“the revenues earned (and recognised on an accounting basis as revenue) by any member of the Purchaser’s Group (including, with effect from Completion, the Group) from the business of direct selling of managed services and targeted solutions for market data, trading access, hosting, connectivity and pre-trade risk management for market makers, investment banks, hedge funds, exchange venues, technology partners and proprietary trading houses, facilitating low latency, resilient and secure trading as carried on by the Group prior to and following Completion and whether or not carried on after Completion by members of the Group or other members of the Purchaser’s Group, calculated using the same accounting principles, policies, treatments, procedures, computations, revenue and cost recognition methodologies, bases of assessment and categorisations under US GAAP as are used by the Purchaser’s Group in the preparation of the accounts of the Purchaser’s Group.”
“The failure to exercise or delay in exercising a right or remedy provided under this Agreement or by law shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies and no single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.”
“Any notice or other communication under or in connection with this Agreement shall be in writing and shall be delivered personally or sent by first class post pre-paid recorded delivery (or air mail if overseas) or by fax to the party due to receive the notice or communication as follows…”
“In the absence of evidence of earlier receipt, any notice or other communication is deemed given: 20.2.1 if delivered personally, when left at the address specified in clause 20.1; 20.2.2 if sent by mail other than air mail, two days after posting it; 20.2.3 if sent by air mail, six days after posting it; 20.2.4 if sent by fax, on completion of its transmission, provided that within one Business Day of such transmission, a copy is also given by one of the methods set out in the foregoing provisions of this subclause 20.2”
“Hi all, Please find attached the Year 1 Fixnetix Earnout Tracker. Please review and revert if any questions or concerns. If you wish to have a call to discuss, please advise, and I will schedule. Thanks. Lesley”
“… it has come to the attention of the Sellers Representatives that other companies within the Purchaser’s Group (as defined in the SPA) may have been earning Earnout Revenue (as defined in the SPA). In particular, it appears to the Sellers Representatives that a member of the Purchaser’s Group by the name of CeleritiFinTech Services Limited carries on a business which would fall within the definition of Earnout Business and generate Earnout Revenue. The Sellers Representatives are therefore concerned to understand how the process which the Purchaser undertook in preparing its calculation of Year One Earnout Revenue to ensure that all relevant Earnout Revenue from across the entirety of the Purchaser’s Group was determined and included.”
“With regard to the calculation of the Year Two Earnout Revenue, the Sellers Representatives note the recent transaction which has created DSX. Based on the Sellers Representatives’ experience of competing against HP(E) prior to the acquisition by your client, the Sellers Representatives would be surprised if there was no revenue within the enlarged group which fell within the definition of Earnout Revenue. The Sellers Representatives await with interest the calculation of the Year Two Earnout Revenue in due course and in accordance with the provisions of the SPA.”
“Our client has already made enquiries of the Group Head of Banking and Capital Markets Industry as well as the Assistant General Managers (AGMs) on major legacy HPE accounts that are also Fixnetix customers in order to confirm whether any of the HPE business revenue falls within the definition of Earnout Revenue. There was universal agreement that the legacy HPE offering was wholly different from that of the Fixnetix offering and would not fall within the definition of Earnout Business for the purposes of the SPA.”
“All Please find attached the Year 2 Fixnetix Earnout Tracker. Please review and revert if any questions or concerns. If you wish to have a call to discuss, please advise and I will schedule”
“Our client notes that revenue included in the calculation of the Year 2 Revenue, as set out at pages 3 and 4 of the Y2 Tracker, is generated entirely from previous Fixnetix work. However, following feedback from a number of Fixnetix Sellers who have extensive experience of the market and of the Fixnetix business, our clients find it implausible that, despite the merger which created DXC, there is no further revenue within the significantly enlarged DXC group which falls within the definition of Earnout Business in the SPA.”
