“(The principal of£150,000 guaranteed by Richard Miles Andrew Horlick)”
“Availability Period: the period from and including the date of this agreement to and including the earlier of 12 months from the date of this agreement or the Refinancing. … Lender’s Solicitors: shall be NewLawsLegal of 21 Arlington Street, London SW1A 1RN. … Projects: the various development projects carried on by the Borrowers in Mozambique including Chibuto mineral sands, Naburi and Moebase mineral sands, Rovuma coal and the uranium and heavy minerals project. Redemption Premium: means£75,000 Refinancing: means the date upon which funds become available for repayment of the Loan by the Borrowers under the funding round of up to$30m currently being marketed in respect of the Projects; Repayment Date: means 12 months from the date of this agreement or upon a Refinancing whichever is earlier;…”
“BACKGROUND The Borrowers require working capital to continue development of certain projects in Mozambique pending completion of a larger$30m fundraising (“the Fundraising”), currently being marketed as referred in the Loan Agreement. The Guarantor has agreed to guarantee the due repayment of the Loan by the Borrowers under the Loan Agreement.”
“2. GUARANTEE 2.1 In consideration of the Lender providing the Loan to the Borrowers the Guarantor guarantees to the Lender to pay the Guaranteed Obligations within 7 days of any demand made by the Lender. 2.2 The Guarantor as principal obligor and as a separate and independent obligation and liability from its obligations and liabilities under clause 2.1 agrees to indemnify and keep indemnified the Lender in full and on demand from and against all and any losses suffered or incurred by the Lender arising out of, or in connection with: (a) any failure of the Borrower to repay the Loan; or (b) repayment of the Loan being or becoming totally or partially unenforceable by reason of illegality, incapacity, lack or exceeding of powers, ineffectiveness of execution or any other matter; but the Guarantor’s liability under this indemnity shall be no greater than the Borrowers’ liability under the Loan Agreement in respect of this principal amount of the loan was (or would have been, had the relevant obligation been fully enforceable). 2.3 The total amount recoverable by the Lender from the Guarantor under this guarantee will not exceed£150,000 .”
"Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses' motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth. I have been driven to the conclusion that the Judge did not pay sufficient regard to these matters in making his findings of fact in the present case."
“I may have missed the point in that you have no intentions of taking repayment of the loan and that you both see the loan amount basically as an option price. If this is the case then I think the way I have drafted both the loan agreement and call option should work ok. I have put a condition in the call option in relation to the exercise of the call which is that the loan repayment is waived by you both. Let me know this is right.”
“What I did say, and stand by, is that I would personally make you good IF IT WAS EVER CALLED. At this point I see absolutely no reason why that would happen.”
“BACKGROUND a) On the29th July 2011 Lender 1 and Lender 2 agreed to provide the Borrower with a secured term loan facility of up to£200,000.00 (the Original Facility Agreement) in accordance with, and subject to, the terms of that Agreement. In consideration for the provision of the loan facility the Borrower agreed to provide security for the Loan in the form of the shares in Pathfinder Minerals Plc and in the form of an Option Agreement (as defined below). b) On the9th November 2011 the parties entered a deed of variation whereby the parties agreed to increase the facility amount to£240,000 (the “First Facility Variation”). c) During the period8 February 2012 to16 June 2015 further advances were made in the total aggregate amount including pursuant to the Original Facility Agreement and the First Facility Variation of£1,213,020 . d) The Guarantor has been a beneficiary of the advances made and has agreed to act as a guarantor of the Debt in accordance with this agreement by entering into the guarantee and indemnity set out in clause 22. e) The parties intend to enter a deed of variation and guarantee on the terms of this agreement.”
“Original agreement signed by the Lenders and the Borrower on the29th July 2011 .”
