LM-2023-000035 - [2025] EWHC 1989 (Comm)

Chronology Part I: up to and including the execution of the Mandate

General context

In a valuable and complex commercial borrowing transaction (as I accept this transaction was) contemporaneous documents are key to the Court’s fact-finding exercise. The “best approach” in a case such as this is “to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts” (see the well-known guidance of Leggatt J, as he then was, in Gestmin v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm)).

I have been taken through a large number of documents during the course of the trial. It is common ground that no document makes any reference to CCI until after the Mandate was terminated.

Most of the communications between relevant parties in this case are (as is often the case) by e-mail. Those written for the counterparty (be that the Defendant or CCI) to Xtellus (who acted through Mr Fehmi) and later to the eventual provider of finance (Macquarie), were in each case from an email with the suffix @dlinvest.pl, and in most cases the emails had a similar and generic signature box which followed this pattern: the name of the sender above a description in English of the sender’s role (for example CFO or CEO) above the words “DL Invest Group”. There was then a graphic banner including the words “DL Invest Group,” with some words written in Polish and the words “every investment is a new challenge” written in English. Beneath the banner were 3 further blocks of information which include the full name of the Defendant, its share capital (100,000,000.00 PLN) and its National Court Register unique number (0000434440).

The key players in the relevant emails were Wirginia Leszczyńska, Dominik Leszczyński, Blazej Stodulkiewicz and Katarzyna Dorosz-Wosiek. Wirginia Leszczyńska had no connection with CCI but was the President of the Management Board of the Defendant and has no connection with DLIGDL. Dominik Leszczyński was described as the CEO of the Defendant and had the power to bind CCI, Blazej Stodulkiewicz was described as the CFO of the Defendant and Katarzyna Dorosz-Wosiek was the head of legal for the Defendant and at the relevant time either its Prokurist or a member of the Management Board.

It is important to mention the various titles which appear in the documents. CEO, COO (as Wirginia Leszczyńska was sometimes described) and CFO are not titles recognised in Polish company law, but they are titles recognised by experienced people of business and would be recognised by an objective observer appraised of the relevant background at the time the Mandate was entered into. They are also titles used by each of the key players. Dominik Leszczyński explained that his role as Chair of the Supervisory Board of the Defendant gave him the broad equivalence of a CEO. Chairing the Supervisory Board of the Defendant (as is accepted) does not give Dominik Leszczyński any actual authority to bind the Defendant. There is therefore a real difference between a CEO and the Chair of the Supervisory Board. The former has executive power. The latter does not. Dominik Leszczyński’s subjective view of how CEO should be understood is not relevant.

Dominik Leszczyński suggested in evidence that both Blazej Stodulkiewicz and in particular Katarzyna Dorosz-Wosiek were working for CCI, not the Defendant, when dealing with Xtellus. Neither was called to give evidence. Each was plainly heavily involved in the Defendant’s business at a very senior level. Dominik Leszczyński told me that there was an informal agreement with Blazej Stodulkiewicz that he would work for CCI and that Katarzyna Dorosz-Wosiek was his personal lawyer. There is no documentary evidence at all dealing with (or even making reference to) any connection between CCI and either of them.

I accept that the description DL Invest Group is primarily about branding. The numerous group presentations I have seen show that name displayed and illuminated on the top of office buildings. The description is plainly capable of having more than one meaning. The fact that DL Invest Group had at least a CEO and a CFO might be taken as a strong indicator that the description was used to represent a corporate body and not just a brand name.

Following the objective approach set out in Hamid v Francis Bradshaw it is appropriate to consider what the parties said to each other in the period leading up to the conclusion of the Mandate and to consider that evidence objectively to see what light it sheds on the identity of the counterparty. I should take into account facts known to both parties, but not their private thoughts.

Mr Fehmi was introduced to the counterparty (that is the party that Xtellus would contract with) by Boris Sawicki, a local lawyer and one time friend of Dominik Leszczyński. One of the first written interactions between Mr Fehmi and Dominik Leszczyński is an email sent by Mr Leszczyński to Mr Fehmi on 28 April 2021 asking that he be added to Mr Fehmi’s LinkedIn network. The acceptance link describes Mr Leszczyński as the CEO of “DL Invest Group.”

On or about 4 May 2021 there was a Zoom call organised by Mr Sawicki which included Blazej Stodulkiewicz and Dominik Leszczyński. After that call, on 6 May 2021 Blazej Stodulkiewicz emailed Mr Fehmi attaching “our detailed assets overview and a Group presentation”. The asset overview plainly related to the Defendant and was divided into sections including “operating portfolio” (comprising 23 companies including Psary Invest II sp. z o.o.), “pipeline logistic” (12 companies) and “Pipeline office” (5 companies). These 38 companies are SPVs each holding a particular asset. The presentation was addressed to a potential financer (the Pacific Investment Management Co) and is described as a “DL Invest Group financing proposal.” It describes the “capital structure” of “DL Invest Group” with DL Invest Group SA as the ultimate holding company with the Defendant as its wholly owned subsidiary and asset manager of 38 SPVs. It notes that DL Invest Group is audited by KPMG and refers to an undated auditor’s report addressed to the general shareholders’ meeting and supervisory board of the Defendant. It refers to the fact that DL Invest Group “prides itself on the AAA Certificate issued by Bisnode Polska.” The certificate is shown and plainly refers to the credit standing of the Defendant.

