Xtellus Capital PArtners Inc v DL Invest Group PM SA [2025] EWHC 1989 (Comm)

[2025] EWHC 1989 (Comm)Case No LM-2023-000035
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
LONDON CIRCUIT COMMERCIAL COURT (KBD)
Venue Royal Courts of Justice, Rolls BuildingDate 28/07/2025
London
Before
HIS HONOUR JUDGE BIRD SITTING AS A JUDGE OF THIS COURT
Between
XTELLUS CAPITAL PARTNERS INCClaimantDL INVEST GROUP PM S.A.Defendant
Mr Alexander Brown KC (instructed by Howard Kennedy LLP) for ClaimantMr Aidan Reay (instructed by Hill Dickinson LLP) for DefendantHearing Hearing dates: 18 – 28 March 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 28 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................HIS HONOUR JUDGE BIRD SITTING AS A JUDGE OF THIS COURT
[1]Xtellus Capital Partners Inc. (“Xtellus”) is a New York based broker-dealer and specialist investment bank registered in Delaware. The Defendant is a company registered under the laws of Poland and a wholly owned subsidiary of DL Invest Group SA. The group holds commercial real estate in Poland and operates its business through a number of special purpose vehicles (“SPVs”) wholly owned by the Defendant.[2]In 2021 “DL Invest Group” wanted to raise debt finance. It engaged Xtellus to assist. The terms of that engagement (“the Mandate”) were reduced into writing and signed on 9 July 2021. The parties agreed that the law of England and Wales would govern the contract, and it was written in English. Xtellus was to receive a fee, calculated at 1.25% of the value of debt facilities raised. That fee would be payable in certain circumstances even if (as happened) the Mandate was cancelled before the finance was received. The relevant terms of the Mandate are set out at section F below.[3]The Mandate was terminated on or about 22 August 2022. On 20 September 2022, Macquarie Euro Limited provided finance in the sum of €123,400,000 to Psary Invest II sp. z o.o. (one of the SPVs). Further sums were subsequently advanced to bring the total to €143,379,834.75. The Claimant now claims 1.25% of that sum, namely €1,792,247.93 plus interest. An invoice based on sums due to Xtellus on the originally advanced sum (seeking payment of $1,511,650) was presented on 3 October 2022. If liability is established, I understand there to be no issue between the parties as to the sum due.[4]A large part of this judgment (see sections E, I, J, K and L) deals with factual matters and in particular the chronology of events revealed by the contemporaneous documents, where appropriate supplemented by the oral evidence of the witnesses. The remaining key parts of the judgment are as follows: Sect Para Topic B 5-10 The issues D 15-30 The law on the main issues F 56-63 The terms of the Mandate G 64-68 Conclusion on issue 1 H 69-82 Conclusion on issue 2 (apparent authority) M 116-124 Alternative conclusion on issue 2 (ratification) N 125-142 Conclusion on issue 3 O 143-146 Conclusion on issue 4 Q 153 Overall conclusion B. The Issues[5]If Xtellus is to be entitled to the sums it claims, it has the burden to establish that there is an enforceable contract between the Claimant and the Defendant, and if there is, that the obligation to pay is triggered. Somewhat unusually, none of these issues is agreed. Issue 1[6]The first issue is: who contracted with Xtellus? The Mandate is addressed to “DL Invest Group,” defines DL Invest Group as “the Company” and is executed by Dominik Leszczyński on behalf of DL Invest Group. However, DL Invest Group has no legal personality.[7]The Defendant denies that it is the counterparty and asserts that the correct counterparty is Consulting Capital Investment sp. z o.o. (“CCI”). That company was registered in Poland on 7 October 2014 and took the name CCI on 2 June 2017. On 15 December 2022 (shortly after the initial letter before action was sent to the Defendant) its names was changed to DL Invest Group Dominik Leszczyński sp. z o.o. (“DLIGDL”). Xtellus says the 2022 name change to something approaching “DL Invest Group” was a late and cynical ploy to bolster its case. Issue 2[8]If I find that the Defendant is (at least on the face of things) the correct counterparty, the next issue is whether the Defendant is bound by the terms of the Mandate. The Defendant’s case is that Dominik Leszczyński had no power to bind it. Xtellus says that the Defendant is bound either because Dominik Leszczyński had the appropriate authority or, in the alternative, because the Defendant has ratified the Mandate. Issue 3[9]If the Defendant is bound, I must determine if it is under an obligation to pay anything. Xtellus’ primary case is that the obligation to pay was triggered (under clause 6.3 of the Mandate) when Macquarie Euro Limited provided finance to Psary Invest II sp. z o.o. To make good that contention it must establish that Macquarie Euro Limited is a “Potential Investor” under the terms of the Mandate (in other words is included in the definition “Macquarie Capital”) and that Psary Invest II sp. z o.o. falls within the definition of “any of the Company.” Issue 4[10]The final issue, assuming all others to have been found in Xtellus’ favour, is about entitlement. If all other issues are resolved in Xtellus’ favour has it in fact done enough to earn this relatively significant payment? C. The Hearing[11]Mr Alexander Brown KC appeared for the Claimant and Mr Aidan Reay appeared for the Defendant. I express my gratitude to both of them for the careful and efficient manner in which they dealt with the trial.[12]I heard from Mr Waqas Fehmi and Mr Stephen Zak on behalf of the Claimant. For the Defendant I heard from Wirginia Leszczyńska, Mr Tomasz Brodzki, vice-president of the Management Board of the Defendant, Mr Tomasz Rogalski, a lawyer at Norton Rose Fulbright who acted for Macquarie and Mr Dominik Leszczyński, the brother of Wirginia. I also heard the expert evidence of Dr Szlęzak and Prof. Osajda.[13]I did not hear from Katarzyna Dorosz-Wosiek or from Blazej Stodulkiewicz both of whom were key players in the relevant dealings. Katarzyna Dorosz-Wosiek was named in the Directions Questionnaire as a witness, but no statement was produced from her, and she was not called. The absence of their evidence is in my view important and telling.[14]I found Mr Fehmi, Mr Zak, and Mr Rogalski to be straightforward and honest witnesses whose main concern was to help me to understand the relevant facts. I found Dominik Leszczyński and Wirginia Leszczyńska to be far less straightforward. D. The Law Issue 1[15]The parties agree that the correct approach to take to this issue (who did Xtellus contract with?) is set out by the Court of Appeal in Hamid v Francis Bradshaw [2013] EWCA Civ 470.[16]Where the identity of a contracting party is unclear, extrinsic evidence is admissible (paragraph 50), and (see Estor v Multifit (UK) Ltd [2009] EWHC 2565 TCC cited at paragraph 56 of Hamid) it is legitimate to consider what the parties said to each other in the period leading up to the offer and acceptance. The exercise of identifying a party to a contract is not the same as interpreting the terms of the contract. For example, one piece of extrinsic evidence I am entitled to consider is the negotiations which led to the conclusion of the contract.Negotiations are “[excluded] from the admissible background” when the court considers questions of “pure” construction (see ICS v West Bromwich [1998] 1 WLR 896 at pages 912 to 913 paragraph (3) cited at paragraph 48 of Hamid). The rationale for this approach is clear: generally (and certainly in the present case) the parties will negotiate the terms of a contract, they will not negotiate the identity of a contracting party.[17]The words chosen by the parties to identify the counterparty (and identify it as “the Company”) are, however, the starting point of the investigation into the identity of the counterparty. Issue 2[18]The question of authority (should it be reached and should I have determined that the Defendant is the correct counterparty) requires me to consider actual authority, apparent or ostensible authority (I deal with the alternative of ratification below). The issue of actual authority is governed by the law that governs the relationship between the principal and the agent. That is, Polish law. Whether Dominik Leszczyński had apparent or ostensible authority is determined by the law of the contract, that is the law of England and Wales.[19]There is no suggestion that Dominik Leszczyński had actual authority to bind the Defendant if the Defendant was the counterparty to the Mandate. The main issue is therefore ostensible (apparent) authority. The key requirements were set out by Diplock LJ (as he then was) in Freeman & Lockyer v Buckhurst Park Properties (Mangal) Limited [1964] 2 QB 480 at 506:a. That a representation that the agent had authority to enter on behalf of the company into a contract of the kind sought to be enforced was made to the contractor;b. that such representation was made by a person or persons who had “actual” authority to manage the business of the company either generally or in respect of those matters to which the contract relates;c. that he (the contractor) was induced by such representation to enter into the contract, that is, that he in fact relied upon it; andd. under its memorandum or articles of association the company was not deprived of the capacity either to enter into a contract of the kind sought to be enforced or to delegate authority to enter into a contract of that kind to the agent.[20]There is a dispute between the parties about the extent (if at all) that Polish law needs to be taken into account when considering first, whether representations capable of creating apparent authority have been made and secondly whether the contract has been ratified.[21]The experts on Polish Law agree, having regard to the National Court Register (the “NCR”) that the Defendant may be bound by:a. The joint conduct of 2 members of the Management Board (not necessarily at the same time).b. Joint conduct by one member of the Management Board and the “proxy” (more accurately the “Prokurist”) not necessarily at the same time.c. The Prokurist acting alone.[22]In deciding if the Defendant is in fact bound, and given that there is no clear express outward declaration of intent (as there would be if the Prokurist had signed the Mandate in that capacity) I am entitled to look at the actions of the Prokurist (or the Management Board members) and decide if it is appropriate to infer an intention to enter into a contract.[23]In practice (and as far as is relevant to this claim) that means that at all material times the joint acts of Katarzyna Dorosz-Wosiek and Wirginia Leszczyńska or the sole act of Katarzyna Dorosz-Wosiek up to 24 March 2022 (when she ceased to be Prokurist but became a Board Member) may be sufficient to bind the Defendant. Issue 3[24]The issues raised under the umbrella of the third issue are construction questions, in particular the construction of clauses 4, 6.3 and 7 of the Mandate.[25]Whilst there was broad agreement about the approach I should take, the parties were at odds on the extent to which I can take account of “commercial common sense.” That was the central issue before the Supreme Court in Rainy Sky v Kookmin Bank [2011] UKSC 50.[26]The general approach to interpretation is set out at paragraph 14 of Rainy Sky:
