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	England and Wales High Court (Commercial Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Global Asset Capital, Inc & Anor v Aabar Block SARL & Anor [2016] EWHC 298 (Comm) (18 February 2016) URL: http://www.bailii.org/ew/cases/EWHC/Comm/2016/298.html Cite as: [2016] EWHC 298 (Comm)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT

		Rolls Building Fetter Lane London EC4A 1NL
		18/02/2016

Mr Justice Walker:

[Table of Contents]

A. Introduction	1
B. Background	11
B1. General	11
B2. Maud Santander investment & bankruptcy proceedings	13
B3. From 23 April to 8 May 2015 inclusive	20
B3.1 The undated letter	20
B3.2 From 24 April to 8 May 2015 inclusive	22
B4. The 9 May communications	29
B4.1 Communications of 9 May: covering email	29
B4.2 The 9 May purchase letter	31
B4.3 The 9 May funding letter	32
B5. Subsequent events	34
B6. The bankruptcy proceedings	36
B7. The present proceedings	39
C. Legal principles: striking out/summary judgment	46
D. The Aabar defendants' application	48
D1. The Aabar defendants' application: general	48
D1.1 The application notice and Robinson 1	48
D1.2 Three issues and a fundamental assumption	50
D2. No arguably enforceable 6 May contract: pleaded claim	52
D3. Aabar defendants' first issue: no contract possible	53
D3.1 Five reasons why no contract could be made on 6 May	53
D3.2 A misconception about the particulars of claim	55
D3.3 Point (b): uncertainty in the undated letter	66
D3.4 Point (c): the legal due diligence condition	77
D3.5 A point not raised by Mr Robinson	78
D3.6 Potential for an enforceable contract as at 6 May 2015	82
D4. Aabar defendants' second issue: no contract made	83
D4.1 The Aabar defendants' case: 6 May and afterwards	83
D4.2 Entitlement to rely on events after 6 May	90
D4.3 The first additional matter: condition (i) of 6 May	93
D4.4 Events on 9 May	94
D4.5 The Maud 218 ineffective statements	96
D4.6 The 10 May email	98
D4.7 Additional matters relied upon by the Aabar defendants	99
D4.8 Additional matters relied upon by Mr Tchenguiz	101
D4.9 A realistic prospect that a contract was made	109
D5. Aabar defendants' third issue: conditions not satisfied	110
E. Mr Tchenguiz's application	131
E1. Mr Tchenguiz's application notice and Roscoe 1	131
E2. Procuring breach of contract	143
E2.1 Procuring breach of contract: introduction	143
E2.2 Procuring breach of contract: statements of case	147
E2.3 Procuring breach of contract: elements (b), (c) and (d)	158
E2.4 Procuring breach of contract: points as to the future	162
E2.5 Procuring breach of contract: conclusion	164
E3. Intimidation	165
E3.1 Intimidation: introduction	165
E3.2 Intimidation: a threat by the coercer to the coercee	168
E3.3 Intimidation: no plea that the threat was of unlawful conduct	171
E3.4 Intimidation: Global's application to amend	181
E3.5 Intimidation: intention to cause loss to Global	191
E3.6 Intimidation: other aspects of the threat	193
E3.7 Intimidation: causation	194
E3.8 Intimidation: conclusion	195
F. Overall conclusion	196




A. Introduction

1. Two applications are before the court. The first is an application issued on 26 June 2015 by the first and second defendants. It seeks summary judgment against the claimants on the claim, alternatively that the claim against the first and second defendants be struck out. The second was issued by the third defendant on 30 June 2015. It seeks that the claimants' claim against the third defendant be struck out, alternatively an order for summary judgment against the claimants in respect of their claim against the third defendant.
2. The first claimant, Global Asset Capital, Inc ("GAC") is a company incorporated in Delaware. The second claimant ("Mr Maud") is an individual businessman whose business, which is described below, is based at an address in Grosvenor Street, London ("the Grosvenor Street address"). I shall refer to the claimants together as "Global".
3. The first defendant is a company resident in Luxembourg which I shall refer to as "Aabar Block". It is an indirect subsidiary of the second defendant. The second defendant is a company resident in Abu Dhabi, which I shall refer to as "Aabar PJS". I shall refer to Aabar Block and Aabar PJS as "the Aabar defendants". These two companies with their affiliates form a group of investment companies ("the Aabar group") which has its base in the United Arab Emirates, and which is ultimately beneficially owned almost entirely by the Abu Dhabi government's International Petroleum Investment Company ("IPIC"). At relevant times the Chief Executive Officer of Aabar PJS was Mr Mohammed al-Husseiny.
4. The third defendant is Mr Robert Tchenguiz, a businessman and entrepreneur. Entities owned and controlled by him include Edgeworth Capital (Luxembourg) S.a.r.l. ("Edgeworth"), an investment company. I shall refer to Edgeworth, its affiliates and related parties as "the Edgeworth group". Mr Tchenguiz is the chairman of R20 Limited, a company which advised Edgeworth in relation to matters relevant to the present case.
5. In paragraphs 14 and 15 of their particulars of claim Global allege that an agreement ("the 6 May alleged agreement") was made on 6 May 2015 and was a contract for the purchase by Global of what can be referred to as "the Aabar rights". The Aabar rights comprise debt interests and other rights and interests of the Aabar group in the Marme group of companies ("the Marme group") and in the Edgeworth group. As explained below, Mr Maud himself holds interests in the Marme group, and certain of the Aabar rights are rights against Mr Maud.
6. As against the Aabar defendants, Global seek a declaration that the 6 May alleged agreement is valid and binding. They also seek specific performance of obligations under the 6 May alleged agreement, alternatively damages for breach of those obligations. As against Mr Tchenguiz, Global seek damages and an injunction restraining him from procuring the Aabar defendants' breach of the 6 May alleged agreement or otherwise wrongfully interfering in the economic relations between the Aabar group and Global.
7. At the hearing Ms Sonia Tolaney QC and Mr James MacDonald appeared on behalf of the Aabar defendants, Mr Mark Phillips QC and Mr William Willson appeared on behalf of Mr Tchenguiz and Mr Andrew Green QC and Mr Fraser Campbell appeared on behalf of Global. I have been much assisted by their written and oral submissions.
8. The evidence adduced on the applications comprises:

(1) a first witness statement ("Robinson 1") made on 26 June 2015 for the Aabar defendants by Mr Christopher Robinson, a solicitor and a partner at Freshfields Bruckhaus Deringer LLP ("Freshfields"), which acts for the Aabar defendants;

(2) a first witness statement ("Roscoe 1") made on 30 June 2015 for Mr Tchenguiz by Ms Susan Roscoe, a solicitor and a partner at Linklaters LLP ("Linklaters"), which acts for Mr Tchenguiz;

(3) a first witness statement ("Maud 264/1") made on 7 August 2015 for Global by Mr Maud.

9. For the reasons given below, I conclude that:

(1) the Aabar defendants' application is unsuccessful;

(2) a substantial part of Mr Tchenguiz's application is unsuccessful;

(3) while the remainder of Mr Tchenguiz's application would warrant striking out one of the claims against him, it is appropriate to grant permission for an amendment which will enable Global to continue to advance that claim.

10. After describing the background in section B below, in section C below I describe relevant legal principles concerning strike out and summary judgment applications. I deal in section D with the Aabar defendants' application, and in section E with Mr Tchenguiz's application. My conclusions are summarised in section F.

B. Background

B1. General

11. My account of the background is largely taken from an agreed chronology prepared in September 2015, along with accounts in the skeleton arguments for the Aabar defendants and Mr Tchenguiz. In this section I supplement those accounts with certain matters which either are not in dispute, or are expressly stated to be one side or the other's account of events.
12. Relevant time zones extend from British Summer Time to Gulf Standard Time. In order to give a single point of reference, all dates and times below, unless the context indicates otherwise, are in Greenwich Mean Time.

B2. Maud Santander investment & bankruptcy proceedings

13. Mr Maud was formerly a solicitor specialising in commercial law. In 1989 he left private practice to concentrate on a business he had started. This business, which specialised in property investment and trading, was affected by the economic crisis which started in late 2007. Mr Maud states that his only remaining significant investment is his investment in the Marme group. That investment ("the Maud Santander investment") comprises interests in the Marme group, which owns Ciudad Financiera del Banco Santander, a commercial property in Madrid which I shall refer to as "the Santander asset". The Santander asset houses, among other businesses, the global headquarters of the Santander banking group, and was said in Maud 264/1 to have an estimated value of over €3 billion. Mr Maud acquired these interests in September 2008, shortly before the collapse of the Lehman Brothers Investment Bank and the deepening of the financial crisis.
14. The Marme group comprises three companies:

(1) Marme Inversiones 2007 S.L. ("Marme"), a Spanish company which purchased the Santander asset from the Santander group, simultaneously granting back to the Santander group a 40-year lease from September 2008;

(2) Delma Projectontwikkeling BV ("Delma"), a Dutch company which is the sole shareholder in Marme; and

(3) Ramblas Investments BV ("Ramblas"), a Dutch company, which is the sole shareholder in Delma and which is owned, as to 50% each, by Mr Maud and his co-investor, Derek Quinlan ("Mr Quinlan").

15. The acquisition was financed, in part, by Royal Bank of Scotland plc ("RBS"):

(1) RBS made a loan ("the RBS personal loan") of €75m to Mr Maud and Mr Quinlan personally; Mr Maud states that the entirety of this €75m, along with additional funds from Mr Maud, Mr Quinlan and related parties was the subject of a loan (the "Shareholder Loan") to the Marme group for the purchase of the Santander Asset;

(2) RBS also underwrote a junior loan facility ("the RBS junior loan") of €200m to Ramblas; Mr Maud and Mr Quinlan personally guaranteed repayment of the RBS junior loan in an amount of up to €40m.

16. Maud 264/1 stated that he thus became interested in the Marme group in two ways: (1) through his 50% shareholding in Ramblas; and (2) through the Shareholder Loan. It seems to me that he may now have a third interest in the Marme group: I understand that he has been called upon to make payment under his guarantee of the RBS junior loan, and it may be that he will have a claim against the Marme group in this regard.
17. In December 2010 Aabar Block and Edgeworth acquired RBS's interest, and associated security, in and in respect of the RBS personal loan and the RBS junior loan. Aabar Block and Edgeworth subsequently commenced High Court proceedings against Ramblas, Mr Maud and Mr Quinlan in relation to defaults on the RBS junior loan and the RBS personal loan. Consent orders were made on 16 and 17 June 2011. Pursuant to the consent orders, Mr Maud owes Aabar Block and Edgeworth over €52m in respect of the personal loan and Ramblas owes Aabar Block and Edgeworth in excess of €216m in respect of the junior loan.
18. In June 2014, Aabar Block and Edgeworth served a statutory demand on Mr Maud in respect of his personal debts. This was the start of what I shall call "the bankruptcy proceedings". Shortly after service of the statutory demand Mr Maud applied to set it aside. Also in June 2014, and on other occasions including in March 2015, Mr Maud made unsuccessful proposals to the Aabar defendants and to Edgeworth for the acquisition of their interests in the loans made by RBS to the Marme group.
19. Following events described in sections B3 to B5 below, Mr Maud's application to set aside the statutory demand was the subject of a hearing before Rose J on 12 May 2015. The application was dismissed by Rose J by an order dated 15 June 2015. Her judgment giving reasons for that order was handed down on 8 June 2015. Additional aspects of the bankruptcy proceedings are dealt with in section B6 below.

B3. From 23 April to 8 May 2015 inclusive

B3.1 The undated letter

20. In this section I set out the terms of an undated letter which Mr Maud says was initially emailed by him to the Aabar defendants on 23 April 2015 and was the subject of discussion on 6 May 2015. Here, and in subsequent sections setting out correspondence between the parties, I have for convenience added letters or numbers or both in square brackets in order to identify particular passages.
21. The undated letter can be described in broad terms as a proposal by Mr Maud and GAC for the purchase of the Aabar rights. The letter was headed with the Grosvenor Street address. It used the abbreviation "Madison" for what was described in the body of the letter as "Madison Realty International". It identified as a copy recipient, however, Derek Jacobson ("Mr Jacobson") of "Madison International Realty". The addressee of the undated letter was Aabar Block at its address in Luxembourg. The undated letter stated, with identifiers added in square brackets:

[U/A] WITHOUT PREJUDICE – SUBJECT TO CONTRACT

[U/B] Dear Sirs

[U/C] Offer to purchase all rights and claims of Aabar in relation to Marme and Edgeworth

[U/D] This letter sets forth the key terms of an all-cash offer (the "Offer") to Aabar Investments PJS, Aabar Block S.a r.l and any relevant affiliates of Aabar Investments PJS or Aabar Block S.a r.l. (jointly referred to as "Aabar") to purchase all of Aabar's rights and claims in relation to i) Marme Inversiones 2007 S.L. ("Marme") and its holding companies (together the "Marme Group") and ii) Edgeworth Capital (Luxembourg) S.a r.l. and Edgeworth Capital Limited and any and all of their affiliates and/or related parties (jointly "Edgeworth") (the "Proposed Transaction").

[U/E] Glenn Maud together with Madison Realty International ("Madison") and Global Asset Capital ("GAC") or an entity designated by them will be jointly referred to as the "Purchaser".

[U/F1] 1. Key commercial terms of the Offer to Aabar:

[U/F1.1]Purchased Rights	All of the rights and benefits of Aabar in relation to or in connection with the Marme Group, including
	(i) all rights and benefits of Aabar under the Finance Documents as defined in the credit facility agreement (the "Junior Facility Agreement") entered into by Ramblas Investments ("Ramblas") on 12 September 2008 (the "Junior Claims");
	(ii) all rights and benefits of Aabar under the Finance Documents as defined in the personal loan agreement entered into with Derek Quinlan and Glenn Maud on 12 September 2008 (the "Personal Claims");
	(iii) all rights and benefits of Aabar under any and all arrangements with Derek Quinlan in relation to the Marme Group or otherwise, including any rights to acquire all or a part of the shareholder loans and shares held by Derek Quinlan in Ramblas;
	(iv) any and all rights of Aabar against (other) third parties in connection with the acquisition of the Junior Claims from the Royal Bank of Scotland PLC in 2010 and/or representations and/or warranties made in relation thereto; and
	(v) all rights and benefits that Aabar has against Edgeworth and/or any of its affiliates or related parties, including any and all rights and benefits under any loans that Aabar has made to Edgeworth and/or any of its affiliates or related parties;
	(vi) the right to purchase the shares in the Aabar entity or Aabar entities that hold the rights listed at (i) – (v) above for an additional purchase price of EUR 1.-
	(all jointly referred to as "Aabar's Rights").
[U/F1.2] Purchase Price	The aggregate Purchase Price for Aabar's Rights shall be EUR 250,000,000

[U/F2] 2. Other conditions

[U/F2.1] Release	Upon completion of the Proposed Transaction the parties shall provide each other with appropriate waivers and releases
[U/F2.2] Closing	The Proposed Transaction shall complete within 5 business days from acceptance of this offer
[U/F2.3] Conditions	(i) Subject to limited legal due diligence the results of which are satisfactory to the Purchaser
	(ii) Subject to contract

[U/G] We hope that the proposed terms are acceptable to you and are available at your convenience for a meeting to further discuss the Proposed Transaction.

