England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		29 March 2010

Mr Justice Eady :

1. The Claimant, Seymour Pierce, seeks by way of application dated 27 January 2010 an order for summary judgment under CPR Part 24 in respect of its claim for a £2.2m adviser's fee following the Defendant's successful acquisition of Birmingham City Football Club ('the Club') in September of 2009. Although it is recognised that Seymour Pierce was no longer advising the Defendant ('Grandtop') by the time of the acquisition, it argues that the fee was payable under a clause in the original engagement letter, governing contractual relations between the parties, and dated 25 June 2007. The provision was for payment of a fee if a successful acquisition took place within 12 months of the termination of the retainer.
2. Although there is a dispute as to how the contract came to an end, this is a matter of interpreting the contractual provisions and the relevant documents passing between the parties. It does not require the resolution of factual issues in the light of cross-examination or further disclosure of documents. It is on that basis that summary judgment is now sought in accordance with the principles expounded in Three Rivers (No 3) [2001] 2 All ER 513 and Swain v Hillman [2001] 1 All ER 91.
3. Grandtop, through Mr Goldsmith, complains that Seymour Pierce should not be able to recover the fee because it was not involved in the ultimate acquisition. He made a number of robust points on the supposed lack of merit in such a claim. But this was really only background, as the application depends mainly upon interpreting the terms of the particular contract. More substantively, Mr Goldsmith argues that there is a real prospect of establishing a defence on one or more of three arguments identified in the witness statement of 24 February 2010 from Mr Hui, the Chief Executive Officer of Grandtop. These are reflected in the draft amended defence which has now been served. Those arguments are as follows:

a) The first proposed offer/transaction in 2007 with which Seymour Pierce was involved was withdrawn or lapsed in December 2007, thereby bringing the engagement to an end.

b) The second offer/transaction in 2009, with which Seymour Pierce was not involved in any material way, was different from the first proposed offer/transaction and did not fall within the definition of "offer" or "transaction" in the Engagement Letter.

c) Seymour Pierce was not the, or an effective, cause of the success of the second offer/transaction in 2009.

4. Seymour Pierce contends that, on a proper analysis, none of these arguments will withstand scrutiny for the purposes of summary judgment.
5. There is an alternative argument raised by Grandtop to the effect that, if judgment is granted, it should be entitled to deduct the total sum of approximately £180,000 in respect of expenses or fees that it claims would be payable by Seymour Pierce in accordance with the terms of the Engagement Letter.
6. Before I address the disputed contractual provisions, I need to introduce the parties in a little further detail and summarise the factual background.
7. Seymour Pierce is a financial adviser regulated by the Financial Services Authority and a member of the London Stock Exchange. It has particular experience of giving advice in connection with the purchase and sale of publicly quoted companies in the context of the Takeover Code. It is of particular relevance in this case that Seymour Pierce has gained expertise and experience in the buying and selling of publicly quoted English football clubs. Its chairman, Mr Keith Harris, has been involved in a large number of football takeovers and was himself the chairman of the English Football League between 2000 and 2002.
8. Grandtop is a large trading group based in Hong Kong. It is listed on the Hong Kong Stock Exchange and engaged in investment holding, trading, sport and the provision of entertainment services not only in Hong Kong but also in Macau, China and the United Kingdom. At the time with which I am concerned in this litigation, it was represented primarily by Mr Carson Yeung, Mr William Chan and Mr Vico Hui. There is some dispute, or difference of recollection, as to how the parties were put in touch with one another prior to the Engagement Letter being signed, but for present purposes this does not matter. Grandtop wished at the time to purchase a Premier League club and Mr Harris advised Mr Chan as to the possibility of acquiring the Club. He began negotiations with the people who were then the majority owners; namely, Messrs David and Ralph Gold, Mr David Sullivan and Ms Karren Brady.
9. By 5 June 2007 Heads of Terms had been formulated and agreed, which involved a public offer in accordance with the Takeover Code for the entire share capital at 61.25p per share. There was then an announcement by the Club on the Stock Exchange's Regulatory News Service ('RNS') on 11 June 2007. This triggered an offer period under the Code and on 13 June Mr Harris sent Mr Chan and Mr Yeung an email in the following terms:

"Gentlemen

You will be aware that we are on a fast track to make the offer for 'Beormingas'. Due diligence starts with a vengeance this morning with the aim of a 2.5 announcement [a reference to rule 2.5 of the Takeover Code], the official notification to the Stock Exchange scheduled for Friday 22 June. The formal offer document which is sent to all shareholders will be despatched soon thereafter. Just to confirm, you will be assured of success at the time the 2.5 is released because it will contain irrevocable undertakings in respect of approximately 82% of the outstanding share capital to pledge shares to you.

