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

The Issues

If Xtellus is to be entitled to the sums it claims, it has the burden to establish that there is an enforceable contract between the Claimant and the Defendant, and if there is, that the obligation to pay is triggered. Somewhat unusually, none of these issues is agreed.

The first issue is: who contracted with Xtellus? The Mandate is addressed to “DL Invest Group,” defines DL Invest Group as “the Company” and is executed by Dominik Leszczyński on behalf of DL Invest Group. However, DL Invest Group has no legal personality.

The Defendant denies that it is the counterparty and asserts that the correct counterparty is Consulting Capital Investment sp. z o.o. (“CCI”). That company was registered in Poland on 7 October 2014 and took the name CCI on 2 June 2017. On 15 December 2022 (shortly after the initial letter before action was sent to the Defendant) its names was changed to DL Invest Group Dominik Leszczyński sp. z o.o. (“DLIGDL”). Xtellus says the 2022 name change to something approaching “DL Invest Group” was a late and cynical ploy to bolster its case.

If I find that the Defendant is (at least on the face of things) the correct counterparty, the next issue is whether the Defendant is bound by the terms of the Mandate. The Defendant’s case is that Dominik Leszczyński had no power to bind it. Xtellus says that the Defendant is bound either because Dominik Leszczyński had the appropriate authority or, in the alternative, because the Defendant has ratified the Mandate.

If the Defendant is bound, I must determine if it is under an obligation to pay anything. Xtellus’ primary case is that the obligation to pay was triggered (under clause 6.3 of the Mandate) when Macquarie Euro Limited provided finance to Psary Invest II sp. z o.o. To make good that contention it must establish that Macquarie Euro Limited is a “Potential Investor” under the terms of the Mandate (in other words is included in the definition “Macquarie Capital”) and that Psary Invest II sp. z o.o. falls within the definition of “any of the Company.”

The final issue, assuming all others to have been found in Xtellus’ favour, is about entitlement. If all other issues are resolved in Xtellus’ favour has it in fact done enough to earn this relatively significant payment?