England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BUSINESS AND PROPERTY COURTS OF
ENGLAND AND WALES, COMMERCIAL COURT (QBD)
CL-2015-000770

		Royal Courts of Justice Strand, London, WC2A 2LL
		7 February 2018

Lord Justice Lewison:

1. The issue on this appeal from Sir Bernard Eder is the scope of a settlement agreement. I can take the facts from the judge's clear judgment, which can be found at [2016] EWHC 522 (Comm).
2. Forsters is a firm of solicitors. In that capacity they were instructed on behalf of and acted for a company, Irtysh Petroleum plc ("Irtysh"), in relation to the acquisition of an oil exploration opportunity in Russia and, in particular, in a share purchase agreement (the "SPA") entered into on 20 May 2010.
3. Irtysh was in fact incorporated only shortly before the execution of the SPA i.e. on 12 April 2010 for the purpose of acquiring and developing the oil exploration opportunity. Before the incorporation of Irtysh, Forsters had already been retained in January 2007 by one of Irtysh's directors and shareholders, Rupert Galliers-Pratt (RGP), to carry out work preparatory to the incorporation of Irtysh and the acquisition.
4. The oil opportunity took the form of three oil exploration licences in the Khanty-Mansiysk region of Russia. Under the terms of a privatisation agreement, a Russian company Yugra Balt Invest LLC ("YBI") owned 49% of three companies each holding an oil field exploration licence (the other 51% was owned by the regional government and there was a mechanism in place by which YBI could increase its ownership to 99.9%). By the SPA, Irtysh agreed to buy 100% of the shares in YBI from Interguarantee Limited ("Interguarantee") in return for the allotment of shares in Irtysh. Interguarantee was controlled by Dr Alexander Shadrin.
5. In the period January 2007 to the end of June 2010, Forsters incurred fees and disbursements in respect of this project for which they issued an invoice (Invoice No. 301594 dated 1 July 2010) to Irtysh in the sum of £110,557.61 plus VAT (£19,295.61) totalling £129,853.22 (the "Invoice"). On its face, the Invoice expressly stated that it was in respect of Forsters' "Professional Services" and "Disbursements" for the period "January 2007 to June 2010". This sum remained unpaid for some time and eventually became the subject of the settlement agreement.
6. In about July 2010, Irtysh/RGP wished to move from Forsters to Fladgate LLP. Forsters insisted on a personal guarantee from RGP in respect of the outstanding fees. In the event, RGP did provide a personal guarantee in the form of a letter dated 12 July 2010 expressed to be executed as a deed and signed by him. The guarantee was in short form and stated simply as follows:

"I hereby guarantee to pay to you on demand the invoices issued by you to Irtysh in respect of your fees and disbursements on or around today but so that my maximum liability in respect of this liability is limited to a total of £74,837.18 plus VAT charged thereon."

7. The figure of £74,837.18 plus VAT is significantly lower than the total sum of £110,557.61 plus VAT stated in the Invoice and was calculated by reference to the work done by Forsters on the instructions of RGP in relation to the project before Irtysh's incorporation.
8. July 2010 marked the cessation of relations between Forsters and Irtysh/RGP. It is Forsters' case that thereafter they did not know what was going on with the project but, unsurprisingly, they continued to press for payment of their outstanding fees.
9. RGP disputed the amount of the Invoice. He complained that much of it represented time allegedly spent by Forsters with Dr Shadrin, the director of Interguarantee who acted on behalf of Interguarantee in the SPA. On 13 April 2012, Forsters emailed RGP seeking confirmation of when Irtysh expected to execute financing facilities and when it would be paying the Invoice. RGP replied the following day copying in Dr Shadrin, saying that "We are scheduled to complete all the documents … on Monday. I will confirm when all done. I am copying Alexander [Dr Shadrin] on this as the vast majority of the time that you have billed relates to the many hours that he spent with your colleagues". There then followed further exchanges (including with Dr Shadrin) and, after some further delay, on 22 June 2012, Forsters chased RGP again for payment on his guarantee, enclosing a draft Claim Form and reminding him that he had assured them that the completion of Irtysh's loan facility had been imminent. RGP replied again disputing the quantum of the Invoice, saying "As you know, I did not see any breakdown of these statements at the time that I was requested by your firm to sign document with Forsters. Since I was not present when the majority of the 'billed' hours were recorded, I have no way of knowing whether they are correct. Alexander Shadrin does not agree with your costings".
10. In early July 2012, Forsters then issued proceedings against RGP (the "Guarantee Action"). The Particulars of Claim endorsed on the Claim Form stated:

"[Irtysh] owes [Forsters] £129,853.22 pursuant to [the Invoice]. By a Deed of Guarantee … [RGP] guaranteed to pay [Forsters] on demand the amount due from [Irtysh] up to a maximum liability of £74,837.18 plus VAT.

