“As you are aware, under the terms of the Engagement it is proposed that we will pay you a success fee of up to€16m … in connection with the introductory services associated with the transaction. The success fee will only be payable upon our successful completion of the Transaction”
“Brown Rudnick represents and warrants the following: 1. Brown Rudnick is aware of and familiar with the provisions of the U.S. Foreign Corrupt Practices Act, as amended, and its purposes, and any other anti-corruption law applicable in a jurisdiction in which it or any party hereto may have conducted, or will conduct business, including but not limited to the UK Bribery Act of 2010, as amended and the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended (hereinafter "Applicable Anti-Corruption Laws") and have not, directly or indirectly, violated any Applicable Anti-Corruption Law. Without limitation of the generality of the foregoing, none of Brown Rudnick or any of its partners, directors, officers, employees or agents has made or will make, directly or indirectly, any payment, loan or gift (or any offer, promise or authorisation of any such payment, loan or gift), of any money or anything of value to or for the use of any Government Official under circumstances in which any of them knows or has reason to know that all or any portion of such money or thing of value has been or will be offered, given or promised, directly or indirectly, to any Government Official, for the purpose of inducing the Government Official to do any act or make any decision in its official capacity (including a decision to fail to perform his or its official function) or use its influence with a government or instrumentality thereof in order to affect any act or decisions of such government or instrumentality or to assist Cerberus and/or its affiliates in obtaining or retaining any business; 2 Neither Brown Rudnick nor any of its partners, directors, officers, employees or agents providing services pursuant to this letter is a Government Official or has a family relationship with any Government Official in the jurisdictions in which it will conduct business pursuant to this engagement, except as disclosed to, and agreed to in writing by, Cerberus. Brown Rudnick will advise Cerberus promptly to the extent any such family relationship arises during the term of the engagement, and Brown Rudnick and each of our partners, directors, officers, employees or agents will provide adequate assurances, whether in the form of a certification, a formal recusal by the relevant family member or otherwise, to satisfy Cerberus that no violation of Applicable Anti-Corruption Laws will arise as a result of such family relationship. Should in any instance Cerberus determine, reasonably and in good faith, that Brown Rudnick or any of our partners, directors, officers, employees or agents have failed to provide adequate assurances that a particular family relationship with a Government Official will not violate the applicable Anti-Corruption Laws, Cerberus reserves the right to terminate the engagement immediately and refuse to pay the Success Fee, if any; and 3 For all purposes and at all times, Brown Rudnick is not and will not be in violation of any applicable conflict of interest law by acting for, and accepting the Success Fee, if any, from Cerberus. Brown Rudnick agrees that it will, at the request of Cerberus, certify the continuing accuracy of the representations and warranties set forth in this section. Brown Rudnick further agrees that should it learn of information regarding any possible violation of Applicable Anti-Corruption Laws in connection with services provided for in this letter, Brown Rudnick will immediately advise Cerberus of such knowledge or suspicion.”
“We have agreed to provide strategic advice to you on an exclusive basis in connection with the Transaction (as defined in [the BRUK Letter of Engagement]). … Success Fee The firm’s fees on this engagement shall, unless otherwise agreed with you, be as specified within [the BRUK Letter of Engagement] under the heading ‘Success Fee’ and be subject to the same conditions as set out under such heading, mutatis mutandis. …. We hereby acknowledge that you shall not be obligated to pay the Tughans’ Fee [50% of the Success Fee provided for in the BRUK Letter of Engagement] unless (1) the Transaction has successfully completed and (2) you have received the Success Fee from Your Client in cleared funds. You shall not be obligated to pay the Tughans’ fee in any other circumstances. We further acknowledge and agree that payment of the Tughans’ fee is also dependent on (1) us providing the representations and warranties set forth in this letter …. and (2) prior receipt by you from Your Client in writing that this letter is acceptable to them acting reasonably.”