“The ultimate aim of interpreting a provision in a contract, especially in a commercial contract, is to determine what the parties meant by the language used, which involves ascertaining what a reasonable person would have understood the parties to have meant…..The relevant reasonable person is one who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract”
[27]Lord Neuberger’s reminder at paragraph 18 of Arnold v Britton [2015] UKSC 36 is important:
“when it comes to considering the centrally relevant words to be interpreted, I accept that the less clear they are, or, to put it another way, the worse their drafting, the more ready the court can properly be to depart from their natural meaning.”
[28]Mr Brown KC refers in particular to paragraphs 21, 23 and 30 of the opinion of Lord Clarke in Rainy Sky. In short, where the parties have used unambiguous language, the court must apply it (paragraph 23). But the language used by the parties in contracts which the courts are asked to construe is rarely unambiguous. Where there is more than one potential meaning “the court is entitled to prefer the construction which is consistent with business common sense and to reject the other” (paragraph 21). In summary, “the term of a contract is open to more than one interpretation, it is generally appropriate to adopt the interpretation which is most consistent with business common sense” (paragraph 30).[29]Mr Reay suggests that Xtellus uses commercial common sense impermissibly, not as an aid to the proper construction of ambiguous terms, but to address the anterior question of whether a term is in fact ambiguous. I agree that such an approach would be improper. As Lord Neuberger said in Arnold (paragraph 17) “the reliance placed in some cases on commercial common sense and surrounding circumstances… should not be invoked to undervalue the importance of the language of the provisions which is to be construed.” I am not however persuaded that this is the approach adopted by Xtellus.[30]Mr Reay also submits that commercial common sense must be treated carefully and not applied from the sole point of view of Xtellus. Again, I agree. Lord Neuberger makes that point in Arnold at paragraph 19:
“commercial common sense is only relevant to the extent of how matters would or could have been perceived by the parties, or by reasonable people in the position of the parties, as at the date the contract was made.”
E. Chronology Part I: up to and including the execution of the MandateGeneral context[31]In a valuable and complex commercial borrowing transaction (as I accept this transaction was) contemporaneous documents are key to the Court’s fact-finding exercise. The “best approach” in a case such as this is “to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts” (see the well-known guidance of Leggatt J, as he then was, in Gestmin v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm)).[32]I have been taken through a large number of documents during the course of the trial. It is common ground that no document makes any reference to CCI until after the Mandate was terminated.[33]Most of the communications between relevant parties in this case are (as is often the case) by e-mail. Those written for the counterparty (be that the Defendant or CCI) to Xtellus (who acted through Mr Fehmi) and later to the eventual provider of finance (Macquarie), were in each case from an email with the suffix @dlinvest.pl, and in most cases the emails had a similar and generic signature box which followed this pattern: the name of the sender above a description in English of the sender’s role (for example CFO or CEO) above the words “DL Invest Group”. There was then a graphic banner including the words “DL Invest Group,” with some words written in Polish and the words “every investment is a new challenge” written in English. Beneath the banner were 3 further blocks of information which include the full name of the Defendant, its share capital (100,000,000.00 PLN) and its National Court Register unique number (0000434440).[34]The key players in the relevant emails were Wirginia Leszczyńska, Dominik Leszczyński, Blazej Stodulkiewicz and Katarzyna Dorosz-Wosiek. Wirginia Leszczyńska had no connection with CCI but was the President of the Management Board of the Defendant and has no connection with DLIGDL. Dominik Leszczyński was described as the CEO of the Defendant and had the power to bind CCI, Blazej Stodulkiewicz was described as the CFO of the Defendant and Katarzyna Dorosz-Wosiek was the head of legal for the Defendant and at the relevant time either its Prokurist or a member of the Management Board.[35]It is important to mention the various titles which appear in the documents. CEO, COO (as Wirginia Leszczyńska was sometimes described) and CFO are not titles recognised in Polish company law, but they are titles recognised by experienced people of business and would be recognised by an objective observer appraised of the relevant background at the time the Mandate was entered into. They are also titles used by each of the key players. Dominik Leszczyński explained that his role as Chair of the Supervisory Board of the Defendant gave him the broad equivalence of a CEO. Chairing the Supervisory Board of the Defendant (as is accepted) does not give Dominik Leszczyński any actual authority to bind the Defendant. There is therefore a real difference between a CEO and the Chair of the Supervisory Board. The former has executive power. The latter does not. Dominik Leszczyński’s subjective view of how CEO should be understood is not relevant.[36]Dominik Leszczyński suggested in evidence that both Blazej Stodulkiewicz and in particular Katarzyna Dorosz-Wosiek were working for CCI, not the Defendant, when dealing with Xtellus. Neither was called to give evidence. Each was plainly heavily involved in the Defendant’s business at a very senior level. Dominik Leszczyński told me that there was an informal agreement with Blazej Stodulkiewicz that he would work for CCI and that Katarzyna Dorosz-Wosiek was his personal lawyer. There is no documentary evidence at all dealing with (or even making reference to) any connection between CCI and either of them.[37]I accept that the description DL Invest Group is primarily about branding. The numerous group presentations I have seen show that name displayed and illuminated on the top of office buildings. The description is plainly capable of having more than one meaning. The fact that DL Invest Group had at least a CEO and a CFO might be taken as a strong indicator that the description was used to represent a corporate body and not just a brand name. Chronology up to 9 July 2021 when Dominik Leszczyński signed the Mandate[38]Following the objective approach set out in Hamid v Francis Bradshaw it is appropriate to consider what the parties said to each other in the period leading up to the conclusion of the Mandate and to consider that evidence objectively to see what light it sheds on the identity of the counterparty. I should take into account facts known to both parties, but not their private thoughts.[39]Mr Fehmi was introduced to the counterparty (that is the party that Xtellus would contract with) by Boris Sawicki, a local lawyer and one time friend of Dominik Leszczyński. One of the first written interactions between Mr Fehmi and Dominik Leszczyński is an email sent by Mr Leszczyński to Mr Fehmi on 28 April 2021 asking that he be added to Mr Fehmi’s LinkedIn network. The acceptance link describes Mr Leszczyński as the CEO of “DL Invest Group.”[40]On or about 4 May 2021 there was a Zoom call organised by Mr Sawicki which included Blazej Stodulkiewicz and Dominik Leszczyński. After that call, on 6 May 2021 Blazej Stodulkiewicz emailed Mr Fehmi attaching “our detailed assets overview and a Group presentation”. The asset overview plainly related to the Defendant and was divided into sections including “operating portfolio” (comprising 23 companies including Psary Invest II sp. z o.o.), “pipeline logistic” (12 companies) and “Pipeline office” (5 companies). These 38 companies are SPVs each holding a particular asset. The presentation was addressed to a potential financer (the Pacific Investment Management Co) and is described as a “DL Invest Group financing proposal.” It describes the “capital structure” of “DL Invest Group” with DL Invest Group SA as the ultimate holding company with the Defendant as its wholly owned subsidiary and asset manager of 38 SPVs. It notes that DL Invest Group is audited by KPMG and refers to an undated auditor’s report addressed to the general shareholders’ meeting and supervisory board of the Defendant. It refers to the fact that DL Invest Group “prides itself on the AAA Certificate issued by Bisnode Polska.” The certificate is shown and plainly refers to the credit standing of the Defendant.[41]After some further remote discussions, on 30 May 2021 Dominik Leszczyński sent an email with the subject line “DL Invest - financing – initial discussion” to Blazej Stodulkiewicz and Mr Fehmi. It is clear from the email, which was written in English, that Dominik Leszczyński (on behalf of the counterparty) was already in discussion with potential lenders and wanted Xtellus to approach new lenders:
“In our opinion, due to the commitments [we have] already made, it is possible to start discussions only with 1 [or] 2 entities indicated by you. We do not want [you] to enter the market extensively on our behalf and we do not want to disclose with which entities we are negotiating on the market. We prefer a solution in which you indicate to us an entity which will be interested in debt financing our Capital Group and if we [are not already talking to] such entity we will give you a mandate to conduct exclusive talks with this entity”