“2. THE FACILITY The Lenders have made available to the Borrower a secured sterling term loan facility of a total principal amount of up to and not exceeding£1,500,000.00 on the terms, and subject to the conditions, of this agreement. It is acknowledged by the parties that the Borrower has drawn down an aggregate amount of£1,453,020 as at the date of this agreement. It is further acknowledged by the parties that CMC has received significant benefit from the advances made to the Borrower and has therefore agreed to guarantee the obligations of the Borrower on the terms herein. … 4. DRAWING 4.1 It is noted that on the date of this agreement the amount of£1,453,020 has been drawn. … 20. VARIATION 20.1 With effect from the Variation Date the parties agree to amend the Original Facility Agreement. The parties intend that as of the Variation Date this deed shall supersede the Agreement and all previous variations.”
“At 280G we see the total: 1453020.08; do you see that? A. Yes. Q. And that sum includes the 150,000 that is recorded as being from the trust, doesn't it? A. It does, yes. Q. So the figure that appears in the June 2015 loan, about what is an agreed draw down, includes the 150,000 that had been paid under the trust loan, doesn't it? A. It does, yes.”
"For the purposes of the civil law a bribe means the payment of a secret commission, which only means (i) that the person making the payment makes it to the agent of the other person with whom he is dealing; (ii) that he makes it to that person knowing that that person is acting as the agent of the other person with whom he is dealing; and (iii) that he fails to disclose to the other person with whom he is dealing that he has made that payment to the person whom he knows to be the other person's agent. Those three are the only elements necessary to constitute the payment of a secret commission or bribe for civil purposes."
“106. The essential character of a bribe is, thus, that it is a secret payment or inducement that gives rise to a realistic prospect of a conflict between the agent's personal interest and that of his principal. The bribe may have been offered by the payer or sought by the agent. There is no need to establish dishonesty or corrupt motives. This is irrebuttably presumed - Re A Debtor[1927] 2 Ch 367 at 376 (per Scrutton LJ – "the court ought to presume fraud in such circumstances"). A bribe encompasses not just a payment of money but the conferring of any advantage or benefit, and may be an actual benefit or merely the promise of a benefit held out by the payer or an expectation of one[].The motive for the payment or inducement (be it a gift, payment for services or otherwise) is irrelevant. In Fiona Trust v Privalov [2010] EWHC (Comm) at para 73 Andrew Smith J contemplated that moonlighting for a person engaged in transactions with the principal might well give rise to a conflict between the agent's interest and duty and that the reward for his services might count as a bribe.”
“Amendments and waivers of the terms of this Letter shall only be effective if executed in writing by both parties.”
“A reasonable person in the position of the parties would have understood the words in the letter to be an agreement concerning only the process of billing and payment, namely the monthly provision of an invoice with payment within 30 days thereafter. This construction arises from a plain reading of the section of the letter under scrutiny. Further, in the context of the letter, it is common sense that both parties would have wished to reach some agreement concerning the billing and payment arrangements; the design work was not a single piece of work, but a rolling design project which was to be ongoing over a period of many months. In these circumstances, some agreement concerning billing and payment would have been important and on an objective construction of the intention of the parties the payment terms of the letter reflect just such an agreement.”
“clear words are needed if the Court is to construe an agreement between the parties in such a way as to give the creditor control over the start of the limitation period and/or to avoid the Courts becoming engaged in determining satellite issues [such as when invoices should have been rendered] which deprive the limitation provisions of their central purpose: certainty and the avoidance of stale claims”
“The Company acknowledges that it is sophisticated and experienced in transactions similar to any contemplated Transaction. In providing the Services, the Company acknowledges that DCL’s advice does not constitute a personal recommendation. The decision as to whether or not the Company enters into the Transaction (and the terms thereof) will be made by the Company in light of its own commercial assessments and DCL will not be responsible for such assessments…”
“any and all Losses suffered…by reason of or arising directly or indirectly out of or in connection with anything done or omitted to be done in relation to this Engagement or otherwise in connection with the Transaction…”
“From our point of view or even from any person with common sense, the proposal you did cannot be considered a serious and honest proposal and not even be considered a starting point for any possible negotiation.”