“Further and in any event, the simple reality here is that Tughans (who retained the Success Fee) have not and could not suffer a loss such as would give rise to a right of indemnity from Insurers. It is axiomatic that a contract of insurance is a contract of indemnity and indemnity only. Here, Tughans cannot be said to have suffered a loss and so it is not entitled to an indemnity … In reaching that view, Insurers have regard to the following factors: 8.1. First, the Success Fee of£7.5m + VAT was only obtained (assuming the claim to be true) consequent upon Mr Coulter’s fraudulent representation; it is money that the Firm should never have received had Mr Coulter acted honestly; 8.2. Second, the Success Fee is out of all proportion to the time value of any work actually done; 8.3. Third, Tughans itself was completely unaware of the Success Fee until after it was received by (and/or returned to) the Firm; 8.4. Fourth, Tughans had reason at the time it became aware of the Success Fee to be concerned that Mr Coulter was acting dishonestly in respect of it and/or in respect of its dissemination; 8.5. Fifth, it was in such circumstances that Tughans elected to retain the Success Fee rather than to return the fee.”
“32. The BR Claim is for damages. This is illustrated not least by the fact that itsown insurers are pursuing a subrogated claim. 33. We note that the letter of Declinature observes that Tughans cannot seek anindemnity in respect of the so called “success fee”
“6 The Claimant is facing two sets of proceedings in the High Court of Northern Irelandbrought by (i) Brown Rudnick LLP (‘BR’) via Writ 2020 No. 31285 and (ii) ExecutiveRisk Speciality Insurance Company via Writ 2020 No. 28264 (collectively, ‘theProceedings’). 7. The Claimant contends that, save for any liability on its part to return any fees which it has received from BR, the Respondents are obliged to indemnify it for (a) anyliability arising from the claims made in the Proceedings, (b) its costs of defending the Proceedings, and (c) its costs of bringing any third party proceedings. 8. The Respondents dispute that contention, on the grounds that any liability which theClaimant may incur by virtue of the Proceedings was not incurred in connection withthe business of practising as solicitors. (The Respondents have also reserved the rightto decline indemnity on other, as yet unspecified, grounds.)”
“As discussed above, the issue as to whether a claim falls within the ambit of the arbitration agreement is a jurisdictional issue. But is an issue as to whether a claim (usually a later claim) falls within the scope of the existing arbitration also not a jurisdictional dispute? It is thought that there is indeed another jurisdictional category, which concerns not so much whether a matter that has been submitted falls within the scope of the reference. It may be that a new claim, introduced late on in the reference, falls fairly and squarely within the scope of the arbitration clause but outside the scope of the reference. Does the party facing the claim have a right to ask the tribunal to debar the claim, and a further right to challenge the decision before the court, if the tribunal disagrees? On a strict wording of the provision, it would seem not, but in practice such a mater is treated as giving rise to a jurisdictional issue. In any arbitration, the claims before the tribunal (and therefore the scope of the reference) ought to be (but perhaps not always are) ascertainable early on: either in the notice of arbitration; or (for most institutional arbitrations) in the Request, when read together with the Answer (ICC) or Response (LCIA) or (for ad hoc arbitrations especially) in the pleadings, or first exchange of written submissions or memorials. … Claimants would therefore be well advised to ensure that the notice of arbitration (or request, if institutional) is drafted in the widest possible terms and contains an express reservation of rights in respect of other relief, in order to maximise the chances of not having to commence a fresh arbitration for a new claim, which would be the obvious consequence of being shut out in the existing reference (assuming there would be no limitation issues). In other words, the less detail, the better, because an unsuspecting claimant may find that it has been fettered by its own document, should it ever want to enlarge the scope of the arbitration … In most cases, modern commercial tribunals are more likely to take a purposive approach (which we encourage).”
“47 Section 49 of the 1996 Act provides that the parties are free to agree on the powers of the tribunal as regards the award of interest and that, unless otherwise agreed, the provisions of that section are to apply … 48 The jurisdiction of an arbitrator in relation to any particular claim for a money award, whether in debt or damages, depends upon whether such claim falls within the jurisdictional scope of the agreement to arbitrate and, where an arbitration has already been commenced, whether the claim in question falls within the scope of the reference. Once the jurisdiction of the arbitrator has been engaged by the reference to him of a particular dispute or group or class of disputes, which fall within his jurisdiction as pre-defined by the agreement to arbitrate, his jurisdiction is further confined by the scope of the reference and he cannot make an award in relation to a claim which is not within that scope unless all parties agreed that the scope should be widened sufficiently to include it. 49 When on the opening day of the hearing before Sir Michael Kerr counsel for the Respondent informed the arbitrator that the Respondent made no claim for interest, the effect was to curtail the scope of the reference to exclude a claim for interest and to do so on whatever basis the claim was put, whether in contract for a success fee or on a quantum meruit. The reference of a dispute involving a claim for a monetary award would ordinarily include a claim for interest on the amount of any award. That claim would be part of the dispute which had been referred. Its withdrawal would thus confine the reference to a resolution of the dispute as to the capital amount of the debt or damages claimed. It follows that thereafter the jurisdiction of the arbitrator to award interest could arise in that arbitration only if the scope of the reference in that arbitration were widened to include a claim for interest. If a claimant having once abandoned one part of his claim subsequently sought to reinstate it, he could do so only by consent of the opposing party or, without such consent, by permission from the arbitrator. In the latter case, considerations of justice and fairness to the opposite party might well arise.”