Before it can be released, however, you have to have transferred all the money required to purchase all the shares plus associated fees to the client account of the advisor making the offer. May I propose, therefore, in line with the conversation I have had with Ian, that £53m be transferred to our client account (details below) as soon as possible to cover all ancillary fees, Stamp Duty, VAT and expenses. Funds in this account do not accrue interest. As in all transactions of this type, the money will have to be cleared for money laundering purposes and, therefore, this needs to be attended to immediately.

…

With kind regards

Keith"

10. Shortly thereafter, at some point on or prior to 19 June, the evidence would appear to show that a copy of Seymour Pierce's draft Engagement Letter, as proposed for the transaction, was sent by one means or another to Grandtop. Those terms corresponded in all material respects to the Engagement Letter ultimately signed on 25 June. The email containing the draft sent to Grandtop has not been found yet and Mr Hui states that he does not recollect whether Grandtop actually received the draft. On the other hand, it would appear from contemporaneous emails that it had indeed been sent and Mr Goldsmith recognises the force of that evidence. There is no need for me to rehearse it for the purposes of this judgment.
11. It is accepted that the draft was effectively the same as the Engagement Letter signed on 25 June. As Mr Hui puts it in paragraph 18 of his witness statement, " … the specific terms of the letter of engagement were drafted by Seymour Pierce and were not the subject of negotiation by Grandtop, although there was a discussion about the size of Seymour Pierce's fee … We read through the letter on the morning of 25 June 2007 and I duly signed it."
12. As it turned out, no announcement was made on 22 June because agreement had not been reached with the Club's owners. Grandtop executives arrived from Hong Kong on 24 June for meetings to take place with the owners. It soon emerged that Grandtop were contemplating acquisition in two stages; that is to say, first a private purchase of 29.9% of the Club shares from the majority owners, to be followed within six months by a public offer for the remainder, in accordance with the Takeover Code. The significance of the percentage to be acquired by private purchase was that this was the maximum permitted under the Code without triggering a public offer. It would appear that this was raised first, on 24 June, at a meeting between Mr Harris and Mr Feigen of Seymour Pierce prior to the planned meeting with the Club owners.
13. There is something of a dispute between the parties as to whether or not, by that stage, a single offer remained a possibility. This makes no difference, however, to the present dispute. It was at Seymour Pierce's offices on 25 June that the Engagement Letter was signed by Mr Hui on behalf of Grandtop and Mr Feigen for Seymour Pierce. It was subsequently recognised that the Engagement Letter governed contractual relations between the parties, even though it had been drafted originally with a single offer in mind rather than the two stage approach actually adopted. This turned out to have been unfortunate from the Seymour Pierce point of view, as it opened up construction arguments which have been taken against it in these proceedings. It would seem to follow that, where necessary, the court should if necessary give the terms of the Engagement Letter a realistic mutatis mutandis construction which would accord with the parties' intentions.
14. I would add that I accept Mr Goldsmith's submission that, since the contractual documents emanated from Seymour Pierce, they should be construed in the event of ambiguity contra proferentem.
15. I turn to the contents of the Engagement Letter. The first paragraph was in these terms:

"This letter of engagement and the attached Schedule [consisting of Seymour Pierce's standard terms] set out the terms and conditions on which Seymour Pierce Limited ('Seymour Pierce') would be pleased to and agrees to act for Grandtop International Holdings Limited (together the 'Company' or the 'Offeror') in connection with a proposed recommended offer for the entire issued share capital of Birmingham City plc ('Birmingham' or the 'Offeree'), or cash investment in Birmingham, by the Company, (the 'Offer' or the 'Transaction')."

It is of some significance, for the purpose of the parties' respective arguments on this application, to note that the terms "Offer" and "Transaction" were intended to be treated as synonymous.

16. The third paragraph of the letter, under the heading "Scope of our engagement" was as follows:

"The Company will engage Seymour Pierce as its financial adviser in relation to the Transaction pursuant to the City Code on Takeovers and Mergers ('Code'). The engagement shall commence from the date of this letter and continue until the Transaction becomes unconditional in all respects, lapses or is withdrawn."