[U/H] We look forward to hearing from you.

[U/J] Yours sincerely,

[G. Maud]

_________________

Glenn Maud

[illegible signature]

________________

Global Asset Capital

[U/K] cc: Derek Jacobson, Madison International Realty

B3.2 From 24 April to 8 May 2015 inclusive

22. The Aabar defendants' account of events is that on 28 April 2015 a meeting took place between them and a third party. They say that during this meeting the third party indicated that Mr Maud was proposing to purchase the Aabar rights for €250m.
23. Mr Maud states that in late April 2015 Global began discussions with hedge funds which had previously been in discussions, which came to nothing, with Mr Tchenguiz about possible co-operation with Edgeworth. Those hedge funds included GSO Capital Partners ("GSO") and Centrebridge Partners LP ("Centrebridge").
24. On 5 May 2015:

(1) Mr Malcolm McKinnon, IPIC's general counsel, received a text message from Mr Maud asking "to speak regarding the Santander transaction".

(2) Mr McKinnon replied suggesting that Mr Maud contact Mr Al-Husseiny.

(3) A telephone conversation took place between Mr Al-Husseiny and Mr Maud, during which Mr Maud was informed that the Aabar defendants were considering his proposal.

(4) Mr Maud's account of events is that during the telephone conversation on 5 May 2015 he was told that Mr Al-Husseiny's board would be discussing Mr Maud's proposal the following day.

25. On 6 May 2015:

(1) A meeting took place of Aabar PJS's board;

(2) A telephone call then took place ("the 6 May Al-Husseiny/Maud call") between Mr Al-Husseiny and Mr Maud.

(3) After that conversation Mr Maud emailed Mr Al-Husseiny attaching an electronic version of the undated letter.

(4) Mr Al-Husseiny emailed back acknowledging receipt of Mr Maud's email.

(5) Mr Tchenguiz called representatives of GSO and/or Centrebridge.

26. There is a dispute as to what was said during the 6 May Al-Husseiny/Maud call. Global's account, which is not accepted by the Aabar defendants, is set out in section D2 below.
27. On 7 May 2015 it is common ground that:

(1) Mr Maud made a third witness statement in his bankruptcy proceedings (see section B6 below);

(2) A telephone call took place between Mr Maud and Mr Al-Husseiny;

(3) Mr Maud emailed Mr Al-Husseiny attaching an electronic version of a letter from Centrebridge and GSO.

(4) Mr Maud texted Mr Al-Husseiny:

Hi Mohamed, funding letter sent. I hope u received. Fully committed binding terms and funding commitment will follow either later today or tomorrow. Best, Glenn

(5) Mr Al-Husseiny texted back acknowledging receipt of Mr Maud's text.

28. On 8 May 2015:

(1) Mr Maud made a fourth witness statement in his bankruptcy proceedings (see section B6 below);

(2) Mr Tchenguiz again called representatives of GSO and/or Centrebridge.

B4. The 9 May communications

B4.1 Communications of 9 May: covering email

29. A covering email and attached documents were sent by Mr Maud to Mr Al-Husseiny, timed at 22:14 on 9 May 2015. I shall refer to the attached documents as "the 9 May purchase letter" and the "9 May funding letter".
30. The body of the email stated, with identifiers added in square brackets:

[1] As requested please find attached binding and committed letters of finance and offer.

[2] [2.1] If possible, I look forward to receiving your confirmation of acceptance of our offer during the course of Sunday. [2.2] Thereafter we can meet in either Abu Dhabi or London to suit to agree the mechanics of how [to] progress to completion as soon as possible.

[3] Many thanks.

B4.2 The 9 May purchase letter

31. Like the undated letter, the 9 May purchase letter was headed with the Grosvenor Street address, and the addressee of the letter was Aabar Block at its address in Luxembourg. It used the abbreviation "Madison" for what was described in the body of the letter as "Madison International Realty". The 9 May purchase letter was as follows, with identifiers added in square brackets:

[9P/A] Date: 9 May 2015

[9P/B] Dear Sirs

[9P/C] RE: Purchase of all rights and claims of Aabar in relation to Marme and Edgeworth

[9P/D1] We refer to our prior discussions and negotiations, and our history of seeking to work constructively together to resolve all matters that exist between us. [9P/D2] This letter sets forth the key terms of a financed agreement (the "Agreement") with Aabar Investments PJS, Aabar Block S.a r.l. and any relevant affiliates of Aabar Investments PJS or Aabar Block S.a r.l. (jointly referred to as "Aabar") to purchase all of Aabar's rights and claims in relation to i) Marme Inversiones 2007 S.L. ("Marme") and its holding companies (together the "Marme Group") and ii) Edgeworth Capital (Luxembourg) S.a r.l. and Edgeworth Capital Limited and any and all of their affiliates and/or related parties (jointly "Edgeworth") (the "Proposed Transaction").

[9P/E] Madison International Realty ("Madison"), Global Asset Capital ("GAC") and Glenn Maud ("GM") or an entity designated by them will be jointly referred to as the "Purchaser".

[9P/F1] 1. Key commercial terms:

[9P/F1.1] Purchased Rights	[text in materially identical terms to the text at [U/F1.1]]
[9P/F1.2] Purchase Price	[text identical to the text at [U/F1.2]]

[9P/F2] 2. Other terms

[9P/F2.1] Release	Upon completion of the Proposed Transaction the parties shall provide each other with appropriate waivers and releases of all outstanding matters, litigation and disputes between them including (without limitation) appropriate releases and waivers being granted by Glenn Maud
[9P/F2.2] Expiry	This letter will expire at 6.00 p.m. London time on 11 May 2015, unless accepted by you by that time
[9P/F2.3] Edgeworth	It is our intention post-completion to work constructively with Edgeworth and to refinance the existing senior debt to ensure Marme's future solvency. Any amendment to the arrangements that exist between you and Edgeworth that might be necessary shall be subject to mutual discussion and agreement.
[9P/F2.4] Documentation	Upon your agreement that you are willing to proceed with the Proposed Transaction we will provide market standard documentation for the transfer of Aabar's Rights for your review.
[9P/F2.5] Closing	The Proposed Transaction shall complete as soon as practicable upon agreement of final documentation.
[9P/F2.6] Exclusivity	Upon your agreement that you are willing to proceed with the Proposed Transaction each party agrees that it will not pursue or seek to pursue any alternative transaction with respect to Aabar's Rights for 15 days from the date of this letter. During the Exclusivity period all litigation between the parties and any of them is to be stayed.
[9P/F2.7] Expenses	Each party shall bear its own costs.

[9P/F3] 3. Conditions

This Agreement is subject to:

	(i) agreement of final form documentation to be governed by Loan Market Association ("LMA") terms and conditions;
	(ii) completion of limited legal due diligence the results of which are satisfactory to the Purchaser;

[9P/F4] 4. Funding

[9P/4.1] We enclose confirmation of the funding position from our financiers. [9P/F4.2] We would be happy to provide any further information at your request. [9P/F4.3] Our financiers are available to meet, if required, at short notice.

[9P/G] We hope that the proposed terms are acceptable to you and are available at your convenience for a meeting to further discuss the Proposed Transaction.

[9P/H] We look forward to hearing from you.

[9P/J] Yours sincerely

[G. Maud]

[illegible signature]

B4.3 The 9 May funding letter

32. The 9 May funding letter was a document signed by Mr Jacobson as managing director of Madison International Realty, LLC, headed "MADISON INTERNATIONAL REALTY", and giving a New York address. It was marked "Private & Confidential", and dated May 9, 2015. It was addressed to Aabar PJS at its address in Abu Dhabi. The 9 May funding letter stated, with the addition of identifiers in square brackets:

[9F/A] We refer to the attached letter sent by Global Asset Capital Inc. ("GAC"), Madison International Realty ("Madison"), and Mr. Glen Maud ("GM") to Aabar Block S.a r.l (together with any relevant affiliates, "Aabar") relating to a proposed purchase (the "Acquisition") of all of Aabar's rights and claims in relation to (i) Marme Inversiones 2007, S.L. and is holding companies (together, the "Marme Group"), and (ii) Edgeworth Capital (Luxembourg) S.a r.l and Edgeworth Capital Limited.

[9F/B1] Madison is currently investing on behalf of its fifth fully discretionary private equity vehicle, Madison International Real Estate Liquidity Fund V, LP, which has $825 million of aggregate commitments. [9F/B2] Madison was founded in 2002 and manages approximately $1.8 billion of equity.

[9F/C1] As you have requested, we are writing to confirm the intention of Madison, on behalf of certain funds managed by its affiliates, to provide the funding needed to complete the Acquisition. [9F/C2] This funding is subject to the satisfactory completion of Madison's due diligence and to other customary conditions precedent, including the completion of all documentation to the satisfaction of Madison.

[9F/D] It should be understood that this letter does not, and is not intended to, create (under the laws of any jurisdiction) any contractual relationship or other obligation of any kind between any of Madison, GAC, GM and Aabar.

[9F/E] This letter is to be treated as strictly confidential and is delivered to you with the understanding that neither it nor its contents may be disclosed, directly or indirectly, to any other person other than:

(a) to your directors, officers, employees, agents and advisors, who are directly involved in the consideration of the Acquisition and who are made aware of these confidentiality obligations;

(b) upon the order or request of any court or administrative agency or as otherwise required by law or regulation; or

(c) with our prior written consent

[9F/F] This letter and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law.

[9F/G] Yours faithfully,

Madison International Realty, LLC

By [illegible signature]

____________________

Derek Jacobson

Managing Director

[9F/H] Date: 05/09/15

[9F/J] cc: Mr. Glenn Maud

Mr. Riaz Valani, Global Asset Capital, Inc.

33. In this judgment I assume that the references in the undated letter to "Madison Realty International", and in that letter, the 9 May purchase letter and the 9 May funding letter to "Madison International Realty", are all references to Madison International Realty, LLC. I use the abbreviation "Madison" to refer to that entity.

B5. Subsequent events

34. On 10 May 2015:

(1) Mr Maud made a fifth witness statement in his bankruptcy proceedings;

(2) At 08:59 Mr Maud texted Mr Al-Husseiny asking whether Mr Al-Husseiny had received the email sent by Mr Maud on 9 May 2015;

(3) At 12:18 Mr Al-Husseiny emailed Mr Maud as follows:

Dear Glenn,

We refer to your email below and the letter of offer and letter of finance both dated 9 May which was attached to that email. We wish to state for the record that we have not accepted your offer and there are no ongoing negotiations between us. Any communications between us to date do not constitute an acceptance of your offer nor a commitment by us to enter into or to be involved in any negotiations or transactions with you. We reiterate the confidential nature of these communications which should not be disclosed or referred to in (in whole or in part) to any third party nor used or relied upon for any purpose without our prior written consent.

Regards,

Mohamed Al-Husseiny

Chief Executive Officer

Aabar Investments, PJS

(4) At 20:49 Mr Maud emailed Mr Al-Husseiny stating:

Dear Mohamed,

Thank you for your email.

Given our ongoing discussions in relation to Santander, it is important that we be transparent with each other and work constructively on a way forward for the benefit of all parties.

Our objective over the past year has been to work out a consensual deal to the satisfaction of all parties involved in Santander including Aabar. Over this past year, we have reached a number of confidential preliminary agreements (subject to contract) that have each been thwarted by Tchenguiz/Edgeworth to the detriment of both Aabar and myself, as the founder and joint owner of Marme, causing Aabar to be forced into a bidding process for the Marme assets that it had repeatedly expressed in the past was not its desired outcome.

Firstly, we preliminarily agreed in August last to fix the junior/mezzanine loan at the EUR 352 million claim amount and to waive our right of pre-emption over the other 50% of Marme that we do not own so that Aabar/Edgeworth could own this equity in return for a waiver of the personal loans and guarantees provided by me. This was preliminarily agreeable to both Aabar and ourselves at the time but Tchenguiz/Edgeworth was disagreeable.

Secondly, we preliminarily agreed earlier this year to repay the entire Aabar/Edgeworth position for EUR 300 million and provided proof of our financial capability to do so in a short period of time. This was also preliminarily agreeable to both Aabar and ourselves at the time but Tchenguiz/Edgeworth was disagreeable.

Most recently, we understood from our telephone communications this past week that the board of Aabar in response to our bid letter had resolved in favour of proceeding with our proposal to purchase all of Aabar's interests related to Santander, subject to certain confirmations, for EUR 250 million. During our calls on Wednesday and Thursday, you requested that as part of this process, I provide to you a binding and committed offer and funding letters which I did last evening. We even expressed our continued willingness to work out a consensual deal with both Aabar as well as Tchenguiz/Edgeworth as stated in our offer letter.

We have not disclosed our discussions to third parties (other than the hedge funds who sent the funding letter to you dated 7 May naturally were aware of our discussions). I did advise you, however, that we needed a short term adjournment of the bankruptcy proceedings brought by Aabar and Edgeworth to avoid required legal disclosures of our discussions which would be seen only by the judge, Aabar and Edgeworth. You stated that you could only consider adjourning or withdrawing these bankruptcy proceedings if I provided committed offer and funding letters which I did yesterday.

Instead, the confidentiality of our communications and the backing by the funds was breached by Tchenguiz/Edgeworth who disclosed my witness statement to the hedge funds in breach of court confidentiality and privilege in a blatant attempt to thwart our bid and backing of the funds with threats of litigation against Aabar if you were to follow through with the sale to ourselves and, I understand from the Hedge Funds, a false contention that Tchenguiz/Edgeworth had a verbally agreed right to match any bid made for Aabars junior interest.