[Forsters'] claim is for £74,837.18 plus VAT pursuant to [the Invoice]. The sum is due in respect of legal services provided to [Irtysh] from January 2007 to June 2010."

11. On being informed that the Guarantee Action had been issued, RGP responded saying:

"This will be vigorously defended. As you know, your bill relates to time that was allegedly spent by Alexander Shadrin in your offices. He disputes it. I was not present for most of the time and did not see the breakdown until you sent it last week. It is unfortunate that you have decided to take this course of action thus jeopardising the chance for the account to be agreed in quantum and settled from the PSB loan."

12. Thereafter, following negotiations, the settlement agreement dated 3 December 2012 was executed. The settlement agreement is a tripartite agreement between Forsters, RGP and Irtysh respectively designated as Party A, Party B and Party C. It consists of 5 typewritten pages which began by reciting:

"(1) [Forsters] has commenced proceedings … in claim number 2YK73888 ("the Action") … (For the avoidance of doubt, the Action relates in part to the invoice dated 1 July 2010 addressed to [Irtysh] by [Forsters].)

(2) To date [RGP] has not defended the Action to enable the Parties to enter into settlement negotiations.

(3) [RGP] is a director and shareholder of [Irtysh].

(4) The Parties now wish to agree a full and final settlement of the Action in consideration of the mutual covenants and other valuable consideration set out below."

13. The main operative clause, clause 2, provided (so far as relevant) as follows:

"2.1 This Agreement and the terms set out herein shall be in full and final settlement of all or any Claims which the Parties have, or could have had, against each other (whether in existence now or coming into existence at some time in the future, and whether or not in the contemplation of the Parties on the date hereof).

2.2 In consideration of the abandonment of all or any Claims, the Parties hereby agree as follows:

(a) Party B and/or Party C shall pay to Party A by way of bank transfer to the [specified account] as follows:

(i) the Settlement Sum on or before 31 October 2012.

(b) …

(c) …

(d) for the avoidance of doubt, Party B and Party C are jointly and severally liable to pay the Settlement Sum plus any interest that may accrue."

14. Clause 1.1 defined the "Settlement Sum" as being £90,000 inclusive of VAT (whether or not chargeable) and costs.
15. The scope of the settlement agreement is clearly tied to the definition of "claims" because it was those that were compromised. Clause 1.1 defined "Claims" as:

"… any claim, potential claim, counterclaim, potential counterclaim, right of set-off, or potential right of set off, right of contribution, potential right of contribution, right to indemnity, potential right to indemnity, cause of action, potential cause of action or right or interest of any kind or nature whatsoever, whether known or unknown, suspected or unsuspected, however and whenever arising in whatever capacity or jurisdiction, whether or not such claims are within the contemplation of the Parties at the time of this Agreement arising out of or in connection with the Action or the invoice dated 1 July 2010 addressed to [Irtysh] by [Forsters] and referred to in the Action".

16. Clause 3.1 provided for a covenant not to sue:

"The Parties to this Agreement covenant in favour of each other that following the execution of this Agreement, they will not, and will procure that none of their subsidiaries shall take any step or proceeding or make or assert any claim (whether by way of litigation or otherwise) against one another in connection with or in relation to (either directly or indirectly) the Claims."