“109. Further and in the alternative, if it is established that IC was engaged in anydishonest, fraudulent, criminal or malicious act or omission, then this was neithercondoned nor accepted or within the knowledge of the Claimants. The Claimantsare therefore entitled to be indemnified in respect of the acts and omissions of ICeven if they were otherwise unlawful. 110 The Claimants are entitled to an indemnity in respect of civil liability incurred inconnection with the Practice. The claims intimated against the Claimants are: a) a claim for damages in respect of loss and damage incurred by Cerberus, now assigned to BR; b) a subrogated claim by ERSIC for loss and damage incurred by BR; c) a claim by BR for return of the Success Fee. 111 The Respondents have wrongfully refused to indemnify the Claimants in respect ofthe said claims. The Claimants are entitled to an indemnity in respect of the claimsset out at sub-paragraphs (a) and (b) immediately above, on the grounds that: a) Any liability, arising from a claim for damages for loss and damage sustainedby BR and/or Cerberus, is a liability which occurred as a result of the acts oromissions of IC while engaged in connection with the business of and/or as asolicitor. b) Pursuant to the terms of the Policies, then, if and insofar as IC was acting asa solicitor, the Claimants are entitled to an indemnity in respect of hisactions. 112 The Claimants make no claim for an indemnity in respect of the Success Fee in sofar as this can be recovered by the Claimants and lawfully paid or repaid in light ofthe BR or ERSIC claims, noting that: a) The Success Fee was paid to IC to the account of Tughans in the total sum of£7.5m plus VAT. b) The VAT element has been paid to HMRC in accordance with Tughans’obligations to account for VAT received. c) The fee was paid and received as a fee for services rendered by Tughans. TheClaimants each have satisfied such income tax as falls due on the SuccessFee. d) The balance of the Success Fee amounting (as at January 2021) to£4.088 mis held by Tughans in a nominated account. e) The NCA has required Tughans to give an undertaking that that sum will notbe released pending the conclusion of its criminal investigation. 113 Insofar as the Claimants are unable to repay the Success Fee (should they be sorequired) from the money held, either because it is retained pursuant to theProceeds ofCrime Act 2002 or otherwise is unavailable either in whole or in part,then the Claimants are entitled to an indemnity in respect of the civil liabilityincurred because: a) The liability accrues to the Claimants as a result of the acts or omissions of IC while acting as a solicitor. b) The Claimants cannot recover the VAT or Income Tax liabilities in respect of the Success Fee. c) The Claimants have incurred that liability to make a payment to BR or ERSIC as a result of the claim or alleged claims made by them against IC being a civil liability within the terms of the Policies.” a) a claim for damages in respect of loss and damage incurred by Cerberus, now assigned to BR; b) a subrogated claim by ERSIC for loss and damage incurred by BR; c) a claim by BR for return of the Success Fee. a) Any liability, arising from a claim for damages for loss and damage sustainedby BR and/or Cerberus, is a liability which occurred as a result of the acts oromissions of IC while engaged in connection with the business of and/or as asolicitor. b) Pursuant to the terms of the Policies, then, if and insofar as IC was acting asa solicitor, the Claimants are entitled to an indemnity in respect of hisactions. a) The Success Fee was paid to IC to the account of Tughans in the total sum of£7.5m plus VAT. b) The VAT element has been paid to HMRC in accordance with Tughans’obligations to account for VAT received. c) The fee was paid and received as a fee for services rendered by Tughans. TheClaimants each have satisfied such income tax as falls due on the SuccessFee. d) The balance of the Success Fee amounting (as at January 2021) to£4.088 mis held by Tughans in a nominated account. e) The NCA has required Tughans to give an undertaking that that sum will notbe released pending the conclusion of its criminal investigation. a) The liability accrues to the Claimants as a result of the acts or omissions of IC while acting as a solicitor. b) The Claimants cannot recover the VAT or Income Tax liabilities in respect of the Success Fee. c) The Claimants have incurred that liability to make a payment to BR or ERSIC as a result of the claim or alleged claims made by them against IC being a civil liability within the terms of the Policies.”
