“No Voice Group Company, nor (in relation to the Voice Group Business) any member of the Seller’s Group, nor, so far as the Seller is aware, any director, officer or employee of any member of the Seller’s Group (in relation to the Voice Group Business) or any Voice Group Company (in each case, during the course of his duties), has contravened any applicable law or regulation which has in the preceding 18 months resulted or may result in any fine, penalty or other liability or sanction that, in each case, has or would have a material adverse impact on the operation of the Voice Group Business (taken as a whole).” b) Paragraph 9.2, which concerns non-routine investigations, reviews and enquiries and provides: “No Voice Group Company, nor, so far as the Seller is aware, any director, officer or employee of any Voice Group Company nor (in relation to the Voice Group Business) any member of the Seller’s Group or any director, officer or employee of any member of the Seller’s Group, is or has in the preceding 18 months, been subject to any non-routine investigation, review or enquiry […] in each case by a Governmental Authority in relation to the Voice Group Business nor, so far as the Seller is aware, is any such investigation, review, enquiry, proceedings or process pending or threatened.” c) Paragraph 10.3, which concerns facts likely to give rise to litigation, and provides: “So far as the Seller is aware, there are no circumstances which would reasonably be expected to give rise to any litigation, arbitration or alternative dispute resolution proceedings by or against any Voice Group Company wherein the value of the claim in such proceedings exceeds£500,000 .”
“…the court must be careful before giving summary judgment on a claim. The correct approach on applications by defendants is, in my judgment, as follows: i) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman[2001] 2 All ER 91 ; ii) A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel[2003] EWCA Civ 472 at [8] iii) In reaching its conclusion the court must not conduct a “mini-trial”: Swain v Hillman iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10] v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5)[2001] EWCA Civ 550 ; vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd[2007] FSR 63 ; vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd[2007] EWCA Civ 725 .”
“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 only true principle to be derived from the authorities is that every notification clause turns on its own wording.”
“The Claimant accepts in that regard that, as per paragraph 60(a) of Mr Holland’s witness statement (his “Ground 2”), the Cologne Matter, and the three civil claims in respect of the trading which is the subject of the Cologne Matter (by Blackrock, Investec, and Warburg) were not notified in those letters and that accordingly the claims in respect of those matters under warranties 9.1, 9.2 and 10.3 should not proceed as matters stand. However, the Claimant reserves its right to bring these claims in the future in the event that information comes to its attention that would entitle it to invoke Clause 12.4 of the SPA.”
“limited to breaches in respect of… those of the German Tax Matters investigated by the Frankfurt Prosecutor and the tax offices supporting the Frankfurt Prosecutor, includingactual or potential civil claims arising therefrom.”
“Paragraph 9.1 of Part 1 of Schedule 4 to the SPA provides that “No Voice Group Company … has contravened any applicable law or regulation, which has in the preceding 18 months resulted or may result in any fine, penalty or other liability or sanction that, in each case, has or would have a material adverse impact on the operation of the Voice Group Business (taken as a whole)”
“Paragraph 9.1 53. In relation to the underlying conduct which is the subject of the CFTC/FCA Matter and the German Tax Matters, and the Cum-Ex Conduct, the conclusions of the regulatory authorities and, where relevant, courts, have not yet been reached. 54. To the extent that regulatory investigations and/or court proceedings establish that some or all of the alleged wrongdoing took place, the Seller is also in breach of the warranty at paragraph 9.1 of Part 1 of Schedule 4 to the SPA, because Voice Group Companies and/or members of the Seller’s Group had contravened applicable laws and/or regulations in a manner which, at the time of Completion, had the potential to result in a fine, penalty or other liability or sanction which would have a material adverse impact on the operation of the Voice Group Business (taken as a whole).”
