QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
Strand, London, WC2A 2LL
B e f o r e :
| (1) Marilyn Freda Knatchbull-Hugessen
(2) Paul Michael Harris
(3) Rowley Thomas Edward Higgs
(4) Emily Lucy Barlow
(As Trustees of the
ALAN EDWARDS HIGGS CHARITY)
|- and -
|SISU Capital Limited
Rhodri Thompson QC & Christopher Brown for the Defendants
Hearing dates: 1-3 April 2014
Crown Copyright ©
Mr Justice Leggatt :
"SISU would consider an alternative structure to that of preferred equity. The parties will work together to achieve a solution in respect of suitable alternatives."
"once a transaction has been satisfactorily agreed between Clydesdale Bank plc trading as Yorkshire Bank and SISU."
"This offer [meaning the offer made by SISU to purchase shares] is non-binding and subject to due diligence, save for the paragraphs related to Costs and Exclusivity, which shall become immediately binding upon both SISU and the Charity upon countersignature of this term sheet by the Charity, notwithstanding that the remaining terms of this letter remain subject to execution and completion of formal legal agreements."
"Costs. SISU acknowledges that the Charity will incur significant costs, fees and expense in evaluating SISU's offer to purchase the shares, and in negotiating the transaction with SISU and its advisors. Accordingly, in the event that SISU withdraws its offer to purchase the shares, or the Charity withdraws from negotiations as a result of SISU seeking a reduction in the purchase price or seeking unreasonable terms, or the Conditions Precedent cannot be met ('Aborted Transaction'), SISU agrees to underwrite and be responsible for all the Charity's reasonable costs and expenses (including without limitation the legal and other professional costs of PwC, Bates Wells & Braithwaite LLP and Gateley LLP and all expenses and associated VAT) incurred up to the point of a transaction with Clydesdale Bank plc, to a maximum of £29,000. Underwriting of further costs will be agreed once the transaction has progressed beyond discussions with Clydesdale Bank plc.
Exclusivity. The parties have agreed to a period of exclusivity, commencing on the date of signing of this agreement and ending 6 weeks later (the 'Exclusivity Period'). The Charity undertakes that during the Exclusivity Period it shall (i) only allow SISU to conduct due diligence investigations in relation to ACL; and (ii) conduct negotiations with SISU in good faith with a view to agreeing and executing the legal agreements within the Exclusivity Period.
The Charity undertakes that, during the Exclusivity Period, it shall not, directly or indirectly, enter into, re-start, solicit, initiate or otherwise participate in any third party negotiations, or supply or otherwise disclose any information about ACL to a third party that wishes, or may wish, to enter into third party negotiations (unless the information is publicly available)."
"It was an implied contractual term of the agreement … that the parties would conduct the negotiations in good faith and, in particular, that the claimants would not do anything (or procure that anything be done by any other party or parties) to render impossible or materially to impede the performance of the conditions precedent set out at paragraph 9 of the Defence."
"This list is best regarded not as a series of independent tests which must each be surmounted, but rather as a collection of different ways in which judges have tried to express the central idea that the proposed implied term must spell out what the contract actually means or in which they have explained why they did not think that it did so. The Board has already discussed the significance of 'necessary to give business efficacy' and 'goes without saying'. As for the other formulations, the fact that the proposed implied term would be inequitable or unreasonable or contradict what the parties have expressly said or is incapable of clear expression are all good reasons for saying that a reasonable man would not have understood that to be what the instrument meant."