“i) The court construes the relevant words of a contract in their documentary, factual and commercial context, assessed in the light of (i) the natural and ordinary meaning of the provision being construed, (ii) any other relevant provisions of the contract being construed, (iii) the overall purpose of the provision being construed and the contract or order in which it is contained, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party’s intentions – see Arnold v Britton[2015] UKSC 36 ;[2015] AC 1619 per Lord Neuberger PSC at paragraph 15 and the earlier cases he refers to in that paragraph;… iii) In arriving at the true meaning and effect of the contract or order, the departure point in most cases will be the language used by the parties because (a) the parties have control over the language they use in a contract or consent order and (b) the parties must have been specifically focussing on the issue covered by the disputed clause or clauses when agreeing the wording of that provision – see Arnold v. Britton (ibid.) per Lord Neuberger PSC at paragraph 17:… vi) If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other – see Rainy Sky SA v. Kookmin Bank (ibid.) per Lord Clarke JSC at paragraph 2…”
“(1) The contract must be interpreted objectively by asking what a reasonable person, with all the background knowledge which would reasonably have been available to the parties when they entered into the contract, would have understood the language of the contract to mean. (2) The court must consider the contract as a whole and, depending on the nature, formality and quality of its drafting, give more or less weight to elements of the wider context in reaching its view as to its objective meaning. (3) Interpretation is a unitary exercise which involves an iterative process by which each suggested interpretation is checked against the provisions of the contract and its implications and consequences are investigated.”
“65. So far as waiver by election is concerned, the basic proposition is that where two possible remedies or courses of action are to his knowledge open to X and he has communicated his intention to follow one course or remedy in such a manner as to lead Y to believe that his choice has been made, he will not later be permitted to resile from that position: see Scarf v. Jardine, (1882) 7 App. Cas…. …66. Thus, it is clear that whether or not the party entitled to notice has waived a defect upon which he subsequently seeks to rely, will depend upon the effect of the communications or conduct of the parties, the intention of the party alleged to have waived his rights being judged by objective standards. This being so, it seems to me clear that, in an appropriate commercial context, silence in response to the receipt of an invalid notice in the sense of a failure to intimate rejection of it, may, at least in combination with some other step taken or assented to under the contract, amount to a waiver of the invalidity or, put another way, may amount to acceptance of the notice as complying with the contract pursuant to which it is given. 67. Waiver is closely associated with the law of estoppel in that, in the case of estoppel (and at this point I leave aside estoppel by convention), it is necessary for there to have been an unequivocal representation of fact by words or conduct and, in waiver, there must similarly have been an unequivocal communication of X’s intention, whether by words or conduct. As observed by Mr. Justice Phillips in Youell and Others v. Bland Welch & Co. Ltd., (The Superhulls Cover-Case) (No 2), [1990] 2 Lloyd’s Rep. 431 at p. 450: “A party can represent that he will not enforce a specific legal right by words or conduct. He can say so expressly - this of course he can only do if he is aware of the right. Alternatively he can adopt a course of conduct which is inconsistent with the exercise of that right. Such a course of conduct will only constitute a representation that he will not exercise the right if the circumstances are such to suggest either that he was aware of the right when he embarked on the course of conduct inconsistent with it or that he was content to abandon any right he might enjoy which were inconsistent with that course of conduct.” … …72. As to point (2), it seems to me that the context in which the conduct of the charterers falls to be judged is not simply the immediate factual context but the commercial context and the purpose of the contractual requirement to serve NOR which is to trigger the charterers’ obligation to unload whereby laytime starts to run immediately (in the absence of express provision), or in accordance with a specific regime of the kind provided in cl. 30. In those circumstances, as it seems to me, if (i) in purported compliance with the terms of the charter-party the master serves on the charterers or their agents for service NOR which is in fact invalid because the ship has not yet arrived, and (ii) thereafter the charterers and/or the receivers to whom NOR is required to be given become aware of the actual readiness of the vessel, and (iii) the charterers and the receivers’ agents, being aware of the facts giving rise to the invalidity, do nothing to indicate any rejection or reservation in respect of the NOR, but instead commence unloading, then there is every good reason for the reasonable shipowner to assume an intention and acceptance by the charterers that laytime should start to run without the formal necessity of a fresh notice, such intention and acceptance being unequivocally communicated by involvement in the operation of unloading. The only realistic basis on which the conduct of the charterers/receivers could be regarded as equivocal in relation to their intention to waive the invalidity of the notice is to make the assumption that the charterers intend, and reserve the right, later to rely upon the invalidity without disclosing that intention, when, as commercial men, they must be aware that if such intention or reservation were made clear, the shipowner would immediately serve fresh NOR to protect his position. An assumption of lack of fair dealing of that kind is not one which it seems to me appropriate to make on an objective consideration of the parties’ intentions for the purposes of the doctrine of waiver…. …78. For the reasons which I have set out, I consider the doctrine of waiver may be invoked and applied in such a case and that the commencement of loading by the charterer or receiver without rejection of or reservation regarding the NOR can properly be treated as the "something else" which Lord Justice Mustill indicated was required to be added to mere knowledge of readiness on the part of the charterers, in order for a finding of waiver or estoppel to be justified. Not only does the commencement of loading manifest an acceptance of the vessel’s readiness to load, it also meets the concern of Lord Justice Mustill that to argue (as it was in The Mexico 1) that laytime should begin at the point when the charterers or their agents became aware that the cargo was ready, would give rise to uncertainty and substitute a basis for the computation of laytime which would be a fertile source of dispute. I therefore disagree with the view expressed by Mr. Justice Langley that he could see no basis on which a different conclusion from that reached in The Mexico 1 could be justified by substituting the time when discharge actually commenced for the time when the vessel was first known by the charterers to be ready to discharge. For the same reason I disagree with the Judge when he expressed the view that the reasoning of Mr. Justice Donaldson in The Helle Skou could not stand with that in The Mexico 1, in that it represented an application of the inchoate notice concept which did not survive that latter case. As already indicated in par. 26 above, I do not read The Helle Skou (which was not referred to in the judgment of Lord Justice Mustill in The Mexico 1), as involving an application of the inchoate notice doctrine. Rather, I consider it to be an authority supportive of the view that the doctrine of waiver is available to assist the owners in the circumstances of this case. I would hold that the arbitrators were correct to find in favour of the owners that laytime commenced at 08 00 on Tuesday Sept. 29, 1998.”
