“salaries, ancillary expenses and other emoluments of senior management of [KEL] paid by or on behalf of Abraaj (the ‘Senior Manager Emoluments’) as notified by Abraaj to the Original Shareholders”
“[B]ased on the stake held by AH as co-investment directly in KES and through it’s 18.8% stake in IGCF, fees charged on co-investors and recoveries on working capital/support loans provided, total cash inflows into Abraaj Holdings from this sale is expected at AED 2.2BN”
“It, the Guarantor and each of the Security Providers (as applicable) has the power to enter into, perform and delivery and has taken all necessary action to authorise the entry into, performance and delivery of the Finance Documents to which it is a party and the transactions contemplated thereby”
“Mashreq is looking for additional security to extend the KE facility by 2 months … They want to explore the possibility of assignment of Receivable such as KESP and/or IGCF SPV 21. I have told them that we discuss this further once you are back. My view is it would be difficult avoid the request for additional security.”
“They are considering taking a charge on AH receivable from KESP and IGCF SPV21 (both relate to KE) but again this is KE related exposure and ideally they would not like to increase their collateral coverage with KE and its related entities. They have submitted the extension proposal and expect that risk will not extend unless we bring the LTV down to their acceptable level”
“assignment of either receivable from KESP$33m or receivable from IGCF$42m or both ….”
“due from funds and their SPVS” in the sum of US$334,828,000 ; “due from partner companies” (i.e. from “the investee companies of the managed funds”) in the sum of US57,740,000 and “due from other related parties” in the sum of US$38,229,000 . Only the first appears in Mr Fatoo’s schedule. ii) There is no obvious reason for the selection of one of those categories rather than the others, and the suggestion offered by Mr Chapman KC does not seem to work. A loan due from Abraaj Employees 2 SPC Limited is excluded from Mr Fatoo’s list, even though repayable to AH (see note 11.1). Further, looking at the AIML Consolidated Accounts for30 June 2017 , it is clear that a number of receivables due to AIML feature in the figure included by Mr Fatoo: the Abraaj Real Estate Fund, ASA LLP and Abraaj Growth Market Health Fund LP. There is nothing, therefore, to suggest that receivables due to AIML and reflected in the consolidated group accounts were being carved out. iii) I was not referred to any subsequent reference to this schedule, still less to any distinction said to be reflected in it. The following day, Mr Fatoo was copied into an email setting out proposed terms for the extension which referred to “assignment of receivables in the books of Abraaj Holdings from [KESP] … aggregating USD 32.8MM”
“Based on our discussions with Abraaj, the additional collateral available are as follows …..$32.8 MM Receivables from KES Power Ltd to Abraaj Holdings” (language which is wholly inconsistent with any suggestion Abraaj had told Mashreq the day before the KESP Receivable was not due to Abraaj Holdings but AIML). ii) At 5.27pm, Mr Fatoo provided a mark up of the term sheet which had clearly been prepared at some earlier stage. That was clearly a preliminary document. The section on security included reference to a personal net worth “Statement of Guarantor (Mr Arif Naqvi)”; “assignment of receivables from K-Electric in favour of Borrower, Guarantor and IGCF (acknowledgement of K-Electric to be explored to perfect security condition)” and “assignment of dividend proceeds from K-Electric in favour of Borrower, Guarantor & IGCF”
“Assignment of receivables in the books of Abraaj Holdings from KES Power Ltd (1st level shareholder of KE Electric) aggregating US$ 37.03 MM in favour of Mashreq Bank (assignment agreement/structure to be finalized on consultation with internal and external legal counsel.”
“We understand that there is no documentation for the receivables. They are simply reflected on the books of the companies so an English law assignment agreement is fine.”