“A determination and declaration that the Claimants’ civil liability to BR, Cerberus and/or ERSIC includes such portion (or all) of the Success Fee received by the Claimants which cannot be repaid from the monies held by the Claimants, on the basis that: a) The Claimants do not retain control over the balance of the Success Fee andare not permitted to refund all or any of the monies by the NCA or the LawSociety of Northern Ireland or any other lawful authority. b) Insofar as the Claimants are in a position to refund the balance of the Success Fee, the Claimants are entitled to an indemnity in respect of any portion of the Success Fee which cannot be repaid on the grounds it has been discharged to pay VAT or tax liabilities which cannot now be recovered.”
“In the event that the Claimants attempt to seek any indemnity in respect of the Success Fee itself or damages reflecting it, the Respondents reserve the right to contend that the later retention of the Success Fee by Tughans amounted to condoning dishonesty by IC for the purposes of the Policy; the Respondents do not advance such a case now as, so it understands, the Claimants do not seek indemnity in respect of the Success Fee or damages reflecting it”
“no indemnity will be given … a) to any individual committing or condoning any dishonest fraudulent criminal or malicious act oromission; b) to any partnership or incorporated practice or limited liability partnership in respect of any dishonest fraudulent criminal or malicious act or omission committed or condoned by all of itsPartners directors officers or members”. ii) Had it been Tughans’ position at that time that they were seeking an indemnity in respect of damages reflecting the Tughans Fee, then in the face of paragraph 97(c), Tughans could not but have asserted the contrary in clear and unequivocal terms in response. As will be seen shortly, it did not do so. iii) Paragraphs 100 (responding to paragraph 112) and 101 (responding to paragraph 113) pleaded to the new Qualified Claim. iv) Paragraph 100(a) pleaded “it is noted that the Claimants make no claim to indemnity in respect of the Success Fee”
“The Respondents seek a declaration and determination that the Claimants arenot entitled to indemnity from the Respondents in respect of or referrable to: a. Any civil liability or defence costs arising from the claims brought by BR and ERSIC; b. Any costs and expenses (own or adverse) incurred by the Claimants in the claim against IC and VD; and/or c. The Success Fee.”
“As to Paragraph 97, the Respondents cannot properly assert that any retention of the Success Fee by Tughans was ‘condoning dishonesty’ by IC. The dishonesty by IC was seeking to put the Success Fee beyond the reachof the Claimants. The Success Fee inured to the benefit of Tughans and waspaid to Tughans. IC acted dishonestly vis-à-vis the Claimants by seeking toremove the Success Fee to the Morley account. The recovery and theretention of the Success Fee by the Claimants do not condone any act ofdishonesty: it does no more than restore the fee to its rightful place. Inrespect of the claims by BR and ERSIC, those remain as claims based onbreaches set out in the pleaded cases. The remedies which the Claimantseeks against the Respondents are set out clearly in the Particulars ofClaim.” ii) It will be apparent that there was no attempt to challenge RSA’s understanding that Tughans were not seeking any indemnity in respect of the Tughans Fee or damages reflecting it beyond the Qualified Claim advanced in the Particulars of Claim. iii) Tughans did not plead at all to paragraph 100(a) (which had noted “the Claimants make no claim to indemnity in respect of the Success Fee”). iv) In responding to paragraph 101, Tughans pleaded at paragraph 48(c) as follows: “The claims made by BR and ERSIC and the costs of defending them all fall within the Policy. Such claims are clearly distinct from a claim to the return of the Success Fee.”
