“The Sellers hereby covenant to the Purchaser and each Target Group Company that they will pay to the Purchaser or such Target Group Company on demand an amount equal to: (a) ninety percent (90%) of all Relevant Distributor Mis-selling Losses; and (b) ninety percent (90%) of the amount of all costs, claims, damages, expenses or any other losses incurred by the Purchaser or a Target Group Company after Completion resulting from the Relevant Distributor Dispute or settlement thereof including any such losses incurred pursuant to any Action which arises from such Relevant Distributor Dispute, but excluding, after the First Termination Date, the amount of all such losses resulting from a dispute described in clause (a) of the definition of "Relevant Distributor Dispute", such obligation to continue in the case of clause 10.8(a) until the date (the "First Termination Date") on which the relevant Target Group Company and the Relevant Distributor enter into the Relevant Distributor Agreement, and in the case of clause 10.8(b) until the date (the "Second Termination Date") on which both the Relevant Distributor Agreement has been entered into and the relevant Target Group Company has entered into an administration agreement with the Relevant Third Party in respect of the administration of Insurance Contracts distributed by the Relevant Distributor. The form of the Relevant Distributor Agreement and the administration agreement with the Relevant Third Party will in each case be subject to the prior approval of the Purchaser prior to Completion and the prior approval of the Sellers following Completion (in each case, such approval not to be unreasonably withheld or delayed), and in the case of the Relevant Distributor Agreement will be substantially in the Agreed Form. Prior to Completion the Sellers shall and shall cause the Target Group Companies to use reasonable endeavours, and following Completion the Purchaser shall and shall cause the Target Group Companies to use reasonable endeavours, to procure the execution and delivery of the Relevant Distributor Agreement and the administration agreement with the Relevant Third Party. Within thirty (30) Business Days of each of the First Termination Date and the Second Termination Date the Purchaser will issue a final demand in respect of all accrued and unpaid obligations of the Sellers under clause 10.8(a) or, as applicable, (b) and upon payment of such demand the Sellers shall be released from their obligations under this clause 10.8; provided, however, if each of the First Termination Date and Second Termination Date shall occur prior to Completion, no such demand shall be required and the Sellers shall have no liability whatsoever under this clause 10.8.” (a) ninety percent (90%) of all Relevant Distributor Mis-selling Losses; and (b) ninety percent (90%) of the amount of all costs, claims, damages, expenses or any other losses incurred by the Purchaser or a Target Group Company after Completion resulting from the Relevant Distributor Dispute or settlement thereof including any such losses incurred pursuant to any Action which arises from such Relevant Distributor Dispute, but excluding, after the First Termination Date, the amount of all such losses resulting from a dispute described in clause (a) of the definition of "Relevant Distributor Dispute", Sellers shall have no liability whatsoever under this clause 10.8.”
“I do not get much assistance from the authorities such as they are. I go by the terms of the appellant’s contract. I find nothing in the authorities which in any way prevents me from reaching what appears to me to be the natural meaning and effect of this contract. It seems never to have been necessary to make a full analysis of the position in a contract of this kind, and I shall not refer in detail to such indications as there are in the cases, beyond saying that there is no magic in the word guarantee but that the authorities appear to recognise that at least most contracts of guarantee are of this nature.”