[42]Dominik Leszczyński’s signature appears above the words “President of the BoardCEO DL Invest Group” and above reference to the full name and registration number of the Defendant.[43]On 4 June 2021, Mr Fehmi emailed Dominik Leszczyński and Blazej Stodulkiewicz using the same email subject line and suggesting that the terms of the Mandate could be discussed on a call and “I can suggest 2-3 investors and we can get your approval on that call”. Once the Mandate terms were negotiated Xtellus could “start setting up investor calls.”[44]The anticipated call took place on 9 June 2021. On that date Blazej Stodulkiewicz sent an email to himself which appears to be a note of the discussion which simply listed “BTB Frankfurt” (a clear reference to “VTB”) and “Macquarie Capital.” Mr Fehmi’s evidence was that Dominik Leszczyński was pleased with these names “as he did not know anyone at these funders and gave me approval to approach them.”[45]The first draft of the Mandate was sent by Mr Fehmi on 9 June 2021 to Dominik Leszczyński. The covering email noted that Mr Fehmi would approach “VTB and Macquarie Capital.” The draft Mandate included space for Dominik Leszczyński’s signature above the words “DL Invest Group, Mr Dominik Leszczyński. CEO, Chairman.”[46]Extensive draft amendments were proposed by way of tracked changes on 17 June 2021. The majority were authored by Katarzyna Dorosz-Wosiek. There was no change to the description of Dominik Leszczyński. Further (and fewer) amendments were suggested on 2 July 2021. The main author was again Katarzyna Dorosz-Wosiek. The proposed changes were forwarded by email from Blazej Stodulkiewicz who described them as being suggested “by our legal department.” At no time was there any proposed change to Dominik Leszczyński’s signature strip.[47]Also on 2 July 2021, Mr Blazej Stodulkiewicz sent a revised company presentation including a detailed description of executives. Dominik Leszczyński is described in the presentation as “CEO, Chairman of the Supervisory Board” and “responsible for the strategy, management and supervision of the Group’s various processes”; Wirginia Leszczyńska is described as the COO; Tomasz Brodzki as the “CPO”; Blazej Stodulkiewicz as the CFO “Financial Director” and Katarzyna Dorosz-Wosiek as “Legal counsel, proxy” and “Proxy of the [Defendant]”. The final page of the presentation lists contact details above the name and company registration details of the Defendant.[48]On the same day, Mr Fehmi replied thanking Blazej Stodulkiewicz for the enclosure and adding:
“I look forward to the thoughts from your legal department on the mandate so we can set up calls as early as next week.”
In his reply later that day Blazej Stodulkiewicz said:
“as per the legal team, we would like to keep the specified names of the potential investors in binding Mandate. We are fully flexible in updating that in the future, when needed.”
[49]Mr Fehmi added in the names of the “potential investors” (VTB and Macquarie Capital) on 5 July 2021. Those amendments were not contested or even discussed. Unsurprisingly as they mirrored the terms recorded by Blazej Stodulkiewicz in the email he sent to himself on 9 June 2021. They were accepted without issue, and the Mandate was signed on 6 July 2021 by Mr Zak of Xtellus.[50]On 9 July 2021, the Mandate was sent by Mr Stodulkiewicz to Wirginia Leszczyńska and to Dominik Leszczyński. The email (written in Polish) contained a message to each. To Dominik he wrote:
“Dear President, please provide the final okay” and to Wirginia: “following approval from the President please sign, important subject.”
[51]There is some confusion about what happened next. Wirginia Leszczyńska told me in oral evidence that she forwarded the Mandate to her legal counsel Agata Pedzic who opened it, saw it was not addressed to Wirginia and that “is where it ended.” Later she told me she opened the attachment (the Mandate) because the covering email had invited her to sign something. She said, “I saw it was for Dominik, closed it, and that was the end of the story for me.” There is no mention of any of that in Miss Leszczyńska’s witness statement and no emails have been produced of any discussions with Agata.[52]The documents show that Wirginia Leszczyńska responded by email on 9 July 2021 to Blazej Stodulkiewicz and to Dominik Leszczyński, copying in Agata. She said:
“Blazej, my signature is with Agata. Agata, after signing the documents, please return them.”
Wirginia Leszczyńska agreed in cross examination that she was telling Agata to apply Miss Leszczyńska’s (electronic) signature to the document. It was put to her that “instructing someone to apply your signature to a document means you are giving you approval to that document.” Wirginia Leszczyńska told me that her instruction to Agata to append her signature would be taken by Agata as an instruction to check the documents. Wirginia Leszczyńska’s signature does not appear on the final version of the Mandate and there is no explanation about where the document with her signature is.[53]Wirginia Leszczyńska’s oral evidence in chief (at paragraph 26 of her witness statement) was that she had no recollection of the Mandate being sent to her. Her recollection of the matters set out above therefore appears on her evidence to have come about since her statement was finalised.[54]The Mandate was signed by Dominik Leszczyński on 9 July 2021. CCI[55]CCI was incorporated on 7 October 2014 in the name DL Invest Group X sp. z o.o. and changed its name on 2 June 2017 to CCI. It changed its name again to DLIGDL on 15 December 2022. Dominik Leszczyński was asked about that change and told me that the request to change the name “happened a lot earlier.” It was put to Dominik Leszczyński that he changed the name of CCI in an attempt to avoid the Defendant’s liability. He denied that was the case. I note that there is no evidence as to when the request to change name was made and there has been no disclosure of any documents filed to request such a change. F. The Mandate[56]In the following extracts, emphasis has been added and words underlined to show examples of poor drafting or where the parties have chosen words that are unclear (or as Jackson LJ put it in Hamid at paragraph 47: instances where “the temptations of the keyboard, the “cut and paste” facility and the mouse” have not been resisted).[57]The Mandate in its final form was dated 6 July 2021 and addressed to DL Invest Group at an address which is the headquarters (and later became the registered office) of the Defendant. The first paragraph provides: We are writing to set out the terms on which Xtellus Capital Partners Inc (“Consultant”) will assist DL Invest Group (the “Company”) in raising debt facilities for the financing of its business for an amount of up to c. EUR 200 million (“Financing”)[58]At clause 1 the Mandate provided:1.1 By signing this letter where indicated below, the Company and the Consultant confirm, agree, and acknowledge that they wish to proceed with the development of the Financing. In consideration of the Consultant’s agreement to provide advisory services for the Financing, the Company makes the representations and warranties and agrees to the remuneration and reimbursement as set forth hereunder.1.2 The services to be provided by the Consultant in developing and arranging the Financing may include inter alia the following:(a) collecting and reviewing relevant information from the Company with regards to the Financing, including operational and financial information about the Company, (b) conducting a bankability assessment of the Financing and market assessment of the financing markets and identifying potential financing alternatives, (c) identifying an appropriate financing structure to be set up in order to achieve the Company's objectives in connection with the Financing, (d) identifying potential financial institutions for the Financing and engaging in dialogue to solicit financial proposals (e) evaluating the proposals, discussing the key issues with the management, providing recommendations and developing decision criteria (f) participating in meetings/discussions with the financial institutions to assist the Company in such discussions (g) coordinating the information flow and questions/queries between the Company and financial institutions or other parties throughout the process: and (h) assisting the Company during the entire financing process including the execution/documentation phase up to the successful closing of the Financing.[59]By clause 4, under the heading “remuneration and reimbursement”, the Mandate provided as follows: “In consideration of the services to be provided by the Consultant in relation to the Financing, the Company hereby agrees to pay the Consultant in cash, immediately upon commencement of the relevant contract/agreement for each of the Financing, including the initial amount of financing and any subsequent increase or additional amounts of financing, a success fee equal to 1.25% for debt financings to be calculated on the total amount of such Financing. …..[60]Under the heading “termination” the Mandate provided as follows at clause 6:6.1 either the Company or the Consultant may terminate this letter with 10 days prior written notice to the other. Such termination shall be without prejudice to any rights or liabilities of either party accrued until and at the effective date ofsuch termination.6.2 The obligations and liabilities of the parties hereto accrued as at the date of termination hereunder shall not be extinguished in the event of any such termination.6.3 The parties hereto expressly agree and acknowledge that notwithstanding termination of this letter and the agreement contemplated herein, the Consultant shall still be entitled to the fee detailed in clause 4 (Remuneration and Reimbursement) of this letter, if any of the Company completes (either wholly or partially) that Financing or any bilateral or analogous financing with one or more Potential Investors (as defined below) within 18 months of the termination of this letter. ….[61]At clause 7 under the heading “non circumvention and exclusivity”: The Company agrees not to contact or initiate contact at any time, either directly or indirectly, with the institutions to which the Financing has been and will have been marketed by the Consultant and whose names are disclosed below (the “Potential Investors”), or any officers, directors, shareholders, consultants, attorneys, employees, agents or other affiliates of the potential investors (the “relevant entities”) without the express prior written consent of the Consultant. The reservation does not apply to the period after the termination of this letter and for the next 18 months. Potential investors are:1. VTB 2. Macquarie capital 3. Notwithstanding the above, during this letter is bonding to the Company, the Company agrees not to undertake the Financing or any transaction or a series oftransactions of any kind with any of the Potential Investors or relevant entities or to pay any fees there under without the express prior written consent of the Consultant…..[62]In the closing paragraphs:
“Please confirm and indicate your acknowledgement of, and agreement to the foregoing terms of engagement by signing and returning the enclosed duplicate copy of this letter.Yours faithfully, …………………… Xtellus Capital Partners Inc Stephen Zak Chief Operating Officer We hereby agree with the terms and conditions set forth above. ………………….. DL Invest Group Mr Dominik Leszczyński CEO, Chairman”
Xtellus Capital Partners Inc Stephen Zak Chief Operating Officer DL Invest Group Mr Dominik Leszczyński CEO, Chairman”

