Case No. CL-2019-000290

32.EIGL’s claim arises from a series of payments made by Heritage which were the subject of an audit of Heritage’s business undertaken by Alvarez & Marsal (“Alvarez”). 33.First, there are payments to three Nigerian suppliers, Lamic Nigeria, Professor Damachi and Zomay Marine, which total $17.5m, for consultancy services. In addition to these payments, all made after EIGL had acquired 80% of Heritage, payments totalling $13.25m had been made prior to EIGL’s investment. Alvarez stated that there was weak documentation supporting these payments and lack of transparency as to their use and their size, giving rise to “heightened corruption related risk”. 34.Second, payments of $7m made to MENA Danismanlik Ltd, a Turkish company, in connection with Heritage’s efforts to enter into the Libyan market, which Alvarez concluded posed “a potential high risk” with “no direct oversight as to how the monies were actually spent”. 35.Third, expenses of $866,258 incurred by Mr Buckingham between July 2014 and June 2017 which were charged to Heritage, and which were said to involve or include payments on personal luxury items or services. Alvarez concluded that the required support, justification and explanation for these expenses had not been provided and that the payments were not “consistent with a best practice approach”. 36.Finally, between July 2014 and July 2016, costs of £10m were incurred by Heritage in relation to a Gulfstream jet used principally by Mr Buckingham, of which some £2,766,977 had not been allocated to any specific project nor charged back to Mr Buckingham. 37.EIGL’s position in relation to these expenses, as set out in Mr Morpuss QC’s skeleton, is that “it does not know for certain that the claims are well-founded” and “that is why it wishes to have them investigated by way of its unfair prejudice position in Jersey”. Mr Morpuss QC confirmed at the hearing that he was satisfied that he is in a position to plead that these payments were improper payments which implicated Mr Buckingham and Mr Atherton, an individual who acted in an executive role in the management of Heritage until his resignation in December 2017. In these circumstances, I will proceed on the basis that there is a serious issue to be tried to this effect, while noting that Mr Morpuss QC’s characterisation of the payments is hotly disputed. I will refer to these payments as “the Disputed Payments”. 38.If the various complaints prove to be well-founded, the party who had made the payments, suffered the immediate loss, and who would ordinarily be entitled to bring a claim, would be Heritage. In this regard, it is noticeable that when these matters were first articulated by Macfarlanes LLP, they were presented as claims by Heritage. The suggestion that these matters gave EIGL a claim (on the basis of unfair prejudice) only surfaced after Albion had taken the point that any claims which Heritage might have did not relieve EIGL of its payment obligations under the SpA. In these circumstances, it will be necessary to consider with some care the route by which EIGL now says that the payments made provide it with a claim against Albion, and provide the basis for an equitable set-off against Albion’s otherwise undisputed debt claim. 39.Before doing so, however, I should first address two threshold objections taken by Lord Grabiner QC: i) that any claim which EIGL might have has been settled and waived under the terms of the SpA; ii) that the SpA precludes a right of set-off.