“The decision as to whether or not the Company enters into the Transaction (and the terms thereof) will be made by the Company in light of its own commercial assessments and DCL will not be responsible for such assessments…”
“18. Contractual terms in which one party to the contract is given the power to exercise a discretion, or to form an opinion as to relevant facts, are extremely common. It is not for the courts to rewrite the parties’ bargain for them, still less to substitute themselves for the contractually agreed decision-maker. Nevertheless, the party who is charged with making decisions which affect the rights of both parties to the contract has a clear conflict of interest. That conflict is heightened where there is a significant imbalance of power between the contracting parties as there often will be in an employment contract. The courts have therefore sought to ensure that such contractual powers are not abused. They have done so by implying a term as to the manner in which such powers may be exercised, a term which may vary according to the terms of the contract and the context in which the decision-making power is given. … 30. It is clear, however, that unless the court can imply a term that the outcome be objectively reasonable - for example, a reasonable price or a reasonable term - the court will only imply a term that the decision-making process be lawful and rational in the public law sense, that the decision is made rationally (as well as in good faith) and consistently with its contractual purpose. For my part, I would include both limbs of the Wednesbury formulation in the rationality test. Indeed, I understand Lord Neuberger PSC (at para 103 of his judgment below) and I to be agreed as to the nature of the test.”
“An important feature of the above line of authorities is that in each case the discretion did not involve a simple decision whether or not to exercise an absolute contractual right. The discretion involved making an assessment or choosing from a range of options, taking into account the interests of both parties. In any contract under which one party is permitted to exercise such a discretion, there is an implied term. The precise formulation of that term has been variously expressed in the authorities. In essence, however, it is that the relevant party will not exercise its discretion in an arbitrary, capricious or irrational manner….”
“113. … Although the Mid Essex case uses the expression "absolute contractual right" that is the result of a process of construction which takes account of the characteristics of the parties, the terms of the contract as a whole and the contractual context, not a starting point intrinsic to the term itself. It is only possible to say whether a term conferring a contractual choice on one party represents an absolute contractual right after that process of construction has been undertaken.”
“105. In order to assess whether there has been compliance with the Braganza Duty in connection with any particular contractual discretion it is necessary to know what the "target" of that discretion is, in the sense of what the decision-maker is meant to be considering when deciding whether or not to exercise it. In many cases this is straightforward and is stated as part of the discretion. That is so, for example, if the discretion relates to one party's opinion as to what is a "reasonable value" or its judgment or opinion as to whether a particular event has happened, for example whether the deceased in Braganza had committed suicide. Alternatively, the Court has explained the ambit of the discretion by reference to its ostensible purpose...”
“…none of that turns FX’s power into a discretion of the Braganza type which is concerned with a determination of a substantive matter, or a judgment about or evaluation of some state of affairs which one party makes as the decision-maker, but which affects the interests of both, hence giving rise to a potential conflict of interest. See, for example, paragraphs 18-22 of the judgment of Lady Hale in Braganza. The need to find a “target” for the determination in question (see paragraph 105 of my judgment in Watson v Watchfinder[2017] EWHC 1275 (Comm) supports this. It is meaningless to talk of FX’s determination of its consequential or secondary contractual powers including revocation (arising in effect by reason of a defined contractual wrong on the part of Mrs Shurbanova) as a discretion of the relevant kind. If it were otherwise, then it could be said that a party’s choice as to whether or not to rescind a contract for misrepresentation as opposed to seeking damages (one of which may be very much more to the advantage financially of the party in default) was itself a contractual discretion subject always to a Braganza Duty. That cannot be right.”
“53. Absolute rights conferred by professionally drawn or standard form contracts including but not limited to absolute rights to terminate relationships and roles within relationships are an everyday feature of the contracts that govern commercial relationships and extending Braganza to such provisions would be an unwarranted interference in the freedom of parties to contract on the terms they choose, at any rate where there is no fiduciary relationship created by the agreement…”
“...the concept of a duty to carry on negotiations in good faith is inherently repugnant to the adversarial position of the parties when involved in negotiations. Each party to the negotiations is entitled to pursue his (or her) own interest, so long as he avoids making misrepresentations. To advance that interest he must be entitled, if he thinks it appropriate, to threaten to withdraw from further negotiations or to withdraw in fact, in the hope that the opposite party may seek to reopen the negotiations by offering him improved terms. Mr Naughton, of course, accepts that the agreement upon which he relies does not contain a duty to complete the negotiations. But that still leaves the vital question – how is a vendor ever to know that he is entitled to withdraw from further negotiations? How is the court to police such an “agreement”? A duty to negotiate in good faith is as unworkable in practice as it is inherently inconsistent with the position of a negotiating party. It is here that the uncertainty lies. In my judgment, while negotiations are in existence either party is entitled to withdraw from those negotiations, at any time and for any reason. There can be thus no obligation to continue to negotiate until there is a “proper reason” to withdraw.”