Mr Dominik Leszczyński

[63]The drafting infelicities (underlined above) tend to suggest that the Mandate was drawn up in a hurry. The oral evidence seemed to confirm that with Mr Zak in particular accepting that he was not “bogged down with the fine details” and not overly concerned with the precise wording of the Mandate. The reason for that was, he told me, that Xtellus dealt with its clients on trust. He said:
“we trade tens of hundreds of thousands of dollars’ worth of securities on a phone call. We deal with institutional clients who we trust.”
G. Findings on the first issue[64]In light of the chronology as I have set it out, I am satisfied, applying the tests set out above and subject to issues of authority which I deal with below, that Xtellus contracted with the Defendant.[65]A reasonable person, furnished with the relevant information could only conclude that the Defendant was contracting with Xtellus. The evidence is overwhelming. I regard the following points as decisive:a. The presentation sent to Xtellus on 6 May 2021 was plainly intended to provide information about the party with whom Xtellus was contracting, and for whom Xtellus would go into the marketplace looking for funders.b. The presentation was of DL Invest Group as a corporate body and not simply a brand. That is clear from the fact that it has a corporate group structure, was audited and has a credit rating. Objectively read, it showed that DL Invest Group was synonymous with the Defendant as shown by the AAA certificate.c. The later presentation sent on 2 July 2021 did nothing to change the position and in fact, by providing the name and details of the Defendant on the contact page underlined the impression created by the first presentation.d. Everyone dealing with the Mandate from the counterparty’s side was (to the informed observer) dealing on behalf of the Defendant. There was no hint or suggestion that they might be dealing on behalf of another body.e. It is obvious that all negotiations were with the Defendant and that the Defendant was synonymous with DL Invest Group.f. Any suggestion that the counterparty was CCI (the only suggested alternative) is fanciful and without any evidential foundation.[66]I reject Dominik Leszczyński’s evidence that Katarzyna Dorosz-Wosiek and Blazej Stodulkiewicz were each working for him or for CCI when dealing with the Mandate. Even if that was right (which I do not accept) there was absolutely no outward sign of it.[67]I find that the decision to change CCI’s name to DLIGDL was made shortly before the name change took effect, after the Xtellus demand for payment had been received and in order to bolster the obviously weak argument that DLIGDL was all along intended to be the counterparty.[68]I find that Wirginia Leszczyńska signed the Mandate (or should be treated as having signed it because she instructed Agata Pedzic to attach her electronic signature to it) and was content to do so. If the Mandate had not been with the Defendant, Wirginia Leszczyńska would had have had no reason to sign it. To the extent that her evidence was otherwise, I reject it. H. The second issue: apparent authority[69]Dominik Leszczyński did not have actual authority to bind the Defendant to the terms of the Mandate. I do not understand that to be in issue. The real argument is whether he had ostensible authority.[70]The Defendant submits first, that any representations that Dominik Leszczyński had authority to contract as the Defendant’s agent came from Dominik Leszczyński and not from the Defendant and secondly, that if representations were made by the Defendant, it was not reasonable for Xtellus to rely on those representations.[71]As to the second point, Mr Reay submits that a third party (Xtellus) “cannot rely on the apparent authority of an agent if it failed to make the inquiries that a reasonable person would have made in all the circumstances to verify that the agent had that authority” (see paragraph 89 of Philipp v Barclays Bank PLC [2023] UKSC 25 and paragraph 93 of East Asia Company Ltd v PT Satria [2019] UKPC 30) and asserts that Xtellus was put on notice.

Did the Defendant represent that Dominik Leszczyński had authority to act as its agent?

[72]The first contact between Mr Fehmi and the Defendant was Dominik Leszczyński’s email of 28 April 2021. It followed the form I have described at paragraph 33 above. That same email format was used by Wirginia Leszczyńska and by Katarzyna Dorosz-Wosiek. It would be fanciful to suggest that the email was anything other than a plain representation by the Defendant that Dominik Leszczyński had power to contract on its behalf. There was no suggestion during the trial that the email format was not approved by the Defendant.[73]The draft Mandate describing Dominik Leszczyński as CEO, but more importantly showing him as the person who would execute the agreement on behalf of the Defendant, was drafted by Xtellus (reflecting what they understood to be the true position) and adopted by Katarzyna Dorosz-Wosiek (on 17 June 2021 and 2 July 2021). In making changes to the Mandate but accepting that the Mandate would be executed by Dominik Leszczyński Katarzyna Dorosz-Wosiek was in my judgment plainly representing on behalf of the Defendant that Dominik Leszczyński had authority to bind the Defendant.[74]Further, the presentation sent on 2 July 2021 was plainly the Defendant’s document and should be treated as containing representations it must be held to. It was the Defendant’s outward expression to the world that Dominik Leszczyński was the person in charge and “responsible for strategy, management and supervision” of business and was the CEO. That could only be understood as a representation by the Defendant that Dominik Leszczyński was able to bind it.[75]It follows that for any of these reasons (any one of the above would suffice to make the point) the Defendant held Dominik Leszczyński out as having the authority to contract on its behalf.

Was it reasonable for Xtellus to rely on the representations made by the Defendant?

[76]A contractor is generally entitled to assume that the person they are dealing with has the authority they appear to have. That general entitlement is the essence of the doctrine of apparent authority. There is however no such entitlement if a reasonable person in the shoes of the contractor would take steps to investigate that person’s authority, but the contractor has in fact failed to take those steps. If the contractor “fails to make the inquiries that a reasonable person would have made in all the circumstances to verify that the person with whom he is dealing does indeed have authority” then the entitlement is lost (see Law Debenture Trust Corp. v Ukraine [2023] UKSC 11 at paragraph 39).[77]Mr Reay’s argument is that a reasonable person in the shoes of Xtellus would have made inquiries. The point is set out in his opening submission at paragraph 90.2.3 as follows:
“where one deals with a company via a person that one believes acts as an officer of the company, then one is on notice of the need to check whether that person is in fact an officer as alleged. This is true both of dealings with English companies and with foreign companies. Further, where the company is incorporated overseas, the law of the place of incorporation becomes relevant in determining what it is that needs to be checked.”
[78]A number of authorities were cited as examples of a situation in which a reasonable person would (and would not) have made inquiries (Ciban Management Corp. v Citco BVI [2020] UKPC 21 where a number of “red flags” in respect of the apparent agent’s conduct, including the use of a personal email, were insufficient and PT Satria – at paragraph 94 – where the contractor knew that only the board had power to bind the Claimant and there were many “highly unusual features of the transaction” including the fact that the Claimant was selling its only asset). Whilst these examples are helpful they are simply illustrative of the general point. The question for me is whether a reasonable person in the shoes of Xtellus would (for the reasons relied on by Mr Reay) have investigated Dominik Leszczyński’s authority to bind the Defendant?[79]In my view the answer to that question is an emphatic no. In the present case there was nothing at all to put Xtellus on notice of the need to question Dominik Leszczyński’s authority.[80]The problem with Mr Reay’s formulation, and its application to the facts as I have found them (namely that the Defendant held Dominik Leszczyński out as a person with authority) is that it appears to apply where the contractor simply “believes” the relevant person has authority. It may be that a contractor would be well advised to undertake some checks before entering into a contract on the basis that a person who has not been held out to have authority does in fact have it. I agree with Mr Brown KC that, at least where the person has been held out, there is no general duty of inquiry “where one deals with a company via a person that one believes acts as an officer of the company.” To find there was such a duty would undermine (if not destroy) a contractor’s right to assume that the person they are dealing with has the authority they appear to have. As that right is the essence of the doctrine of apparent authority finding that such a duty existed would undermine the whole doctrine.