“92. There was no material dispute between the parties as to the applicable principles, which are derived from those articulated by Lord Goff in the well-known passage in his speech in The Kanchenjunga, [1990] 1 Lloyd's Rep. 370 at 389 and from the decision of the Court of Appeal in Peyman v Lanjani,[1985] Ch. 457 at 487, 494, 500 namely: i) Where a party (A) becomes entitled to terminate a contract, whether pursuant to a contractual right or a repudiatory breach by the other party or otherwise, it must elect whether to exercise that right or not; ii) In order to make that election, A must be aware both of the facts giving rise to the right to terminate and of the right itself; iii) A must actually make a decision. If it does not, the time may come when the law nonetheless deems an election to have been made; iv) If, with the requisite knowledge set out in ii) above, A acts in a manner which is consistent only with one or other of two inconsistent courses, it will be held to have elected accordingly; v) An election can be made by any words or conduct which communicates an intention to choose one or other course of action but, particularly where A has elected to abandon a right which it would otherwise possess, such election must be communicated in clear and unequivocal terms. i) Where a party (A) becomes entitled to terminate a contract, whether pursuant to a contractual right or a repudiatory breach by the other party or otherwise, it must elect whether to exercise that right or not; ii) In order to make that election, A must be aware both of the facts giving rise to the right to terminate and of the right itself; iii) A must actually make a decision. If it does not, the time may come when the law nonetheless deems an election to have been made; iv) If, with the requisite knowledge set out in ii) above, A acts in a manner which is consistent only with one or other of two inconsistent courses, it will be held to have elected accordingly; v) An election can be made by any words or conduct which communicates an intention to choose one or other course of action but, particularly where A has elected to abandon a right which it would otherwise possess, such election must be communicated in clear and unequivocal terms. 93. Was Ure aware of its right to terminate and, if so, when? Is knowledge to be inferred from the fact that it was receiving advice from Burges Salmon?”