“10. The court's task is to ascertain the objective meaning of the language which the parties have chosen to express their agreement. It has long been accepted that this is not a literalist exercise focused solely on a parsing of the wording of the particular clause but that the court must consider the contract as a whole and, depending on the nature, formality and quality of drafting of the contract, give more or less weight to elements of the wider context in reaching its view as to that objective meaning. In Prenn v Simmonds[1971] 1 WLR 1381 , 1383H–1385D and in Reardon Smith Line Ltd v Yngvar HansenTangen (trading as HE Hansen-Tangen)[1976] 1 WLR 989 , 997, Lord Wilberforce affirmed the potential relevance to the task of interpreting the parties' contract of the factual background known to the parties at or before the date of the contract, excluding evidence of the prior negotiations. When in his celebrated judgment in Investors Compensation Scheme Ltd v West Bromwich Building Society[1998] 1 WLR 896 , 912–913 Lord Hoffmann reformulated the principles of contractual interpretation, some saw his second principle, which allowed consideration of the whole relevant factual background available to the parties at the time of the contract, as signalling a break with the past. But Lord Bingham of Cornhill in an extrajudicial writing, “A New Thing Under the Sun? The Interpretation of Contracts and the ICS decision” (2008) 12 Edin LR 374, persuasively demonstrated that the idea of the court putting itself in the shoes of the contracting parties had a long pedigree. 11. Lord Clarke of Stone-cum-Ebony JSC elegantly summarised the approach to construction in the Rainy Sky case[2011] 1 WLR 2900 , para 21f. In the Arnold case[2015] AC 1619 all of the judgments confirmed the approach in the Rainy Sky case: Lord Neuberger of Abbotsbury PSC, paras 13–14; Lord Hodge JSC, para 76 and Lord Carnwath JSC, para 108. Interpretation is, as Lord Clarke JSC stated in the Rainy Sky case (para 21), a unitary exercise; where there are rival meanings, the court can give weight to the implications of rival constructions by reaching a view as to which construction is more consistent with business common sense. But, in striking a balance between the indications given by the language and the implications of the competing constructions the court must consider the quality of drafting of the clause (the Rainy Sky case, para 26, citing Mance LJ in Gan Insurance Co Ltd v Tai Ping Insurance Co Ltd (No 2) [2001] 2 All ER (Comm) 299 , paras 13, 16); and it must also be alive to the possibility that one side may have agreed to something which with hindsight did not serve his interest: the Arnold case, paras 20, 77. Similarly, the court must not lose sight of the possibility that a provision may be a negotiated compromise or that the negotiators were not able to agree more precise terms. 12. This unitary exercise involves an iterative process by which each suggested interpretation is checked against the provisions of the contract and its commercial consequences are investigated: the Arnold case, para 77 citing In re Sigma Finance Corpn[2010] 1 All ER 571 , para 12, per Lord Mance JSC. To my mind once one has read the language in dispute and the relevant parts of the contract that provide its context, it does not matter whether the more detailed analysis commences with the factual background and the implications of rival constructions or a close examination of the relevant language in the contract, so long as the court balances the indications given by each. 13. Textualism and contextualism are not conflicting paradigms in a battle for exclusive occupation of the field of contractual interpretation. Rather, the lawyer and the judge, when interpreting any contract, can use them as tools to ascertain the objective meaning of the language which the parties have chosen to express their agreement. The extent to which each tool will assist the court in its task will vary according to the circumstances of the particular agreement or agreements. Some agreements may be successfully interpreted principally by textual analysis, for example because of their sophistication and complexity and because they have been negotiated and prepared with the assistance of skilled professionals. The correct interpretation of other contracts may be achieved by a greater emphasis on the factual matrix, for example because of their informality, brevity or the absence of skilled professional assistance. But negotiators of complex formal contracts may often not achieve a logical and coherent text because of, for example, the conflicting aims of the parties, failures of communication, differing drafting practices, or deadlines which require the parties to compromise in order to reach agreement. There may often therefore be provisions in a detailed professionally drawn contract which lack clarity and the lawyer or judge in interpreting such provisions may be particularly helped by considering the factual matrix and the purpose of similar provisions in contracts of the same type. The iterative process, of which Lord Mance JSC spoke in Sigma Finance Corpn[2010] 1 All ER 571 , para 12, assists the lawyer or judge to ascertain the objective meaning of disputed provisions.”
“The complaint-handling obligations of the Bank (and the adjudicatory obligation of the FOS) require that customer complaints be determined by reference to the wide and flexible text of what is ‘fair and reasonable in all the circumstances of the case’. That compels the decision-maker to consider a much broader range of intangible considerations than simple breaches of ‘black letter’ rules. In contrast with the judicial function, the decision-making duties of the Bank (in the first instance) and of the FOS are not dependent upon proof of a pre-existing liability, or of the breach of a principle or rule, or otherwise confined by reference to such ‘absolute factors’…Instead a complaint may be upheld because conduct fell short of ‘good industry practice at the relevant time’…or, even more nebulously, ‘other standards’… In my opinion, this distinguishes the regulatory adjudication or determination of a complaint from a judicial adjudication in a civil litigation.”