“ A promise to negotiate in good faith, on the other hand, would oblige a party not to take unreasonable or exorbitant positions during the negotiations; and it is the difficulty of giving precise content to this obligation, while maintaining each party’s freedom to pursue their own interests, that makes such a promise too uncertain to be enforced.”
“116. The traditional objections to enforcing an obligation to negotiate in good faith are (1) that the obligation is an agreement to agree and thus too uncertain to enforce, (2) that it is difficult, if not impossible, to say whether, if negotiations are brought to an end, the termination is brought about in good or in bad faith, and (3) that, since it can never be known whether good faith negotiations would have produced an agreement at all or what the terms of any agreement would have been if it would have been reached, it is impossible to assess any loss caused by breach of the obligation…”
“… when one is considering the law of failure of consideration … it is, generally speaking, not the promise which is referred to as the consideration, but the performance of the promise.”
“[CMdC] has denied…“that is lawfully bound by and/or obligated under and/or lawfully a party to the June 2015 Agreement”
“21. The second point of principle is whether a restitutionary claim should be allowed to undermine the contract between Oakwood and the claimants, that is to say, the way in which the parties chose to allocate the risks involved in the transaction. The parties arranged the transaction as one in which legally enforceable promises were made only between Oakwood and the claimants, even though the benefit of the contract was to be conferred on Mr and Mrs Costello. The obligation to pay for the claimants’ services, and so the risk of non-payment, was contractually confined to Oakwood. If a claim was permitted directly against Mr and Mrs Costello it would shatter that contractual containment. It would also alter the usual consequences of Oakwood’s insolvency, which was one of the risks assumed by the claimants in contracting with Oakwood, since a direct claim against Mr and Mrs Costello would improve the claimants’ position over Oakwood’s other unsecured creditors. … 23. I am clear, on the other hand, that the unjust enrichment claim against Mr and Mrs Costello must fail because it would undermine the contractual arrangements between the parties, that is to say, the contract between the claimants and Oakwood and the absence of any contract between the claimants and Mr and Mrs Costello. The general rule should be to uphold contractual arrangements by which parties have defined and allocated and, to that extent, restricted their mutual obligations, and, in so doing, have similarly allocated and circumscribed the consequences of non-performance. That general rule reflects a sound legal policy which acknowledges the parties’ autonomy to configure the legal relations between them and provides certainty, and so limits disputes and litigation… … 31. Further, as Mr Darton pointed out, the existence of two remedies, one in restitution and one in contract, is capable of producing anomalous results. Contractual damages are calculated by reference to the contract price and terms. Compensation for unjust enrichment as a result of the plaintiffs’ services is calculated by reference to the value of the services (generally at the date of their receipt) which may or may not be the same as the contractual rate. This raises the possibility of compensation in restitution at a higher rate than the contractual rate, so enabling a claimant to improve on a bad bargain, and with consequential implications for contribution by the defaulting contracting party.”
“[T]he law of restitution will not normally cut across long-established statutory regimes regulating creditors’ rights against insolvent debtors. Otherwise, the law of restitution may undermine the pari passu principle whereby unsecured creditors share rateably in the assets of an insolvent debtor. To allow a creditor a restitutionary remedy in the interests of ‘doing justice’ in a specific case would only lead to that creditor jumping the queue of unsecured creditors and so bring about injustice in everyone else’s case.”
“The Guarantor [CMdC] has been a beneficiary of the advances made…”