After some further remote discussions, on 30 May 2021 Dominik Leszczyński sent an email with the subject line “DL Invest - financing – initial discussion” to Blazej Stodulkiewicz and Mr Fehmi. It is clear from the email, which was written in English, that Dominik Leszczyński (on behalf of the counterparty) was already in discussion with potential lenders and wanted Xtellus to approach new lenders:

“In our opinion, due to the commitments [we have] already made, it is possible to start discussions only with 1 [or] 2 entities indicated by you. We do not want [you] to enter the market extensively on our behalf and we do not want to disclose with which entities we are negotiating on the market. We prefer a solution in which you indicate to us an entity which will be interested in debt financing our Capital Group and if we [are not already talking to] such entity we will give you a mandate to conduct exclusive talks with this entity”

Dominik Leszczyński’s signature appears above the words “President of the BoardCEO DL Invest Group” and above reference to the full name and registration number of the Defendant.

On 4 June 2021, Mr Fehmi emailed Dominik Leszczyński and Blazej Stodulkiewicz using the same email subject line and suggesting that the terms of the Mandate could be discussed on a call and “I can suggest 2-3 investors and we can get your approval on that call”. Once the Mandate terms were negotiated Xtellus could “start setting up investor calls.”

The anticipated call took place on 9 June 2021. On that date Blazej Stodulkiewicz sent an email to himself which appears to be a note of the discussion which simply listed “BTB Frankfurt” (a clear reference to “VTB”) and “Macquarie Capital.” Mr Fehmi’s evidence was that Dominik Leszczyński was pleased with these names “as he did not know anyone at these funders and gave me approval to approach them.”

The first draft of the Mandate was sent by Mr Fehmi on 9 June 2021 to Dominik Leszczyński. The covering email noted that Mr Fehmi would approach “VTB and Macquarie Capital.” The draft Mandate included space for Dominik Leszczyński’s signature above the words “DL Invest Group, Mr Dominik Leszczyński. CEO, Chairman.”

Extensive draft amendments were proposed by way of tracked changes on 17 June 2021. The majority were authored by Katarzyna Dorosz-Wosiek. There was no change to the description of Dominik Leszczyński. Further (and fewer) amendments were suggested on 2 July 2021. The main author was again Katarzyna Dorosz-Wosiek. The proposed changes were forwarded by email from Blazej Stodulkiewicz who described them as being suggested “by our legal department.” At no time was there any proposed change to Dominik Leszczyński’s signature strip.

Also on 2 July 2021, Mr Blazej Stodulkiewicz sent a revised company presentation including a detailed description of executives. Dominik Leszczyński is described in the presentation as “CEO, Chairman of the Supervisory Board” and “responsible for the strategy, management and supervision of the Group’s various processes”; Wirginia Leszczyńska is described as the COO; Tomasz Brodzki as the “CPO”; Blazej Stodulkiewicz as the CFO “Financial Director” and Katarzyna Dorosz-Wosiek as “Legal counsel, proxy” and “Proxy of the [Defendant]”. The final page of the presentation lists contact details above the name and company registration details of the Defendant.

On the same day, Mr Fehmi replied thanking Blazej Stodulkiewicz for the enclosure and adding: “I look forward to the thoughts from your legal department on the mandate so we can set up calls as early as next week.” In his reply later that day Blazej Stodulkiewicz said: “as per the legal team, we would like to keep the specified names of the potential investors in binding Mandate. We are fully flexible in updating that in the future, when needed.”

Mr Fehmi added in the names of the “potential investors” (VTB and Macquarie Capital) on 5 July 2021. Those amendments were not contested or even discussed. Unsurprisingly as they mirrored the terms recorded by Blazej Stodulkiewicz in the email he sent to himself on 9 June 2021. They were accepted without issue, and the Mandate was signed on 6 July 2021 by Mr Zak of Xtellus.

On 9 July 2021, the Mandate was sent by Mr Stodulkiewicz to Wirginia Leszczyńska and to Dominik Leszczyński. The email (written in Polish) contained a message to each. To Dominik he wrote: “Dear President, please provide the final okay” and to Wirginia: “following approval from the President please sign, important subject.”

There is some confusion about what happened next. Wirginia Leszczyńska told me in oral evidence that she forwarded the Mandate to her legal counsel Agata Pedzic who opened it, saw it was not addressed to Wirginia and that “is where it ended.” Later she told me she opened the attachment (the Mandate) because the covering email had invited her to sign something. She said, “I saw it was for Dominik, closed it, and that was the end of the story for me.” There is no mention of any of that in Miss Leszczyńska’s witness statement and no emails have been produced of any discussions with Agata.

The documents show that Wirginia Leszczyńska responded by email on 9 July 2021 to Blazej Stodulkiewicz and to Dominik Leszczyński, copying in Agata. She said: “Blazej, my signature is with Agata. Agata, after signing the documents, please return them.” Wirginia Leszczyńska agreed in cross examination that she was telling Agata to apply Miss Leszczyńska’s (electronic) signature to the document. It was put to her that “instructing someone to apply your signature to a document means you are giving you approval to that document.” Wirginia Leszczyńska told me that her instruction to Agata to append her signature would be taken by Agata as an instruction to check the documents. Wirginia Leszczyńska’s signature does not appear on the final version of the Mandate and there is no explanation about where the document with her signature is.

Wirginia Leszczyńska’s oral evidence in chief (at paragraph 26 of her witness statement) was that she had no recollection of the Mandate being sent to her. Her recollection of the matters set out above therefore appears on her evidence to have come about since her statement was finalised.

The Mandate was signed by Dominik Leszczyński on 9 July 2021.

CCI was incorporated on 7 October 2014 in the name DL Invest Group X sp. z o.o. and changed its name on 2 June 2017 to CCI. It changed its name again to DLIGDL on 15 December 2022. Dominik Leszczyński was asked about that change and told me that the request to change the name “happened a lot earlier.” It was put to Dominik Leszczyński that he changed the name of CCI in an attempt to avoid the Defendant’s liability. He denied that was the case. I note that there is no evidence as to when the request to change name was made and there has been no disclosure of any documents filed to request such a change.