“8. CONDUCT OF THIRD PARTY CLAIMS 8.1 If a Seller Warranty Claim (other than a Seller Tax Warranty Claim) arises as a result of, or in connection with, a liability or alleged liability of a member of the Purchaser's Group or a Voice Group Company to a third party (an Underlying Claim), then until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of the Underlying Claim or the Underlying Claim is otherwise finally disposed of: (a) the Purchaser shall promptly give written notice to the Seller of the matter with respect to the Underlying Claim…”
“5. The Vendor is not liable for a Claim or a claim under the Tax Undertaking or the Indemnities unless the Purchaser has given the Vendor notice in writing of the Claim or the claim under the Tax Undertaking or the Indemnities, specifying in reasonable detail the nature of the Claim or claim under the Tax Undertaking or the Indemnities and the amount claimed (based in each case on the information then available to the Purchaser): 5.1.1 in the case of a Claim made under the Tax Warranties or a claim under the Tax Undertaking, within the period of seven years beginning with the Completion Date; and 5.1.2 in the case of a Claim (other than in respect of the Tax Warranties) or a claim under the Indemnities, on or before30 June 2009 , and in the case of a Claim legal proceedings have been issued and served on the Vendor within six months of notification of the Claim.” and in the case of a Claim legal proceedings have been issued and served on the Vendor within six months of notification of the Claim.”
“The Notice Clause is, as ROK submitted, a relatively “low threshold” notice clause in comparison with some of the notice clauses that have been before the Courts. It requires written notice of the Claim which specifies, in reasonable detail, the nature of the Claim and the amount claimed. But it does not require details (or particulars) to be given of the grounds on which the Claim is based (as in Senate Electrical), or of the matter (Laminates) or event or circumstances (Bottin) which have given rise to the Claim, or of the specific matter(s) in respect of which the claim is made (RWE Nukem, Curtis). The parties have not provided for that degree of specificity (cf. Ward LJ’s comments in para. 23 of his judgment in Forest v. Glasser). They have chosen an expression, “the nature of the Claim”, which is more general and less prescriptive, as was recognised by Dyson J in Odebrecht, in contrasting the phrase “nature of such breach” with the detail of the breach.”
“The required contents of a valid notice is a question of interpretation of the clause. Every notification clause turns on its own individual wording. Whether a valid notice has been given in time depends on the meaning of the notice, objectively interpreted, rather than on the subjective understanding of the parties. Although the usual principles applicable to the interpretation of notices will apply, the clause will nevertheless be treated as a limitation clause for that purpose. The clear commercial purpose of the clause includes that the person to whom the notification is given should know at the earliest practicable date in sufficiently formal written terms that a particularised claim for breach of contract is to be made so that he may take such steps as are available to him to deal with it. Thus the touchstone is “clarity sufficient to achieve certainty rather than a requirement of strict compliance which, if applied inflexibly, can lead to uncommercial results”
“The Seller is not liable in respect of a Seller Warranty Claim unless the Purchaser has given the Seller written notice of the Seller Warranty Claim …”
“stating in reasonable detail the nature of the Seller Warranty Claim and, if practicable, the amount claimed”
“29. I was referred to Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd[1997] AC 749 and encouraged to adopt the more flexible approach to construction of Notices than had previously been the case in the light of the Judgments of Lord Steyn at pages 767 – 8 and Lord Hoffmann at pages 779 –780. The question is how this notice would be understood by a reasonable recipient with knowledge of the context in which it was sent. Reliance was also placed upon the decision of the Court of Appeal in Senate Electrical Wholesalers Ltd v Alcatel Submarine Networks[1999] 2 Lloyd's Reports 243 , Odebrecht Oil & Gas Services Ltd v North Sea Production Co Ltd (an unreported decision of Dyson J of10th May 1999 ) and on the House of Lords decision in A/S Rendal v Arcos Ltd (1937) 58 LLR 287 (and in particular the speeches of Lord Wright at page 291, 292 – 4 and Lord Maugham at pages 298 –299). I found these citations of limited help because each notice clause has to be construed for itself and in the light of the commercial context in which it is found and the commercial purpose it is intended to serve. Notice clauses of this kind are usually inserted for a purpose, to give some certainty to the party to be notified and a failure to observe their terms can rarely be dismissed on a technicality. The comments of Stuart-Smith LJ in Senate Electrical are apposite, in the context of a notice clause in a Share Sale Agreement requiring notice to set out "such particulars of the grounds on which such claim is based as are then known to the Purchaser promptly …. ………… and in any event within 18 months". He said:- “The clear commercial purpose of the clause includes that the vendors should know ……………… in sufficiently formal written terms that a particularised claim for breach of warranty is to be made so that they may take such steps as are available to them to deal with it ……………. The commercial purpose may not be sensibly served if an uninformed and uninformative notice is given …….”
