Corporate Law Update: 29 June - 5 July 2024

05 July 2024

This week:

Court finds adjective in a broker’s letter applied to all items in a list and not merely the first one

In Cantor Fitzgerald & Co. v YES Bank Ltd [2024] EWCA 695, the Court of Appeal had to decide whether an adjective attached to only one noun in a list or to the entire list.

YES Bank and Cantor had entered into an engagement letter, under which Cantor was instructed to identify potential investors in YES Bank from outside India and Europe.

Under the engagement, Cantor would receive a flat fee of $500,000, plus a commission of 2% on all funds raised from specific investors listed in a schedule to the letter.

Specifically, the letter engaged Cantor to procure investors in connection with a “Financing”. That term was defined as a:

private placement, offering or other sale of equity instruments

In March 2020, following a restructuring, YES Bank conducted a capital raise conducted through a public offer on the Indian capital markets. The offer attracted capital, including from three investors listed in the schedule to YES Bank’s engagement letter with Cantor. The total amount raised from those three investors was ₹27.93 billion, equivalent to approximately $373.4 million (US).

Cantor claimed commission on this amount under the engagement letter. It argued that the word “private” attached only to the word “placement”, such that it would be entitled to commission if YES Bank raised funds through any offer or other sale of equity instruments, whether that offer or sale was private or public.

The Court of Appeal disagreed, finding that the word “private” applied to all items in the list. As a result, Cantor was entitled to commission only on a private placement, private offering or other private sale of shares. As the fundraising had been carried out by way of a public offer, Cantor was not entitled to commission.

You can read more about the court’s decision on the position of an adjective in a list (and a broker’s entitlement to commission) in our separate in-depth piece.

Buyer could not avoid contractual obligations by preventing condition precedent from being satisfied

The High Court has held that a buyer remained liable to pay a deposit even though the condition for doing so had not been met, because the buyer’s actions had prevented the condition from being satisfied.

What happened?

King Crude Carriers SA v Ridgebury November LLC [2024] EWCA Civ 719 concerned three contracts on substantially similar terms to purchase three vessels.

Each contract required the buyer to pay a 10% non-refundable deposit into an escrow bank account. In each case, the deposit was to be paid within three banking days after the account was opened.

To this end, each contract required the parties (including the buyer) to: “provide … all necessary documentation to open and maintain the account without delay”.

The buyers failed to provide documentation necessary to open the escrow accounts. In two cases, the buyer failed to provide necessary know-your-customer (KYC) documentation. In the third case, the buyer failed to provide a signed copy of the relevant escrow agreement.

The sellers terminated the contracts and sued for payment of the non-refundable deposits. The buyers claimed that the deposits were not payable, because payment was conditional on the escrow account being opened, and that had not happened.

The court disagreed. It held that the reason the condition to payment of the deposits had not been satisfied was because the buyer had failed to provide documentation needed to open the account.

In other words, the buyer’s own actions had caused the condition not to be met. Moreover, that failure amounted to breach of each buyer’s obligation under the contracts to provide all necessary documentation to open the account.

Under established principles of law, the buyer was unable to rely on the fact that the condition had not been satisfied due to its own breach of contract. The court embarked on an interesting legal analysis of this particular principle of law, although it concluded that, fundamentally, it was not necessary to identify the precise legal basis of the principle.

What does this mean for me?

There is a general principle of the law of England and Wales that a party should not benefit from its own wrong. This principle manifests itself in various ways. In this case, it was to prevent a party from relying on the failure of a condition precedent when that failure arose from its own breach of contract.

It is important to understand the limited context of this particular case. The court’s decision rested on the fact that the buyer’s obligation in question was to pay a specific sum – in other words, it was an obligation to pay a debt.

In other circumstances (e.g. where the condition applied to taking some kind of action), the same rule would not apply. However, the general principle remains and a court would no doubt be very hesitant to allow a party to engineer its own “out” from a contract.

The principle does not prevent a party from withholding payment or other performance under a contract in response to a breach of the contract by the other party.

Although common in real estate transactions and other types of contract, deposits are relatively infrequent in the UK on corporate acquisitions.

Nevertheless, we see them from time to time. This case underscores that a buyer, once committed to paying a non-refundable deposit, will not be permitted to engineer its way out of that payment.

Read the court’s decision in King Crude Carriers v Ridgebury November LLC [2024] EWCA Civ 719 that a buyer could not rely on its own failure to satisfy a condition precedent to avoid paying a deposit

FCA sets out fee increases for 2024/2025

The Financial Conduct Authority (FCA) has set out the increases to its fees for 2024/2025.

The increases follow the FCA’s previous consultation in April 2024. They affect (among other things) the fees payable to the FCA for applying to list shares or other securities and to approve a prospectus or other significant transaction document.

Read the FCA Policy Statement PS24/5 on increases in FCA regulated fees and levies (opens PDF)