“concerned to identify the intention of the parties by reference to “what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean”… That meaning has to be assessed in the light of (i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the lease, (iii) the overall purpose of the clause and the lease, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party's intentions”
“…not an additional requirement but an inherent feature of an obligation toindemnify another party against loss (see section C above), which does not need to be expressly stated. Except where expressly provided otherwise in the indemnity, an indemnified is not entitled to recover under an indemnity for losses incurred where the indemnified has not asserted all defences reasonably available to them.”
“Mr. McGuire, on behalf of the plaintiffs, first approached the case on the issue of principle, without recourse to the actual terms of the indemnity or of the lease agreement. He submitted that a claim under a contract of indemnity, such as this, is not a claim in damages at all, but is a claim in debt for a specified sum due on the happening of an event which has occurred. Accordingly, it should not be open to a person providing an indemnity to challenge his obligation to pay under the contract of indemnity by reference to principles relating to the assessment of damages for breach of contract which have no application to debts. Consequently, he submitted that the learned judge was wrong in principle in his approach as set out in the paragraph of his judgment quoted above. In my judgment this submission is correct as a matter of law though, for reasons which appear later, I do not think it carries the plaintiff home on the facts of the present case.”
“The expression “subrogation” in relation to a contract of marine insurance is thus no more than a convenient way of referring to those terms which are to be implied in the contract between the assured and the insurer to give business efficacy to an agreement whereby the assured in the case of a loss against which the policy has been made shall be fully indemnified, and never more than fully indemnified.”
“It may be that the common law invented and implied in contracts of insurance a promise by the insured person to take proceedings to reduce his loss, a promise by the insured person to account to the insurer for moneys recovered from a third party in respect of the insured loss and a promise by the insured person to allow the insurer to exercise in the name of the insured person rights of action vested in the insured person against third parties for the recovery of the insured loss if the insured person refuses or neglects to enforce those rights of action. There must also be implied a promise by the insured person that in exercising his rights of action against third parties he will act in good faith for the benefit of the insured person so far as he has borne the loss and for the benefit of the insurer so far as he has indemnified the insured person against the insured loss. My Lords, contractual promises may create equitable interests. An express promise by a vendor to convey land on payment of the purchase price confers on the purchaser an equitable interest in the land. In my opinion promises implied in a contract of insurance with regard to rights of action vested in the insured person for the recovery of an insured loss from a third party responsible for the loss confer on the insurer an equitable interest in those rights of action to the extent necessary to recoup the insurer who has indemnified the insured person against the insured loss.”
“In my judgment, the correct analysis is as follows. The contract of insurance contains an implied term that the assured will pay to the insurer out of the moneys received in reduction of the loss the amount to which the insurer is entitled by way of subrogation. That contractual obligation is specifically enforceable in equity against the defined fund (i.e., the damages) in just the same way as are other contracts to assign or charge specific property e.g. equitable assignments and equitable charges. Since equity regards as done that which ought to be done under a contract, this specifically enforceable right gives rise to an immediate proprietary interest in the moneys recovered from the third party. In my judgment, this proprietary interest is adequately satisfied in the circumstances of subrogation under an insurance contract by granting the insurers a lien over the moneys recovered by the assured from the third party.” 138. However, Lord Goff took a different view. At 743 he said: “I am unable to agree with Lord Diplock that subrogation is in this context concerned solelywith the mutual rights and obligations of the parties under the contract. this connection, I observe from the report of Yorkshire Insurance Co. Ltd. v. Nisbet Shipping Co. Ltd. [1962] 2 Q.B. 330 that the important case of White v. Dobinson, 14 Sim. 273; 116 L.T.O.S. 233 was not cited in argument, and indeed the existence of an equitable proprietary right was not in issue in that case. In these circumstances I cannot derive from Lord Diplock's judgment any justification for sweeping the line of equity cases under the carpet as though it did not exist…”
“Even so, an important feature of these cases is that the principle of subrogation in the law of insurance arises in a contractual context… Furthermore, it has not been usual to express the principle of subrogation as arising from an implied term in the contract. Even so it has been regarded, both at law and in equity, as giving effect to the underlying nature of a contract of insurance, which is that it is intended to provide an indemnity but no more than an indemnity.”