We understand these threats by Tchenguiz/Edgeworth have caused you to deny the existence of any discussions between ourselves despite the longstanding discussions and negotiations between ourselves to reach a consensual deal that is beneficial to all parties.

We wish to progress this transaction as offered and financed and are prepared to move immediately.

In the meantime, I thank you in anticipation of your kind assistance in this matter.

Kind regards,

Glenn

35. On 12 May 2015 the hearing took place of Mr Maud's application to set aside the statutory demand served on him on 5 June 2014. I deal with this in section B6 below.

B6. The bankruptcy proceedings

36. As noted above, shortly after service of the statutory demand Mr Maud made an application to set it aside. This application ("the statutory demand application") was made in the Chancery Division, case number 218/SD/2014. In support of the statutory demand application Mr Maud made a first witness statement dated 1 July 2014 ("Maud 218/1") and a second witness statement dated 23 February 2015 ("Maud 218/2").
37. The hearing of the statutory demand application took place before Rose J on 12 May 2015. Shortly before the hearing Mr Maud served on Aabar Block and Edgeworth three further witness statements. I shall refer to them as "the Maud 218 ineffective statements". They comprised a third witness statement dated 7 May 2015 ("Maud 218/3"), a fourth witness statement dated 8 May 2015 ("Maud 218/4") and a fifth witness statement dated 10 May 2015 ("Maud 218/5"). At the hearing on 12 May 2015 reference was made on behalf of Mr Maud to a document which had been included in the exhibit to Maud 218/3. However, no application was made by Mr Maud at the hearing to rely upon any of the Maud 218 ineffective statements.
38. In a judgment dated 8 June 2015 (see section B2 above) Rose J dismissed the statutory demand application. She refused an application by Mr Maud for permission to appeal. An application by Mr Maud to the Court of Appeal for permission to appeal was refused by Gloster LJ on 1 July 2015. In the meantime, on 25 June 2015, a consent order was made by Rose J granting permission to use the Maud 218 ineffective statements in the present proceedings.

B7. The present proceedings

39. The present proceedings were begun by a claim form issued on 8 June 2015. When issued the claim form was accompanied by particulars of claim. Acknowledgements of service, giving notice of intention to defend, were filed by the Aabar defendants and Mr Tchenguiz on 24 June 2015.
40. As noted earlier, the Aabar defendants' application was issued on 26 June 2015 and was supported by Robinson 1 made on the same day, while Mr Tchenguiz's application was made on 30 June 2015 and was supported by Roscoe 1 made on that day. On 8 July 2015 Mr Tchenguiz's defence was filed, and on 16 July 2015 the Aabar defendants' defence was filed. As also noted earlier, Maud 264/1, responding to Robinson 1 and Roscoe 1, was filed on 7 August 2015.
41. In the meantime arrangements had been made for the hearing of the applications. A letter from Freshfields to the court dated 26 June 2015 asserted that the hearing would require no more than half a day, with an hour and a half for reading. A fixing sheet signed by all counsel was lodged by 22 July 2015, giving an estimated length of hearing of half a day to a day, including the time necessary for the giving of oral judgment, with two hours for pre-reading.
42. A draft amended particulars of claim dated 4 September 2015 ("the 4 September draft") was sent by GAC's solicitors, Paul Hastings (Europe) LLP, to Freshfields and Linklaters. In due course letters were sent consenting to the proposed amendments, but no formal service of amended particulars of claim under CPR 17.1(2) took place. On 11 September 2015 the Aabar defendants provided other parties with a draft amended defence. Skeleton arguments for the Aabar defendants and for Mr Tchenguiz were filed on 14 September, and a skeleton argument for Global was filed on 16 September.
43. On the basis of the fixing sheet a hearing was scheduled for 17 September 2015. The hearing was assigned to Blair J, who on consideration of the papers concluded that the time needed had been underestimated. Subsequent events have shown that there had been a failure to warn the court that the time needed for pre-reading would be a day and that the time required for oral argument, not allowing for the giving of judgment, would be at least a day and a half.
44. The September hearing date was vacated. The hearing was adjourned and came before me for oral argument on 11 and 12 November 2015.
45. At the conclusion of argument on 12 November 2015, following suggestions in the course of argument that there might be revisions to the draft amended particulars of claim dated 4 September, at my request a revised draft of the amended particulars of claim ("the 12 November draft") was provided by Global.

C. Legal principles: striking out/summary judgment

46. It is common ground that general principles concerning strike out and summary judgment, so far as relevant to the present case, are summarised by Asplin J at paragraphs 9 and 10 of her judgment in Tesco Stores Ltd v Mastercard Incorporated [2015] EWHC 1145 (Ch). Among other things:

(1) the court must consider whether the applicant has a realistic as opposed to fanciful prospect of success – in this context, a realistic claim is one that carries some degree of conviction and is more than "merely arguable".

(2) the court must not conduct a "mini-trial" and should avoid being drawn into an attempt to resolve conflicts of fact which are normally resolved by the trial process.

(3) if the application gives rise to a short point of law or construction then, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should "grasp the nettle and decide it".

47. In that judgment at paragraph 14, Asplin J referred to AK Investment CJSC v Kyrgyz Mobil Tel Ltd [2012] 1 WLR 1804. The judgment of Lord Collins in that case stated at paragraph 84:

The general rule is that it is not normally appropriate in a summary procedure (such as an application to strike out or for summary judgment) to decide a controversial question of law in a developing area, particularly because it is desirable that the facts should be found so that any further development of the law should be on the basis of actual and not hypothetical facts …

D. The Aabar defendants' application

D1. The Aabar defendants' application: general

D1.1 The application notice and Robinson 1

48. The Aabar defendants' application notice asserted in general terms that the legal tests for summary judgment under CPR 24.2, and for striking out under CPR 3.4(2)(a), were met. The notice itself did not explain the basis for saying that these tests were met. Instead, the information required by CPR 23.6, and by CPR 24.4(3) as supplemented by PD 24 paragraph 2(3), was (as permitted by those provisions) set out in Robinson 1.
49. Robinson 1 at paragraph 23, while noting that Global's account of the 6 May Al-Husseiny/Maud call was disputed, stated:

It is however unnecessary to resolve that factual dispute on this Application. That is because, even if the Claimants' account of the 6 May Telephone Call is correct, it is plain, for the reasons set out below, that no binding and enforceable contract to sell Aabar's debt interests to the Claimants could or did come into force on 6 May 2015. In any event, the alleged Conditions were not satisfied.

D1.2 Three issues and a fundamental assumption

50. Paragraph 23 of Robinson 1 can be analysed as limiting the Aabar defendants' application to three broad issues. The first, which I shall call "the Aabar defendants' first issue", was that no enforceable contract could come into force on 6 May 2015. The second, which I shall call "the Aabar defendants' second issue", was that it could not be said that an enforceable contract did come into force on 6 May 2015. The third, which I shall call "the Aabar defendants' third issue" was that in any event two conditions, accepted by Global to have been part of the contract, could not be said to have been satisfied.
51. It is important to note in this regard that, as regards all these issues, the Aabar defendants' application proceeded upon the assumption that "the Claimants' account of the 6 May Telephone Call is correct". I shall refer to that account as "the 6 May alleged Al-Husseiny/Maud communications". Those alleged communications are set out in paragraph 14 of the particulars of claim: see section D2 below.

D2. No arguably enforceable 6 May contract: pleaded claim

52. As to the Aabar defendants' assertion that there was no arguably enforceable contract on 6 May, relevant paragraphs in the particulars of claim were unchanged in the draft amendments of 4 September and 12 November 2015. They are paragraphs 10 to 15:

10. On 30 November 2010, RBS entered into a transfer and assignment agreement pursuant to which it sold and assigned to Aabar Block and to Edgeworth Capital (Luxembourg) S.à.r.l. ("Edgeworth") the Junior Loan, the Personal Loan and the benefit of all securities held in respect of the same. Edgeworth is a Société à responsabilité limitée incorporated under the laws of Luxembourg, which is owned and controlled by Mr Tchenguiz. The precise details of the relationship between Aabar and Edgeworth are unknown to the Claimants, but they believe that Edgeworth's participation in the transaction was ultimately financed by Aabar by way of loan or guarantee or otherwise.

11. Mr Maud has repeatedly attempted to settle the debts owned by Aabar Block and Edgeworth. In particular, but without limitation, in February 2015 Mr Maud reached an agreement in principle with Aabar for the acquisition of the entirety of the Junior Loan. Mr Tchenguiz, however, consistently with his hostile strategy of acquiring control of Ciudad Financiera, blocked the deal, declaring at a meeting at the offices of Bank of America Merrill Lynch in London with (amongst others) Mr Maud and representatives of Aabar on 3 March 2015 that he would not sign the proposed contract and that he intended to become the owner of Ciudad Financiera.

The Agreement

12. In light of Mr Tchenguiz's conduct, Mr Maud together with GAC made an offer to Aabar for the acquisition of Aabar's interests alone, without Edgeworth's interests in the Junior Loan, but including Aabar's interests against Edgeworth. That offer was set out in an undated letter to Aabar, marked without prejudice and subject to contract, signed by Mr Maud and on behalf of GAC and sent to Aabar and Aabar PJS on or around 23 April 2015 (the "Offer Letter"). The Offer Letter, a copy of which is annexed hereto, contained the following material, express terms (described in the Offer Letter as "Key commercial terms"):

a. The offer was to purchase all rights and benefits of Aabar and their affiliates 'in relation to or in connection with' Marme and its holding companies (the "Aabar Rights"), specified at Clause 1 as including: (i) all rights and benefits under the Finance Documents as defined in the Junior Facility Agreement; (ii) all rights and benefits under the Finance Documents as defined in the Personal Loan Agreement; (iii) all right and benefits under any and all arrangements with Mr Quinlan in relation to the Marme Group or otherwise; (iv) any and all rights against third parties in connection with the acquisition of the Junior Loan from RBS; (v) all rights and benefits against Edgeworth and/or any of its affiliates or related parties, including any and all rights and benefits under any loans that Aabar or their affiliates had made to Edgeworth and/or any of its affiliates or related parties; and (vi) the right to purchase the shares in the Aabar entity or entities that hold the aforesaid rights for an additional purchase price of €1.

b. Clause 2 provided that the purchase price for the Aabar Rights would be €250 million.

13. On 5 May 2015 at or around 18:00 London time, the Chief Executive Officer of both Aabar Block and Aabar PJS, Mohamed Al-Husseiny, telephoned Mr Maud and informed him that Aabar PJS' board would be meeting the following day and would consider the Offer Letter.

14. On 6 May 2015 at or around 15:37 London time, Mr Al-Husseiny again telephoned Mr Maud. Mr Al-Husseiny stated that he was telephoning Mr Maud with some of his colleagues from Aabar PJS board, to tell him that the board had met, chaired by Suhail Al-Mazrouei, and that they had accepted Mr Maud's offer on behalf of Aabar Block and Aabar PJS. Mr Maud thanked Mr Al-Husseiny and asked, "What do we need to do now to progress it?" Mr Al-Husseiny responded that Mr Maud needed (i) to resend the Offer Letter in "open and binding form" and (ii) to provide satisfactory evidence of his ability to fund the transaction (the "Conditions"). Mr Maud said that he would do so. Mr Al-Husseiny expressed no other condition or caveat on Aabar's acceptance of the Offer Letter.

15. By the Offer Letter and these telephone communications, the Claimants and Aabar concluded a contract for the purchase by the Claimants of the Aabar Rights from Aabar, on the terms set out in the Offer Letter and subject to the satisfaction by the Claimants of the Conditions (the "Agreement" as defined above).

D3. Aabar defendants' first issue: no contract possible

D3.1 Five reasons why no contract could be made on 6 May

53. Under the heading, "(1) 23 April proposal", a term used to refer to the undated letter, Robinson 1 identified at paragraph 24 five reasons in support of a proposition that it is plain that the undated letter:

was not an offer which was capable of being accepted to form a binding contract. Rather, on its face it was the opening proposal to negotiate terms acceptable to both parties.

54. Mr Robinson described the five reasons in this way:

(a) It was expressly headed "WITHOUT PREJUDICE – SUBJECT TO CONTRACT". It set out proposed terms of a "Proposed Transaction". The final page of the 23 April Proposal repeated that it was expressly subject to contract and proposed a "meeting to further discuss the Proposed Transaction".

(b) Moreover, further negotiation and consideration needed to be given to the terms and parties to the Proposed Transaction. The purchasing and selling entities were not defined. Further, key terms as to waivers and releases between the parties needed to be agreed.

(c) Further, the 23 April Proposal was expressly stated to be conditional upon satisfactory limited due diligence being carried out.

(d) Accordingly, the 23 April Proposal could not have formed an offer for the purchase of Aabar's debt interests which was capable of acceptance by Aabar. It was made on an expressly subject to contract and conditional basis, and required substantial further negotiation and consideration.

(e) It follows that even if Aabar had accepted this proposal on 6 May 2015 as Mr Maud contends (and Aabar denies) this could not have given rise to a binding contract.

D3.2 A misconception about the particulars of claim

55. The points at (d) and (e) above are put forward as consequences arising from the substantive points at (a), (b) and (c). In conjunction with those substantive points and alleged consequences, I think it important to examine the proposition in support of which they are advanced. The proposition makes an assumption that Global puts forward a case under which the Aabar defendants were entitled to conclude a contract by saying that they accepted an offer in the undated letter. The assumption is apparent not only from Mr Robinson's proposition itself, but also from Mr Robinson's points (a), (d) and (e).
56. This assumption misconceives the case pleaded at paragraphs 14 and 15 of the particulars of claim.
57. As was pointed out in Global's skeleton argument, if, in reply to the undated letter, the Aabar defendants had merely written back, "we accept your offer", then this could not have given rise to a binding contract. The reason is obvious: the undated letter was headed "subject to contract". But, as was similarly pointed out by Global, that is not what is alleged in the particulars of claim.
58. Paragraph 14 of the particulars of claim includes allegations that:

(1) in the telephone discussion on 6 May Mr Al-Husseiny on behalf of the Aabar defendants referred to the undated letter as an "offer" and said it was "accepted";

(2) Mr Maud thanked Mr Al-Husseiny;

(3) When thanking Mr Al-Husseiny, Mr Maud asked, "what do we need to do now to progress it?";

(4) Mr Al-Husseiny responded, identifying two things that Mr Maud needed to do;

(5) Mr Maud said that he would do so;

(6) Mr Al-Husseiny expressed no other condition or caveat "on Aabar's acceptance of the offer letter".