“A copy of a resolution of the board of directors of the Guarantor, each Security Provider, and in the case of the Borrower, such other form of authorisation permitted under its articles of association: (i) approving the terms of, and the transactions contemplated by, this Agreement, the Assignment Agreement, the relevant Deed of Confirmation and/or the relevant ESM Amendment Deed (as applicable) and resolving that it execute this Agreement, the Assignment Agreement, the relevant Deed of Confirmation and/or the relevant ESM Amendment Deed to which it is a party; (ii) authorising a specified person or persons to execute this Agreement, the Assignment Agreement, the relevant Deed of Confirmation and/or the relevant ESM Amendment Deed on its behalf to which it is a party; and (iii) authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with this Agreement, the Assignment Agreement, the relevant Deed of Confirmation and/or the relevant ESM Amendment Deed to which it is a party.”
“Obviously, I have an interest in the receivable as well, in my other role, aside from being a member of this board, and that is that, obviously as everyone knows, I think there is a claim that the receivable, the amount payable to AIML, was placed as security with Mashreqbank ….”
“Subject to clauses 3.2 through 3.5, in consideration for the provision of the Services during the term of this Agreement, the Client hereby agrees to pay the Consultant a total fee of USD 10,000,000 per annum (the “Service Fee’) inclusive of tax which shall be paid on a quarterly basis in advance. The Service Fee shall be payable in respect of each calendar year starting from the Effective Date until and including the calendar year31 December 2012 (unless this agreement is terminated earlier in accordance with its terms) ….”
“Notwithstanding it is the obligation of the Client to pay the Service Fee, in the event the Company does not have a Cash Operating Profit in a particular financial year … sufficient, to make the Service Fee payment for the following financial year, USD 5,000,000 of the Service Fee shall be deferred for such subsequent financial year until such lime as the Company has funds available from Cash Operating Profits (the ‘Accrued Fees’) which would place the Company in a position that it would be able to pay the Service Fee…”
“To the extent that any Accrued Fee[s) remains unpaid such Accrued Fee(s) shall be paid no later than the earlier of the date of a complete Exit (as such term is defined under the Shareholders Agreement) by Abraaj (as such term is defined under the Shareholders Agreement), or the date of termination hereof or the assignment or novation of this Agreement by the Consultant to a third party, other than a party within the Abraaj Group (as such term is defined under the Shareholders Agreement).”
“(a) a Listing; or (b) the sale of all or part of the shares of Abraaj to a member of the Abraaj Group or to entity managed by a member of the Abraaj Group for a purchase prices in the Investment Amount or the sale of all or part of the share capital of Abraaj to a third party: (c) the sale of all or part of the O Shares to a member of the Abraaj Group or to entity managed by a member of the Abraaj Group for a purchase prices in the Investment Amount or the sale of all or part of the share capital of Abraaj to a third party; or (d) the sa1e of all or part of the shares in KESC held by the Company to any person or persons; or (e) the disposal by one or more transactions of all or part at the business of the Group to any person or persons, provided that where such disposals are to members of the Abraaj Group or entities managed by a member of the Abraaj Group they shall be concluded on arms length terms and in any event such disposals shall be concluded at no less than fair value.”
“In any event, all such deferred amount shall be payable no later than the earlier of the date of complete Exit by Abraaj or the date of termination or expiry of the Services Contract or the assignment or novation of the Services Contract by Abraaj (or its nominee) to a third party.”
“Neither Party may assign any of its rights or obligations under this Agreement without the consent of the other Party, provided that the Consultant may assign its rights (but not its obligations) under this Agreement to a member of the Abraaj Group (as defined in the Shareholders Agreement).”
“A prohibition on assignment normally only invalidates the assignment as against the other party to the contract so as to prevent a transfer of the chose in action: D in the absence of the clearest words it cannot operate to invalidate the contract as between the assignor and the assignee and even then it may be ineffective on the grounds of public policy.”
“In the case of a lease, the fact that an assignment in breach of covenant is effective to vest the term in the assignee means that it is too late to seek consent; the breach of covenant is complete and the lease is liable to forfeiture. That is not so in the case of the benefit of a contract. The assignment does not constitute a breach of contract and is without legal effect so far as the other party to the contract is concerned. It is not too late for the assignor to ask for consent. But the contract requires the assignor to obtain the prior consent of the other party; retrospective consent, if given, may operate as a waiver, but cannot amount to the consent required by the contract. The proper course is for the assignor to ask for consent to a new assignment and to wait until it is given or unreasonably refused before proceeding to make it.”