“Lord Diplock, for example, was of the view that the doctrine of subrogation in contracts of insurance operated entirely by virtue of an implied term of the contract of insurance (Hobbs v Marlowe[1978] AC 16 , 39) and although in Lord Napier and Ettrick v Hunter[1993] AC 713 your Lordships rejected the exclusivity of this claim for the common law and assigned a larger role to equitable principles, there was no dispute that thedoctrine of subrogation in insurance rests upon the common intention ofthe parties and gives effect to the principle of indemnity embodied in thecontract. […] Subrogation in this sense is a contractual arrangement forthe transfer of rights against third parties and is founded upon thecommon intention of the parties.”
“What is the principle which must be applied? It is a corollary of the great law of indemnity, and is to the following effect: That a person who wishes to recover for and is paid by the insurers as for a total loss, cannot take with both hands. If he has a means of diminishing the loss, the result of the use of those means belongs to the underwriters. If he does diminish the loss, he must account for the diminution to the underwriters.”
“I know of no foundation for the right of underwriters, except the well-known principle of law, that where one person has agreed to indemnify another, he will, on making good the indemnity, be entitled to succeed to all the ways and means by which the person indemnified might have protected himself against or reimbursed himself for the loss.”
“It will be observed that the whole basis of the subrogative doctrine is founded on a binding and operative contract of indemnity, and that it is from such a contract only that the equitable results and rights as indicated above derive their origin. […] [Subrogation] does not become operative or enforceable until actual payment be made by the insurer. It derives its life from the original contract. It gains its operative force from payment under that contract. Not till payment is made does the equity, hitherto held in suspense, grasp and operate upon the assured’s choses in action. In my view the essence of the matter is that subrogation springs not from payment only but from actual payment conjointly with the fact that it is made pursuant to the basic and original contract of indemnity.”
“The Purchaser shall, as soon as reasonably practicable after Completion, and in any case no later than five (5) Business Days after Completion, procure that the relevant member of the Sellers' Group is released from the guarantees and indemnities given by that member in respect of any liability or obligation of the Target Group as listed in Part II of Schedule 8, and pending such release the Purchaser shall indemnify that member against all liabilities under those guarantees and indemnities. Clause 9.2 may be enforced by each relevant member of the Sellers'Group against the Purchaser under theUK Contracts (Rights of ThirdParties) Act 1999 . The provisions of clause 9.2 may be varied by agreement between the Sellers and the Purchaser (and the Sellers may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by clause 9.2) without the consent of any other member of the Sellers' Group.”
“This is not an attractive result since the proceedings would probably have taken a different course had Captain Warren been the Claimant, with Skandia being subrogated to him. Then there would be substance to the claim”
“This Agreement and the other Transaction Documents contain the whole agreement between the parties relating to the transactions contemplated by the Transaction Documents and supersede all previous agreements, whether oral or in writing, between the parties relating to these transactions, provided that, the confidentiality agreement between the Sellers' Guarantor and the Purchaser dated9 February 2015 shall remain in full force and effect to the extent required under clause 14.7 above. Except as required by statute, noterms shall be implied (whether by custom, usage or otherwise) into thisAgreement.”
“If: (a) the Sellers make a payment in respect of a Warranty Claim (other than a Tax Claim), a Clause 10.7 Covenant Claim or a claim under clauses 10.8 or 10.9 (the "Damages Payment"); (b) at any time after the making of such payment the Target Group or the Purchaser receives any sum which would not have been received but for the matter or circumstance giving rise to that Warranty Claim, a Clause 10.7 Covenant Claim or a claim under clauses 10.8 or 10.9 (the "Third Party Sum"); (c) the receipt of the Third Party Sum was not taken into account in calculating the Damages Payment; and (d) the aggregate of the Third Party Sum and the Damages Payment less all unreimbursed costs incurred by the Target Group or the Purchaser in recovering such Damages Claim and Third Party Sum exceeds the amount required to compensate the Purchaser in full for the loss or liability which gave rise to the Warranty Claim, Clause 10.7 Covenant Claim or claim under clauses 10.8 or 10.9 in question (such excess being the "Excess Recovery"), the Purchaser shall, promptly following receipt of the Third Party Sum by it or the Target Group, repay to the Sellers an amount equal to the lower of (i) the Excess Recovery and (ii) the Damages Payment.”