Conclusion on issue 2

[81]I therefore find that Xtellus was entitled to rely on the representations made by the Defendant, that Dominik Leszczyński had authority to bind it and that in all the circumstances Dominik Leszczyński was able to bind the Defendant because the Defendant gave him ostensible authority to do so. If I am wrong about that, I deal with ratification below. First, I turn to the next stage of the chronology.[82]What happened after the Mandate was signed may be important for 2 reasons. First, it will cast light on what Xtellus did to earn its fee and allow me to determine if what was done was what the Mandate anticipated would be done in return for the payment. Secondly, it will show if the Defendant (the counterparty) ratified the Mandate if (contrary to my findings) Dominik Leszczyński lacked actual or apparent authority to bind the Defendant. I. Chronology Part II: Immediately post signature[83]After the Mandate was signed, negotiations with potential lenders could begin. I accept that there were negotiations with VTB but that they had come to an end by September 2021. For understandable reasons, the evidence I have seen and heard concentrated on the involvement of Macquarie (“MacCap”).[84]Mr Fehmi had been in touch with MacCap before the Mandate was signed. He met Mr Newton Gillies at MacCap on 8 June 2021. On 9 July 2021, once the Mandate had been signed, he emailed Mr Newton:
“with reference to the Polish real estate opportunity that we briefly discussed, I now have the mandate and would like to set up a call with the CEO/main shareholder and the CFO. Facility size could be between €100- €200 million with a mix of both performing and under development assets (warehouse, offices, and retail parks). Please let me know a few slots next week that would work for you for a call and will set it up.”
[85]The call took place on 19 July 2021. Mr Fehmi, Dominik Leszczyński (CEO and main shareholder) and Blazej Stodulkiewicz (CFO) were, as anticipated, invited and took part. The revised group presentation sent to Mr Fehmi on 2 July 2021 (including the detailed description of the roles of Dominik Leszczyński and Blazej Stodulkiewicz) was discussed at the meeting and forwarded to Mr Gillies later that day.[86]Negotiations with MacCap involved numerous exchanges of “term sheets.” Almost invariably the term sheets were sent by MacCap to Blazej Stodulkiewicz and copied to a core team of Mr Fehmi, Dominik Leszczyński, Katarzyna Dorosz-Wosiek, Blazej Stodulkiewicz and Wirginia Leszczyńska. The meeting on 9 August 2021[87]Mr Fehmi told me that he met Wirginia Leszczyńska on 9 August 2021 and that she took him around various of the Defendant’s properties. He said Wirginia “pretty much spent the full day with me on that trip, because Dominik was on holiday. Wirginia hosted me, along with Blazej [Stodulkiewicz], took me across assets, had lunch, presented the company again with one of her colleagues, and then we had a call with [MacCap] in which Dominik dialled in.”[88]Wirginia Leszczyńska accepted in evidence that she had met Mr Fehmi briefly, but she could not remember when. She told she had no memory of the 9 August 2021 visit. Indeed, she suggested that she was not there at all. In evidence she told me that for the day in question she had:
“Checked my calendar and my email box on that day, and I was constantly sending the emails on that day, I had video conference with my tenant, I had no such things scheduled, and I do not remember such asset tour. Moreover, here in the asset tour we have Piano, Psary, Gliwice, Korfanty, those are offices, so I'm not even responsible for offices.”
[89]It seems clear that documents exist which might support this evidence: for example, records of when emails were sent and possibly from where they were sent, records of the setting up, timing and duration of any video call, and documents dealing with calendar entries. At the close of business on the day when these points were raised in evidence (Thursday 20 March) I permitted Wirginia Leszczyńska to speak to her legal team about those documents so that the ongoing duty of disclosure could be complied with. On the morning of Friday 21 March (day 4 of the trial) I was told that some documents were handed to the Claimant’s legal team by the Defendant. In an unexpected turn of events, Mr Reay made it clear that he was not going to adduce the documents into evidence or ask for them to added to the trial bundle. In those circumstances, I have not seen the documents and they are of no relevance to my determination.[90]All indications before the date of the meeting are that it was expected that Wirginia Leszczyńska would attend. On 6 August 2021, Blazej Stodulkiewicz emailed Dominik Leszczyński. He suggested that Mr Fehmi be picked up at the airport and taken to Psary and then on to visit the other facilities. He asked Dominik Leszczyński to indicate if “anyone else should participate in the meeting I propose Wirginia [and] possibly someone from commercialization.” Dominik Leszczyński responded and agreed with Blazej Stodulkiewicz’s suggestions. He wrote:
“Yes, I confirm. Very important meeting. Please present our company well… We'll describe the specifics of our sites - that's very important. Please also add Ms Aneta if Wirginia needs support.”
[91]The evidence of what happened on the day of the meeting also supports the view that Wirginia Leszczyńska was intended to be present. Mr Fehmi was booked on the 08.35 flight from Stansted to Katowice on 9 August 2021. Dominik Leszczyński was away at the time. Earlier that morning, Mr Fehmi sent a WhatsApp message to Blazej Stodulkiewicz to say he was taking off soon. Mr Stodulkiewicz replied “there will be driver waiting for you at the airport, then I and Wirginia will [meet] you in Psary”[92]The evidence of what was going on during the meeting tends to suggest that those who were intended to be present were present. Later that morning Mr Fehmi emailed Mr Gillies at MacCap to say he had checked the Psary facilities and found them impressive. He looked forward to an anticipated call at 4pm that day and noted that was “with the team here now”. The 4pm meeting took place, and Mr Fehmi told me Dominik joined from his holiday.[93]Describing the meeting Mr Fehmi recalled that he met Aneta Kulik from the Defendant’s “commercialisation” team. There was no suggestion that she was anyone other than the “Ms Aneta” referred to in the 6 August 2021 email. Speaking of the impressions he formed on the day, he said in evidence:
“Wirginia came across as very knowledgeable and competent. When I described Xtellus and my position at Xtellus to her, it was clear she understood the role I was playing in securing the deal with Macquarie under the letter of engagement and took it upon herself to take me on an extended tour of the multiple sites to be covered by the funding facility. Wirginia seemed keen to present the business in its entirety as I believe she saw the potential for further collaboration down the line…. in this respect, I felt that she valued Xtellus’ contribution and the opportunities we could offer as a long-term partner”
[94]The evidence of what happened after the meeting also appears to be consistent with Mr Fehmi’s recollection. On 11 August 2021 Mr Fehmi emailed Dominik Leszczyński, Wirginia Leszczyńska and Blazej Stodulkiewicz. He wrote:
“Dear All, Thanks for taking the time out, for organising the visit to various assets and for the hospitality on Monday. Dominik - I look forward to meeting you in person in the near future. I must congratulate you all on building an amazing portfolio of assets…. I look forward to working with you on this funding need and future financing requirements”
My findings in respect of the 9 August meeting[95]I am satisfied and find that Wirginia Leszczyńska met Mr Fehmi on 9 August 2021 and showed him around the facilities in the manner he described in evidence. The evidence points in only one direction, and is once again, overwhelming. It is plain that Wirginia Leszczyńska’s involvement was seen as important. I formed the view that Mr Fehmi’s opinion that Wirginia Leszczyńska was “very knowledgeable and competent” was commonly held and accurate. The preparations for the meeting centred on Wirginia Leszczyńska’s role. Mr Fehmi was told he would meet her and had a clear recollection of the day. When he emailed Blazej Stodulkiewicz, Wirginia Leszczyńska and Dominik Leszczyński after the meeting he singled out Dominik Leszczyński as the one person he had not met in person.[96]In my view the thrust of Wirginia Leszczyńska’s evidence was that she was not at the meeting. I reject that evidence in its entirety. The disclosure of documents not adduced into evidence and which I have not seen does not assist. I accept Mr Fehmi’s evidence about the meeting. J. Chronology Part III: August onwards[97]I have seen a very large number of documents dealing with this part of the chronology. I do not think it necessary to deal with these in great detail. I therefore summarise the position as follows.[98]Katarzyna Dorosz-Wosiek had already been involved in agreeing the terms of the Mandate. In August 2021 she continued to play an important role supporting the Defendant’s negotiations with MacCap and supporting Xtellus’ role in those negotiations:a. On 10 August 2021, following some discussion about the terms on which MacCap might lend, Mr Gillies emailed Blazej Stodulkiewicz, Dominik Leszczyński and Mr Fehmi with some questions. Dominik Leszczyński sent an internal email to Blazej Stodulkiewicz, Wirginia Leszczyńska and Katarzyna Dorosz-Wosiek on the same day asking for help in providing the answers quickly.b. On 13 August 2021, Mr Gillies emailed Blazej Stodulkiewicz about “pulling together […due diligence] items”. He included a list of required information under the headings of legal review, financials, technical/ environmental/ valuation, and KYC information. He made it clear that more questions would follow. Dominik Leszczyński emailed Blazej Stodulkiewicz, Katarzyna Dorosz-Wosiek and Wirginia Leszczyńska asking them to “start collecting the documentation urgently” and to divide the tasks highlighted by MacCap.c. On 26 August 2021, in preparation for his absence on holiday (from 27 August to 8 September 2021), Blazej Stodulkiewicz emailed Mr Fehmi providing contact details of those who appear to be the key players within the Defendant. They included Katarzyna Dorosz-Wosiek who was described as “management board proxy, legal counsel, deeply involved in all group processes including financing processes from legal side”d. In September 2021 Katarzyna Dorosz-Wosiek continued to deal with matters including comments on the terms proposed by MacCap and dealing directly with Mr Fehmi. On 2 September 2021, Katarzyna Dorosz-Wosiek emailed Mr Fehmi directly, enclosing comments on indicative lending terms (the term sheet) proposed by MacCap “at the request of Dominik Leszczyński I am enclosing a term sheet with our changes and comments”. The term sheet included substantial and technical comments from her. On the same day she explained that she would prefer to deal with any issues that arose by email rather than by telephone. She would also be away from the Defendant between 6 September and 14 September 2021.e. A meeting was arranged with MacCap initially for 30 September 2021 but later re-arranged for 7 October 2021. Email correspondence from Mr Fehmi to Dominik Leszczyński and Blazej Stodulkiewicz on 17 September 2021 and later on 3 October 2021, makes it clear that the plan was to meet with the MacCap team and with Alexi Antolovich, described in the later email as the “head of the group”. Although the evidence was that Mr Antolovich did not attend the meeting, the documents show that he was involved with the deal being worked on by Xtellus.