWT), I have surprisingly, and contrary to expectations, at short received an excellent opportunity. In this matter I am in direct contact with Vijay Mallya, the owner of the Sahara Force India Formula One team…”
“I just talked to the potential Sponsor with regard to the Sahara Force India title partnership. The sponsor explicit told me to sign the partnership agreement immediately (this week) if we can start the collaboration on the following conditions-the basic colour of the Race Car needs to be their company colour (essential requirement)… The potential sponsor asked me to get feedback until tomorrow. I will see them again on Wednesday…”
“… Vijay has asked me to pick this up with you following your meeting yesterday. Do we yet know the name of the company and the reasons Sauber turned it down? I’m on WhatsApp if quicker…”
“Who is this and what is it related to? We should use our standard agency agreement.”
“of course… It’s a Tara Ramos deal… Can we put in our speak ASAP?” 139. At 11.49 Mr Curnow sent a further email to Ms Ross: “The sponsor is BWT”
“it looks like our teams are close to a deal. Please call if you would like to discuss or to just meet by phone”
“…very nice to hear from you. As you said I hope we are close to a common successful future. I just pointed out to agree on all topics, like BWT branding of whole team also in the box, helmets, caps etc and therefore I suggested to prepare everything and send it as attachment to you. What I have heard up to now it seems a perfect fit, in culture, team spirit, co-op and…”
“…OS said VJM is not happy with 15% as Tara had no influence over BWT and didn’t do anything to assist the deal; we will therefore need to negotiate. OS said we need to get Andreas’s view first, in case we are dealing with a relative, for example.”
“it looks like our teams are close to a deal”
“it looks like our teams are close to a deal.”
“disappointed with the design which he said did not correspond with what I had originally proposed and was for sure not in line with BWT’s design for the cars livery that had been sent over by email the previous day.”
“… Rather than call Mr Curnow directly, Mr Hubner called me whilst I was still in my car driving back home from the meeting. He had seen the rate card and completely freaked out about the level of costs. The total cost of the sponsorship deal detailed in the rate card was€25.75 million per annum. Mr Hubner had been working on the basis that BWT would get its proposed design for€12.5 million per year in the first year, rising to€15 million thereafter.… He told me this is crazy andthat the deal had fallenthrough. Mr Hubner was furious. He talked very angry and loudly to me. He said that the figures provided by Force India were an act of madness.…”
“thought that it was all over but nonetheless continue to worktorepair the damage done by Force India and convince bothpartiesto find a suitable compromise… This was a big challenge with an uncertain outcome at the time but our efforts were successful. I have no doubt that without the work of Tara and me, the deal between BWT and Force India would never have happened, and certainly not in time for the 2017 season.”
“I very much wanted to ask you whether I could meet you at short notice… I have also received a final offer from Force India withregard tothe costs specified by BWT… This is an absolutely mega offer which is now on the table for BWT. Force India must have a final decision by the beginning of next week. As you are aware, I had some excellent and intensive discussions with Mr Hubner with regard to BWT in connection with Formula One.… I can assure you that I have personallypushed very hardfor the interests of BWT both at Sauber aswell as at Force India. I am of the opinion that we have today come a very very long way.… The teams have in my view shown very great interest in reaching a compromise in matching the costs indicated by BWT, in the best interests of BWT… I can assure you 100% that the brand presences… At the prices as indicated by BWT as preconditions are to be assessed at both Sauber as well as at Force India as actually unique, or at least outstandingly high.…”
“subject to you being happy with the car visuals I will instruct our lawyer to start drafting an agreement. Please let me know.”
“let me know your thoughts on the above ”
“reassured him that I knew that Mr Weissenbacher was keen to make the step into Formula One and knew that this was a great opportunity…”
“… I know Andreas Weissenbacher… is very keen to make thestep into Formula One now.… I strongly believe that Andreas Weissenbacher is fully aware that this is a really great opportunity for BWT to achieve global brand awareness… Today I also wrote Andreas Weissenbacher to let him know Today I also wrote Andreas Weissenbacher to let him know 178. that I would strongly advise him to use this excellent opportunity for BWT based on your last email…”
“thank you for this, clearly there is hope!”
“Mr Hubner was extremely stressed out about the situation before I spoke with him and I managed to calm him down and get the deal back on track.”
“I talked to F1 and the situation is like Emanuel has passed on to you. I like to repeat myself: I believe you will do the right thing. Basically, the caps are not the most important thing in the world. Please note that Force India is a really human team and really happy to be working with you. In this sense: good night and see you soon.”