“AIML incurred operating expenses on behalf of the Company. These expenses primarily related to payroll costs of KESP/KESC employees. The Company doesn’t have sufficient cash to meet these liabilities. KESP Board has been requested to approve conversion to equity.”
“The doctrine applies in the following manner. (i) The June transaction was designed to embody the principles of the April transaction. That earlier transaction clearly embodied, and agreed, the concept of effective security over the Ranhill proceeds (albeit limited to 35%). (ii) The earlier transaction was one in which all the relevant companies in the group joined by agreement, or at the very least by acquiescence and implicit signification of approval — see above. The idea that they would be seeking finance, proffering security and yet holding back that security because of a debenture (or because of historic assignments up the group) is contrary to common sense and commercial propriety. I do not think that Mr Govindia (who was the principal person involved) or Mr Hofer (who had some lesser involvement) harboured those reservations. They assumed that the security would be effective, probably not thinking at that stage about mechanics. Mr Govindia represented Forburg for these purposes — see above. (iii) There was therefore at that stage a common assumption, plainly communicated between the parties (because it was of the essence of the transaction) that there was, and would be, effective security over the Ranhill proceeds. (iv) Nothing changed in that assumption between then and the June transaction, save that the amount standing as security increased to 100%. It is true that by then the Finance debenture was referred to between the parties, but in a sense that reinforces the assumption. The parties assumed it would not be an obstacle. When proposals were made for a deed of postponement in July they were made because of the assumption, not because the assumption did not exist. (v) The assumption was shared by all the directors of the relevant EMG companies, who had the objective of saving the group through the loan that Mr Kinder was offering. It was in the interests of all of Forburg, Holdings and Finance that it be given, and the directors had an eye to all three businesses when conducting the deal. The assumption should be attributed to them wearing all hats, and to Mr Govindia wearing his hat as representative of the entire group. (vi) Mr Hofer was indeed acting as agent in initialling the Forburg letter. The existence of that letter demonstrates that Forburg was party to the overall arrangement. He was still a director when he initialled it. (vii) The reference to Finance in the Facility Letter demonstrates that the individuals who were directors of that company (and principally, for these purposes, Mr Hofer and Mr Govindia) had that company in mind and should be taken as entertaining an assumption about the validity of the security in that capacity as well as in their capacity as the directors of the other companies. (viii) I doubt if Mr Govindia was being deliberately silent about what he knew to be blots on the title of Rivertrade to security over the Ranhill proceeds. He shared the assumption of Rivertrade as to what the June documents had achieved in this respect. But if he was being deliberately silent, he acquiesced in, and indeed probably encouraged, the assumption of Rivertrade in this respect. (ix) Rivertrade acted on that assumption by continuing to lend money, and by financing the Ranhill proceedings both before and after the June transaction. It is inconceivable that Mr Kinder would have done that if had not believed Rivertrade had got security over that asset. There would be no reason for Rivertrade to have funded the litigation (and indeed given instructions in relation to it) absent such an interest. All the EMG companies (including Forburg) must have known and appreciated that. In those circumstances it would be plainly unjust to allow any of EMG companies to resile from the assumption which underpinned the June transaction. As well as being a breach of faith, it would completely undermine a fundamental aspect of the transaction.”