17. The remainder of the settlement agreement contained various other provisions which the judge accepted were (at least in part) "boilerplate".
18. In February 2013 Irtysh found out that there had never been an actual transfer of YBI shares from Interguarantee to Irtysh according to Russian law; and that it did not own YBI. Much later, in 2015 Irtysh (by now a private limited company and no longer a plc) was put into liquidation. It is KMR's case that it acquired Irtysh's claims against Forsters from the liquidators by way of a written assignment dated 13 May 2015.
19. The claim that KMR now wishes to pursue against Forsters is a claim in negligence. The brief details of claim endorsed on the Claim Form state that KMR claims against Forsters "… damages and interest on damages for breach of contract and/or negligence in relation to the provision of legal advice and services to [Irtysh] in relation to the acquisition by the latter of shares in [YBI]". The detailed Particulars of Claim set out a number of alleged breaches by Forsters including an alleged failure by Forsters to see to it that the SPA was effective to create an enforceable obligation on Interguarantee to transfer the shares in YBI; and a failure to see to it that the transfer took place. The damages claimed are said to be in excess of £70 million.
20. The question is whether that claim falls within the definition of "Claims" in the settlement agreement; and whether the current action is one in which the claimant is asserting a claim "in connection with or in relation to (either directly or indirectly) the Claims". The judge held that it did.
21. Mr Davenport QC on behalf of KMR criticises the judge for not having given sufficient weight to the background facts in his interpretation of the settlement agreement. It is, of course, common ground that any contract must be interpreted in the light of the admissible background facts, and that interpretation is an iterative exercise in which competing interpretations are tested for their commercial consequences. Having said all that, the most important aspect of contractual interpretation is loyalty to the text. Nevertheless, in view of Mr Davenport's criticism of the judge I begin with the background facts on which he relies.
22. The first point that he makes is that in the compromised action the only articulated dispute was about the quantum of Forsters' fees. There was no dispute about the principle of liability, and no allegation of negligence was raised or pursued. Second, RGP's guarantee was for a maximum liability of £74,837.18 plus VAT. At the then VAT rate of 17.5%, the maximum was therefore £87,933.69. That was the amount claimed by Forsters in the Guarantee Action, plus costs. The costs of the action, at the time of the settlement agreement, would have been low: the only step taken in the claim had been the issue of the claim form. Thus when the settlement sum is compared with RGP's maximum liability it can be seen that Forsters gave up very little in return for the compromise. He accepted, however, that Irtysh received, at least in theory, a bigger reduction. Third, it is of particular relevance that all parties were anticipating that Irtysh would shortly obtain loan finance, based on its supposed ownership of YBI, out of which it would pay Forsters. That is why Forsters was pressing for confirmation that Irtysh had completed the anticipated loan agreements. Without such loan finance, Irtysh would be in no position to pay Forsters.
23. There is, in my judgment, another background fact of contextual importance. By the time that the settlement agreement came to be signed Irtysh/RGP had moved from Forsters to Fladgate LLP. It was to be expected that the settlement agreement would draw a line under the former solicitor and client relationship.
24. The leading case on the interpretation of settlement agreements remains the decision of the House of Lords in BCCI v Ali [2001] UKHL 8, [2002] 1 AC 251. A former employee of BCCI entered into a settlement agreement with BCCI in 1990 following his redundancy. In the following year BCCI went into insolvent liquidation in the course of which it was discovered that BCCI's business had been corruptly managed, the stigma of which caused difficulties for its former employees in finding new jobs. In 1998 the House of Lords decided that a claim for "stigma damages" was a legally permissible claim. That was the claim that Mr Naeem wished to pursue. The critical point, to my mind, is that at the date of the settlement agreement in that case "stigma damages" were unknown to the law. Their Lordships all held that there were no special rules for interpreting settlement agreements, which were to be interpreted in the same way as other contracts: Lord Bingham at [8], Lord Nicholls at [26], Lord Hoffmann at [37] and Lord Clyde at [78]. Lord Bingham recognised at [9] that:

"A party may, at any rate in a compromise agreement supported by valuable consideration, agree to release claims or rights of which he is unaware and of which he could not be aware, even claims which could not on the facts known to the parties have been imagined, if appropriate language is used to make plain that that is his intention."

25. However, at [17] he recognised a "cautionary principle" which he set out at [10]:

"… a long and in my view salutary line of authority shows that, in the absence of clear language, the court will be very slow to infer that a party intended to surrender rights and claims of which he was unaware and could not have been aware."

26. Both parts of this cautionary principle are important. On the facts of that case Mr Naeem "could not have been aware" of his claim for "stigma damages" because at the date of the compromise agreement no such claim existed in English law.
27. Lord Nicholls recognised that the general purpose of a settlement agreement is "to wipe the slate clean." At [27] he said:

"The wording of a general release and the context in which it was given commonly make plain that the parties intended that the release should not be confined to known claims. On the contrary, part of the object was that the release should extend to any claims which might later come to light. The parties wanted to achieve finality. When, therefore, a claim whose existence was not appreciated does come to light, on the face of the general words of the release and consistently with the purpose for which the release was given the release is applicable. The mere fact that the parties were unaware of the particular claim is not a reason for excluding it from the scope of the release. The risk that further claims might later emerge was a risk the person giving the release took upon himself. It was against this very risk that the release was intended to protect the person in whose favour the release was made."