59. It was on this basis that paragraph 15 of the particulars of claim asserted that the undated letter and "these telephone communications" gave rise to a contract "on the terms set out in" the undated letter, and subject to Global doing the two things identified by Mr Al-Husseiny.
60. It can be seen from this analysis that Mr Robinson's proposition fastens upon the description in the particulars of claim of the undated letter as an "Offer Letter", and targets an assumed claim that a contract could be made merely by responding "I accept". Mr Robinson's misconception has the result that his proposition fails to engage with Global's case, which in paragraphs 14 and 15 of the particulars of claim asserted a contract based upon not merely the undated letter but also upon Mr Al-Husseiny allegedly referring to it as an offer and saying it was accepted, forming part of an alleged conversation incorporating the elements described in points (2) to (6) above.
61. The first result of the misconception is that there is a short answer to Mr Robinson's point (a). That point was reiterated in the Aabar defendants' skeleton argument. It was relied on in the Aabasr defendants' oral submissions. But it simply did not engage with Global's pleaded case. The legal principle underlying point (a) is that an offer in a letter headed "subject to contract" is not open for acceptance without more. The short answer lies in an elementary proposition, for which it is not necessary to cite authority. The elementary proposition is that the legal principle underlying point (a) does not in itself prevent the parties from later reaching an agreement on the terms set out in the letter. The making of such a later agreement appears to me to be the substance of what is alleged in paragraph 15 of the particulars of claim.
62. The second result is that Mr Robinson's points (d) and (e), in so far as they rely on point (a), are unfounded.
63. Accordingly, the third result of this misconception is that Mr Robinson's proposition, along with his point (a), and his points (d) and (e) in so far as based on (a), do not show that a binding contract could not have been made on 6 May 2015: they target a case which was not advanced. As to the case which was advanced, the points taken by the Aabar defendants appear to me to fall within their second issue rather than their first: see section D4 below.
64. It is, however, necessary to deal separately with Mr Robinson's points (b) and (c). That is because, if there is no realistic prospect of refuting them, then terms said to be part of the 6 May alleged agreement would be terms which could not amount to a binding contract.
65. For this reason I deal with those points in sections D3.3 and D3.4. I then turn in section D3.5 to a further matter, not relied on in Robinson 1, which is said by the Aabar defendants to have the consequence that no enforceable contract could have been made on 6 May 2015.

D3.3 Point (b): uncertainty in the undated letter

66. In Mr Robinson's point (b) he identified two reasons for saying that further negotiation and consideration needed to be given to the terms of, and parties to, what was proposed. The first reason was that the purchasing and selling entities were not defined, and was elaborated in footnote 12 in the Aabar defendants' skeleton argument. As to these entities:

(1) The purchasing entities are referred to in the undated letter at paragraph [U/E]. Global's skeleton argument pointed out that there is no difficulty in parties agreeing that there will be a sale of specified assets to one of several transferees, to be nominated (as opposed to agreed), in due course. Accordingly there was nothing in a complaint in the Aabar defendants' skeleton argument that it was unclear why, if Madison was a purchaser, it was not a claimant in these proceedings: these proceedings seek enforcement of the 6 May alleged agreement, which Global say was made with them. The Aabar defendants' oral submissions said that there was uncertainty about the purchaser, but did not address the answer given in Global's skeleton argument. Global's oral submissions observed that there was nothing objectionable about a contractual mechanism whereby a contractual party can select the purchaser. I have no doubt that Global have a realistic prospect of answering Mr Robinson's point (b) in this respect.

(2) The selling entities are referred to in the undated letter at paragraph [U/D]. The Aabar defendants' oral submissions said that use of the word "affiliates" both in the context of the seller and in the definition of "Edgeworth" gave rise to uncertainty. The Aabar defendants' oral submissions did not develop the point. Global's oral submissions noted that the selling entities were those which held the rights that were to be sold. They added that there had never been any suggestion by the Aabar defendants that they did not know who the relevant selling parties would be. Here, too, I have no doubt that Global have a realistic prospect of answering Mr Robinson's point (b) in this respect.

67. The second reason given by Mr Robinson was that key terms as to waivers and releases between the parties needed to be agreed. The passage referred to by Mr Robinson is at clause [U/F2.1] of the undated letter. It describes an obligation on the parties, on "completion of the Proposed Transaction" to "provide each other with appropriate waivers and releases".
68. In this regard the Aabar defendants' draft amended defence stated at paragraph 19.5(c) that the undated letter:

did not set out the contractual terms needed to effect the Proposed Transaction and left key terms as to releases and waivers to be agreed …

69. Here it is necessary to say something about the law concerning certainty of terms and agreements to agree. It is common ground that an agreement which fails to provide for an essential term, and instead provides simply for it to be agreed in due course, may be void for uncertainty. However, there is a distinction between: (1) an invalid overall mere 'agreement to agree'; and (2) a concluded bargain that does not spell out all its terms. In the latter case, the courts will seek to give effect to bargains, even by implying important terms (e.g. that the price is to be determined on the basis of what was fair and reasonable). Global's skeleton argument cited observations by Chadwick LJ in BJ Aviation Ltd v Pool Aviation Ltd [2002] 2 P & CR 25:

… where the court is satisfied that the parties intended that their bargain should be enforceable, it will strive to give effect to that intention by construing the words which they have used in a way which does not leave the matter to be agreed in the future incapable of being determined in the absence of future agreement.

… if the court concludes that the true intention of the parties was that the matter to be agreed in the future is capable of being determined, in the absence of future agreement, by some objective criteria of fairness or reasonableness, then the bargain does not fail because the parties have provided no machinery for such determination, or because the machinery which they have provided breaks down. In those circumstances the court will provide its own machinery for determining what needs to be determined - where appropriate by ordering an inquiry.

70. Global's skeleton argument also cited the six principles which were identified by Lloyd LJ in Pagnan SpA v Feed Products Ltd [1987] 2 Lloyd's Rep. 601 at 619:

(1) In order to determine whether a contract has been concluded in the course of correspondence, one must first look to the correspondence as a whole … .

(2) Even if the parties have reached agreement on all the terms of the proposed contract, nevertheless they may intend that the contract shall not become binding until some further condition has been fulfilled. That is the ordinary 'subject to contract' case.

(3) Alternatively, they may intend that the contract shall not become binding until some further term or terms have been agreed …

(4) Conversely, the parties may intend to be bound forthwith even though there are further terms still to be agreed or some further formality to be fulfilled … .

(5) If the parties fail to reach agreement on such further terms, the existing contract is not invalidated unless the failure to reach agreement on such further terms renders the contract as a whole unworkable or void for uncertainty.

(6) It is sometimes said that the parties must agree on the essential terms and that it is only matters of detail which can be left over. This may be misleading, since the word 'essential' in that context is ambiguous. If by 'essential' one means a term without which the contract cannot be enforced then the statement is true: the law cannot enforce an incomplete contract. If by 'essential' one means a term which the parties have agreed to be essential for the formation of a binding contract, then the statement is tautologous. If by 'essential' one means only a term which the Court regards as important as opposed to a term which the Court regards as less important or a matter of detail, the statement is untrue. It is for the parties to decide whether they wish to be bound and, if so, by what terms, whether important or unimportant. It is the parties who are, in the memorable phrase coined by the Judge, 'the masters of their contractual fate'. Of course the more important the term is the less likely it is that the parties will have left it for future decision. But there is no legal obstacle which stands in the way of the parties agreeing to be bound now while deferring important matters to be agreed later. It happens every day when parties enter into so-called 'heads of agreement'.

71. As to Mr Robinson's point about "appropriate waivers and releases" the Aabar defendants' case was explained in footnote 13 of the Aabar defendants' skeleton argument. It comprised a precautionary objection and two substantive contentions. The precautionary objection was taken to evidence of subjective intention in Maud 264/1. The precaution was not needed, however, as the passage in question was not relied upon by Global for present purposes.
72. The two substantive contentions were:

(1) An earlier document demonstrated that the releases and waivers to be provided would be complex: in that document they had run to two pages, including an agreement by Aabar Block to withdraw the statutory demand against Mr Maud and to withdraw various other proceedings.

(2) The breadth of the waivers and releases was also said to be apparent from the 9 May purchase letter, referring to "appropriate waivers and releases of all outstanding matters, litigation and disputes between them including (without limitation) appropriate releases and waivers being granted by Glenn Maud".

73. Global's skeleton argument dealt with waivers and releases by making two general observations. They were (1) the relevant releases and waivers were obvious (i.e. waivers and releases of all claims the contracting parties had against each other in relation to the relevant assets at the time of transfer); and (2) in any event, the contemplated sale could proceed even if no waivers were ever agreed.
74. The Aabar defendants' oral submissions built upon the two substantive contentions in their skeleton argument. It was submitted that the wording "appropriate waivers and releases" was enormously vague, and that in the context of litigation that had been in progress involving unsatisfied debts of Mr Maud and his companies, the releases and waivers were no doubt going to be complex. In addition, it was said that the court must have in mind, when considering points such as certainty, that the relief sought by Global was specific performance of a contract said to be evidenced and made on the terms of the undated letter.
75. It seems to me that Global's general observations raise issues which I cannot resolve summarily. I do not know enough about the background to rule out the possibility that the relevant releases and waivers were obvious. As to the second general observation, the evidence at trial may enable to court to conclude that Global can rely upon Lloyd LJ's principle (6) in the Pagnan case.
76. It follows that Mr Robinson's paragraph (b) does not provide a basis for summary judgment.

D3.4 Point (c): the legal due diligence condition

77. Mr Robinson's point (c) relied on condition (i) at [U/F2.3] of the undated letter. This point appeared at paragraph 19.5(d) of both the defence and the draft amended defence. It was not advanced in the Aabar defendants' skeleton argument. Nor, however, was it abandoned. I have now learnt that it is no longer relied upon.

D3.5 A point not raised by Mr Robinson

78. In the Aabar defendants' oral submissions a point was taken which at first I thought was no more than a mere aside. On reflection, however, it seems to me to involve a new argument which was not foreshadowed in Robinson 1. It went beyond Mr Robinson's points about the buying and selling entities, and about "waivers and releases". At the present stage I make that comment only in order to explain why I differentiate this new argument from Mr Robinson's points.
79. The new argument was that the undated letter was not a document which the court would ordinarily see, or would expect to see, in a commercial transaction where a purchase of rights is to be achieved in exchange for a payment of €250m. This may, perhaps, be allied with the reference in paragraph 19.5(c) of both the defence and the draft amended defence to an alleged failure to set out "the contractual terms needed to effect the Proposed Transaction".
80. To my mind this point cannot show that Global's contention has no realistic prospect of success. Global's case is not that on 6 May an agreement was reached which obviated the need for a detailed purchase and sale contract. What Global say is that the undated letter contemplated a binding agreement to make such a contract – a binding agreement that the parties would enter into the "Proposed Transaction" – and that, taken in context, the words used in the 6 May telephone call resulted in such an agreement. Lloyd LJ pointed out in his principle (6) that our law does not prevent parties from doing this. On the contrary, in the words of Bingham J at first instance, approved by Lloyd LJ on appeal, our law recognises that parties are masters of their own contractual fate. Lloyd LJ observed that parties enter into "heads of agreement" every day. The court's experience is that agreements of the kind alleged by Global in the present case do occur, and can involve sums even greater than those at stake in the present case.
81. Before leaving this new argument, I return to my comment that it was not foreshadowed in Robinson 1. As to that comment, I have a general concern that practitioners may be losing sight of important procedural requirements. Accordingly I set out observations about the present case and more generally:

(1) In the present case this new argument was one of a number of occasions on which points not made in Robinson 1 and Roscoe 1 were relied on by the Aabar defendants and Mr Tchenguiz.

(2) Global made no mention of this. As they did not identify any difficulty in this regard, I shall accordingly deal with such points. Nothing in my observations here or elsewhere amounts to a ruling by me that any particular points have been advanced in breach of any particular provisions in the Civil Procedure Rules.

(3) However more generally I draw attention to important provisions in CPR 23.6, and CPR 24.4(3) as supplemented by PD 24 paragraph 2(3).

(4) CPR 23.6 requires that an application notice must state, briefly, why the applicant is seeking relief. As noted in Civil Procedure 2015 at paragraph 23.6.1, what this means is that grounds for the application must be stated. They are to be stated "briefly", but they must also be adequate.

(5) In summary judgment applications CPR 24.4(3) requires at least 14 days' notice of the issues which it is proposed that the court will decide at the hearing. This is supplemented by PD 24 paragraph 2(3), which requires the application notice, or the evidence contained or referred to in it or served with it, to identify concisely any point of law or provision in a document on which the applicant relies.

(6) These provisions must not be confused with requirements in CPR 32.6(2)(a) and paragraph F7.3(b) of the Admiralty and Commercial Courts Guide as to the form in which evidence must be lodged. Those requirements ensure, among other things, that evidence will have been verified by a statement of truth. By contrast, the provisions I have cited make a general requirement of applicants to identify what it is that is said to entitle them to relief. In summary judgment applications they make additional and precise requirements to identify points of law and provisions in documents.

(7) Failure to observe these provisions prejudices orderly preparation for the hearing, and may prejudice the efficient conduct of the hearing. It must not be assumed that at the hearing a failure to observe these provisions will be ignored.

D3.6 Potential for an enforceable contract as at 6 May 2015

82. For the reasons given in section D3.1 above, Mr Robinson's proposition, while rightly saying that the undated letter was merely an opening proposal, misunderstands Global's claim. Thus the Aabar defendants' proposition on their first issue does not, on its own terms, provide any basis for granting summary judgment. In so far as Mr Robinson's contentions about the legal due diligence condition and uncertainty in the undated letter might, if correct, vitiate Global's actual claim, those contentions do not demonstrate that Global's actual claim is bound to fail. As noted in section D4.1 below, the Aabar defendants, as it seemed to me, advanced an additional contention which might be relevant to one or other or both of the Aabar defendants' first and second issues. Subject to that contention, which I deal with in section D4.3 below, the Aabar defendants have not demonstrated that the 6 May alleged agreement could not in law have amounted to a binding and enforceable contract. I stress that my conclusion in this regard is that the factual assertions in the particulars of claim are not shown on the present application to be incapable in law of demonstrating the objective agreement, and requisite certainty, for the making of a binding contract. Whether those assertions are proved, and if so whether in all the circumstances they give rise to an objective agreement of sufficient certainty, are matters for trial.