“In my judgment these findings are fatal to Mr Buttimore's submissions. He accepted that in June 2009 Finance held no more than the bare legal title to the Ranhill receivable. Indeed, it was the case of the parties for whom he appears, Mr Govindia and Forburg, that all receivables had been assigned in May 2008 from Finance to Holdings and then from Holdings to Forburg. Accordingly, prior to the 2009 agreements, Forburg was the holder of at least the beneficial title to the Ranhill receivable. Moreover, on the judge's findings, Forburg and Holdings were, with Rivertrade, parties to the June 2009 agreement. Further, for the reasons I have given, I have no doubt that it was the common intention of the parties to the June 2009 agreement that the benefit of the whole of the Ranhill receivable should be transferred to Rivertrade. It follows that this is not a case in which an estoppel is relied upon to create an enforceable right where none previously existed. It is instead one of those cases in which the estoppel is relied upon to bind the parties to an agreement to an interpretation which would not otherwise be correct. That point aside, I am satisfied that the judge approached the case in an entirely conventional way. He found that the parties were proceeding on the common underlying assumption that Rivertrade would have effective security over the Ranhill proceeds; this assumption was communicated between the parties; and Rivertrade acted on that assumption by continuing to lend monies and by financing the Ranhill proceedings. In light of all of these circumstances I am satisfied that the judge was entitled to find that it would be unjust to allow any EMG company to resile from that position.”
“English law has generally taken the robust line that a man who owns property is not under any general duty to safeguard it and that he may sue for its recovery any person into whose hands it has come .. He is not estopped from asserting his title by mere inaction or silence, because inaction or silence, by contrast with positive conduct or statement, is colourless: it cannot influence a person to act to his detriment unless it acquires a positive content such that that person is entitled to rely on it. In order that silence or inaction may acquire a positive content it is usually said that there must be a duty to speak or to act in a particular way, owed to the person prejudiced, or to the public or to a class of the public of which he in the event turns out to be one. … What I think we are looking for here is an answer to the question whether, having regard to the situation in which the relevant transaction occurred, as known to both parties, a reasonable man, in the position of the "acquirer" of the property, would expect the ‘owner’ acting honestly and responsibly, if he claimed any title in the property, to take steps to make that claim known to, and discoverable by, the ‘acquirer’ and whether, in the face of an omission to do so, the ‘acquirer’ could reasonably assume that no such title was claimed.”
“It would have caused me to pause, and I would have looked probably for more certainty. It may have caused me not to devote the resources to KESP that I did, including time, including money – money we did not have.”
“In considering those submissions, I am conscious of the fact that the liquidator of the plaintiffs is adopting an attitude which, had the company not been in liquidation, would never have been adopted by the directors of the company. The point taken by the liquidator is a technical one, and to some extent unmeritorious. But persons in that position have duties to perform, and it is sometimes necessary for them to take points which others would be reluctant to take; and they are entitled, like all others, to have each point considered and decided in accordance with the established principles of law.”
“This argument is based on implication, which is normally invoked in order to give rise to an unexpressed term into an existing contract. However, it is clear, as a matter of principle, commercial reality, and indeed authority, that an unexpressed contract can arise by way of implication. In order to succeed in such an argument, it is, of course, necessary for the well established requirements for implication to be satisfied. Thus, in this case, the respondents have to show that, at the time of the alleged assignment, (a) it would have been obvious to Mr Fisher (as well as Essex) that his interest in the musical copyright was being, or had to be, assigned to Essex, or, which may amount to the same thing, (b) the commercial relationship between the parties could not sensibly have functioned without such an assignment.”
“At the date of Five Star's assignment to RZB, any insurance claim(s) were merely an unwished-for future possibility dependent upon some future casualty. The distinction between present claims (which category includes rights that may mature in future under a presently existing contract) and future claims is not always easy. But future insurance claims which depend on future casualties which may never occur appear to me to fall clearly into the latter category and not to be assignable under section 136: see the discussion in Chitty on Contracts , pp 1042-1043, paras 20-028 and 20-029.”
