“We understand green flag on KYC and other issues has been already granted, and that hopefully tomorrow or on the 24th CS shall be in position to strike funds under your instruction sir.”
“Today the value date of the wire from [Deutsche Bank] to [Credit Suisse] is due. As agreed, I’ll make sure the first wire for€50m is completed without any delay nor issues, once you confirm receipt; I’ll send the remaining immediately”
“… frustration occurs whenever the law recognises that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract. Non haec in foedera veni. It was not this that I promised to do.”
“… there is no need to consider what the parties thought or how they or reasonable men in their shoes would have dealt with the new situation if they had foreseen it. The question is whether the contract which they did make is, on its true construction, wide enough to apply to the new situation: if it is not, then it is at an end.”
“the fact that damages cannot be assessed with certainty does not relieve the wrong-doer of the necessity of paying damages for his breach of contract.”
'The Chief Justice directed the jury, that unless the defendant did produce the jewel, and show it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewels the measure of their damages: which they accordingly did.' 165. These principles can help a claimant to overcome evidential difficulties in proving damages. There is a limit, however, to how far they can be taken. They may assist in resolving uncertainties where evidence is not reasonably available but they do not enable the court to conjure facts out of the air and they have little role to play where evidence could reasonably have been obtained,3 or has in fact been adduced.4 They may give the claimant a fair wind, but not a free ride.5” [Fns.] 3 See e.g. Capita Alternative Fund Services (Guernsey) Ltd v Drivers Jonas[2012] EWCA Civ 1417 , paras 80, 122-3. 4 See e.g. Force India Formula One Team Ltd v Aerolab Srl[2013] EWCA Civ 780 ;[2013] RPC 36 , paras 92-93. 5 See Adam Kramer, The Law of Contract Damages (2014) at 470-1 . '
‘where a claimant seeks to prove a case of dishonesty, its inherent improbability means that, even on the civil burden of proof, the evidence needed to prove it must be all the stronger’, per Rix LJ in Markel International Insurance Company Ltd v Higgins[2009] EWCA Civ 790 at [50]. The question remains one of the balance of probability, although typically, as Ungoed-Thomas J put it in In re Dellow's Will Trusts[1964] 1 WLR 451 , 455 (cited by Lord Nicholls in In re H[1996] AC 563 , 586H), ‘The more serious the allegation the more cogent the evidence required to overcome the unlikelihood of what is alleged and thus to prove it’
"there is an evidential presumption of fact (not law) that a representee will have been induced by a fraudulent misrepresentation intended to cause him to enter the contract and that the inference will be "very difficult to rebut" to use the words of Lord Clarke." 996. While the onus of proof is on the representee to prove inducement, he has the benefit of that evidential presumption, and he only needs to show that the misrepresentation was "actively present in his mind" when he made the decision to enter into the transaction (BV Nederlandse at para [45]). The phrase "actively present in his mind" is taken from the judgment of Bowen LJ in Edgington v Fitzmaurice(1885) 29 Ch D 459 , 483 where he explained the principle as follows: "
“The present attempts of the Defendants and Meta to ascertain and quantify all their respective losses remain provisional. They have sought to quantify their losses below and they reserve the right to add to and/or amend their losses in due course (including on the basis of expert evidence).”
“94.1. Even if (which is not admitted) it is possible to compare the SPA with the IKOPUS Acquisition, the reduction in price relied on by the Defendants is patently unreasonable. According to the D&CC, the MEAG Capacity Financing was successfully completed, the En-It Bond was part-redeemed and part-purchased, and the Project successfully completed (with, according to subparagraph 120.2.3-4, only about€20m of loss attributable to delays). The sale of 80% of MEP for€10,000,000 is clearly and obviously unreasonable, and was objectively unreasonable when it was agreed. 94.2. Moreover, as the Defendants and Meta well knew, the Claimant was willing and able to negotiate, in an attempt to find a solution that would enable the Claimant to purchase the Sale Shares. Paragraph 78.28-78.30 above are repeated. The Defendants’ decision not to negotiate with the Claimant was an unreasonable failure to mitigate and an independent cause of the loss alleged in the Counterclaim.”
“Under the SPA, the OHA Redemption Bond and Exit Fee, totalling €… [sic.] million would have been paid out of the Initial Payment: see clause 3.6 SPA B/015. By contrast under the IKOPUS contract, the payments for the release of these securities were made by IKOPUS to OHA [D5/805]. The figures payable to OHA under both deals therefore cancel each other out, with the result that under the IKOPUS deal, the Defendants only received some£10 million .”
“€215 m is a very far reached and dangerous commitment, if it wasn’t for the investors I told you about and their commitment, I wouldn’t have thought of considering such an amount!”
“…we need to delay payment and request at least a month…”
“Sure. Anything I can do to expedite. As long as it’s ok, please proceed and let me know if anything is needed.”