“Insurance for the purpose of protecting a borrower’s ability to maintain credit repayments in the event that the borrower becomes unable to maintain the repayments due to accident and/or sickness and/or unemployment and, under some policies, death.”
“all damages, losses, liabilities, penalties, fines, costs, interest and expenses, including for the avoidance of doubt costs and liabilities relating to FOS fees, claim administration, complaints handling, customer notifications and redress amounts, incurred by any Target Group Company whether before or after Completion in respect of: (a) defending or supporting the defence of any Action that relates to PPI Selling Activity; (b) complying with any order, decision or settlement agreement in respect of such Action; and/or (c) any PPI Complaint; but excluding for the avoidance of doubt, any sums which are recovered as Complaints-Handling Losses.” but excluding for the avoidance of doubt, any sums which are recovered as Complaints-Handling Losses.”
“If a Warranty Claim (other than a Tax Warranty Claim), a claim under clause 10.5, a Clause 10.7 Covenant Claim or a claim under clause 10.8 arises as a result of, or in connection with, a liability or alleged liability of the Target Group or Purchaser's Group to a third party (a "Third Party Claim"), then the Sellers may (subject to Applicable Law), at any time before any final compromise, agreement, expert determination or non- appealable decision of a court or tribunal of competent jurisdiction is made in respect of the Third Party Claim or the Third Party Claim is otherwise disposed of, give notice to the Purchaser that it elects to assume the conduct of any dispute, compromise, defence or appeal of the Third Party Claim and of any incidental negotiations on the following terms: (a) the Purchaser shall use its reasonable endeavours to procure that the Target Group make available to the Sellers (at the cost of the Sellers) such persons and all such information as the Sellers may reasonably request for assessing, contesting, disputing, defending, appealing or compromising the Third Party Claim; (b) the Purchaser shall use its reasonable endeavours to procure that the Target Group take such action to assess, contest, dispute, defend, appeal or compromise the Third Party Claim as the Sellers may reasonably request (subject to the Sellers bearing the costs thereof) and will not make any admission of liability, agreement, settlement or compromise in relation to the Third Party Claim without the prior written approval of the Sellers (such approval not be reasonably withheld or delayed); (c) the Sellers shall keep the Purchaser promptly informed of the progress of the Third Party Claim and promptly provide the Purchaser with copies of all relevant documents and such other information in its possession as may be requested by the Purchaser (acting reasonably); and (d) the Sellers shall consult with the Purchaser and take account of the reasonable requests of the Purchaser including with respect to any reputational concerns of the Purchaser in relation to the conduct of such Third Party Claim, provided that the Sellers shall not take any action under this paragraph 7.1 in respect of a Third Party Claim relating to a claim under clause 10.8 that will, in the Purchaser's reasonable opinion, delay or materially adversely affect the finalisation and execution of the Relevant Distributor Agreement.”