“Certainty is only achieved when the vendor is left in no reasonable doubt not only that a claim may be brought but of the particulars of the ground upon which the claim is based. The clause contemplates that the notice will be couched in terms which are sufficiently clear and unambiguous as to leave no such doubt and to leave no room for argument about the particulars of the complaint. Notice in writing is required in order to constitute the record which dispels the need for further argument and creates the certainty.”
“2. Time limits for bringing claims No claim … shall be brought against the Vendor in respect of any Agreed Assurances … unless the Purchaser shall have given to the relevant Vendor written notice of such claim specifying (in reasonable detail, to the extent that such information is available at the time of the claim) the matter which gives rise to the claim, the nature of the claim and the amount claimed in respect thereof (detailing the Purchaser's calculation of the loss thereby alleged to have been suffered by it or the relevant member of the Purchaser's Group): … on or before31 March 2000 . …. PROVIDED that ... the liability of the Vendor in respect of such claim shall absolutely determine (if such claim has not been previously satisfied, settled or withdrawn) if legal proceedings in respect of such claim shall not have been commenced within 12 months of the expiry of the relevant limitation period referred to in (i), (ii) and (iii) above and for this purpose proceedings shall not be deemed to have been commenced unless they shall have been properly issued and validly served upon the Vendor.”
“Thus, on any view, a notice which complies with paragraph 2 must make it clear that such a claim is being pursued whatever wording is used, rather than indicating the possibility that a claim may yet be made as a paragraph 3 notice would do. This does not mean that a claim cannot be in respect of a future contingency. A notice could make it plain that a claim was now being made in respect of a breach of Warranty, if for example some third party claim proved to be well founded, whilst it was currently denied that such a claim had any basis. The important feature is however that the notice should makeit clear that a claim is being lodged, not that it might subsequently be lodged.”
“in relation to paragraph 9.1 of Part 1 of Schedule 4 to the SPA this was in connection with alleged contraventions of applicable law and/or regulation which may result in a fine, penalty or other liability or sanction.”
“It is apparent that (i) in relation to paragraph 9.2 of Part 1 of Schedule 4 to the SPA, there was an existing and/or threatened and/or pending investigation, review or enquiry by the CFTC, (ii) in relation to paragraph 9.1 of Part I of Schedule 4 to the SPA this related to conduct in the preceding 18 months and might result in a fine, penalty or other sanction, and (iii) in relation to paragraph 10.3 of Part 1 of Schedule 4 to the SPA there were circumstances which would reasonably be expected to give rise to litigation, arbitration or alternative dispute resolution proceedings against a Voice Group Company.”
“9. As matters are still ongoing, the Purchaser is unable at this stage to quantify accurately the liability resulting from the CFTC Matter. The Purchaser has, however, already incurred costs and expenses (including without limitation legal costs) in connection with the CFTC Matter amounting to approximately£1,250,000 and expects to continue to incur costs and expenses. 10. Further, in the event that a Governmental Authority makes an adverse finding in connection with the CFTC Matter, the Purchaser may also incur loss as a result of: 10.1 any fine, penalty or other liability or sanction imposed by a Governmental Authority in connection with such finding; and/or 10.2 any Claim brought against the Purchaser (or any of its Subsidiaries) by a client or counterparty of a Voice Group Company in connection with such finding or in connection with the facts and circumstances that led to such finding.”
“Accordingly, the facts and circumstances relating to the CFTC Matter set out at paragraph 4 above give rise to a Seller Warranty Claim against the Seller pursuant to paragraph 9.2 of Part 1 of Schedule 4 to the SPA, and may also give rise to aSeller Warranty Claim pursuant to paragraphs 9.1 and 10.3 of Part 1 of Schedule 4 to the SPA (and potentially other Seller Warranties).”