This wording is important because it contains the automatic termination clause upon which Grandtop relies in support of its argument that the retainer had come to an end in December 2007.

17. The services to be provided by Seymour Pierce were defined under the heading "Principal Activities", namely to:

"(i) advise the Company in respect of the Transaction;

(ii) assist in the preparation of an offer document for distribution to the shareholders of the Target and any subsequent updates to the offer document as may be necessary from time to time;

(iii) manage and co-ordinate the process of approaching and dealing with the Board and significant shareholders of the Offeree, including assisting in drafting and receiving irrevocables from the Offeree's major shareholders;

(iv) if required, Seymour Pierce will advise the Company with regards to the commercial aspects of any memorandum of undertaking/heads of agreement to be entered into prior to the formal launch of the Offer;

(v) if requested by the Company, instruct, on its behalf, such other professional advisers as are required to prepare information and/or to provide advice relating to the Transaction (including, but not limited to, inter alia lawyers, accountants and auditors), and assist the Company to co-ordinate the work;

(vi) assist in drafting each of the Company's regulatory announcements concerning the Transaction; and

(vii) liaise with the London Stock Exchange, the Financial Services Authority and the Takeover Panel regarding all aspects of the Transaction, including obtaining approval, where required, of all relevant documentation."

As I understand it, there has been no suggestion that these services were not provided – at least until December 2007.

18. The term governing remuneration and expenses was as follows:

"On the signing of this letter, the Company will pay to Seymour Pierce a non refundable payment of £300,000.

Conditional upon the Offer being declared unconditional as to acceptances and in consideration of our providing the Services, the Company shall pay to Seymour Pierce an additional Success Fee of £2,200,000.

Seymour Pierce shall be responsible for the payment of all the costs and expenses relating to the Transaction reasonably incurred by the Company. All such costs and expenses should be agreed with Seymour Pierce in advance of the Company entering into any engagement terms.

No other fees or commissions shall be payable to Seymour Pierce in connection with the Offer.

We reserve the right to discuss with you an increase in fees should the terms of the Transaction be revised, if a second or further offer circular is required, if the proposed timetable for the Transaction is materially delayed or if any other event shall occur which we shall agree shall merit an increase in our fee.

The Company shall be liable for any stamp duty on any market purchases of shares in Birmingham made in the interim period."

19. It is also important to consider the provisions under the heading "Termination":

"Except as set forth herein, any termination of this agreement shall be without prejudice to any accrued rights and liabilities of either party and shall not affect in any way the provisions of the paragraphs concerning Remuneration, Indemnity, Expenses and Governing Law in this letter of engagement, and the indemnity set out in the Schedule which shall survive such termination.

In the event the engagement pursuant to this letter of engagement is terminated by the Company and an Offer for the Target is declared or becomes wholly unconditional as the result of any offer made by or in association with the Company within a period of 12 months after the effective date of termination the Company shall pay to Seymour Pierce the Success Fee in full."

It is this last provision which forms the basis of the present application for summary judgment. One of the primary questions is whether this clause has taken effect at all. Grandtop argues that it did not terminate the agreement; but rather that it terminated automatically. Seymour Pierce contends, however, that Grandtop did indeed terminate by a letter of 20 May 2009, which was accepted as such in a written response of 16 June 2009.

20. This dispute turns upon clause 21 of Seymour Pierce's standard terms and conditions, which were incorporated into the contract. The relevant wording is as follows:

"21.1 Either party may terminate the appointment covered by these Terms by:

(a) giving to the other not less than 3 months' notice in writing such notice not to take effect prior to the first anniversary of the date hereof; or

(b) in the event of the appointment of a liquidator, receiver, administrative receiver or administrator over the whole or substantially the whole of either party's assets (except for the purpose of a solvent reconstruction, amalgamation, re-organisation, merger or consolidation) giving to the other notice in writing to take effect forthwith."

21. For present purposes, it is necessary to note that there is a "Whole Agreement" clause in these terms:

"This letter of engagement, together with the attached Schedule, constitutes the whole agreement at present between the Company and Seymour Pierce … and may not be amended or modified except by mutual agreement and in writing."