D4. Aabar defendants' second issue: no contract made

D4.1 The Aabar defendants' case: 6 May and afterwards

83. In support of the argument that "no binding and enforceable contract did come into force on 6 May 2015" Mr Robinson relied entirely on events after 6 May 2015. The events that he described fall into two categories. The first concerns what happened on 9 May. This was dealt with in a section of Robinson 1 comprising paragraphs 26 to 31 and headed "(2) 9 May proposal".
84. The second category relies upon what Mr Maud said and did not say in the Maud 218 ineffective statements. The matters relied upon in this regard were set out in a section of Robinson 1 headed "(3) the Bankruptcy Proceedings". Despite that heading, reliance was also placed upon the email sent on 10 May 2015 by Mr Maud. These matters were dealt with in paragraphs 32 to 34 of Robinson 1.
85. In addition on this second issue, as it seemed to me, the Aabar defendants sought to rely upon matters not foreshadowed in Robinson 1. Of these the first, as regards the historical point in time that it concerns, was the additional contention referred to in section D3.6 above: it relied upon the words which Mr Maud said were used by Mr Al-Husseiny in the 6 May telephone call. The other additional matters all concerned events after 6 May 2015.
86. Roscoe 1 did not suggest that, on the aspects now under discussion, Mr Tchenguiz sought to rely on any argument other than those advanced by the Aabar defendants. However oral submissions were advanced on behalf of Mr Tchenguiz which, if valid, would point against any binding contract having been made on 6 May 2015. They, too, all concerned events after 6 May 2015.
87. In section D4.2 I discuss a general aspect that arises for consideration. It concerns both categories of events relied on by Mr Robinson and all save the first of the additional matters which the Aabar defendants seek to rely upon. This is whether Global are right to say that they can, at least arguably, insist that events after 6 May cannot be relied upon by the Aabar defendants.
88. In section D4.3 below I discuss the first additional matter which the Aabar defendants seek to rely upon. This concerns what may be described as condition (i) of 6 May as pleaded in paragraphs 14 and 15 of the particulars of claim.
89. In section D4.4 I deal with the first category relied upon by Mr Robinson, what happened on 9 May 2015. The second category relied upon by Mr Robinson is dealt with in section D4.5, as to the Maud 218 ineffective statements, and D4.6, as to the 10 May email. Thereafter I deal in section D4.7 with additional matters sought to be relied upon by the Aabar defendants. In section D4.8 I deal with the additional matters that were sought to be relied upon by Mr Tchenguiz.

D4.2 Entitlement to rely on events after 6 May

90. The first objection to reliance on events after 6 May concerns the basis upon which the Aabar defendants' application is made. As explained in section D1 above, it was expressly stated in paragraph 23 of Robinson 1 that the application proceeded on the footing that Global's account of the 6 May telephone call is correct. I do not consider that the Aabar defendants can go back on this. Nor do they suggest that they can. The result is that I must proceed on the footing that paragraph 14 of the particulars of claim accurately sets out what was said in the course of the 6 May telephone call, and I must shut out any attempt to rely upon evidence, whether before, during or after 6 May 2015, seeking to cast doubt upon that account.
91. Second, Global submitted orally that, in relation to a contract asserted to have been made on 6 May, it is not permissible to look at post-contractual documents in order to evaluate whether or not there was a binding agreement on 6 May and, if so, its legal effect. The rule against interpreting the meaning of words used in a contract by reference to what happened later is well established. The Aabar defendants relied upon an exception identified in principle (1) of Lloyd LJ's judgment in Pagnan (see section D3.3 above). That principle, however, was concerned with how the court is to go about determining whether a contract has been concluded in the course of correspondence. The present contract is not said to have been concluded in the course of correspondence: it is said to have been concluded in a telephone call. It seems to me that there is considerable force in the contention that the meaning of the words used in the telephone call must be determined by reference to the background to the telephone call and what was said during the call, but that in accordance with the well established rule mentioned earlier, cannot be assessed by reference to what happened later. The Aabar defendants additionally relied upon observations of Lord Denning MR cited by Bingham J at first instance in Pagnan. Those observations, however, were also concerned with an examination of a course of correspondence. Moreover, immediately prior to his citation from Lord Denning MR, Bingham J noted what was said by Lord Cozens-Hardy MR in Perry v Suffields [1916] 2 Ch 187 at 192:

when once it is shown that there is a complete contract, further negotiations between the parties cannot, without the consent of both, get rid of the contract already arrived at.

92. In these circumstances it seems to me that there is at least a realistic prospect that at trial Global will be entitled to rely on a proposition that on the question whether an agreement was made on 6 May 2015 and what the true meaning of that agreement was, reference cannot be made to events after 6 May 2015. The limited argument on the law advanced at the hearing does not enable me to form a conclusion as to whether that proposition will be held to be sound in the context of the present case.

D4.3 The first additional matter: condition (i) of 6 May

93. Paragraph 23.1 of the Aabar defendants' skeleton argument noted that, according to paragraph 14 of the particulars of claim, during the 6 May telephone call Mr Al-Husseiny told Mr Maud to resend the undated letter in "open and binding form". This was said by Global to give rise to what I have called condition (i) of 6 May. It was relied upon by the Aabar defendants as showing that, on Global's own case as to what was said on 6 May, Mr Al-Husseiny on 6 May did not regard the undated letter as being anything other than a without prejudice and non-binding proposal. This point does not appear to me to have been relied upon by Mr Robinson, nor does it appear to me to have featured in the defence or the proposed amended defence. It does not appear to me to be a point which can assist the Aabar defendants on a summary judgment application. First, it is relied upon as evidence of Mr Al-Husseiny's subjective intention. It is difficult to see that Mr Al-Husseiny's subjective intention can be of relevance to the question whether, objectively, the parties reached agreement in the 6 May telephone call. Second, for reasons given earlier, recognition by Mr Al-Husseiny that the undated letter when sent was no more than a proposal is not necessarily inconsistent with Global's case. Third, however, to the extent that these words are said to indicate objectively that what Mr Al-Husseiny required was a new offer which the Aabar defendants could consider whether to accept or not, that does not appear to me to be a matter which I can determine on a summary judgment application. It is a question which can only be determined with the benefit of evidence as to the 6 May Al-Husseiny/Maud call and the background factual matrix, and on the basis of full argument.

D4.4 Events on 9 May

94. As noted in section D4.1 above, events of 9 May comprised the first category of events relied upon by Mr Robinson at paragraphs 26 to 31 of Robinson 1. The assertion made at paragraph 26 of Robinson 1 was that the 9 May purchase letter was inconsistent with a contract having been made on 6 May 2015. The first observation to make in this regard is that, for the reasons given in section D4.2 above, for the purposes of the present application the 9 May purchase letter cannot be relied upon to put in doubt Global's account of what was said on 6 May 2015, and Global has a realistic prospect of establishing that the 9 May purchase letter cannot be relied upon in order to determine whether an agreement was made on 6 May and if so what the content of that agreement was.
95. If it were permissible to have regard to a contention that the 9 May purchase letter is inconsistent with there having been an agreement on 6 May 2015 as described by Global, then it is convenient to deal with this in conjunction with the argument that the 9 May purchase letter did not satisfy condition (i) of the 6 May alleged agreement. Accordingly, I deal with this in section D5 below.

D4.5 The Maud 218 ineffective statements

96. In his second category, at paragraphs 32 to 34 of Robinson 1, Mr Robinson cites Maud 218/3 referring to Mr Maud having "made an offer… which I understand is acceptable and heads of terms are now being finalised…", referring to an "Aabar proposal", and referring to the terms of the proposal being "highly confidential and commercially sensitive". In relation to Maud 218/4, Mr Robinson noted that the witness statement corrected an assertion made in Maud 218/3 that he had procured the support of two hedge funds: the true position was that no binding agreement with the hedge funds had yet been completed. As to Maud 218/5, Mr Robinson noted that Mr Maud described the current position between himself and the Aabar defendants as involving contact between himself and Mr Al-Husseiny "on the telephone, via text and via email on numerous occasions within the last seven days in order to seek to finalise a deal", and as describing the position as one in which "negotiations were at an advanced stage".
97. As to all of this, my first observation in section D4.4 applies. Moreover, it is submitted by Global that Mr Maud has explained in his evidence the reason why he used the terminology cited by Mr Robinson: it was, in effect, a decision by him that seeking to rely upon the contract made on 6 May might be counterproductive. I cannot resolve the truth or not of that assertion on a summary judgment application.

D4.6 The 10 May email

98. Robinson 1 at paragraph 33 noted what happened following Mr Al-Husseiny's email timed at 13:18 on 10 May stating "for the record" that "we have not accepted your offer and there are no ongoing negotiations between us." Mr Maud's response in his email timed at 21:49 the same day included a statement by Mr Maud that "we wish to progress this transaction as offered and financed and are prepared to move immediately". Mr Robinson noted that in this email Mr Maud made no suggestion that a contract had already been agreed on 6 May 2015. As to this, however, the points made in section D4.5 above apply and in my view enable Global to say that they have a realistic prospect of answering Mr Robinson's contentions.

D4.7 Additional matters relied upon by the Aabar defendants

99. As noted in section D4.1 above, the Aabar defendants relied upon other additional matters. As also noted in section D4.1 above, they all concern matters after 6 May 2015. It follows that, for the reasons given in section D4.2 above, for the purposes of the present application they cannot be relied upon to put in doubt Global's account of what was said on 6 May 2015, and Global has a realistic prospect of establishing that they cannot be relied upon in order to determine whether an agreement was made on 6 May and if so what the content of that agreement was.
100. In these circumstances I deal briefly with the additional matters raised by the Aabar defendants:

(1) Paragraph 23.2 of the Aabar defendants' skeleton argument relied upon a text message from Mr Maud to Mr Al-Husseiny on 7 May 2015 saying that "fully committed binding terms… will follow." It also referred to an email from Mr Maud that day to the Aabar defendants promising to provide "binding terms and commitments to you no later than tomorrow for your acceptance". It does not seem to me that these passages are unequivocally adverse to Global. Global's own case is that condition (i) required it to send binding terms. As to there being matters which were "for your acceptance", on Global's own account the 6 May alleged agreement involved, to a limited extent, agreements to agree, on which it would make sense to put forward proposals for acceptance.

(2) Paragraph 30 of the Aabar defendants' skeleton argument relied upon sentence [2.1] in the 9 May covering email, referring to "confirmation of acceptance of our offer". Global submits that similar considerations apply.

(3) Paragraphs 34 to 38 of the Aabar defendants' skeleton argument included a number of points about the 9 May purchase letter which were additional to the points made in Robinson 1 at paragraphs 26 to 31. In broad terms the answer given by Global was that these concerned matters which were separate from the key commercial terms and on which it was permissible, consistently with the 6 May alleged agreement, for Global to put forward proposals for agreement.

(4) Whether Global's assertions in this regard are right or wrong seems to me to be a matter which is properly addressed at trial rather than on a summary judgment application.

D4.8 Additional matters relied upon by Mr Tchenguiz

101. Oral submissions on behalf of Mr Tchenguiz began by noting that if no contract has been formed then there can be no tort committed for procuring a breach of contract. In that context a comment was made that if Mr Maud believed that there was an agreement in existence, then it was "frankly extraordinary" that a contention to that effect had not been run at the hearing before Rose J. It was submitted that if there had been an agreement then Mr Maud would have sought an adjournment of the hearing on 12 May. Instead, it was not until 8 June that the present proceedings, alleging an agreement, were issued.
102. I am not persuaded that this submission can justify a conclusion that no agreement was in fact reached on 6 May 2015. My reasons are essentially those set out in section D4.5 above: for present purposes events after 6 May 2015 cannot be relied upon to put in doubt Global's account of what was said on 6 May 2015, and in any event an explanation has been advanced by Mr Maud for his stance on 12 May and it is not possible for me to resolve the truth or not of that explanation.
103. The oral submissions for Mr Tchenguiz then turned to the question whether he knew of the existence of a contract. I deal with those submissions in section E2 below. For present purposes I note that the submissions on that question involved assertions which, if right, would suggest that there had not been a contract made on 6 May 2015. The first point falling into this category concerned paragraphs 21 and 22 of the particulars of claim. The context for those paragraphs is that they are preceded by paragraph 20, alleging that on 6 May 2015 Mr Tchenguiz contacted GSO and Centrebridge. The telephone conversation on 6 May 2015 is alleged in paragraph 20 of the particulars of claim to have involved an assertion by Mr Tchenguiz that he had a right to prevent any sale of the Aabar rights to Global by Aabar, and to have involved a threat of litigation against the Aabar group in that regard.
104. What is asserted in paragraph 21 of the particulars of claim is that on 8 May 2015 Mr Tchenguiz made further contact by telephone with representatives of GSO and Centrebridge, and sought to persuade them to withdraw their support for Mr Maud and instead finance an alternative proposal that Mr Tchenguiz intended to put to the Aabar group. In itself, as it seems to me, this paragraph, like paragraph 20, is not concerned to identify the stage at which Mr Tchenguiz is alleged to have become aware that a contract for the sale of the Aabar rights had been concluded.
105. It is in paragraph 22 that the particulars of claim deal with Mr Tchenguiz's awareness of the existence of a contract. The oral submissions for Mr Tchenguiz relied on a passage in sub-paragraph (b) of paragraph 22:

(b) Mr Tchenguiz, by the threat of litigation or otherwise, has procured [the Aabar group] not to transfer the Aabar rights to [Global] or to conduct any negotiations with [Global] in respect of such a transfer. …

106. It was said in Mr Tchenguiz's skeleton argument that the expression "to conduct any negotiations" in paragraph 22(b), together with the use of the words "an alternative proposal" to describe in paragraph 21 what it was that Mr Tchenguiz was proposing to GSO and Centrebridge, involved a recognition that what Mr Tchenguiz was concerned about was the possibility of a contract which would come about in the future or upon the happening of some contingency.
107. I am not persuaded that the words used in paragraphs 20 to 22 of the particulars of claim can bear the weight which Mr Tchenguiz attributes to them. They appear in a section of the particulars of claim which prefaces not only the contention that Mr Tchenguiz procured a breach of contract, but also the contention that even if a contract had not been made, nonetheless Mr Tchenguiz is liable for other wrongdoing. The use of the expression "alternative proposal" in paragraph 21 is neutral as to whether the reference is to the proposal which Global say had already been accepted by the Aabar defendants, or to Global's alternative case that if negotiations had not resulted in a contract on 6 May, nonetheless Mr Tchenguiz is liable for preventing them from resulting in a contract after 6 May 2015. As to paragraph 22(b), I have already noted in section D3.3 above that on Global's own case there were parts of the undated letter which involved an "agreement to agree" and thus would be the subject of negotiations. In any event each of paragraphs 22(a) and (c) contained express assertions of the existence of the 6 May alleged agreement. Moreover the passage in 22(b) complaining of Mr Tchenguiz having prevented transfer of the Aabar rights is capable of encompassing, and in my view has as its natural focus, a transfer of those rights pursuant to the 6 May alleged agreement.
108. The second point falling within this category began by noting that Mr Maud had corrected the inaccuracy in Maud 218/3, and that Global acknowledged that no deal was done with GSO and Centrebridge. This appears to have been a prelude to drawing my attention to a passage in Maud 218/5 where, in relation to a period which extended up to 10 May 2015, Mr Maud referred to "negotiations having been at an advanced stage with Aabar". As to that, however, I am not persuaded that this can assist in demonstrating the absence of an agreement on 6 May 2015. Here, too, my reasons are essentially those identified in section D4.5 above.