[99]In October 2021, Katarzyna Dorosz-Wosiek maintained a close involvement in negotiations and dealings with both Xtellus and MacCap:a. On 20 October 2021 she made further amendments to an updated term sheet.b. On 22 October 2021 Wirginia Leszczyńska was copied in to emails from Mr Gillies and responded directly to questions he posed about the occupation of various properties. Her responses were copied to Katarzyna Dorosz-Wosiek.c. On 27 October 2021, MacCap (now through Casper Hauge) raised a number of questions in emails to Dominik Leszczyński but copied to Katarzyna Dorosz-Wosiek, Wirginia Leszczyńska and Mr Fehmi. The queries were wide ranging and under the headings corporate documents, ownership, source of funds and contact details. Mr Hauge’s email sign off was over the words “Principal Finance, Macquarie Capital.” On the same day Mr Fehmi emailed Dominik Leszczyński and Blazej Stodulkiewicz to discuss the latest draft of the MacCap term sheet. He wrote:
“… let us please jump on a call to understand where the outstanding issues from your end on the TS so I can speak with Newton. Let us speak first so we present in a manner that would get the best result. He is chasing me to understand what is taking so long. Thanks a lot.”
Dominik Leszczyński emailed the marked-up terms sheet with the Defendant’s changes to Mr Fehmi, Blazej Stodulkiewicz, Wirginia Leszczyńska and Katarzyna Dorosz-Wosiek.[100]In late 2021, Katarzyna Dorosz-Wosiek was involved in an attempt to re-negotiate the terms of the Mandate. Shortly afterwards progress with Xtellus and MacCap appears to have stalled: a. On 28 November 2021, Dominik Leszczyński emailed Mr Fehmi to discuss legal fees which MacCap required the Defendant to pay. The email is rather bad tempered. He was not prepared to pay more than €100,000. He wrote:
“If you as advisors to our company accept the position of Macquarie and this sick situation - we expect that you will cover from your salary the difference in the cost of legal advice over the amount of €100,000 - If you do not do this we will have to cancel your contract and we will go with another partner despite the amount of work we have done in financing Macq.” b. On 6 December 2021, the Defendant proposed changes to the Mandate to the effect that any legal costs over €120,000 would be met by Xtellus. It is accepted that these changes (made by Katarzyna Dorosz-Wosiek) were never agreed. In evidence, Dominik Leszczyński told me: “I decided that there was no way forward with Mr Fehmi or Xtellus and in the end we mutually agreed with [Mr Fehmi] that the relationship would end there.”
[101]Dominik Leszczyński told me in evidence that:
“In January we agreed with [Mr Fehmi] that we would terminate the cooperation as a result of the rejection of financing by [Mr Gillies at MacCap]. When then, after that, the DL Invest Group PM SA proceeded [with] an independent financing process where, in March, there was a meeting with [Alexi Antolovich] from Macquarie Europe and it started the process directly. As a result of that the middleman had no mandate with [the Defendant] and despite the fact that our relationship, and especially relationship between Blazej and [Mr Fehmi] were friendly.”
[102]Dominik Leszczyński did not explain why, in those circumstances, he served a formal notice of termination the following summer and made no mention of this earlier termination. K. Chronology Part IV: The apparent watershed and fresh start[103]Negotiations with MacCap started up again in March 2022, but on the Defendant’s case, this time on a wholly new basis and quite apart from the deal struck by Xtellus and CCI (as it then was) but now terminated by CCI. To underline this new beginning Dominik Leszczyński emphasised that dealings were now (for the first time) with the Defendant and were also now (for the first time) with Macquarie Euro Limited and Mr Antolovich.[104]On 22 March 2022 Mr Fehmi contacted Newton Gillies (who by then had moved to Australia) and asked to be put in touch with Mr Antolovich. Mr Gillies responded, copied in Casper Hauge, and noted that Alexi Antolovich could be brought into discussions as and when needed.[105]On 24 March 2022, Katarzyna Dorosz-Wosiek ceased to be Prokurist but joined the Management Board of the Defendant.[106]Blazej Stodulkiewicz and Casper Hauge at MacCap continued to discuss terms and each included Mr Fehmi. On 25 March 2022 Blazej Stodulkiewicz emailed Mr Antolovich, with further proposals. The email was copied to Dominik Leszczyński and Wirginia Leszczyńska. After a brief WhatsApp exchange, Blazej Stodulkiewicz forwarded the latest term sheet being discussed with MacCap to Mr Fehmi. Mr Fehmi forwarded the term sheet to Casper Hauge on 29 March 2022 copying in Blazej Stodulkiewicz and Dominik Leszczyński. Mr Hauge responded with some proposals shortly thereafter, again copying in Mr Fehmi.[107]These exchanges (in particular the inclusion of Mr Fehmi) appear to have irritated Dominik Leszczyński. On the same day of the exchanges just described, Dominik Leszczyński instructed Blazej Stodulkiewicz to “cut out the middleman.” Later the same day Dominik Leszczyński emailed Blazej Stodulkiewicz and Wirginia Leszczyńska discussing new terms to be put to MacCap. He said: “we have to prepare ourselves for negotiations with [MacCap] - we have gone a long way with them, so it will be easier to get the process going with them” (underlining added). Blazej Stodulkiewicz responded to Mr Hauge’s proposal on the same day, this time not including Mr Fehmi and effectively (as he had been instructed to) cutting him out.[108]On 12 April 2022 (shortly after the attempt to remove Mr Fehmi from the dealings) the term sheet between Macquarie Euro Limited and the Defendant was signed. The signature of Dominik Leszczyński appears beneath the words. For and on behalf of DL Invest Group PM S.A. By its duly authorised representatives[109]The term sheet is almost entirely redacted. The only visible term makes it clear that the identity of the lender has not been finalised. The lender is identified as “Macquarie Limited or its nominated affiliate.”[110]Wirginia Leszczyńska’s evidence was that she had authorised her brother to sign. A facility agreement was signed on 20 September 2022 with Psary Invest II sp. z o.o. I have seen a copy of the 253-page facility agreement. Save for the front sheet and that section of the agreement that identifies the parties, it is entirely redacted. The Defendant does not appear to be a party. L. Chronology Part V: Termination of the Mandate and subsequent events[111]On 26 August 2022, a notice terminating the Mandate (dated 29 July 2022) was sent by “Dominik Leszczyński, DL Invest Group…” by email to Xtellus. It was signed by Dominik Leszczyński above the words “DL Invest Group.” Mr Zak responded on 28 September 2022, by letter addressed to Dominik Leszczyński at DL Invest Group, he wrote:
“We take this opportunity to remind you that the termination notice does not relieve the DL Invest Group of any of the obligations that have arisen under the [Mandate] prior to the effective date of termination. This includes the obligation of DL Invest Group to pay compensation due to Xtellus under… the [Mandate]. We expect that you will immediately notify us if DL Investment (sic.) Group signs any contractual arrangements for Financings as that term is defined in the [Mandate].”
[112]On 22 September 2022 Psary Invest II sp. z o.o. identified as “the company acting for and on behalf of the Borrowers” expressed a wish to draw down on the agreed facility and to have €121,266,674 paid out to 10 beneficiaries. The largest single beneficiary was to be the Defendant which was to receive €32,280,476.43. On 23 September 2022, Blazej Stodulkiewicz confirmed that “all transfers made to DL Invest Group entities have been collected”.[113]On 29 September 2022 MacCap issued a press statement with the headline:
“Macquarie Capital provides DL Invest Group €123.4 million financing to support further growth of leading Polish logistics portfolio”
. The body of the statement referred to Macquarie Capital Principal Finance. The financing subsequently increased to €143,379,834.75.[114]Mr Fehmi sent an email to Dominik Leszczyński and Blazej Stodulkiewicz on 3 October 2022 congratulating them on the successful closing of the transaction and enclosing an invoice in the sum of $1,511,650 calculated at the US Dollar equivalent of 1.25% of €123.4 million.[115]On 11 October 2022 Mr Fehmi spoke to Dominik Leszczyński and Blazej Stodulkiewicz and kept a note of what was discussed. This was an important discussion because it presented an opportunity for the Defendant to explain why it was under no obligation to pay Xtellus. A number of justifications for non-payment of the invoice were rehearsed. The note makes no mention of CCI. The first reference to CCI (albeit oblique) appears in a letter dated 13 October 2022 sent by Dominik Leszczyński (of DL Invest Group) to Xtellus. In that letter Dominik Leszczyński wrote:
“Xtellus admittedly concluded with Dominik Leszczyński DL Invest Group (hereinafter DL Invest Group) a letter of engagement…”
At the time the letter was written there was no incorporated business with the name “Dominik Leszczyński DL Invest Group.”

