BL-2025-000377 - [2025] EWHC 2976 (Ch)

It is submitted that the concept of providing finance involves something more specific than the provision of money that enables another party to provide finance directly to the party requiring it and denotes the direct supply by the provider of the “finance” in question. It is said that the language in question, and the inclusion of the words “or refinance” in clause 20.1.2 points firmly to loan finance rather than to any other form funding.

It is therefore submitted that, as a matter of ordinary language, Mr Dekel has not provided finance in connection with the Property or the Project, but rather he has subscribed for shares in CLL BVI, and that it is CLL BVI that has procured the provision of finance in connection with the Property and the Project from CAF6, as well as providing direct funding by subscription for shares in CLL UK.

The Defendants, in turn, rely upon the wording of the Investment Agreement, and the fact that it made clear that the acquisition, holding, development and management of the Property would be structured “through such entities as the Board [of CLL BVI] shall in its sole discretion determine”, and identified CLL UK is a wholly-owned subsidiary that had been incorporated to acquire and own the Property (see the definition of “Objectives”).

To the extent that there is ambiguity in the language that is not otherwise resolved, then it is submitted that the court should prefer the construction which is consistent with business common sense and reject the other. As to this, it is submitted that the Defendants’ interpretation is consistent with business common sense, whereas Mr Dekel’s interpretation is not. This is on the basis that it is CLL BVI that is the party to the Management Agreement, and, apart from questions of reflective loss, all sorts of practical difficulties arise if the 18 participating shareholders in CLL BVI are, themselves, entitled to seek to enforce the Management Agreement. It is therefore submitted that, looking at matters objectively, it is inherently unlikely that the parties to the Management Agreement would have intended for the Project Manager to be exposed to a series of overlapping claims from individual shareholders.

It is submitted that if the parties had intended to permit the enforcement of the terms of the Management Agreement by each and every one of the shareholders of CLL BVI, then it would have been very simple to have provided expressly for this in the language of clause 20.1.1, which did expressly provide for enforcement of the terms of the Management Agreement by “Subsidiaries” and “Associated Entities”.