“72. In relation to commercial contracts generally there is authority supporting a duty to speak in certain circumstances. In The Lutetian[1982] 2 Lloyd's Rep 140 , 157 Bingham J, as he then was, regarded the dissenting speech of Lord Wilberforce in Moorgate Mercantile Co Ltd v Twitchings[1977] AC 890 at 903 as having provided persuasive authority for the proposition that the duty necessary to found an estoppel by silence or acquiescence arose where a reasonable man would expect the person against whom the estoppel was raised acting honestly and responsibly to bring the true facts to the attention of the other party known by him to be under a mistake as to their respective rights and obligations. In Moorgate Mercantile Lord Wilberforce said that the question whether there was an estoppel had to be asked " having regard to the situation in which the relevant transaction occurred, as known to both parties " and the reasonable man was to be one in the position of the party asserting the estoppel. His formulation has found favour subsequently: see the Indian Endurance[1998] AC 878 , 913 where Lord Steyn said: "Lord Wilberforce said, at p 903, that the question is whether, having regard to the situation in which the relevant transaction occurred, as known to both parties, a reasonable man, in the position of the "acquirer" of the property, would expect the "owner" acting honestly and responsibly, if he claimed any title in the property to take such steps to make that claim known…' at p 903. Making due allowance for the proprietary context in which Lord Wilberforce spoke, the observation is helpful as indicating the general principle underlying estoppel by acquiescence" and the cases cited below. 73. In ING Bank NV v Ros Roca SA[2011] EWCA Civ 252 Rix LJ observed obiter that a duty to speak might arise pursuant to either contractual obligations involving collaboration and co-ordination with other business advisors or obligations as an honest business partner. He adopted the general principle contained in Moorgate Mercantile and The Indian Grace . In that case the question arose in circumstances where ING Bank failed to disclose what it knew to be a difference between it and Ros Roca on the calculation of its fee. 74. Blair J considered this line of authority in Starbev GP Ltd v Interbrew Central European Holdings BV[2014] EWHC 1311 . In essence he held that a duty to speak, failure to fulfil which would give rise to estoppel by acquiescence, may arise on the particular facts where one party is proceeding on the assumption that something is agreed, whereas the other party knows that it is in dispute. In such a case the duty to speak may arise because a reasonable man would have the expectation referred to by Bingham J and set out in paragraph 72 above. 75. The reference to " acting honestly " did not, he held, mean that the party against whom the estoppel was asserted had to be guilty of actual dishonesty in the sense of acting fraudulently. He accepted [133] the submission that, absent a relationship of good faith or partnership or something akin to a joint enterprise the courts would not impose a duty to speak in the absence of impropriety of some description by the person alleged to be estopped. That impropriety might, however, come from the act of staying silent itself, as where a reasonable person would expect the person who is alleged to be estopped, acting honestly and responsibly, to bring the true facts to the attention of the other party known to him to be under a mistake as to their respective rights and obligations. Andrew Smith J adopted this statement in Kaupthing Singer & Friedlander Ltd v UBS AG[2014] EWHC 2450 (Comm) , where he held that a bank would not be acting honestly (in the sense explained by Blair J) or responsibly if it knew about or even seriously suspected a mistake of the kind then in question. 76. In the present case, which does involve a relationship of good faith, impropriety in the sense identified by Blair J is, a fortiori, sufficient to give rise to an estoppel. I would add that in the paragraphs preceding [133] Blair J appears to have been resolving the question as to whether it was necessary, in a case not involving a good faith obligation, to show that the person estopped was acting both dishonestly and irresponsibly; and to have answered that question in the affirmative [132]; but then [133] to have given " dishonesty " a limited meaning: “dishonesty” in an equitable sense ". This seems to me, with respect, a misreading of the phraseology used by Lord Wilberforce, Bingham J and Rix LJ. The question is what a reasonable person in the position of the person asserting the estoppel would expect of a person acting " honestly and responsibly " so that irresponsible but not dishonest behaviour could itself give rise to an estoppel. The reasoning in Starbev ends up by identifying that as the question; but by a somewhat circuitous route. I would, however, adopt his approach to what could amount to dishonesty in this context.” 218. Genworth’s position in relation to the redress payments is that (1) there is no evidence of a common understanding having been adduced that prior consent was not required; (2) no evidence has been adduced of any unequivocal representation; (3) there is no duty to speak because the SPA is not a contract involving a relationship of good faith; (4) Clause 19.9(c) of the SPA provides that rights may only be waived in writing; (5) AXA did not in fact request Genworth’s consent and cannot complain that consent was withheld when it had not sought such consent. 