22. A memorandum of understanding was reached by 27 June 2007 with the majority owners of the Club to purchase 29.9% of the shares for £14.95m. Completion took place by 17 July.
23. I record the fact that there was a dispute between Seymour Pierce and Grandtop as to whether the completion of the first stage of the purchase gave rise to an entitlement to a pro rata payment in respect of the £2.2m success fee. This was obviously not provided for in the Engagement Letter, since that contemplated a single transaction. Grandtop insisted that the strict terms of the agreement should be adhered to and Seymour Pierce yielded. There had been no "Offer" within the meaning of the contractual provisions.
24. Thereafter, Seymour Pierce's involvement continued. There were negotiations with the majority owners of the Club with a view to launching a public offer. Furthermore, the Takeover Panel were still engaged. Mr Harris summarised the position at paragraph 23 of his witness statement of 26 January 2010 as follows:

"Grandtop continued throughout the rest of 2007 to make efforts to secure the remaining share capital of Birmingham through a public offer … and the Takeover Panel remained engaged … and Birmingham remained in an offer period which placed on the Company various requirements under the Takeover Code (for example the dealing and disclosure requirements pursuant to Rule 8.3 of the Takeover Code). Standard Chartered Bank even produced a term sheet to provide the balance of approximately £40m required such an Offer … However negotiations with Messrs Gold and Sullivan did not produce any agreed bid price, and on 20 December 2007 Birmingham issued an R and S announcement that they had ended offer discussions with Grandtop because they did not believe that Grandtop would purchase the entire share capital … ."

25. At no stage did Grandtop serve a notice in accordance with clause 21 of the Seymour Pierce standard terms and conditions, so as to terminate the retainer. Furthermore, contact between the parties continued in various ways through to August 2009. The detail of this does not matter, but the involvement emerges clearly from the documentary evidence.
26. In January and February 2008, there were emails between Mr Chan and Mr Feigen, which show that Mr Chan was still wishing to talk to Birmingham and instructing Seymour Pierce to make representations to the Takeover Panel. Moreover, Mr Feigen was asked by Mr Chan to investigate an announcement on 10 April of that year to the effect that the Club was the subject of a police investigation. Also, in May and July, there were communications from Mr Harris to Mr Yeung about the possibility of acquiring Birmingham after its relegation from the Premier League.
27. Later in the year, there was an enquiry from Mr Chan and emails passed between him and Mr Harris between 3 and 6 October 2008 on the subject of an acquisition of the Club. Again, in November 2008, Mr Chan asked Mr Harris to investigate a news story about the owners of the Club being involved in criminal activity.
28. All this suggests, as a matter of fact, that there had been no termination of the contractual relationship. The issue is, therefore, whether notwithstanding this there had as a matter of strict interpretation been an automatic termination on or about 20 December 2007. If that is the right interpretation, then more than 12 months would have elapsed before the acquisition was completed in September 2009 – and thus Seymour Pierce would not be entitled to the sum claimed.
29. Mr Goldsmith submitted that the discussions in 2008 should be regarded as relating to a different transaction. He emphasised a number of factors in support. First, the Club was relegated at the end of the 2007/2008 season (albeit subsequently reinstated). Secondly, by May 2008 Seymour Pierce was suggesting other Premier League clubs to Grandtop, as the evidence tends to show that it was only interested in a Premier League club. Thirdly, there was a suggestion in July of that year that the only way in which the remainder of the Club's shares could be acquired would be if an immediate offer were made by someone other than Grandtop. Fourthly, by October Seymour Pierce was advising Grandtop to sell its stake. In my view, however, none of this affects the central question of whether the subsisting contract had come to an end.