“It is a commonplace that the expression "waiver" is one which may, in law, bear different meanings. In particular, it may refer to a forbearance from exercising a right or to an abandonment of a right. Here we are concerned with waiver in the sense of abandonment of a right which arises by virtue of a party making an election. Election itself is a concept which may be relevant in more that one context. In the present case, we are concerned with an election which may arise in the context of a binding contract, when a state of affairs comes into existence in which one party becomes entitled, either under the terms of the contract or by the general law, to exercise a right, and he has to decide whether or not to do so. His decision, being a matter of choice for him, is called in law an election. Characteristically, this state of affairs arises where the other party has repudiated the contract or has otherwise committed a breach of the contract which entitles the innocent party to bring it to an end, or has made a tender of performance which does not conform to the terms of the contract. But this is not necessarily so. An analogous situation arises where the innocent party becomes entitled to rescind the contract, i.e. to wipe it out altogether, for example because the contract has been induced by a misrepresentation; and one or both parties may become entitled to determine a contract in the event of a wholly extraneous event occurring, as under a war clause in a charter-party. Characteristically, the effect of the new situation is that a party becomes entitled to determine or to rescind the contract, or to reject an uncontractual tender of performance; but, in theory at least, a less drastic course of action might become available to him under the terms of the contract. In all cases, he has in the end to make his election, not as a matter of obligation, but in the sense that, if he does not do so, the time may come when the law takes the decision out of his hands, either by holding him to have elected not to exercise the right which has become available to him, or sometimes by holding him to have elected to exercise it. Instances of this phenomenon are to be found in s. 35 of the Sale of Goods Act, 1979. In particular, where with knowledge of the relevant facts a party has acted in a manner which is consistent only with his having chosen one of the two alternative and inconsistent courses of action then open to him - for example, to determine a contract or alternatively to affirm it - he is held to have made his election accordingly, just as a buyer may be deemed to have accepted uncontractual goods in the circumstances specified in s. 35 of the 1979 Act. This is the aspect of election referred to by Lord Diplock in Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd., [1971] A.C. 850 at p. 883. But of course an election need not be made in thisway. It can be communicated to the other party by words or conduct; though, perhaps because a party who elects not to exercise a right which has become available to him is abandoning that right, he will only be held to have done so if he has so communicated his election to the other party in clear and unequivocal terms (see Scarf v. Jardine, (1882) 7 App.Cas. 345 at p. 361, per Lod Blackburn, and China National Foreign Trade Transportation Corporation v. Evlogia Shipping Co. S.A. of Panama (The Mihalios Xilas), [1979] 2 Lloyd’s Rep. 303 at p. 307; [1979] 1 W.L.R. 1018 at p. 1024, per Lord Diplock). Once an election is made, however, it is final and binding (see Scarf v. Jardine, per Lord Blackburn, at p. 360). Moreover it does not require consideration to support it, and so it is to be distinguished from an express or implied agreement, such as a variation of the relevant contract, which traditionally requires consideration to render it binding in English law.”
“21. The principle of waiver by election is not needed to explain why a decision to terminate a contract, once communicated, is final and irrevocable. A valid termination has the legal effect of discharging both parties (from then on) from their obligations under the contract. Those obligations could only be reinstated by making a new contract. But the principle is needed to explain why a party who communicates unequivocally an intention to continue with performance thereby loses the right to terminate the contract (in so far as the right was based on facts then in existence and known to the electing party). What is fundamental to the principle of waiver by election and crucial for present purposes is that it is only capable of applying where a choice must be made between two alternative and inconsistent (in the sense of mutually exclusive) courses of action, such that adopting one of them necessarily entails forsaking the other.”
“(1) a legal relationship between the parties; (2) a representation, express or implied, by one party that he will not enforce his strict rights against the other; and (3) reliance by the representee (whether by action or by omission to act) on the representation, which renders it inequitable, in all the circumstances, for the representor to enforce his strict rights, or at least to do so until the representee is restored to his former position.”
“For promissory estoppel to operate there must be a legal relationship giving rise to rights and duties between the parties; a promise or a representation by one party that they will not enforce against the other their strict legal rights arising out of that relationship; an intention on the part of the former party that the latter will rely on the representation; and such reliance by the latter party. Even if these requirements are satisfied, the operation of the doctrine may be excluded if it is, nevertheless, not “inequitable” for the first party to go back on their promise. The doctrine most commonly applies to promises not to enforce contractual rights, but it also extends to certain other relationships.”
“There are three key requirements for estoppel by representation: (1) a clear representation of fact or (probably) law intended to induce the representee to adopt a particular course of conduct; (2) an act of the representee reasonably taken in reliance on the representation; and (3) the representee must be able to show that they will suffer detriment if the representor is not held to their representation. The burden lies on the representee to establish an estoppel by representation. This may be possible even in the face of an entire agreement clause. Estoppel by representation has been described as an “an estoppel in the strict sense of the term” and is the basis of the majority of claims in estoppel. It has sometimes been described as a rule of evidence, but is best viewed as a substantive rule of law.”
“Now the doctrine of laches in courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might be fairly regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief which otherwise would be just, is founded on mere delay, that delay of course not amounting to a bar by any Statute of Limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.”
“Length of time where it does not operate as a statutory or positive bar operates, as I apprehend, simply as evidence of assent or acquiescence. The two propositions of a bar by length of time and by acquiescence are not, as I conceive, distinct propositions. They constitute but one proposition, and that proposition, when applied to a question of this description, is that the cestui que trust assented to the breach of trust”
“It seems to me that, when considering whether to grant a declaration or not, the court should take into account justice to the claimant, justice to the defendant, whether the declaration would serve a useful purpose and whether there are any other special reasons why or why not the court should grant the declaration”