219. I consider that Genworth is indeed estopped from relying on any right to consent to customer redress payments on the applicable principles I have identified. Although Genworth says there was no unequivocal representation, at no point after AXA began issuing demands under Clause 10.8, and indeed after AXA had indicated that it would issue the present proceedings, did Genworth raise with AXA any failure to notify customer complaints under paragraph 1 of Schedule 5. Neither the pre-payment to AXA under Clause 10.8 of US$3.69m in October 2016, nor a later demand in the sum of£28m in October 2017 prompted Genworth to complain of a failure by AXA to obtain its consent. I consider that Genworth acting as a reasonable commercial party should not have stayed silent about this objection until AXA actually litigated to enforce Clause 10.8. In the Ted Baker case, it was not held that the duty to speak arises only in contracts of good faith. Rather, it was said that absent a relationship of good faith, impropriety needs to be established, and that such impropriety can be established from the act of staying silent itself, as where a reasonable person would expect the person who is alleged to be estopped, acting honestly and responsibly, to bring the true facts to the attention of the other party known to him to be under a mistake as to their respective rights and obligations. I consider that that situation applied on the facts of the present case. 220. Nor am I persuaded by Genworth’s reliance on Clause 19.9(c) of the SPA, which provides that rights under the SPA “may be waived only in writing and specifically”, and further that “[d]elay in exercising or non exercise of any such right is not a waiver of that right”
“If, however, Genworth now wishes to adopt the position that its consent should be sought in advance of any payments being made (which AXA does not accept is justified) please would you now provide its detailed proposals as to the arrangements Genworth intends to put in place in order to receive and respond to requests for such consent on a case by case basis? As FICL/FACL advised in their letter of28 September 2017 , since January 2017 Santander has been receiving approximately 26,000 complaints a month and upholding approximately 43% of the new complaints. If it is Genworth's position that its consent is required on a case by case basis before any of these complaints can be upheld, Genworth must provide full details as to how this will be provided in an accurate and timely manner which will not impede compliance with FICL and FACL's regulatory obligations which, as you will be aware, impose strict obligations on FICL and FACL in both of these aspects”. 218. Genworth’s position in relation to the redress payments is that (1) there is no evidence of a common understanding having been adduced that prior consent was not required; (2) no evidence has been adduced of any unequivocal representation; (3) there is no duty to speak because the SPA is not a contract involving a relationship of good faith; (4) Clause 19.9(c) of the SPA provides that rights may only be waived in writing; (5) AXA did not in fact request Genworth’s consent and cannot complain that consent was withheld when it had not sought such consent. 219. I consider that Genworth is indeed estopped from relying on any right to consent to customer redress payments on the applicable principles I have identified. Although Genworth says there was no unequivocal representation, at no point after AXA began issuing demands under Clause 10.8, and indeed after AXA had indicated that it would issue the present proceedings, did Genworth raise with AXA any failure to notify customer complaints under paragraph 1 of Schedule 5. Neither the pre-payment to AXA under Clause 10.8 of US$3.69m in October 2016, nor a later demand in the sum of£28m in October 2017 prompted Genworth to complain of a failure by AXA to obtain its consent. I consider that Genworth acting as a reasonable commercial party should not have stayed silent about this objection until AXA actually litigated to enforce Clause 10.8. In the Ted Baker case, it was not held that the duty to speak arises only in contracts of good faith. Rather, it was said that absent a relationship of good faith, impropriety needs to be established, and that such impropriety can be established from the act of staying silent itself, as where a reasonable person would expect the person who is alleged to be estopped, acting honestly and responsibly, to bring the true facts to the attention of the other party known to him to be under a mistake as to their respective rights and obligations. I consider that that situation applied on the facts of the present case. 220. Nor am I persuaded by Genworth’s reliance on Clause 19.9(c) of the SPA, which provides that rights under the SPA “may be waived only in writing and specifically”, and further that “[d]elay in exercising or non exercise of any such right is not a waiver of that right”
“…it is entirely reasonable for Genworth to refuse to consent to execution of the SSA. The issues between AXA and Santander must be resolved in order that any remaining dispute between AXA and Genworth can be resolved.”
“In consideration of the provision of the Services by the Service Provider, the Service Recipients shall pay the Charges monthly in advance in accordance with this clause 5. The Charges shall include certain costs incurred by the Service Provider prior to the Commencement Date as detailed in the first Invoice. The Service Recipients acknowledge and agree that any payment or liability in respect of the Charges due to the Services Provider payable hereunder shall, subject to the execution of the Standstill Agreement (if so requested by the Service Recipients) and clause 5.2, be irrecoverable from the Service Provider in any circumstances whatsoever and the Services Recipients release the Service Provider and undertake not to seek to recover from the Service Provider any liability the Service Provider may have to compensate the Service Recipients for the cost or loss represented by the amount of the Charges which the Service Recipients pay or are liable to pay the Service Provider.”
“How (if at all) are the provisions of cl 18.5 of the SPA to be applied in grossing-up any sums payable to AXA/AXA France IARD/AXA France Vie?”