“No Voice Group Company is or has in the past three years been involved in any dispute or non-routine audit, review or investigation in relation to Taxation with a Taxation Authority nor, so far as the Seller is aware, is likely to become involved in such a dispute, audit or investigation.”
“No Voice Group Company is or has in the past three years been involved in any dispute or non-routine audit, review or investigation [of it] in relation to Taxation with a Taxation Authority nor, so far as the Seller is aware, is likely to become involved in such a dispute, audit or investigation [of it].”
“No Voice Group Company has participated in any transaction, scheme or arrangement of which the or a main purpose or effect is the avoidance or evasion of a liability to Taxation or which could be re-characterised or treated as unenforceable for Taxation purposes.”
“No Voice Group Company has participated in any transaction, scheme or arrangement of which the or a main purpose or effect is the avoidance or evasion of a liability to Taxation [by it] or which could be re-characterised or treated as unenforceable for [its] Taxation purposes.”
“Claim under the Tax Deed 59. Any liability of any Voice Group Company to make a payment of any sum by way of tax (for example, by way of accessory liability or joint debtor status under the German Fiscal Code) and/or by way of any interest, penalty, surcharge or fine in relation to the CumEx Conduct and/or arising from the German Tax Matters, is an Actual Taxation Liability within the meaning of that term in the Tax Deed. 60. Pursuant to Clause 2.1(a) of the Tax Deed, the Defendant is obliged to indemnify the Claimant in respect of any such liability arising from the Cum-Ex Conduct and/or the German Tax Matters, in that: a. it is a result of Transactions occurring before Completion; and/or b. insofar as it relates to profits, it is in respect of profits earned before Completion; and/or c. in respect of such liability incurred in any prior accounting period, it relates to a period ended on or before Completion. 61. Pursuant to Clause 2.1(g) of the Tax Deed, the Defendant is obliged to indemnify the Claimant in respect of any such liability arising from the Cum-Ex Conduct and/or the German Tax Matters, in that it is chargeable directly or primarily against, or arises directly or primarily in consequence of or by reference to something done by a person other than a Group Company, namely the activities of the relevant clients/counterparties, and would not have arisen but for the relationship between the relevant Group Company (being the relevant Cum-Ex VGC) and that person (being the clients/counterparties). 62. Pursuant to Clause 2.1(h) of the Tax Deed, the Defendant is obliged to indemnify the Claimant in respect of the costs and expenses reasonably incurred by the Claimant and/or Group Companies in connection with the Taxation Liability allegedly arising as a result of the Cum-Ex Conduct and/or the German Tax Matters, including in relation to avoiding, resisting or settling such Taxation Liability and in successfully taking or defending any action under the Tax Deed.”
“2.1 The [Defendant] covenants with the [Claimant], subject to the following provisions of this deed, to pay to the [Claimant] […] an amount equal to: (a) any Actual Taxation Liability of any [Voice] Group Company […] which arises: (i) as a result of any Transaction or Transactions occurring on or before Completion (other than an Actual Taxation Liability arising in respect of profits earned after Completion as a result of any such Transaction or Transactions); or (ii) in respect of any profits earned on or before Completion; or (iii) in respect of any period ended on or before Completion; or […] (h) any Actual Taxation Liability of a [Voice] Group Company or a member of the Purchaser’s Group that: (i) is chargeable directly or primarily against, or arises directly or primarily in consequence of or by reference to anything done by, any other person other than a [Voice] Group Company or a member of the Purchaser's Group; and (ii) would not have arisen but for the relationship, at any time before Completion, of a [Voice] Group Company with such a person as is described in clause 2.1(g)(i) above; and (i) costs or expenses reasonably and properly incurred by the Purchaser or a [Voice] Group Company in connection with (i) a Taxation Liability […] or in connection with any action taken in avoiding, resisting or settling any such Taxation Liability […] or (ii) in successfully taking or defending any action under this deed […]” (a) any Actual Taxation Liability of any [Voice] Group Company […] which arises: (i) as a result of any Transaction or Transactions occurring on or before Completion (other than an Actual Taxation Liability arising in respect of profits earned after Completion as a result of any such Transaction or Transactions); or (ii) in respect of any profits earned on or before Completion; or (iii) in respect of any period ended on or before Completion; or […] (h) any Actual Taxation Liability of a [Voice] Group Company or a member of the Purchaser’s Group that: (i) is chargeable directly or primarily against, or arises directly or primarily in consequence of or by reference to anything done by, any other person other than a [Voice] Group Company or a member of the Purchaser's Group; and (ii) would not have arisen but for the relationship, at any time before Completion, of a [Voice] Group Company with such a person as is described in clause 2.1(g)(i) above; and (i) costs or expenses reasonably and properly incurred by the Purchaser or a [Voice] Group Company in connection with (i) a Taxation Liability […] or in connection with any action taken in avoiding, resisting or settling any such Taxation Liability […] or (ii) in successfully taking or defending any action under this deed […]”
“Alternatively, if the Court were against the Purchaser on Ground 10, the Court should either (a) stay the Tax Deed claims, or (ii) if they were to be struck out, make clear that the Tax Deed claims were being rejected as premature and not as a matter of substance – since on any view the Purchaser should be entitled to make such claims as and when an Actual Taxation Liability crystallises.”