28. At [28] he said:

"However widely drawn the language, the circumstances in which the release was given may suggest, and frequently they do suggest, that the parties intended, or, more precisely, the parties are reasonably to be taken to have intended, that the release should apply only to claims, known or unknown, relating to a particular subject matter."

29. Lord Nicholls came to his ultimate conclusion at [35]. He said (the emphasis is his):

"To my mind there is something inherently unattractive in treating these parties as having intended to include within the release a claim which, as a matter of law, did not then exist and whose existence could not then have been foreseen. This employee signed an informal release when he lost his job, in return for an additional month's pay. The ambit of the release should be kept within reasonable bounds. Mr Naeem cannot reasonably be regarded as having taken upon himself the risk of a subsequent retrospective change in the law. A claim arising out of such a change cannot be regarded as having been within the contemplation of the parties."

30. It follows from these citations that the mere fact that the parties did not in fact know that there was a claim against Forsters in negligence is not enough to side-step the settlement agreement. Can it be said that such a claim was one which the parties could not have been aware? To put it another way: is the wording of the agreement wide enough and clear enough to preclude such a claim from being brought?
31. As a matter of law, the possibility of a claim for the negligent performance of professional services is plain enough. That in itself distinguishes the case from BCCI v Ali. Lord Nicholls placed particular emphasis on the subsequent retrospective change in the law. Moreover, had such a claim in fact been raised at the time of the original action it would have precluded Forsters from recovering their fees if the work that they had done was, as is now alleged, useless (see Heywood v Wellers [1976] QB 446); or at the very least it would have operated by way of set off to the claim for fees because it would have been intimately connected with the liability to pay those fees. It would, therefore, have been a claim "relating to a particular subject matter;" namely Forsters' entitlement to be paid.
32. The claim for professional fees was plainly a known claim. So, too, were RGP's defences and counter-claims about the quantum of the fees. The settlement agreement was clearly intended to go further than the compromise of those claims, since it expressly referred to "unknown" claims and claims not "in the contemplation" of the parties. If it was not intended to cover the kind of claim now sought to be advanced, what else could it have been intended to cover? This point was put to Mr Davenport in the course of his submissions; and at least to my mind he struggled to give an answer, beyond saying that the compromise agreement did not preclude the claim now sought to be advanced. He offered two limitations on the apparent scope of the settlement agreement. First, that the agreement only captured claims that were "realistically supposed to exist;" and second, that the agreement did not cover "inconceivable claims". Given that in BCCI v Ali all their Lordships accepted that, depending on its wording, a compromise agreement may encompass "claims which could not on the facts known to the parties have been imagined" (Lord Bingham) or "a claim whose existence was not appreciated" (Lord Nicholls), it is necessary to look at the wording of this particular settlement agreement.
33. The judge paid close attention to the words of the clause and held that they were wide enough and clear enough to embrace the claim that is now sought to be advanced. Subject to one point, Mr Davenport did not really attack the judge's textual analysis. Since I entirely agree with it I will not try to express it in my own language. What the judge said was this:

"ii) Clause 2.1 makes plain that the Settlement Agreement is in full and final settlement of "all or any Claims" which the parties (i.e. RGP, Irtysh and Forsters) have, or could have had, against each other. This is very wide wording. Further, the last sentence of cl 2.1 states expressly that such settlement covers claims "whether in existence now or coming into existence at some time in the future, and whether or not in the contemplation of the Parties [i.e. RGP, Irtysh and Forsters] on the date hereof". These last words, are, in my view, particularly important i.e. the parties are, in effect, agreeing that Claims which are not yet in existence nor even in the contemplation of the parties fall within the scope of the release.

iii) The definition of "Claims" in cl 1 is also, on its face, extremely wide. In particular:

a) "any claim" is expanded to include any "potential claim, counterclaim, potential counterclaim" i.e., reinforcing the notion that even a "potential" claim (or counterclaim) is nonetheless a "Claim";

b) the words "whether known or unknown, suspected or unsuspected" make plain that knowledge or even suspicion is not a requirement for something to be a "Claim";

c) the words "however and whenever arising" further make plain that it is not a prerequisite that the "claim" must have arisen by the date of the settlement;

d) the words "whether or not such claims are within the contemplation of the Parties [i.e. RGP, Irtysh or Forsters] at the time of this Agreement" repeat the words in the operative cl 2.1 and make plain (again) that even (potential) claims and counterclaims outwith the contemplation of the parties at the date of the Settlement Agreement fall within its scope."