D4.9 A realistic prospect that a contract was made

109. For the reasons given in sections D4.1 to D4.8 above, I conclude that Global have a realistic prospect of being able to rebut the Aabar defendants' contention that, even if Global's account of the 6 May telephone call is correct, no agreement was made on 6 May 2015.

D5. Aabar defendants' third issue: conditions not satisfied

110. Global's particulars of claim at paragraph 14 referred to the matters identified at (i) and (ii) in that paragraph as "the Conditions". I have referred above to the need "to resend the [undated letter] in 'open and binding form'" as condition (i). Below I refer to the need "to provide satisfactory evidence of … ability to fund the transaction" as condition (ii).
111. Global's case as to satisfaction of these conditions was pleaded in paragraphs 16 and 17:

16. On 9 May 2015 Mr Maud emailed the First Defendant, attaching:

a. A version of the [undated letter] which was not marked without prejudice or subject to contract (i.e. which was in open and binding form), and which set out the same "Key commercial terms" as had been agreed.

b. A letter dated 9 May 2015 from Madison International Realty, LLC, declaring its intention to provide the funding needed to complete the acquisition of the Aabar Rights.

17. The Conditions have thus both been satisfied.

112. It was apparent from these paragraphs that Global's case was that what I have called the 9 May purchase letter met condition (i) and that what I have called the 9 May funding letter met condition (ii). In their defence, however, before dealing with those contentions, the Aabar defendants in paragraphs 12 to 23 advanced a contention which I have referred to in section D4.4 above.
113. This contention was that the 9 May purchase letter, which it described as the "Second Proposal" was a further proposal made by Mr Maud for the purchase of the Aabar rights. It was said to have superseded the undated letter (described as the "First Proposal"), and to have "again … expressly contemplated further discussion and negotiation between the parties." Reasons for saying that the 9 May purchase letter contemplated further discussion and negotiation were then identified in sub-paragraphs of paragraph 22. Paragraph 23 asserted that the 9 May purchase letter failed to identify or properly identify the entities which would be selling and purchasing the Aabar rights, did not set out the contractual terms needed to effect such a sale and purchase, and specifically left key terms to be agreed and contractual documentation to be prepared. It was said to be apparent from those matters, and from the matters identified in paragraph 22, that detailed and substantial further negotiations would be required before any terms for purchase of the Aabar rights could be agreed between the parties.
114. To my mind it is clear that these paragraphs advance a case which cannot assist the Aabar defendants on the present application. There are two reasons for this. The first is that these paragraphs appear to be concerned to rely upon events after 6 May to demonstrate that there was not even a conditional agreement on 6 May: for the reasons given above, I do not accept that such an approach is permissible on the present application. Second, in so far as these paragraphs seek to meet a case that the 9 May purchase letter itself gave rise to a contractual agreement between Global and the Aabar defendants, no such case is advanced.
115. It was in paragraphs 29 to 32 of their defence that the Aabar defendants addressed the case advanced by Global's particulars of claim as to the 9 May purchase letter and the 9 May funding letter. These paragraphs comprised a section of the defence headed "C. Alleged 'satisfaction of the Conditions'".
116. In relation to condition (i), paragraph 29.2 took issue with the description in paragraph 15 of the particulars of claim and its assertion that the 9 May purchase letter was a "version" of the undated letter. Two broad reasons were given for disagreeing with this assertion:

(1) There were "different proposals as to: (i) releases to be agreed; (ii) the date of closing of the transaction; and (iii) the conditions applicable to any agreement."

(2) There were new proposals, not referred to in the undated letter, "relating to Edgeworth, the use of market standard documentation, exclusivity, and costs."

117. In paragraph 30, after denying that there were any "Conditions", an alternative case in relation to condition (i) was set out. This was that they were not satisfied because, as set out in paragraph 29.2, the 9 May purchase letter did not set out the same proposed terms as the undated letter.
118. As regards condition (ii), paragraph 29.3 of the defence of the Aabar defendants said that the 9 May funding letter neither provided nor confirmed any commitment by Madison to provide the funding that was needed. In that regard reliance was placed on paragraph 24 of the defence, which stated:

24. The Madison Letter stated, inter alia, that Madison intended to provide the funding needed to complete the proposed transaction, but that this was subject to satisfactory completion of due diligence and other conditions precedent, and that the Madison Letter did not, and was not intended to, create any contractual relationship or other obligation between any of Madison, GAC, Mr Maud and Aabar.

119. In paragraph 29.4 of their defence the Aabar defendants denied that any terms had been agreed between the Aabar defendants and Global.
120. In paragraph 30.2, after denying that there were any conditions, an alternative case in relation to condition (ii) was set out. This was that, for the reasons given in paragraph 24 of the defence (see above) the 9 May funding letter:

did not contain any commitment by Madison to provide the funding required and/or was not satisfactory evidence of Mr Maud's ability to fund the transaction.

121. As to the remaining paragraphs in this section of the defence of the first and second defendants, it is unnecessary to deal with paragraph 31, which addressed an assertion that was not advanced by Global. Nor is it necessary to say anything more in relation to paragraph 32, which was concerned to reinforce the assertion that the 9 May purchase letter was inconsistent with the 6 May alleged agreement.
122. The question whether condition (i) was satisfied was dealt with shortly in the Aabar defendants' skeleton argument. Noting the "new and/or substantially different terms" which had not appeared in the undated letter, it was said that the 9 May purchase letter was, therefore, not an "open and binding" version of the undated letter. Instead, it was a further and different proposal which superseded the undated letter. The answer advanced in Global's skeleton argument was that what condition (i) required was an open and binding version of the "key commercial terms". These were indeed identical: see [U/F1.1] and [U/F1.2] in section B3.1, and [9P/F1.1] and [9P/F1.2] in section B4.2 above. Global accepted that the "other terms" set out at [9P/F2] of the 9 May purchase letter included terms which were either additional to or different from those which had appeared in section [U/F2] of the undated letter. They were matters which could be analysed as invitations to vary or supplement the terms of what had already been agreed. As to what it was that the condition required, Global submitted that the true meaning of the condition could only be determined at trial, after hearing evidence as to the conversation that took place on 6 May 2015 and as to the background. Global's skeleton argument also dealt with an assertion which featured in section B of the defence of the Aabar defendants, which referred to the wording of the 9 May covering email, in particular the sentence at [2.1] as set out in section B4.1 above. That wording, it was submitted, was consistent with Mr Maud wanting to receive confirmation of the acceptance which had been given on 6 May.
123. The answer that was given by the Aabar defendants in oral submissions was that on Global's own case what Mr Al-Husseiny had required was that Mr Maud should "resend" the undated letter. In order to "resend" that letter in "open and binding form" what needed to be done was to send the same letter without the words "subject to contract" and "without prejudice". That, as it seems to me, is a possible interpretation of the conversation described by Mr Maud as having taken place on 6 May 2015. However, I am not persuaded that I can rule out of account the alternative interpretation advanced by Global. It seems to me that much may turn upon the background to the agreement and the context of the conversation. I am not in a position at this stage to make a ruling one way or the other.
124. Turning to condition (ii), the Aabar defendants' skeleton argument advanced two contentions that had not featured in their defence. Nor had they featured in Robinson 1. The first was that whether the 9 May funding letter was satisfactory was plainly a matter for the Aabar defendants to determine subjectively for themselves. The second was that condition (ii) was a condition of such a nature that there would need to be a communication by the Aabar defendants of their satisfaction with the 9 May funding letter before the condition could be satisfied.
125. As to the first contention, the Aabar defendants relied upon the decision of His Honour Judge Seymour QC, sitting as a High Court Judge, in Humphreys v Norilsk Nickel International (UK) Ltd [2010] EWHC 1867 (QB); [2010] IRLR 976. This decision was said to support a proposition that where a contract called for something to be done to the satisfaction of a party, the party whose satisfaction was required was the sole judge and it was not necessary for the satisfaction to be objectively justifiable or reasonable. To my mind, however, the first point to note is that this was a decision at trial. It was not an application for striking out or for summary judgment. Second, far from supporting an argument that I can adopt the suggested construction at a hearing of a summary nature, the leading modern authority is the decision of the Court of Appeal in Wishart v. National Association of Citizens Advice Bureaux Ltd. [1990] ICR 794. In that decision, which is discussed by His Honour Judge Seymour in paragraphs 36 to 37 of his judgment, the Court of Appeal concluded that the question whether this construction should be adopted was a matter which needed to be considered at trial. It seems to me that the need for a trial in the present case is even greater than in Wishart, for the present case is concerned with an oral agreement. I add that on Global's account what Mr Al-Husseiny had as his goal in condition (i) was an "open and binding" document. The contention by the Aabar defendants that condition (ii) gave them the ability to decide for themselves whether or not to proceed may, in my view with a realistic prospect of success, be argued to run counter to the goal which Global says Mr Al-Husseiny wanted condition (i) to achieve.
126. The second contention relied upon the decision of the Court of Appeal in Stabilad Ltd v Stephens & Carter Ltd (No.2) [1999] 2 All E.R. (Comm) 651 for the proposition that "rights conferred and obligations imposed … are not ordinarily dependent on the uncommunicated internal thoughts of one of the parties for the good practical reason that the other party may never know about it". The Stabilad case, however, was a case where it was common ground that the rights under the contract were dependant upon the defendant's subjective decision, rather than an objective assessment. I am not persuaded, at the present stage, that I can hold that the Court of Appeal's observations in Stabilad would apply if Global were successful in establishing that condition (ii) called for an objective assessment rather than a subjective decision.
127. Features of the 9 May funding letter which were said to be unsatisfactory were that it was no more than a letter of intent, and that it expressly stated that it was not intended to create any kind of contractual relationship or other obligation of any kind. It does not seem to me to be possible, at a summary stage, to conclude that these features made the 9 May funding letter objectively unsatisfactory.
128. It was also said that the 9 May funding letter was to be seen "in light of Mr Maud's earlier attempt" in the bankruptcy proceedings to rely on a letter from Centrebridge and GSO as evidence of his ability to fund the transaction, along with the false claim in the bankruptcy proceedings that Centrebridge and GSO had agreed to fund the transaction. Here, too, it does not seem to me that I can accept this argument at the summary stage.
129. In these circumstances the Aabar defendants alleged that the email of 10 May 2015 had expressed the Aabar defendants' dissatisfaction with the 9 May funding letter, and had been entitled to do so. However, for the reasons given above the matters relied upon in support of that entitlement are matters which in my view merit consideration at trial.
130. I add that the proposed amendment to the particulars of claim in the 4 September draft put forward an alternative case. This asserted that even if conditions (i) and (ii) were not satisfied on 9 May 2015, they could nevertheless be satisfied in future. The draft amended defence prepared by the Aabar defendants contained detailed assertions responding to this alternative case. On the view which I take of the matter, however, the alternative case does not arise. In those circumstances I think it preferable to make no observations about it.

E. Mr Tchenguiz's application

E1. Mr Tchenguiz's application notice and Roscoe 1

131. Mr Tchenguiz's application notice was, as noted in section A above, supported by Roscoe 1. Paragraphs 29 to 31 of Roscoe 1 described what Ms Roscoe called a "Primary Case" against Mr Tchenguiz. This was Global's claim that Mr Tchenguiz had procured the Aabar defendants' breach of the 6 May alleged agreement, which Ms Roscoe called "the Purported Agreement".
132. Paragraph 30 of Roscoe 1 identified four essential elements which must be proved in order to succeed on the claim for procuring breach of contract:

30. In order to succeed on the Primary Case, the Claimants must, as a bare minimum, prove that (a) that there was a binding contract in place; (b) that Mr Tchenguiz knew that there was a binding contract; (c) that Mr Tchenguiz must have had the intention to interfere with the contract's performance; (d) that he did so and it has caused the Claimants loss.

133. In paragraphs 31 and 32 Ms Roscoe explained that Mr Tchenguiz supported the Aabar defendants' application, and would "ultimately leave it" to the Aabar defendants to make submissions that, even on Global's own case, it was plain that there was no valid and binding agreement concluded on 6 May 2015.
134. For the purposes of the present application, paragraph 33 of Roscoe 1 summarised Mr Tchenguiz's position in relation to the claim that he had committed the tort of procuring breach of contract:

33. As the Purported Agreement was not valid or binding, Mr Tchenguiz's position is that the Primary Case must fail.

135. It seems to me that in this way Roscoe 1 made it clear that Mr Tchenguiz's challenge in the present application, as regards the claim that he had procured a breach of contract, concerned element (a) in paragraph 30 of Roscoe 1. As regards that claim, striking out and summary judgment were said to be justified because it could be demonstrated that there was no valid and binding agreement concluded on 6 May 2015. If that were indeed demonstrated, then essential element (a) was absent, and the claim for procuring breach of contract could properly be the subject of summary judgment in favour of Mr Tchenguiz.
136. For the reasons given in section D above, the Aabar defendants' application is unsuccessful. I have concluded that Global's claim of a valid and binding contract has a realistic prospect of success. As this was the only relevant issue identified in Roscoe 1 as being the subject of Mr Tchenguiz's present application, it must follow that this part of Mr Tchenguiz's application, as formulated in Roscoe 1, also is unsuccessful.
137. However, in this respect matters have not rested with Roscoe 1. Additional points were taken on behalf of Mr Tchenguiz at the hearing. I deal with those points in section E2 below.
138. Roscoe 1 at paragraphs 29 and 34 describes what Ms Roscoe called an "Alternative Case" in the torts of intimidation and/or causing loss by unlawful means. As it seems to me, the case on these torts advanced in the particulars of claim was not a purely alternative case: it was prefaced by the words, "Further or alternatively", and thus was not contingent on failure of the claim for procuring breach of contract. For that reason I consider it preferable to adopt terminology based on that used in Mr Tchenguiz's skeleton argument, and to refer separately to "the intimidation claim" and "the pure unlawful means claim".
139. As regards the intimidation claim and the pure unlawful means claim Roscoe 1 stated (using Ms Roscoe's terminology of the "Alternative Case"):

34. In order to succeed on the Alternative Case, the Claimants must, as a bare minimum, identify and establish unlawful means, as well as actual loss caused by any such unlawful means.