“Why, for example, can’t the court decide whether the types of liabilities that are sought to be imposed under the investigations and the proceedings which have already been intimated would amount to an Actual Taxation Liability such that the Purchaser would be entitled to an indemnity in respect of any such liabilities as are established? And why shouldn’t the court be able to declare now that the actions that the Purchaser or other group company take or has taken or are taking now to avoid those liabilities fall within the scope of the costs indemnity under paragraph 2.1(h)? Those are matters which the court could decide at a trial and we say it could usefully and should usefully decide at a trial… Why should and how can the court rule out now the possibility that the court will consider that declaratory relief should appropriately be granted having regard to the full facts as they appear at trial?”
“Breaches of Warranty 46A In relation to the warranties given under paragraphs 9.1, 9.2 and 10.3 of Part 1 ofSchedule 4 to the SPA, the Claimant’s claims are limited to breaches in respect of theCFTC/FCA Matters and those of the German Tax Matters investigated by the FrankfurtProsecutor and the tax offices supporting the Frankfurt Prosecutor, including actual orpotential civil claims arising therefrom.”
“22. The German Tax Matters (as defined below) relate to the underlying conduct of Voice Group Companies and members of the Seller’s Group in relation to cum-ex trading of German securities (the “Cum-Ex Conduct”), being that, at least: a. One or more Voice Group Companies (the “Cum-Ex VGCs”), including at least ICAP Securities Limited (“ISL”), The Link Asset and Securities Company Limited (“Link”), ICAP Corporates LLC, Linkbrokers Derivatives LLC, and members of the Seller’s Group (being at least ICAP plc) (i) approved and/or (ii) carried out or participated in cum-ex trades, including by acting as short seller and/or as broker in matching the trade of cum-ex participants. b. One or more Voice Group Companies and/or members of the Seller’s Group were involved in planning such transactions and/or sharing the profits. 23. The Claimant is presently aware of reviews, enquiries, investigations and/or proceedings by relevant authorities involving (i) the German Federal Tax Office andvarious regional tax offices and investigation groups, (ii) the Public Prosecutor of Frankfurt, and (iii) the Public Prosecutor of Cologne and (iv) the Public Prosecutor ofMunich, in relation to cum-ex trading involving Rafael Roth Financial Enterprises GmbH (“Rafael Roth”), HypoVereinsbank Munich/London AG (“HypoVereinsbank”), SerivaVermoegensvewaltungs GmbH (“Seriva”), 27 clients/counterparties or groups (referred to as “complexes”) as listed in Appendix 1, and 39 counterparties referred to in the Cologne Order (referred to at paragraph 39 below) and Varengold Verwaltungsgesellschaft AG (“Varengold”), CACEIS (a custodian bank) and 3investment funds (the “AVANA Funds”) and others as referred to at paragraph 29Bbelow. It has also been notified of potential civil claims as set out in paragraphs 40 to 42 below. The matters referred to in this paragraph are referred to herein as the “German Tax Matters.”