34. As I have said, I agree. The first of Mr Davenport's suggested limitations directly contradicts the express terms of the agreement; and in particular the provisions to which the judge drew attention at b) and d) above. So far as the second is concerned, as I have said the claim was legally conceivable. Moreover, as Mr Smith QC pointed out, the supply of professional services necessarily carries with it the possibility that the services have been defectively performed. Thus even if the parties did not in fact envisage that such a claim existed it would have been conceivable. I do not therefore accept either of Mr Davenport's two limiting factors.
35. On the contrary I accept Mr Smith's submission that the relevant limiting factor is the tailpiece of the clause; namely that the claim must be one "arising out of or in connection with the Action or the invoice."
36. The judge went on to consider whether the claim now sought to be advanced was a claim "in connection with" either the compromised action or the invoice. Mr Davenport correctly submits that the phrase "in connection with" is a protean phrase with a mutable meaning which depends heavily on the context. However, in his written argument he argued that the phrase "in connection with" is narrower in its scope than "connected with". The former phrase requires a causal link between the compromised action and the cause of action now sought to be advanced. This a very fine linguistic distinction, and Mr Davenport did not develop the point orally. I do not consider that it is supported by either of the cases on which he relies (Coventry and Solihull Waste Disposal Co Ltd v Russell [1999] 1 WLR 2093 and HMRC v Barclays Bank plc [2007] EWCA Civ 442, [2008] STC 476). On the contrary both those cases emphasise the protean nature of the phrase which takes it meaning from the context in which it is used: see Coventry at 2103 B-C (Lord Hope) and Barclays at [18] to [19] (Arden LJ). The context in our case is a widely worded compromise agreement.
37. In BCCI v Ali their Lordships gave a number of examples in which general words would not cover a particular kind of claim. Lord Bingham at [18] gave the example of an industrial disease or personal injury claim, or a claim for libel. Lord Nicholls at [28] gave the example of a settlement on final partnership accounts which would not preclude a claim by one partner against another in the event that it was discovered that tree roots from one partner's property damaged the property of another partner. Another example is the decision of this court in Kazeminy v Siddiqi [2012] EWCA Civ 416 where the general words of a compromise made between A and B did not operate to exclude the bringing of a claim vested in C, which B had acquired by assignment after the date of the compromise.
38. It is, not surprisingly, common ground that the settlement agreement did not encompass all claims that RGP and Irtysh might have had against Forsters. If, for example, RGP had wished to complain about negligence in domestic conveyancing, or if he had been injured on a visit to Forsters' offices, claims relating to those matters would have been outside the scope of the agreement. But that is because they would not have been connected with the particular invoice. However, in the present case:

i) The services for which Forsters were seeking to be paid had all been performed for good or ill. It follows that in so far as there was a claim for breach of contract and/or negligence that claim had already accrued;

ii) Had it been raised, it would at the very least have operated by way of set off to reduce or extinguish the claim;

iii) The claim for negligence entirely overlaps with and is dependent on the allegedly defective performance of the very services for which Forsters were claiming payment.

iv) To the extent that a causal link is required, the claimed losses were caused by the allegedly defective performance of the very services for which Forsters were claiming payment.

39. The judge put it thus at [40]:

"the Invoice was in respect of Forsters' "Professional Services" and "Disbursements" for the period "January 2007 to June 2010"; the claim advanced in the Guarantee Action was expressly stated to be "… The sum is due in respect of legal services provided to [Irtysh] from January 2007 to June 2010."; and the claim now sought to be advanced by KMR in these present proceedings is formulated in the Particulars of Claim as being one for "… damages and interest on damages for breach of contract and/or negligence in relation to the provision of legal advice and services to [Irtysh] in relation to the acquisition by the latter of shares in [YBI]" (emphasis added). In other words, the claim now sought to be advanced is for breach of contract and/or negligence in relation to the very same legal services which were the subject of the Invoice and the Guarantee Action. In my view, it inevitably follows that, as a matter of language, the claim now sought to be advanced by KMR in these present proceedings is properly described as being "connected with" both the Guarantee Action and the Invoice and therefore "caught" by the Settlement Agreement."

40. I agree; and would dismiss the appeal.

Lady Justice Eleanor King:

41. I agree.

Sir James Munby, P:

42. I also agree.