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

Fecha: 28-Jul-2025

Issue 2: ratification as an alternative

M. Issue 2: ratification as an alternative

116.

A contract which is not valid by reason of a lack of authority can be confirmed or ratified by the principal. As Mr Reay puts it at paragraph 121 of his opening submissions (relying on Bowstead & Reynolds on Agency at para.2-074 23^rd ed.): “Ratification will be implied whenever the conduct of the person in whose name or on whose behalf the act or transaction is done or entered into is such as to amount to clear evidence that he adopts or recognises such act or transaction: and may be implied from the mere acquiescence or inactivity of the principal”

117.

The relevant period to consider is from the date the Mandate was signed up to the date of the termination notice. In that period, is there clear evidence that the Defendant adopted or recognised the Mandate? I have come to the clear conclusion that, if I am wrong and Dominik Leszczyński did not bind the Defendant, that the Defendant plainly ratified the Mandate.

118.

The actions and involvement of Katarzyna Dorosz-Wosiek (who at this time was the Prokurist of the Defendant and acted, as I have found, at all times on behalf of the Defendant) are in my judgment of paramount importance. In my view the following points are key:

In August 2021 Blazej Stodulkiewicz put Katarzyna Dorosz-Wosiek forward as a key person for Xtellus to engage with whilst he was absent from the office. She accepted that role and for a while appears to have acted as the main point of contact between Xtellus and the Defendant. She even made clear to Mr Fehmi that she preferred to deal with queries by email and signed off her emails as Prokurist. Given her dealings with the negotiation of the Mandate, she was well aware that Xtellus and Mr Fehmi were working under its terms.

She was involved in the negotiation of the term sheets setting out indicative terms on which the Defendant and MacCap might contract in the future. Xtellus was copied into her proposed changes to the term sheets. The only explanation for these exchanges was that she was fully aware that Xtellus (Mr Fehmi) was acting as (as Dominik Leszczyński put it later) the “middleman” between the Defendant and MacCap.

Later in 2021 she was involved in the potential re-negotiation for the Mandate. It is difficult (if not impossible) to see how a person could be involved with attempts to change the terms of a contract without accepting that the contract is binding on the relevant parties in the first place.

119.

It is clear that Wirginia Leszczyńska also was fully aware of the terms of the Mandate and enabled all parties to perform its terms:

The 9 August 2021 meeting shows that Wirginia Leszczyńska knew that the Mandate had been signed and was doing all she could to build a strong relationship with Mr Fehmi. She plainly understood his role.

Throughout August 2021 and October 2021, Wirginia Leszczyńska helped to prepare responses to MacCap’s questions and in my view plainly did so knowing of Mr Fehmi’s (and so Xtellus’) involvement in the arrangement.

120.

If the actions of Katarzyna Dorosz-Wosiek on their own are insufficient (in my view they plainly are sufficient) then the common approach she took with Wirginia Leszczyńska make it plain that the Defendant (to the extent necessary) ratified the Mandate.

121.

There are 3 further points which strongly indicate ratification: first Wirginia Leszczyńska says she “authorised” her brother to sign the agreement with MacCap. She did that in full knowledge of Mr Fehmi’s (and Xtellus’) involvement. Secondly, the termination notice of 26 August 2022 was (given my findings as to the counterparty) given by the Defendant. That in my judgment is the clearest evidence that the Defendant ratified the Mandate. Perhaps the most compelling evidence is that the key players at the Defendant attempted to oust Mr Fehmi and Xtellus. If Xtellus was not at the heart of the deal there would be no merit or point in ousting the “middleman.”

122.

Taking a step back, it is in my judgment clear that the Defendant, and all of its human actors, consistently conducted themselves on the basis that the Mandate was binding and that Xtellus were working with them to secure finance right up to the point that attempts were made to cut Xtellus out.

123.

I reject entirely Dominik Leszczyński’s assertion that there was a fresh agreement with MacCap quite distinct from that which had been organised and worked on by Mr Fehmi and Xtellus. It is clear that Alexi Antolovich was always part of the deal. His involvement had been announced by Mr Fehmi before the October 2021 meeting. I reject as patently false any suggestion that the discussions with Mr Antolovich represented a watershed or new beginning. Dominik Leszczyński’s March 2022 reference to having “gone a long way” with MacCap is the clearest indication that he knew the deal eventually struck was the continuation of what had gone before.

124.

For these reasons, I find that if my conclusion in respect of authority is wrong, the Mandate was in any event ratified in the clearest possible way by the Defendant.