“203. The Claimants’ decision to pay VAT and income tax on the Success Fee in order to secure a profit cost to which they were never entitled does not change the position; rather, it makes it worse for the Claimants: those VAT and income tax costs are costs that the Claimants willingly opted to incur in order to secure the unjustified windfall. Those payments to the Revenuetherefore cannot, if the same is sought to be alleged, constitute any separate heads of insured loss to which they are entitled to an indemnity. 204. The Claimants appear to accept the above analysis: see paragraph 112 of the Particulars of Claim where they disclaim an indemnity in respect of the Success Fee. However, the Claimants add the qualification “in so far as this can be recovered by the Claimants and lawfully paid orrepaid in the light of the BR and ERSIC claims” and then seek an indemnity, at paragraph 113 of the Particulars of Claim, if the Claimants are unable to repay the Success Fee because it is retained pursuant to theProceeds of Crime Act 2002 . Such qualification makes no sense. First, the reasoning in the paragraphs above would still equally apply: the Claimants have suffered no insured loss. Second, any inability to return the Success Fee only arises because of Tughans’ own decision to retain the Success Fee (i.e. to make a profit from it). Third, the only other parties that could theoretically be entitled to the Success Fee are BR and Cerberus and they (via the alleged assignment from Cerberus to BR) are parties to the claim against Tughans; so no such qualification would ever arise as any restriction on Tughans’ ability to release the Success Fee can only exist for the benefit of Cerberus and/or BR.”
“170 As regard the proposition that there was no “insured loss” as alleged in theRespondents’ skeleton from §192, this is a novel argument to advance to justify acomplete declinature of liability in which the BR Statement of Claim actually pleadsa loss of well over£30million . 171 One might understand the Respondents’ argument, if the only issue at stake [was] thesuccess fee. The argument now developed, is that the BR loss flows from the decisionof IC to divert the success fee to Morley (Respondents’ skeleton §197) or theRespondents’ failure to return the success fee. 172 This is an argument which completely ignores the ‘civil liability’ as pleaded in the Statement of Claim. It is not asserted by BR that the loss was caused because IC tried to steal a portion of a professional fee from his partners. The claim advanced is thatin the course of his role as a solicitor instructed to act (and acting upon) the Project Eagle loan sale, IC was asked to confirm that the fee would not be shared with a current or former member of NAMA. 173 It was this alleged misrepresentation which forms the basis of the liability. Thediversion of part of the professional fee to Morley did not offend the assurance given.The liability arises because BR alleges (and will have to prove) that therepresentations given by IC on Tughans’s behalf were either false or were given inbreach of duty or, indeed, may even have been fraudulent. 174 The Claimants are the innocent partners and if IC was guilty of fraud which causedloss to a client of the firm and/or others, then the Master Policy extends to indemnify the “innocent partners”. 175 The further feature of this case, however, is that the success fee has, by reason of theactions of IC, been placed beyond the control of Tughans. If BR obtains a judgmentagainst Tughans, then this will be for loss and damage (ie civil liability) arising fromthe actions of IC for which Tughans is responsible. 176 The Respondents are not claiming a right to a success fee to which they are nototherwise entitled. They are claiming an indemnity for loss flowing from the civilliability created by the actions of IC. If BR established that the fee should never havebeen paid because of the fraud of IC, then the fee is ‘lost’ to the Respondents to meetthe liability which arises. The indemnity principle does not provide any defence tothe Respondents insofar as the Claimants would then suffer a loss, and it is to be notedthat the losses/damages claimed at para 61 of the BR statement of claim extend farbeyond the fee.”
“(1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal)apply to the court challenging an award in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings or the award … (2) Serious irregularity means an irregularity of one or more of the following kinds which thecourt considers has caused or will cause substantial injustice to the applicant- (a) failure by the tribunal to comply with section 33 (general duty of tribunal); (b) the tribunal exceeding its powers (otherwise than by exceeding its substantive jurisdiction: see section 67); (c) failure by the tribunal to conduct the proceedings in accordance with theprocedure agreed by the parties ... (f) uncertainty or ambiguity as to the effect of the award.” (a) failure by the tribunal to comply with section 33 (general duty of tribunal); (b) the tribunal exceeding its powers (otherwise than by exceeding its substantive jurisdiction: see section 67); (c) failure by the tribunal to conduct the proceedings in accordance with theprocedure agreed by the parties ... (f) uncertainty or ambiguity as to the effect of the award.”