“The subject-matter of the assignment must be capable of ascertainment and identified with sufficient certainty to establish what is being assigned”). I have found it easier to find clear statements of a principle to that effect in textbooks than in the authorities referred to in the supporting footnotes, but the principle is a sound one. The debtor may find itself facing competing claims from assignor and assignee, as well as the risk that if it pays the latter more than has in fact been assigned, it will remain liable to the former. In Phoenix Group Foundation v Harbour Fund II LP[2023] EWCA Civ 36 , [73], when dealing with assignments of future property, the Court of Appeal accepted my conclusion as trial judge “that the basic requirements of equity in order to give effect to an agreement to assign future property” included that “the future property to be transferred must be described with sufficient clarity in the agreement, so that it can be ascertained whether any particular item of property coming into existence and into the hands of the assignor falls within the scope of the agreement.”
“There is apparently no authority directly in point. But it seems relevant to bear in mind that in the development of our contract law the position of third parties has not been entirely ignored. The court will not order a rectification, which would be operative against a third party, unless the third party is a purchaser with notice. Then there is the rule of English law that the subsequent conduct of parties to a written contract, even if it shows how they have in practice interpreted the contract, is inadmissible in aid of construction. It is a rule which does not appeal to commercial men. But my understanding is that one, but not the only, reason for this rule is to protect the position of third parties, who in commerce frequently have to rely simply on what appears on the face of the contract. If this reflects the policy of our contract law, it would not be right, in construing the lien clause, to ignore entirely its impact on the third party against whom it is sought to enforce the lien …. in my view these third party interests are relevant to the construction of the lien clause. Only a clear lien clause should be enforceable against the third party. In the event of a real ambiguity the lien clause should be construed against the party seeking to rely on it. If that is right, I would in any event resolve any doubt against Care, ruling that they have not demonstrated a clear right against the third party.”
“‘Related Right’ means, in relation to a Security Asset: (a) any proceeds of sale, transfer or other disposal, lease, licence, sub-licence, or agreement for sale, transfer or other disposal, lease, licence or sub-licence, of that Security Asset; (b) any moneys or proceeds paid or payable deriving from that Security Asset; (c) any rights, claims, guarantees, indemnities, Security or covenants for title in relation to that Security Asset; (d) any awards or judgments in favour of the Assignor in relation to that Security Asset; and (e) any other assets deriving from, or relating to, that Security Asset.”
“… where any right of action has accrued to recover- (a) any debt or other liquidated pecuniary clam; … and the person liable or accountable for the claim acknowledges the claim or makes payment in respect of the right shall be treated as having accrued on and not before the date of the acknowledgement or payment.”
“I imagine that a modern court would have found no difficulty in discovering consideration for such a promise. Business men knowtheirownbusinessbest even when they appear to grant an indulgence, and in the present case I do not think that there would have been insuperable difficulty in spelling out consideration from the earlier correspondence.”
“Please acknowledge receipt of this notice of assignment and confirm that: (a) You will pay all sums due under the Document as directed by or pursuant to this notice of assignment; (b) You will not claim or exercise any set-off or counterclaim in respect of sums payable under the Document; (c) You have not received any other notice of assignment or charge of the Document or that any third party has or will have any right or interest whatsoever in, or has made or will make or will be making any claim or demand or taking any action whatsoever in respect of the Document; and (d) You agree to and will comply with the other provisions of this notice of assignment by signing the acknowledgment on the attached copy of this notice of assignment and returning that copy to the Security 18.”
“[R]eading the Notice of Assignment as a whole it appears to me clear that it was not intended to provide benefits to EH, but was rather intended (in relevant part) to impose requirements on EH and to lay down or indicate the limits to its rights. This is perhaps unsurprising. It is not a document which represented a negotiation with EH, and thus was not seeking to embody matters which EH wanted or had bargained for.”
“I am satisfied that the loan was entered into as part and parcel of a series of interlinked transactions involving not only the entry by the borrower into the loan agreement, but also the entry by the applicant company into the guarantee.”