M. Issue 2: ratification as an alternative

[116]A contract which is not valid by reason of a lack of authority can be confirmed or ratified by the principal. As Mr Reay puts it at paragraph 121 of his opening submissions (relying on Bowstead & Reynolds on Agency at para.2-074 23rd ed.):
“Ratification will be implied whenever the conduct of the person in whose name or on whose behalf the act or transaction is done or entered into is such as to amount to clear evidence that he adopts or recognises such act or transaction: and may be implied from the mere acquiescence or inactivity of the principal”
[117]The relevant period to consider is from the date the Mandate was signed up to the date of the termination notice. In that period, is there clear evidence that the Defendant adopted or recognised the Mandate? I have come to the clear conclusion that, if I am wrong and Dominik Leszczyński did not bind the Defendant, that the Defendant plainly ratified the Mandate.[118]The actions and involvement of Katarzyna Dorosz-Wosiek (who at this time was the Prokurist of the Defendant and acted, as I have found, at all times on behalf of the Defendant) are in my judgment of paramount importance. In my view the following points are key:a. In August 2021 Blazej Stodulkiewicz put Katarzyna Dorosz-Wosiek forward as a key person for Xtellus to engage with whilst he was absent from the office. She accepted that role and for a while appears to have acted as the main point of contact between Xtellus and the Defendant. She even made clear to Mr Fehmi that she preferred to deal with queries by email and signed off her emails as Prokurist. Given her dealings with the negotiation of the Mandate, she was well aware that Xtellus and Mr Fehmi were working under its terms.b. She was involved in the negotiation of the term sheets setting out indicative terms on which the Defendant and MacCap might contract in the future. Xtellus was copied into her proposed changes to the term sheets. The only explanation for these exchanges was that she was fully aware that Xtellus (Mr Fehmi) was acting as (as Dominik Leszczyński put it later) the “middleman” between the Defendant and MacCap.c. Later in 2021 she was involved in the potential re-negotiation for the Mandate. It is difficult (if not impossible) to see how a person could be involved with attempts to change the terms of a contract without accepting that the contract is binding on the relevant parties in the first place.[119]It is clear that Wirginia Leszczyńska also was fully aware of the terms of the Mandate and enabled all parties to perform its terms:a. The 9 August 2021 meeting shows that Wirginia Leszczyńska knew that the Mandate had been signed and was doing all she could to build a strong relationship with Mr Fehmi. She plainly understood his role.b. Throughout August 2021 and October 2021, Wirginia Leszczyńska helped to prepare responses to MacCap’s questions and in my view plainly did so knowing of Mr Fehmi’s (and so Xtellus’) involvement in the arrangement.[120]If the actions of Katarzyna Dorosz-Wosiek on their own are insufficient (in my view they plainly are sufficient) then the common approach she took with Wirginia Leszczyńska make it plain that the Defendant (to the extent necessary) ratified the Mandate.[121]There are 3 further points which strongly indicate ratification: first Wirginia Leszczyńska says she “authorised” her brother to sign the agreement with MacCap. She did that in full knowledge of Mr Fehmi’s (and Xtellus’) involvement. Secondly, the termination notice of 26 August 2022 was (given my findings as to the counterparty) given by the Defendant. That in my judgment is the clearest evidence that the Defendant ratified the Mandate. Perhaps the most compelling evidence is that the key players at the Defendant attempted to oust Mr Fehmi and Xtellus. If Xtellus was not at the heart of the deal there would be no merit or point in ousting the “middleman.”[122]Taking a step back, it is in my judgment clear that the Defendant, and all of its human actors, consistently conducted themselves on the basis that the Mandate was binding and that Xtellus were working with them to secure finance right up to the point that attempts were made to cut Xtellus out.[123]I reject entirely Dominik Leszczyński’s assertion that there was a fresh agreement with MacCap quite distinct from that which had been organised and worked on by Mr Fehmi and Xtellus. It is clear that Alexi Antolovich was always part of the deal. His involvement had been announced by Mr Fehmi before the October 2021 meeting. I reject as patently false any suggestion that the discussions with Mr Antolovich represented a watershed or new beginning. Dominik Leszczyński’s March 2022 reference to having “gone a long way” with MacCap is the clearest indication that he knew the deal eventually struck was the continuation of what had gone before.[124]For these reasons, I find that if my conclusion in respect of authority is wrong, the Mandate was in any event ratified in the clearest possible way by the Defendant.