35. Though I will leave it to Counsel to make submissions in this regard, as briefly explained below, no cause of action has been established in the Particulars of Claim and the claim is therefore unsustainable as a matter of law and liable to be struck out pursuant to CPR 3.4 (2)(a).

36. Taken at its highest, and accepting for the purposes of this application only that the facts alleged in paragraph 20 of the Particulars of Claim are correct, i.e. that Mr Tchenguiz indicated to certain third parties that he had a right to prevent a sale of the Aabar rights to the Claimants and that he would commence litigation against Aabar if they proceeded with the acquisition, the alleged actions fall well short of anything that could constitute "unlawful" activity for the purposes of the torts of intimidation or causing loss by unlawful means. Neither indicating an intention to commence litigation nor indeed commencing litigation can be said to be "unlawful".

140. Here, too, the position has changed since Roscoe 1. There have been two developments. First, on 16 September 2015 Global's skeleton argument stated that what I have called the pure unlawful means claim would not be pursued. I make reference to that claim below only for historic purposes. The result is that, in addition to the claim for procurement of breach of contract dealt with in section E2 below, the only other economic tort alleged by Global to arise in relation to Mr Tchenguiz is the tort of intimidation.
141. The second development concerns the tort of intimidation. At the hearing Global contended that certain points taken against them might, if necessary, be met by a proposed amendment to the particulars of claim. At my request, Global set out this proposed amendment, along with an uncontentious amendment to remove the reference to the pure unlawful means claim, in what is referred to in section B7 above as the 12 November draft.
142. I examine in section E3 below the rival contentions on the tort of intimidation.

E2. Procuring breach of contract

E2.1 Procuring breach of contract: introduction

143. I noted in section E1 that, as regards Global's claim for procuring breach of contract, the challenge identified in Roscoe 1 was unsuccessful. I also noted that at the hearing additional points were taken on behalf of Mr Tchenguiz.
144. Here it is convenient to recapitulate the analysis in paragraph 30 of Roscoe 1. That paragraph, which is set out in section E1 above, identified four elements which must be proved in order to succeed on the claim for procuring breach of contract, namely:

(a) that there was a binding contract in place;

(b) that Mr Tchenguiz knew that there was a binding contract;

(c) that Mr Tchenguiz must have had the intention to interfere with the contract's performance;

(d) that he did so and it has caused the Claimants loss.

145. As noted in section E1 above, Mr Tchenguiz's application is unsuccessful in so far as it involves an assertion that Global has no realistic prospect of success on element (a). The additional points fall into two main categories:

(1) at the hearing, presaged to some extent in Mr Tchenguiz's skeleton argument, assertions were made that Global had no realistic prospect of success in relation to elements (b), (c) and (d);

(2) in Mr Tchenguiz's skeleton argument, assertions were made about the position in the future.

146. In order to deal with the additional points it is necessary to set out some features of the statements of case. I do this in section E2.2. I then turn in section E2.3 to the first category of additional points, concerned with essential elements (b), (c) and (d). In section E2.4 I deal with the second category of additional points, concerned with the position in the future.

E2.2 Procuring breach of contract: statements of case

147. Under a heading, "Mr Tchenguiz's wrongdoing", the particulars of claim made reference to GSO and Centrebridge, the two hedge funds with which Global was working with a view to financing the acquisition of the Aabar rights. Paragraph 20 of the particulars of claim stated:

20. On or around 6 May 2015, Mr Tchenguiz contacted by telephone representatives of [GSO and Centrebridge]…, asserting that he had a right to prevent any sale of the Aabar rights to the Claimants by Aabar and threatening litigation against Aabar if they proceeded with the acquisition.

148. Paragraph 21 made assertions about a telephone call on 8 May 2015:

21. On or around 8 May 2015, Mr Tchenguiz made further contact by telephone with representatives of [GSO and Centrebridge] and sought to persuade them to withdraw their support for Mr Maud and instead finance an alternative proposal he intended to put to Aabar.

149. The particulars of claim said in paragraph 22 that from "the facts and matters pleaded above" Global drew what it described as "legitimate inferences". There were three such inferences:

(a) Mr Al-Husseiny or other representatives of Aabar informed Mr Tchenguiz of the conclusion of the Agreement some time on or after 6 May 2015.

(b) Mr Tchenguiz, by the threat of litigation or otherwise, has procured Aabar not to transfer the Aabar Rights to the Claimants or to conduct any negotiations with the Claimants in respect of such a transfer. In consequence, Mr Al-Husseiny sent Mr Maud the email of 10 May 2015 pleaded above.

(c) Mr Tchenguiz knew and intended, and knows and intends, that by failing to transfer the Aabar Rights to the Claimants Aabar would and will breach their obligations under the Agreement.

150. The particulars of claim then asserted in paragraph 23:

23. In consequence of Mr Tchenguiz's conduct as pleaded above, the Claimants have suffered loss and damage (including without limitation the costs of these legal proceedings to date) and will suffer further loss and damage if Aabar continues to fail to transfer the Aabar Rights to the Claimants.

151. It was on this basis that paragraph 24 of the particulars of claim asserted that Mr Tchenguiz was liable to Global in tort for procuring the Aabar group's breach of contract.
152. The defence of the Aabar defendants made no admissions to paragraphs 20 and 21 of the particulars of claim. Paragraph 37.1 of their defence said that paragraph 22(a) of the particulars of claim was denied because there was no agreement. The same observation was made in paragraph 37.3 of their defence as regards paragraph 22(c) of the particulars of claim. As to paragraph 22(b) of the particulars of claim, paragraph 37.2 of the defence of the Aabar defendants stated:

37.2 As to paragraph 22(b):

(a) The allegation that Mr Tchenguiz made a "threat of litigation" against Aabar is too vague and imprecise for Aabar to respond to. It is admitted, however, that on 7 May 2015, Mr Tchenguiz indicated to Aabar that a sale of the Aabar Rights to Mr Maud was not acceptable to him and that he would hold Aabar liable for any prejudice he suffered as a result. It is denied that Aabar sent the 10 May Email because of this. Aabar's principal reasons for sending 10 May Email to Mr Maud were as follows:

(i) Aabar did not consider the Madison Letter to be satisfactory evidence of Mr Maud's ability to fund the Proposed Transaction.

(ii) Aabar wished to make clear that, contrary to Mr Maud's assertions in witness statements made by him in support of an application brought by him to set aside the Statutory Demand, Aabar had not indicated that the Proposed Transaction was acceptable to it. (Notably and contrary to the case now advanced by the Claimants in these proceedings, Mr Maud did not claim in those statements that any binding contract had been agreed between Aabar and the Claimants for the purchase of the Aabar Rights, whether on 6 May 2015 or at all.)

(iii) Aabar also wished to make clear that, contrary to further assertions in Mr Maud's witness statements and also in the Second Proposal, there were no ongoing negotiations between the parties in relation to the Proposed Transaction.

(b) Save as aforesaid, paragraph 22(b) is denied.

153. In relation to paragraph 23 of the particulars of claim, the defence of the Aabar defendants repeated the assertion that there had been no agreement.
154. In his defence Mr Tchenguiz admitted telephone conversations with Centrebridge on 6 and 8 May 2015. In relation to the conversation on 8 May, Mr Tchenguiz added that he did not seek financial support from Centrebridge during that conversation.
155. As to the conversation on 6 May 2015, Mr Tchenguiz's defence stated at paragraph 15:

15. As to Paragraph 20, it is admitted that on or around 6 May 2015 there was a telephone call between Mr Tchenguiz and a representative of Centrebridge Partners LP during which Mr Tchenguiz identified that he/Edgeworth would hold Aabar responsible in the event that it sold the Aabar Rights to the Claimants. A similar sentiment was communicated directly to Aabar shortly thereafter.

156. The inferences asserted by Global in paragraph 22 of the particulars of claim were the subject of paragraph 17 of Mr Tchenguiz's defence. This stated:

17. As to Paragraph 22, it is denied that the Claimants are entitled to or can legitimately draw the inferences referred to. In particular, it is denied (i) that Aabar informed Mr Tchenguiz of the conclusion of a valid and binding agreement, and/or (ii) that Mr Tchenguiz was aware that a valid and binding agreement had been reached between the Claimants and the First/Second Defendants. Accordingly, it is specifically denied that Mr Tchenguiz knew and intended that Aabar would breach their obligations to the Claimants under the Agreement.

157. As to paragraphs 23 and 24 of the particulars of claim, Mr Tchenguiz stated in paragraph 18 of his defence:

18. Paragraphs 23 and 24 are denied. In particular:

(a) It is not admitted that there was a valid and binding Agreement;

(b) It is denied that Mr Tchenguiz knew there was a valid and binding Agreement.

(c) It is denied that Mr Tchenguiz intended to procure the breach of any such Agreement.

(d) It is denied that Mr Tchenguiz caused the Claimants to suffer loss or damage and the Claimants are put to strict proof in this regard.

E2.3 Procuring breach of contract: elements (b), (c) and (d)

158. The additional point on element (b) involved an assertion that there is no, or no credible, evidence that Mr Tchenguiz knew that there was a valid and binding agreement between Global and the Aabar defendants. If right, it would follow that Mr Tchenguiz would be entitled to summary judgment on Global's claim of procuring breach of contract, as essential element (b) would be missing. It was submitted that the same would be true of element (c), that Mr Tchenguiz must have had the intention to interfere with the contract's performance, and element (d), that Mr Tchenguiz did in fact interfere with the contract's performance and that this has caused Global's loss. No separate points were taken on either element (c) or element (d).
159. In this regard the course taken on behalf of Mr Tchenguiz in oral submissions included identifying, and highlighting, features which were said to suggest that no binding contract had been made. I have dealt with these features in section D4.8 above. For the reasons given in that section, none of these points demonstrates that Global's case as to the existence of a binding contract lacks a realistic prospect of success. For the same reasons, none of them prevents Global from saying, with a reasonable prospect of success, that Mr Tchenguiz knew of that contract.
160. In oral submissions on behalf of Mr Tchenguiz it was then said that when Mr Tchenguiz spoke to GSO and Centrebridge he would have been told that they had not done a deal with Mr Maud. This was a prelude to asserting that in the light of Mr Al-Husseiny's email of 10 May 2015, there was no reason to suppose that Mr Tchenguiz would have been told by the Aabar group that a deal had been done. I am not persuaded by this submission. Global's case is that the email of 10 May represented an about turn on the part of the Aabar group from what had been said on 6 May 2015. One of the matters for determination at trial will no doubt be whether this was so. The Aabar defendants accept that their application must proceed on the basis that Global's account of what was said on 6 May 2015 is correct. Mr Tchenguiz is in no position to take a different stance.
161. More generally, it was contended that there was no basis for an inference that Mr Tchenguiz would have been told by the Aabar group that a deal had been done. At the present stage, however, I am concerned only with whether Global has a realistic prospect of being able to show that such an inference should be drawn. If Global is successful on its case that there was indeed a valid and binding contract made on 6 May, then it seems to me that this will at least give a possible basis for an inference that the Aabar group would take the logical next step of telling Mr Tchenguiz about this. I do not consider that this possible basis is so weak as to deprive Global of a realistic prospect of success.

E2.4 Procuring breach of contract: points as to the future

162. The skeleton argument for Mr Tchenguiz added that if there were to be an agreement between the Aabar group and Global in the future, then there was no reason to think that Mr Tchenguiz would procure the breach of any such agreement. On this ground it was asserted that there would be no basis for granting the injunction sought by Global. In my view this contention is premature. Whether there is any basis for an injunction is a matter which will need to be decided in the light of the findings of the court at trial.
163. A further assertion was made in the skeleton argument for Mr Tchenguiz. It was said that if the court were to conclude that there was a valid and binding agreement, and were to grant the remedy of specific performance, then the claim for procuring breach of that agreement would fall away. Even assuming this to be right, it is not a matter which calls for any action on my part at the present stage.

E2.5 Procuring breach of contract: conclusion

164. For the reasons given above, as regards Global's claim for procuring breach of contract, it is not merely Mr Tchenguiz's challenge as identified in Roscoe 1 that is unsuccessful. His additional points, too, are unsuccessful. My conclusion on this aspect is that Global's claim for procuring breach of contract should neither be struck out nor be the subject of summary judgment.

E3. Intimidation

E3.1 Intimidation: introduction

165. The intimidation claim was pleaded in paragraph 25 of the particulars of claim. It is convenient to set out that paragraph here. In doing so, I ignore the final words of the paragraph, as they concerned the pure unlawful means claim which is now of historic interest only. On this basis, paragraph 25 stated:

25. Further or alternatively (and even if contrary to the Claimants' primary case the Agreement were not valid and binding):

(a) It is a legitimate inference in the premises that Mr Tchenguiz in threatening litigation to prevent the transaction from proceeding intended and intends to cause the Claimants loss, in that his intention is to maintain or improve his position in his attempt to gain control of Ciudad Financiera by preventing the Claimants from acquiring any interests in the Junior Loan or Personal Loan and he knew and knows that the corollary of his so doing is that the Claimants have and/or will suffer loss.

(b) Mr Tchenguiz's threats of litigation against Aabar and others are threats of litigation for the collateral and improper purpose of maintaining or improving his position in his attempt to gain control of Ciudad Financiera and are in consequence unlawful.