“A difficult line of old authority suggests that if D receives a ‘fund’ from X, to hold to the use of C, and D agrees to hold the fund, then once D ‘attorns’ to C by communicating to C that he holds the fund for C, C could bring a claim for money had and received against D.In the 19th century, unconvincing attempts were made to explain the cases by finding a contract between C and D. Today, the better explanation is probably that, by analogy with attornment in respect of chattels, D’s act of attornment transfers legal title in the money to C, or at least an equitable title by an act equivalent to a declaration of trust. Viewed in this way, the attornment cases cannot be understood as claims in unjust enrichment based on a ‘true’ interceptive subtraction: C’s claim rests on already-vested rights, which the law has afforded C to the ‘fund’ held by D independently of the law of unjust enrichment. But some cases go further and suggest that C has the same claim against D even where D does not hold a specific ‘fund’, so that this proprietary analysis of “attornment” is unavailable—as in Shamia v Joory, where D was indebted to X, X told D to pay C, and D proceeded to “attorn” to C. This seems more difficult to explain. Peter Birks suggested that D’s liability to C here might be rationalised as a claim in unjust enrichment, which reverses the unjust enrichment of D which is interceptively at C’s expense, but this reasoning seems strained.”
“Ever since the case of Walker v. Rostron, it has been considered as settled law that where a person transfers to a creditor on account of a debt, whether due or not, a fund actually existing or accruing in the hands of a third person, and notifies the transfer to the holder of the fund, although there is no legal obligation on the holder to pay the amount of the debt to the transferee, yet the holder of the fund may, and if he does promise to pay to the transferee, then that which was merely an equitable right becomes a legal right in the transferee, founded on the promise; and the money becomes a fund received or to be received for and payable to the transferee, and when it has been received an action for money had and received to the use of the transferee lies at his suit against the holder.”
“A. being indebted to B. for brokerage, and B. indebted to C. for money lent, B. gives an order to A. to pay C. the sum due from A. to B. as a security, on which C. lends B. a farther sum and the order is accepted by A. On the refusal of A. to comply with the order, C. may maintain an action for money had and received against him.”
“This case is like that of a man having money due to me in his hands, which I order him to pay to another. But where is the real and substantial difference, whether I in fact pay money to you for a third person, or whether I give you an order to pay so much money, to which you expressly assent? In reason and sound law, it is money had and received to the use of such third person.” ii) Wilson J, by contrast, said of a claim for money had and received: “I know of no case where they have gone so far as to allow that count to be maintained where no money has in fact been received by the defendant.”
“It had been long ago decided in Nightingale v. Devisme and lately in Jones v. Brinley, that a contract for a specific thing like stock, or any other specific security, was not the same as money, and could not be recovered as such. That a liability to pay for another could not give the same cause of action as an actual payment on his account.”
“In the present case no money was ever had and received by the defendant to the use of any person, which objection existed in Israel v. Douglas, and has caused the propriety of that decision to be since doubted.”
“Although the argument largely turned upon it, there is, of course, no magic in the word ‘fund’; nor is it to be regarded as though it were a word used in a statute. It was clearly chosen by Blackburn J not as a term of art but as a word which aptly fitted the facts which were then under consideration. The problem, therefore, does not concern the meaning of this particular word but the nature of the fundamental requirement which, other conditions being satisfied, will enable the doctrine enunciated by Blackburn J. to operate in favour of the transferee. An identifiable sum of money entrusted to a third party in order that he, the third person, should hand it over to a transferee, or indeed for any other purpose, is, I think, most certainly not required …. In my judgment, all that the law requires is that there must be in the hands of or accruing to the third person, either a sum of money, or a monetary liability, over which the transferor has a right of disposal. It matters not, I think, from what source the liability arises, and I see no reason why it should not include a debt for money lent, or goods sold, or services rendered, or a debt of any other kind; nor do I think that the situation can be altered if the debt is of a temporary nature, which in the ordinary course of things would shortly be extinguished by items of contra account, provided, of course, that the debt still exists at the date of the transfer and of the debtor's promise of payment made to the transferee.”
“Where the defendant does not have the money however it is difficult to conceptualise what the basis of the obligation to D created by the attornment might be: it cannot be contractual because of the absence of consideration”