N. Issue 3:The correct interpretation of the Mandate

[125]There are 2 construction arguments: financing was provided by Macquarie Euro Limited to Psary Invest II sp. z o.o. The Defendant argues that in these circumstances the contractual pre-conditions for payment have not been triggered because first, the finance was not provided by “Macquarie Capital” and secondly, it was not provided to the Defendant. Macquarie Capital[126]The term “Macquarie Capital” is in my view plainly ambiguous because it has no plain and obvious single meaning. It follows, for the reasons explained above that I am entitled to apply commercial common sense. In my judgment, applying commercial sense and in any event, it includes Macquarie Euro Limited.[127]In reaching that conclusion I have had regard to the entirety of the Mandate and considered the relevant words in context. Macquarie Capital is mentioned at clause 7 (where it is defined as one of two “Potential Investors”) and at clause 6.3 and 6.4 where reference is made to “Potential Investors”. Clause 7 operates to prevent the Defendant from contacting “the institutions to which the Financing has been and will have been marketed by [Xtellus]”. Those institutions are then identified and include “Macquarie Capital.” Clause 6.3 provides that after termination, Xtellus would be entitled to its fee “if any of the Company completes” the Financing (or similar financing) with one or more of the “Potential Investors.” Clause 6.4 emphasises the Defendant’s right to approach other funders who are not “Potential Investors.”[128]The question is: would an informed bystander, considering the question when the Mandate was concluded, understand that Macquarie Capital would include Macquarie Euro Limited, a company within the Macquarie group. In my view they would.[129]First, commercial common sense makes it plain that the words should be read to include any entity within the Macquarie group of companies. Any other approach would require some entities within the group to be excluded but no basis for such exclusion has been advanced. Further any such exclusionary approach would be contrary to commercial common sense because it would render the application of two fundamental elements of the Mandate deeply uncertain: when Xtellus could expect to be paid and whom the Defendant would be entitled to approach after the Mandate was terminated.[130]Secondly, and in the alternative, if (contrary to my finding) commercial common sense cannot be taken into account because the meaning of the words is plain, Macquarie Euro Limited would still be included. A wide (non-exclusionary) understanding of the words is required because Macquarie Capital is defined as “an institution” and it would be understood that an “institution” is likely to have a complex structure and many parts.[131]The Macquarie Group is a global financial group headquartered and listed in Australia. I was taken to a “Macquarie Capital Principal Finance Real Estate” presentation. It defines “Macquarie Capital” as “Macquarie Corporate Holdings Pty Limited, its direct and indirect subsidiaries and the funds (and other investment vehicles) managed by such subsidiaries.”[132]Xtellus’ pleaded case is that Macquarie Euro Limited is part of the Macquarie Group. The unchallenged evidence of Mr Tomasz Rogalski (a partner at Norton Rose Fulbright Dyczkowski and Partners in Warsaw) was that Macquarie Euro Limited is “the European arm of Macquarie.” Psary[133]The second issue arises from clause 6.3 of the Mandate. It deals with payment once the Mandate has been terminated. That clause therefore specifically addresses the facts of the present case. It is therefore sensible to first consider if that clause applies before looking at clause 4. The fee (calculated in accordance with clause 4) would fall due if “any ofthe Company completes (either wholly or in part) the Financing or any bilateral or analogous financing” with one or more of the “Potential Investors” (which I have found to include Macquarie Euro Limited).[134]The parties’ submissions focused on the correct construction of the words “any of the Company” but it is also important to consider what is meant by the word “completes.”[135]Dealing with the first point, and on the assumption that I have found that the Defendant is the correct counterparty, Mr Reay submits that the words “any of the Company” should be read as “the Defendant,” requiring me to ignore the words “any of” and to substitute in the Defendant. He submits (with some force) that a finding that DL Invest Group (the term defined as “the Company”) means the Defendant relates to the whole Mandate and each time the capitalised word “Company” appears. He submits the term cannot mean one thing in one section of the Mandate and another in a different section.[136]Mr Reay’s submission involves a 3-step process involving 2 substitutions and a removal: first, the defined term “the Company” is substituted out so the words become “any of the DL Invest Group”. Secondly, the term DL Invest Group is itself substituted and the counterparty to the Mandate inserted so the words become “any of DL Invest Group PM S.A.” Thirdly, the words “any of” are removed because DL Invest Group PM S.A. is a single entity.[137]Step 1 has the benefit of being a simple substitution using definitions contained in the Mandate. In other words, step 1 is in my judgment uncontroversial. Step 2 creates uncertainty and means the clause ceases to make sense. Step 3 creates a solution to the havoc caused by step 2.[138]In my judgment that approach is flawed for 2 reasons: first, I do not accept that every reference to “the Company” in the Mandate must be read as a reference to the Defendant. My finding that the Defendant was the counterparty to the Mandate is based on an exercise which is similar to (but not the same as) as the exercise of construction required to determine what the words “any of the Company” mean. Secondly, I can see no good reason at all to ignore the words “any of” when it is quite possible to construe the Mandate in a way that makes commercial sense.[139]Mr Brown KC pointed out in closing that the words “any of” make sense if the thing to which they relate (“the Company”) is plural or at least is capable of having several constituent parts.[140]It is clear that the meaning of clause 6.3 is ambiguous because it does not admit of one clear interpretation. It follows that I am entitled to consider commercial common sense when interpreting the Mandate through the eyes of the informed bystander.[141]I am satisfied that clause 6.3 of the Mandate is to be read as creating an obligation to pay if “any of the DL Invest Group completes (either wholly or in part) the Financing or any bilateral or analogous financing” with one or more of the “Potential Investors.”[142]Psary Invest II sp. z o.o. is part of the group and it has “completed” the relevant financing because it executed the final agreement with Macquarie Euro Limited.

O. Issue 4

[143]The Mandate does not impose a minimum threshold of work by reference to hours or output that must be met before payment is due. It refers to Xtellus “assisting” the Defendant to raise financing, the provision of “advisory services” and services in “developing and arranging” the finance. As set out above it provides a non-exhaustive list of services that may be provided.[144]Mr Fehmi was taken to the indicative list in cross examination and asked about the work Xtellus had done in respect of each listed item. He explained that Xtellus had considered financial data provided by the Defendant (the “underlying cash flow analysis of the tenants”), raised issues if there were any, and if not passed that data on to MacCap. He told me Xtellus had found “the right set of investors to bring to [the Defendant]”, that they had considered the appropriate structure of the financing to “get the maximum out of your assets” (in particular with a view to increasing the loan to value ratio from the 40 to 45% offered by local banks to 75%). He explained that Xtellus had dealt with proposals received by potential investors and discussed them with the Defendant. He said:
“Key terms come in. The client looks at [them]. We have a call. We discuss what is good, what is not good, the strategy, boiling down to how do we reduce the pricing… these things are done very fluidly. Conversations are held. A call is set up. I used to have conversations with Blazej… who would deal with Dominik…”
In summary he said:
“the key thing here is someone with my experience actually gets a deal done or not.”
Mr Fehmi’s evidence is in my view entirely consistent with the picture painted by the contemporaneous documents.[145]Dominik Leszczyński told me in evidence (at paragraph 25 of his witness statement which he adopted as his evidence in chief) that once the Mandate had been signed, Mr Fehmi “limited himself to sending some emails, arranging some video conferences and arranging some introductory meetings”. In evidence he told me that Mr Fehmi was not involved in negotiations “he was merely forwarding correspondence… he was not introducing anything into these conversations at all.”[146]I reject Dominik Leszczyński’s view of Xtellus’ involvement. It is clear from the documents and from the oral evidence I heard, that Xtellus played a vital role in securing the very substantial funding that the Defendant wanted. I am easily satisfied that it provided services of the type required by the Mandate.

P. Witnesses and their statements

[147]It is appropriate, as a last word, to say a little more about some of the witnesses and their general approach to the case.[148]I was left with the clear impression that Dominik Leszczyński had come to court to argue his case rather than to tell the truth. In parts his evidence bordered on the outrageous. In particular (and simply to highlight some obvious examples) his evidence about DLIGDL (when its name was changed and its involvement in the Mandate), about Katarzyna Dorosz-Wosiek and Blazej Stodulkiewicz working for DLIGDL and about the “watershed” change in March 2022 when Mr Antolovich came onto the scene, had no basis in fact at all. Dominik Leszczyński was not an honest witness.[149]I have come to the conclusion that Wirginia Leszczyńska came to court to argue her brother’s case rather than give an honest account of events as she recalled them. I formed the view that she also was not an honest witness. In particular her evidence as to the 9 August 2021 meeting and what she did after she received the 9 July 2021 email was unimpressive and in my view designed solely to support her brother’s narrative.[150]It was plain to me that Wirginia Leszczyńska and Tomasz Brodzki (whose evidence was of very little relevance and which I have not mentioned) were keen to follow Dominik Leszczyński’s lead and support his views without any real regard for the facts. These observations (whilst they form no part of my reasoning) confirm my conclusion that Dominik Leszczyński had authority to bind the Defendant and was generally regarded as the person in charge.[151]CPR PD 57AC applies to witness statements for use at trials in the Business and Property Courts and requires the witness to “identify by list what documents, if any, the witness has referred to or been referred to for the purpose of providing the evidence set out in their trial witness statement” (see paragraph 3.2). The list (see 3.5 of the Appendix to PD 57AC) should “identify or describe the documents in such a way that they may be located easily at trial. Documents disclosed in the proceedings may be listed by disclosure reference.”[152]The list set out in the witness statements of Wirginia Leszczyńska, Dominik Leszczyński refers simply to “contemporaneous emails and messages.” This is plainly non-compliant with PD 57AC and was unhelpful. It was impossible to understand, to give 2 examples, which of the many disclosed documents each had considered when preparing their witness statements and whether they had considered documents that had not been disclosed.

Q. Conclusion

[153]It follows that the Claimant is entitled to judgment in the sum claimed. I will leave it to the parties to work out the detail of interest and any ancillary matters.