30. On 20 May 2009 Mr Hui wrote to Seymour Pierce asking for a receipt in respect of the non-refundable £290,800 fee paid in June 2007 after the Engagement Letter was signed. More significantly, he also stated that the retainer had terminated on 20 December 2007 and, accordingly, that Grandtop had no outstanding financial obligations towards Seymour Pierce. It is suggested that this seems to have been a pre-emptive strike aimed at avoiding any obligation to pay the success fee now claimed, since Grandtop were probably aware that the Club's shares would soon be acquired. But it is not necessary for me to determine this question for the purposes of the summary judgment application.
31. Seymour Pierce replied on 16 June 2009, challenging the proposition that the retainer had terminated on 20 December 2007, but nevertheless accepting the 20 May letter as itself notice of termination (with effect from 21 August 2009). This would mean that Grandtop would continue to be liable under the Engagement Letter, in the event of its acquiring the Club, to pay the £2.2m success fee. That would remain effective until 21 August 2010.
32. It so happened that on 21 August 2009 Grandtop announced that it had made an offer to purchase the Club which was agreed by 79% of the shareholders. According to Mr Hui's evidence, the offer became unconditional at the end of September 2009. Seymour Pierce were not used as the financial advisers in connection with that offer. BDO Stoy Hayward were instructed at a much lower fee. On the other hand, attempts had been made in July and early August to enlist the help of Seymour Pierce. There was an email to Mr Harris, for example, suggesting that he was in a position to sound out the possibility of a deal with Messrs Gold and Sullivan to buy their remaining shares. On 10 July, Mr Harris responded to Mr Chan saying that he would be "happy to press your case". Mr Chan came back and suggested a price of 61p per share and Mr Harris promised to "proceed with caution" on 13 July, although in fact matters went no further.
33. It is Grandtop's case that the offer of 2009 was different from that proposed in 2007. This time the whole company was valued more highly at £81.5 million ((£1 per share instead of 61p) and the price was set unilaterally by Messrs David Gold and Sullivan, who refused to talk to Grandtop until it was agreed. Moreover, there was on this occasion to be a non-refundable deposit of £3m to Messrs Gold and Sullivan as the price for recommending the offer.
34. Nonetheless, Seymour Pierce submits, against this background, that its retainer continued until 20 May of last year and, therefore, the success fee was payable following Grandtop's offer having become unconditional just over four months later. I must now address each of the three grounds of defence identified above.
35. Seymour Pierce argues that the "Transaction" referred to in the Engagement Letter, in the context of lapse or withdrawal, must be defined by reference to the Takeover Code. A "lapse" would refer accordingly to the lapse of a public offer made under that code. This could happen, for example, in accordance with rule 31.7, in the event that all conditions had not been fulfilled within 21 days of an offer's closing date; or under rule 12, where there is a referral to the Competition Commission. So, too, "withdrawal" would refer to the withdrawal of a public offer by the offeror. This concept is discussed in Weinberg & Blank on Takeovers and Mergers under the heading "Withdrawing from an Offer" at paragraphs 4-4063 et seq. It is clear that a withdrawal can only be made in limited circumstances and carries with it specific obligations.
36. There can be little doubt that the Takeover Code was an important part of the context of the parties' contractual obligations. Mr Fraser, for Seymour Pierce, highlighted the following considerations:

"(a) The Takeover Code applies as a matter of law to Grandtop's efforts to acquire the Club.

(b) Seymour Pierce was engaged as Grandtop's financial advisers for the purpose of the Code, as is specifically stated in the Engagement Letter.

(c) The heads of terms of 5 June 2007 envisaged a public offer under the Code.

(d) The Club was in an official offer period under the Code from 11 June 2007 and had made a public announcement in accordance with rule 2.10 of the Code.

(e) Grandtop were informed on 13 June that Seymour Pierce was aiming for a rule 2.5 announcement under the Code on 22 June.

(f) It was accepted in Mr Hui's evidence, at paragraph 13, that the two stage offer was also governed by the Code, which was why Grandtop made the offer to purchase 29.9% first."

37. In order to achieve clarity, so that the parties knew where they stood, it would be necessary to construe the agreement in accordance with the terminology of the Code. Otherwise, if the terms "lapse" and "withdraw" were to be construed more loosely and informally, the terms of the contract would be undesirably vague. As Mr Fraser put it, "uncertainty is rife". No one would be able to establish clearly whether the contract had terminated. It would be unsatisfactory to have to conduct detailed factual enquiry in order for the court to form an impression as to whether the contractual arrangements were subsisting. In this case, for example, the parties or the court would only be able to determine whether the retainer had come to an end by close analysis of all the communications passing between the parties subsequently. The Seymour Pierce construction, on the other hand, leads to certainty and is much more natural given the background of the Takeover Code. Grandtop's contention would mean that the terms "lapse" and "withdraw" would be ambiguous, sometimes assuming the interpretation under the Code, and on other occasions some different and looser meaning.
38. Furthermore, the "Transaction" referred to in the Engagement Letter must have required a public offer. The "Transaction" is defined in the first paragraph of the Engagement Letter, quoted above, in terms of "a proposed recommended offer for the entire issued share capital … ". That could not happen without a public offer. It will be remembered, also, that Grandtop successfully avoided paying any part of the success fee on the purchase of only a proportion of the Club's shares (i.e. 29.9%). This was because the "Transaction" terminology was held to apply only to a successful offer in respect of 100%. The wording chosen by the parties in the first paragraph of the Engagement Letter corresponds to and reflects the wording in the Takeover Code, which must refer to an Offer. There is no room for a different and more informal meaning for the words used. There is certainly nothing in the Takeover Code to suggest the availability of alternative meanings. The parties did not choose to provide any alternative definitions for themselves. That being the case, it is difficult to see how a reasonable interpretation of the terminology could be based on anything but the Code.
39. As I have already pointed out, the parties chose to equate the words "Transaction" and "Offer" in the first paragraph of the Engagement Letter. Thus, on any reasonable interpretation of the contractual arrangements, "Transaction" cannot mean anything other than an "Offer" as contemplated by the Code.
40. It is thus submitted on Seymour Pierce's behalf that there is no realistic prospect that the court will interpret the parties' chosen language in the way now contended for by Grandtop.
41. Both counsel have rightly referred me to the guidance on construction of contractual terms in the decision of the House of Lords, and to the speech of Lord Hoffmann in particular, in Investors Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 896, 912-3. I also had my attention drawn to Sirius v FIA General Insurance [2004] 1 WLR 3251. I bear those principles in mind and I have come to the conclusion that the only realistic interpretation of the terminology in question is by reference to the Takeover Code.
42. The second ground relied upon on Grandtop's behalf is that the successful offer of 2009 was different from that defined as the Offer in the Engagement Letter. That is nothing to the point, however, since the provision for the success fee quite plainly contemplates "any offer" made within a period of 12 months after the effective date of termination.
43. It is necessary also to remember the "whole agreement" clause cited above, which would be effective to preclude any implication of terms in the agreement unless required for business efficacy. What is suggested in paragraph 6A of the amended defence is that "the offer" should be construed to mean "a proposed recommended offer for the entire issued share capital of [the Target] or cash investment in [the Target] by [the Defendant]".
44. I can see no need to incorporate such a term on grounds of business efficacy.
45. The third ground of defence is based on the proposition that Seymour Pierce was not "the or an effective cause of the success of the second offer/transaction in 2009". This presupposes yet another implied term, for which I can see no need as a matter of business efficacy. The clause is entirely comprehensible without any such implication.
46. Mr Goldsmith has drawn my attention to a number of authorities dealing with contractual provisions in different contexts where the notion of "effective cause" is relevant. These authorities are, in my judgment, largely by the way because the matter comes down to a question of interpreting the particular contractual provisions now before the court. That relating to a success fee is concerned with a situation in which an acquisition occurs within 12 months after the termination of the retainer. It is not in my view ambiguous. This plainly permits the payment of a success fee in circumstances in which Seymour Pierce has not been "the or an effective cause" of a later acquisition. To qualify the right to a success fee by reference to any such requirement is clearly not a matter of business efficacy. Mr Goldsmith asks rhetorically: "If the deal which the parties were contemplating failed, why should any Success Fee be payable?" It is because the contract expressly so provided. Moreover, I would not accept his argument that this involves "a mechanistically literal … interpretation of [Seymour Pierce's] own ambiguous contract".
47. Accordingly, I would grant summary judgment to Seymour Pierce, as it seems to me that there is no prospect of any of the three grounds of defence having any realistic prospect of success. To test their merits does not in any way require resolution of disputed factual issues. Nor can it be said the determination in Seymour Pierce's favour has involved the conduct of a mini-trial.
48. As I noted earlier, there is a claim by Grandtop to set off two sums amounting to £180,000. First, there is the sum of £155,315.84 in respect of expenses incurred in relation to the later successful acquisition. I would reject this argument also, on the ground that the Engagement Letter had been terminated prior to the incurring of these expenses. Seymour Pierce was not involved by that stage. Furthermore, it is clear from the terms of the Engagement Letter that Seymour Pierce had to agree the incurring of the expenses beforehand. This did not happen.
49. In relation to the other proposed set off, the parties are agreed that £24,485.75 can be deducted and there is no need for me to determine any issue in relation to this matter.
50. There will accordingly be judgment for the Claimant for £2.2m less the agreed sum.