(c) But for those threats, Aabar would have transferred or would transfer the Aabar Rights to the Claimants, alternatively there is a significant chance that it would have done so or might do so, and the threats have therefore caused the Claimants loss and damage.

(d) Mr Tchenguiz is therefore liable to the Claimants in the [tort] of intimidation ….

166. The response of the Aabar defendants to paragraph 25 of the particulars of claim appeared in paragraph 39 of the defence of the Aabar defendants. Among other things, it repeated paragraph 37.2 (see section E2.3 above). It stated:

39. As to paragraph 25:

39.1 As to the repeated allegations that Mr Tchenguiz has made "threats of litigation" against Aabar, paragraph 37.2 above is repeated.

39.2 It is denied (if it is alleged) that Aabar had any obligation to transfer the Aabar Rights to the Claimants. It is not admitted that, but for any conduct of Mr Tchenguiz, Aabar would have entered into an agreement with the Claimants to transfer the Aabar Rights to them, or that there was a significance chance that it would or might have done so.

39.3 Save as aforesaid, paragraph 25 is not admitted.

167. Mr Tchenguiz's response to paragraph 25 of the particulars of claim appeared in paragraph 22 of his defence. Among other things, it made reference to paragraph 15 of his defence (see section E2.3 above). It stated:

22. Paragraph 25 is denied. In particular:

(a) As to sub-paragraph (a), it is denied that Mr Tchenguiz's actions (as described at paragraph 15 above) were intended to cause loss to the Claimants. Mr Tchenguiz was at all times seeking to protect his own legal and commercial position, which he is entitled to do.

(b) In sub-paragraph (b), it is denied that Mr Tchenguiz's actions (as described at paragraph 15 above) are collateral or for an improper purpose, and the Claimants have not identified the extent (if at all) to which they are unlawful (which is denied in any event).

(c) The allegations in sub-paragraph (c) are excessively vague and speculative, and it is denied that the plea contains proper particulars to establish causation and/or to establish that any such losses (which are denied) were caused by Mr Tchenguiz. The Claimants are put to strict proof in this regard.

(d) In the premises, sub-paragraph (d) is denied. The Claimants have failed to identify the intimidation and/or unlawful means allegedly adopted by Mr Tchenguiz.

E3.2 Intimidation: a threat by the coercer to the coercee

168. It is an essential element of the tort of intimidation that there is coercion by threat. The claimant will often assert that the threat was made to the claimant with a view to causing loss to the claimant. But that need not be the case: liability can arise where there is what is known as "three party intimidation". For ease of exposition it is convenient to refer to the person alleged to have threatened as "the alleged coercer", to the person alleged to have been threatened as "the alleged coercee" and to the person allegedly intended by the coercer to suffer loss as "the alleged intended victim".
169. In the particulars of claim Global advance a case of three party intimidation. They identify Mr Tchenguiz as the alleged coercer, who is said to have threatened the Aabar group as alleged coercee, with the intention of causing loss to Global as the alleged victim.
170. Mr Tchenguiz submitted that the alleged threat had not been adequately particularised, and added that Global could prove no more than what the skeleton argument called "the Indication" set out in paragraph 15 of Mr Tchenguiz's defence. I do not consider that these submissions assist Mr Tchenguiz at the present stage. As can be seen from section E2.3 above, paragraph 15 of Mr Tchenguiz's defence admits that the sentiment he conveyed to the Aabar group was "similar" to his indication to Centrebridge "that he/Edgeworth would hold Aabar responsible in the event that it sold the Aabar Rights to the Claimants". In everyday usage such an "indication" would commonly be considered to involve a threat of litigation. At the present stage it is not necessary for Global to go beyond this in order to demonstrate a realistic prospect of being able to show that there was indeed a threat of litigation.

E3.3 Intimidation: no plea that the threat was of unlawful conduct

171. It is common ground that the mere making of a threat to the coercee will not suffice to establish the tort of intimidation. Among other things, in a three party intimidation case, the alleged coercer's threat must be of something which would be actionable if the alleged coercee had suffered loss.
172. In this regard Roscoe 1 asserted that "[neither] indicating an intention to commence litigation nor indeed commencing litigation can be said to be unlawful". I would not necessarily agree, for in rare cases there can be particular circumstances where commencing litigation will be unlawful. To my mind the problem with the original particulars of claim is more fundamental: they did not assert that the alleged threat by Mr Tchenguiz to the Aabar group was of unlawful conduct. This might not have mattered if the allegedly threatened conduct had been identified in a way which made it clear that it would have been unlawful – but the original particulars of claim did not do this either.
173. Global's skeleton argument did not confront this problem. It accepted the need for the threat to be of "unlawful means". It made reference to torts of abuse of process and malicious prosecution. It also drew attention to Mr Tchenguiz's failure to identify any specific right to prevent the Aabar group from selling the Aabar rights. Paragraph 51(b) of the skeleton argument added that there was a natural inference:

… that any litigation he threatened would have involved: (1) the false assertion of a non-existent right; and/or (2) the assertion of a separate, unconnected right, for the purpose of pressuring Aabar into granting him a type of pre-emption right which he did not actually possess.

174. What this did not acknowledge was that the particulars of claim had made no assertion of this kind.
175. In oral submissions for Global it was no longer contended that the alleged threat might have entitled the Aabar group to make a claim against Mr Tchenguiz of malicious prosecution. It was strongly maintained, however, that unlawfulness was present because Mr Tchenguiz's threat of litigation amounted to an abuse of process.
176. As to the particulars of claim, it was said that by alleging a threat of litigation for "a collateral or improper purpose" they had asserted that Mr Tchenguiz was threatening litigation in circumstances where he had no right to litigate. I cannot accept that the original particulars of claim were adequate in that regard. What was said in the original pleading was that Mr Tchenguiz had the "collateral and improper purpose of maintaining or improving his position in his attempt to gain control of Ciudad Financiera". As was rightly pointed out in Roscoe 1, in Mr Tchenguiz's skeleton argument, and in oral submissions for Mr Tchenguiz, maintaining or improving a commercial position by enforcing legal rights is not unlawful. The original particulars of claim did not say that Mr Tchenguiz was threatening litigation which he knew he had no right to bring.
177. In these circumstances I do not need to deal with a further point relied on by Mr Tchenguiz, namely that previous allegations by Mr Maud of "collateral purpose" had failed. I comment only that the previous allegations were of a different kind and in a different context.
178. It was submitted for Global that Mr Tchenguiz could have asked for further information about the assertions in paragraph 25. I do not think that Mr Tchenguiz was obliged to do this. It sufficed for him to give notice of an intention to apply to strike out.
179. Thus I conclude that paragraph 25 of the original particulars of claim, unless the claim of intimidation can be saved by a suitable amendment, must be struck out.
180. As noted in section E1, however, Global have drafted a proposed amendment. I shall refer to it as "the contentious amendment". The only other amendments in the 12 November draft are uncontentious: they comprise the omission of a reference to a tort of pure unlawful means, and the inclusion of the amendments in the 4 September draft. I turn to consider the contentious amendment in section E3.4 below.

E3.4 Intimidation: Global's application to amend

181. Global's contentious amendment would add to paragraph 25(b) of the particulars of claim a sentence as follows:

Specifically, the threatened litigation would be for a collateral and improper purpose in circumstances where, as Mr Tchenguiz knew and knows, he and Edgeworth in fact had no legitimate right to prevent the transfer of the Aabar Rights to the Claimant and any litigation would be vexatious and solely intended to pressurise Aabar into breaking off its dealings with the Claimants.

182. If the court were to grant permission to amend in this way then, to my mind, the defect would be cured: paragraph 25(b) would constitute an assertion by Global that the alleged threat to the Aabar group was a threat of litigation when it was known to be groundless. The bringing of litigation in those circumstances would be capable of constituting the tort of abuse of process. The reply submissions for Mr Tchenguiz did not contend otherwise.
183. The contentious amendment was, however, strongly opposed, not on the ground that it would be inadequate in law, but on the ground that it lacked any factual foundation. On behalf of Mr Tchenguiz it was said that the proposed additional sentence was so lacking in foundation as to be "improper" and "shocking". It was added that Global relied on a negative inference based solely on Mr Tchenguiz having declined to made out a positive case, and that this was unjustified in circumstances where, as I have now held, the particulars of claim were inadequate, and thus there was no issue to be joined. Moreover in all the circumstances the absence of adequate justification for the assertion in the proposed amendment was not difficult to see. Mr Maud had acknowledged that the relationship between the Aabar and Edgeworth groups was complex. Mr Maud had also acknowledged in the 9 May purchase letter that amendments might be necessary to that relationship in order to effect the sale. The assertion had come at a very late stage. All of this was relied upon as justifying a conclusion that it was hopeless to say that Mr Tchenguiz "could not honestly have believed that he could enforce his rights".
184. It was further added that a positive inference could be made that Mr Tchenguiz had "the right of the sort to which he referred". Reliance was placed on four matters in support of such an inference:

(1) the 9 May purchase letter (see the preceding paragraph);

(2) Mr Maud's own evidence describing the relationship as complex (see the preceding paragraph);

(3) the change of course by Aabar group, a major wealth fund with the benefit of legal advice, in response to Mr Tchenguiz's alleged communications; and

(4) The response of GSO and Centerbridge, who backed away.

185. I am not unsympathetic to Mr Tchenguiz's complaints in this regard. Paragraph 25 of the particulars of claim was poorly drafted. A claim based on a pure "unlawful means" tort was not abandoned until service of Global's skeleton argument in mid-September 2015. The skeleton argument appeared to make a suggestion, among other things, that malicious prosecution might constitute the unlawful means needed for the tort of intimidation. That suggestion was not abandoned until the hearing.
186. On the other hand, the course of events is not inconsistent with the proposed amendment. Mr Tchenguiz accepts that on 6 May 2015 he told Centrebridge "that he/Edgeworth would hold [the Aabar group] responsible in the event that it sold the Aabar rights to [Global]". It would be understandable in these circumstances if the response of GSO and Centerbridge was that they "backed away" without investigating whether Mr Tchenguiz was entitled to do what he said he would do. Turning to the change of course by the Aabar group, both the extent of the change and the reasons for it are in issue as between the Aabar defendants and Global. I cannot assume at the present stage that the Aabar defendants will succeed on the issues that arise in that regard. The complexity of the relationship between the Aabar and Edgeworth groups does not demonstrate that Mr Tchenguiz in fact believed that he was entitled to prevent the sale of the Aabar rights. Nor is this demonstrated by the wording used in the 9 May purchase letter (as to which see section D5 above).
187. Moreover, Global's contentious amendment does not, in my view, come as a complete surprise. Maud 264/1 had not pulled any punches when seeking to answer Mr Tchenguiz's application. In particular, it alleged that Mr Tchenguiz had told GSO and Centrebridge "that he had a "last look", or a right to match any proposed sale by Aabar of its rights" and described this as "a fabrication by Mr Tchenguiz". Global's skeleton argument, in the passage cited in section E3.3 above, had asserted an entitlement to advance a case that litigation threatened by Mr Tchenguiz would have involved the false assertion of a non-existent right. On this aspect, both Maud 264/1 and Global's skeleton argument re-iterate an assertion which had been forcefully made by Mr Maud in his email of 10 May 2015: see section B5 above.
188. Of particular importance, as it seems to me, are three factors:

(1) It is acknowledged by Mr Tchenguiz that the court cannot rule out a real possibility that Mr Maud's account of what was said to him by Mr Al-Husseiny may be right. If so, that would indicate that the Aabar group believed that Mr Tchenguiz had no entitlement to prevent them from treating the undated letter as an offer and saying, "We accept".

(2) The court does not have evidence showing, rather than merely supporting an inference, that Mr Tchenguiz had a right to hold the Aabar group responsible in the event that it sold the Aabar rights to Global.

(3) Submissions on behalf of Mr Tchenguiz relied on Global's inability to know the details of his and Edgeworth's relationship with the Aabar group. To my mind, however, at the present stage that inability is not something for which Global can be blamed.

189. When the points made for and against permission to amend are set in that context, I conclude that it would be contrary to the overriding objective to shut out Global, at the present stage, from asserting that if what was known to the Aabar group led them to hold the belief described at point (1) above then this may give reason to think that what was known to Mr Tchenguiz led him to hold a similar belief.
190. For these reasons I will grant permission to amend. With the benefit of that amendment, Global will have a realistic prospect of showing that the alleged threat was a threat of conduct actionable by the Aabar defendants because it would amount to the tort of abuse of process.

E3.5 Intimidation: intention to cause loss to Global

191. It is common ground that the threat must be made by the alleged coercer to the alleged coercee with the intention of causing loss to the alleged victim. It was said in Mr Tchenguiz's skeleton argument that the claim of intention to cause loss relied on inference, and that there was no realistic prospect of establishing such an inference.
192. I am not persuaded that the inference is as weak as Mr Tchenguiz suggests. It is important to bear in mind that it is not necessary, as regards this particular element of the tort, to show malice in the sense of ill will. To my mind if Global's case is made good on other aspects, then they will have a realistic prospect of demonstrating the necessary intention of causing loss to Global.

E3.6 Intimidation: other aspects of the threat

193. A further point advanced in Mr Tchenguiz's skeleton argument was that an abuse of process by Edgeworth, if it had knowingly issued groundless proceedings against the Aabar group, would not have been actionable by the Aabar group against Mr Tchenguiz. In that regard, however, it seems to me that Global has a realistic prospect of showing that an abuse of process by Edgeworth, if instigated by Mr Tchenguiz, would entitle the Aabar group to sue Mr Tchenguiz. Indeed, Mr Tchenguiz's own account of the "Indication" drew no distinction between Mr Tchenguiz and Edgeworth.

E3.7 Intimidation: causation

194. A submission was made for Mr Tchenguiz that Global could not show that in the absence of the alleged threat Global would have acquired the Aabar rights. As to that, it is said that there may have been other reasons why the Aabar defendants would not have sold the Aabar rights to Global. Whether that would have been so, however, cannot be decided summarily.

E3.8 Intimidation: conclusion

195. In these circumstances I conclude that but for the proposed amendment the claim for intimidation would be struck out. I will, however, grant permission for the amendment proposed by Global. This will enable Global to continue to maintain the claim for intimidation. It will be incumbent upon Global to keep this claim under regular review, and to abandon it if it becomes clear that the serious assertions that it involves cannot be made good.

F. Overall conclusion

196. For the reasons given above I refuse both the Aabar defendants' application and the application by Mr Tchenguiz.