“hi Emanuel, this is Lutz. That’s just typical, you know? Youmade the deal and pocketed the commission and now you’re probably enjoying a champagne breakfast or something and have stopped taking my calls. Well that’s just bad. Please call me back as I would like to talk to you about possible cooperation. Okay? Thanks. Bye”
“(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness whomight be expected to have material evidence to give on an issuein an action. (2) If a court is willing to draw such inferences, they maygo tostrengthen the evidence adduced on that issue by the otherpartyor to weaken the evidence, if any, adduced by the partywhomight reasonably have been expected to call the witness. (3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue. (4) If the reason for the witness's absence or silence satisfies the court, then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”
"made clear that the deal now on the table would not happen. Mr Hubner said that if this was Force India's proposal then BWT needed to quit at this point."
"personally pushed very hard for the interests of BWT both at Sauber as well as at Force India"
“In Countrywide Communications Limited v ICL Pathway Ltd [1996] C No 2446 Mr Nicholas Strauss, Q.C., considered the authorities bearing on the question of whether or not a claim can successfully be made for work done in anticipation of a contract which does not materialise…he concluded: “I have found it impossible to formulate a clear general principle which satisfactorily governs the different factual situations which have arisen, let alone those which could easily arise in other cases. Perhaps, in the absence of any recognition in English law of a general duty of good faith in contractual negotiations, this is not surprising. Much of the difficulty is caused by attempting to categorise as an unjust enrichment of the defendant, for which an action in restitution is available, what is really a loss unfairly sustained by the plaintiff. There is a lot to be said for a broad principle enabling either to be recompensed, but no such principle is clearly established in English Law. Undoubtedly the court may impose an obligation to pay forbenefits resulting from services performed in the course of acontract which is expected to, but does not, come intoexistence. This is so, even though, in all cases, the defendant is ex hypothesi free to withdraw from the proposed contract, whether the negotiations were expressly made “subject to contract” or not. Undoubtedly, such an obligation will beimposed only if justicerequires it or, which comes to much thesame thing, if it wouldbe unconscionable for the plaintiff not tobe recompensed. Beyond that, I do not think that it is possible to go further than to say that, in deciding whether to impose an obligation and if so its extent, the court will take into account and give appropriate weight to a number of considerations which can be identified in the authorities. The first is whether the serviceswere of a kindwhich would normally be given free of charge.Secondly, theterms in which the request to perform theservices was made maybe important in establishing the extentof the risk (if any) whichthe plaintiffs may fairly be said tohave taken that such serviceswould in the end beunrecompensed. What may be importanthere is whether theparties are simply negotiating, expressly orimpliedly “subjectto contract”, or whether one party has givensome kind ofassurance or indication that he will not withdraw,or that he willnot withdraw except in certain circumstances. Thirdly, the nature of the benefit which has resulted to the defendants is important, and in particular whether such benefit is real (either “realised” or “realisable”) or a fiction, in the sense of Traynor CJ's dictum. Plainly, a court will at least be more inclined to impose an obligation to pay for a real benefit, since otherwise the abortive negotiations will leave the defendant with a windfall and the plaintiff out of pocket. However, the judgment of Denning L.J. in the Brewer Street case suggests that the performance of services requested may of itself suffice amount to a benefit or enrichment. Fourthly what may often be decisive are the circumstances in which the anticipated contract does not materialise and in particular whether they can be said to involve “fault” on the part of the defendant, or (perhaps of more relevance) to be outside the scope of the risk undertaken by the plaintiff at the outset. I agree with the view of Rattee J. that the law should be flexible in this area, and the weight to be given to each of the factors may vary from case to case.” [171] I regard this as a helpful analysis of the authorities from which I also derive the following propositions: (a) Although the older authorities use the language of implied contract the modern approach is to determine whether or not the circumstances are such that the law should, as a matter of justice, impose upon the defendant an obligation to make payment of an amount which he deserved to be paid (quantum meruit):...; (b) Generally speaking a person who seeks to enter into a contract with another cannot claim to be paid the cost of estimating what it will cost him, or of deciding on a price, or bidding for the contract. Nor can he claim the cost of showing the other party his capability or skills even though, if there was a contract or retainer, he would be paid for them. The solicitor who enters a “beauty contest” in the course of which he expresses some preliminary views about the client's prospects cannot, ordinarily expect to charge for them. If another firm is retained; he runs the risk of being unrewarded if unsuccessful in his pitch. (c) The court is likely to impose such an obligation where the defendant has received an incontrovertible benefit (e.g. an immediate financial gain or saving of expense) as a result of the claimant's services; or where the defendant has requested theclaimant to provide services or accepted them (having theabilityto refuse them) when offered, in the knowledge that theserviceswere not intended to be given freely; (d) But the court may not regard it as just to impose an obligation to make payment if the claimant took the risk that heor shewould only be reimbursed for his expenditure if therewas aconcluded contract; or if the court concludes that, in all the circumstances the risk should fall on the claimant: Jennings & Chapman; (e) The court may well regard it as just to impose such an obligation if the defendant who has received the benefit has behaved unconscionably in declining to pay for it;”
