CL-2022-000522 - [2025] EWHC 2739 (Comm)

WITNESSES OF FACT

Mr Michael Kirk is the co-founder of RMK and was the main individual responsible for RMK’s involvement in the Euronav/Gener8 transaction. He was in general a good witness and, for example, he showed notable candour on several occasions about points he could not remember or which might be adverse to RMK’s case. There were, at the same time, some other occasions where I felt that, in his written or oral evidence, he was overstating RMK’s role in the transaction as compared to Euronav’s (for example the suggestions that Euronav was out of its depth, and that RMK advised on the best way of dealing with the loan rollover issue discussed later).

Mr Moore is the co-founder of RMK, and gave evidence about RMK’s role in the transaction, the nature of the work performed and certain conversations with Euronav.

His evidence was somewhat curious, in that in his trial witness statement, dated 4 October 2024, he said (among other things) that in discussions with Mr Rodgers before the Advisory Agreement was entered into, he pitched RMK’s ability to provide initial analytical work to see whether acquiring Gener8 was a viable project, and that “[a]t this stage we only pitched for the analytical work as Paddy Rogers appeared to consider it would be a straightforward transaction and that Euronav could perform the majority of the work themselves if it moved forward from a hypothetical ‘study’ of a potential deal into a transaction”. He said RMK was happy to be involved on that basis as it would be a foot in the door to securing the full investment M&A work.

However, in a further (fourth) witness statement signed on 7 May 2025, the day before he gave oral evidence, Mr Moore said that in the run-up to trial he had reviewed the documents from 2016 leading up to the signing of the Advisory Agreement, and noticed that the account set out in his previous statement was “not entirely accurate”. On the topic mentioned above, he said “the true position is that Mike and I were pitching RMK to be a full M&A advisor to Euronav in respect of the possible acquisition of Gener8, but Euronav only wanted to instruct us in a more limited role”. He continued to say that RMK was content with this on a ‘foot in the door’ basis.

Yet when Mr Moore was asked about this in cross-examination, he appeared to maintain that the passage in his trial witness statement was in fact correct: it simply set out what happened after RMK had pitched for the full M&A role and had been rebuffed. He said:-

“A. The statement reflects the context -- that was my intention -- that after we had been rebuffed from the -- applying for the full M&A work, that we were pushed into only being able to provide initial analytical work, and that's initial analytical work for the transaction. But that was very much after the full M&A advisory pitch had been rebuffed.” (Day 3/99-100)

I find it difficult to see how the two versions of Mr Moore’s evidence can be reconciled, and indeed he himself evidently thought them different when he said in his fourth witness statement that his earlier evidence was not entirely accurate. In my view these matters give rise to some doubt about the care and/or seriousness with which he approached the giving of his evidence (written and oral), and in any event about the reliability of his recollection.

Ms Motyka was an analyst at RMK. She did not give oral evidence at trial. Her evidence was admitted under the Civil Evidence Act 1995. Ms Motyka described her role in supporting Mr Kirk and others at RMK in the preparation of the acquisition model, Board Books, and Pitchbooks.

Mr Keros was an employee of RMK for two and a half years until March 2020. He did not give oral evidence. His statement was admitted under the Civil Evidence Act 1995. Mr Keros described his involvement in the debt rollover process and in preparing financial models for KEXIM and other lenders.

Mr Smith was a director of Gener8. He did not give oral evidence. His statement was admitted under the Civil Evidence Act 1995. Mr Smith gave evidence about the 17 August 2017 meeting to which I refer later, and his understanding of RMK’s role in the transaction.

Mr Paddy Rodgers was the Chief Executive Officer of Euronav during the relevant period. Mr Rodgers was involved in the negotiation of the Advisory Agreement and in subsequent discussions with RMK regarding its role and remuneration.

Mr Rogers was not an entirely satisfactory witness. Particularly in the earlier stages of his oral evidence, he had a tendency to seek to argue the case, sometimes embarked on long answers not properly directed to the question asked, and on occasion failed to answer straightforward questions until reminded of his duties as a witness (for example in the exchanges I quote in § 36 below). On the other hand, he was candid about the limits of his recollection, and I did not at any stage form the impression that he was not giving truthful evidence.

Mr Hugo de Stoop was the Chief Financial Officer of Euronav during the relevant period and later became its Chief Executive Officer. He was the primary point of contact for RMK throughout the transaction.

In general Mr de Stoop gave his evidence carefully and precisely. On a couple of occasions he made remarks which suggested he was sparring with the cross-examiner, for example by thanking the questioner for raising a matter or referring to a particular document, and this slightly detracted from the effect of his evidence. On the whole, though, over the course of a long and detailed cross-examination, I felt confident that he was providing his recollections to the best of his ability.