“170 At paragraph 362 of the Award, the Arbitrator held that he was granting the extension of time under Clause 31.7 and not Clause 31.6 of the Connect Contract. As dealt with in argument, the effect of the Award being an interim extension of time under Clause 31.7 is that the extent of the extension of time can be reviewed and revised in a further arbitration when the relevant extension of time is determined, not on an interim, but on a final basis. Thus whilst arguments may be made as to the effect of other findings by the Arbitrator, the question of the length of the extension of time which is “fair and reasonable in the circumstances” is not something which has finally been determined by this Arbitration. 171. If I had come to the conclusion that there was an irregularity in this case, I consider that any injustice arising from the length of the extension of time could be cured by the process which is laid down under the Connect Contract and I would not have been minded to find that there was substantialinjustice. There will, of course, be the need for a financial adjustment but this has to be viewed in the context of necessary accounting forming part of the long running relationship between the parties. In the circumstances, I do not consider that an irregularity in the determination of an extension of time by this arbitrator would give rise to substantialinjustice.”
“The Arbitrator's decision declaring that the Respondents were entitled to a full indemnity in relation to the Success Fee (including in relation to not only those sums retained as profit costs but those elements of the Fee paid by the Respondents as income tax and VAT thereon) is obviously wrong in law and raises a point of general public importance as to the limits of indemnities that may be claimed under a policy of professional indemnity insurance. That is a question of law in that the Claimants contend that policies of professional indemnity are not intended to, and do not in fact, provide cover that would entitle an insured to be indemnified for the loss of a sum to which they were never entitled, there being no ‘loss' and thus no 'insured loss' at all.”
“Insurance Clauses 1. Civil Liability The Insurers will indemnify the Insured in respect of claims or alleged claims made against theInsured and notified to the Brokers (subject to Special Condition 4) during the Period of Insurancespecified in the Schedule in respect of any civil liability (including liability for claimant’s costs andexpenses) incurred in connection with the Practice carried on by or on behalf of the Solicitor or anyPredecessor provided that no indemnity will be given a) to any individual committing or condoning any dishonest fraudulent criminal or malicious act oromission b) to any partnership or incorporated practice or limited liability partnership in respect of anydishonest fraudulent criminal or malicious act or omission committed or condoned by all of itsPartners directors officers or members.”
“Restitutionary claims cannot be within the scope of the cover provided by the PL [public liability] section. Restitution is concerned with the reversal of a gain not with compensating a claimant for its loss. In my judgment, even if Thermonex did have any liability to Gem to make restitution, it would not be legally liable to pay damage”. ii) The editors of Colinvaux’s Law of Insurance (13th), [21-030] observe: “A liability policy will not cover restitutionary claims. The essence of such a claim is that the insured is in possession of money which does not belong to him. Accordingly a restitutionary claim is inconsistent with the notion that the assured has suffered any loss. On this basis, it might be thought that a claim by the assured for loss of professional fees is not one covered by a liability policy”
“True it is that S & R are now subject to a paper liability to the Komercni Banka of over$94m , but common sense would suggest that this is not really a loss that they have suffered. They started with nothing and their alleged losses are sums that they acquired by fraud and then paid away as part of the same fraudulent transaction. If a person starts with nothing and never legitimately acquires anything he cannot realistically be said to have suffered any loss.”
“extends to any loss incurred arising directly from any claim against the firm founded on negligence attributable to the firm. The language [of the policy] points to the amount of a claim for damages established against the firm, not to the ultimate consequences to the firm of its liability under the judgment after taking into account other transactions entered into by the firm.”
“An insured incurs no loss within the meaning of the insurance contract by being compelled to return property that it had stolen, even if a more polite word than ‘stolen’ is used to characterize the claim for the property’s return”
“Aggrieved persons may have claims of various kinds – for example, in restitution, or debt, or damages – or some combination of these (the terms ‘damages’ and ‘compensation’ are synonymous). But a claim for damages requires a breach of a duty or obligation and would therefore exclude claims for restitution or debt. Thus, in the present case the available evidence suggests that, if any claims were to be made by aggrieved investors, they would likely be for the return of borrowed funds, or to enforce contractual rights – in other words, for restitution of money had and received, or for a debt due or payable under contract – neither of which would constitute payment of compensation or damages. Such claims fall outside the insuring clause (clause 1.1) of the professional indemnity policy with which these proceedings are concerned.”
“The payment was conditional on representations and warranties being provided (see the contract terms ….) It was not conditional on those representations and warranties being true. The success fee was the price paid for services rendered, not for warranties and representations. If the warranties and representations were untrue, then contractual remedies were available subject to the usual limitations”
“A contract obtained by a fraudulent misrepresentation is voidable, not void, even in equity. The representee may elect to avoid it, but until he does so the representor is not a constructive trustee of the property transferred and no fiduciary relationship exists between him and representee”