“…Christopher Clark J, in MSM Consulting Ltd v United Republic of Tanzania2009 EWHC 121 (QB) at [171] … derived a number of propositions from the authorities. Those relevant in the circumstances of the case before me are encapsulated in subparagraphs (i) to (l) below.” (i) “The court is likely to impose [a restitutionary] obligation where the defendant has received an incontrovertible benefit (e.g. an immediate financial gain or saving of expense) as a result of the claimant's services; or where the defendant has requested the claimant to provide services or accepted them (having the ability to refuse them) when offered, in the knowledge that the services were not intended to be given freely”: MSM Consulting Ltd v United Republic of Tanzania 2009 at [171(b)]. One example of such a case is where the services constitute accelerated performance of the anticipated contract at the request of the other party, as was the case in British Steel Corp. v Cleveland Bridge and Engineering Co Ltd. (j) [T]he court may not regard it as just to impose anobligationto make payment if the claimant took the risk that heor shewould only be reimbursed for his expenditure if therewas aconcluded contract; or if the court concludes that, in allthecircumstances the risk should fall on the claimant”: MSM Consulting Ltd v United Republic of Tanzania 2009 at [171(c)], citing Jennings and Chapman Ltd v Woodman Matthews and Co(1952) 2 TLR 406 . (k) The court may well regard it as just to impose such an obligation if the defendant who has received the benefit has behaved unconscionably in declining to pay for it”: MSM Consulting v United Republic of Tanzania at [171(e)]. (l) Where costs are incurred or time spent for the purpose of putting a person in a position to obtain and then perform a contract, this is a pointer against the award of restitutionary recompense: see MSM Consulting Ltd v United Republic of Tanzania[2009] EWHC 121 (QB) and Regalian PLC v London Docklands Development Corporation[1995] Ch 212 ,230. British Steel Corp. v Cleveland Bridge and Engineering Co Ltd. was distinguished by Rattee J as a case of services rendered by way of accelerated performance of the anticipated contract at the other person's express request. In Regalian's case he was concerned with a property developer who unsuccessfully claimed to be entitled to reimbursement by the defendant of almost£3 million which it had paid to professional firms in respect of the proposed development in preparation for the intended contract. In MSM Consulting Christopher Clarke J stated (at [171(b)]) that, “generally speaking a person who seeks to enter into a contract with another cannot claim to be paid the cost of estimating what it will cost him, or of deciding on a price, or bidding for the contract. Nor can he claim the cost of showing the other party his capability or skills even though, if there was a contract or retainer, he would be paid for them. The solicitor who enters a ‘beauty contest’ in the course of which he expresses some preliminary views about the clients prospects cannot, ordinarily expect to charge for them. If another firm is retained; he runs the risk of being unrewarded if unsuccessful in his pitch.”
“There is a question as to exactly what the objective approach entails. Professor Virgo states the test (at p 98) as the identification of the market value, namely the sum “a willing supplier and buyer would have agreed upon”
“[7] where an agent is to be engaged by the team on acommission basis, the agent will be expected to have influenceover a potential sponsor and a developed relationship with thatpotential sponsor…” [12] there is no market practice or industry standard as to thelevel of commission payable to agents by teams pursuant to anagency agreement. The level of commission payable depends upon what the parties are able to agree bearing in mind a number of factors such as the status of the team, the nature of the sponsorship, and support provided by the agent in introducing the sponsor. In our experience agent’s commission within Formula One can therefore range anywhere from 5% to 20% depending on the factors outlined above.” “[14] Neither of us have experience of any industry practice thatpays agents a “quantum meruit” or ex gratia payment in relation to any efforts they provided in relation to sponsorship agreement concluded between the rights holder and the brand…”
“what agents are being paid for is not merely to effect an introduction. They are being paid for the relationship they have with a potential sponsor which gives them sufficient influence to persuade sponsor to enter into an agreement with the team.”
“a title sponsorship deal that as Robin and I agree are very rare in Formula One, and even more so in this day and age”
“reputationally, sponsors did not want to be associated with the team because of its connections to Dr Mallya. In business terms, sponsors were wary of us because of doubts over solvency. This meant that sponsors were hard to find and could drive a very hard bargain with the team if they were willing to take the risks inherent in sponsoring the team at that time.” iii) The short timescale in which to achieve the deal for the 2017 season. By 2March even though negotiations were continuing, Force India were going ahead with the change to the livery of the cars: Mr Szafnauer wrote to Mr Weissenbacher: “please see the below picture, today we are painting the car pink in anticipation of getting a deal done. Please make certain to convince your board, otherwise I will be looking for new employment after Melbourne.”
“don’t worry – as promised, we will reach some movement in the direction you asked for. Please let’s finish the contract now….Full speed ahead” looking for new employment after Melbourne.”