[2025] EWHC 1889 (Comm)

Issue 11 is answered by my decisions on Issues 3, 10 and 8.

Although LCG’s counsel’s skeleton argument reserved the right to contend that the consideration of £16,813.008 was split between Mr Lewis and Ms Probert otherwise than as stated in Schedule 1 to the SPA, LCG did not so contend. There has therefore been no need for the court to address arguments based upon a contractual estoppel, or the like.

It follows that, leaving aside any claim to interest on the damages and to the extent the liability is not satisfied by the other, Mr Lewis’s maximum liability in damages is £5,211,625 and Ms Probert’s maximum liability is £840,650.

The respective liability of the defendants (identified in the previous paragraph) is greater than the cap upon liability under paragraph 2.2 of Schedule 5 to the SPA.

At its election, LCG is therefore entitled to judgment in the principal sum of £783,325 under the Funding Indemnity or £5,211,625 as damages for breach of warranty (the liability to be apportioned between Mr Lewis and Ms Probert as appropriate and, in relation to the damages liability, subject to the cap of £840,650 for Ms Probert under paragraph 2.1 of Schedule 5 of the SPA).

This judgment has been handed down remotely by email to the parties’ legal representatives and its uploading to The National Archives. When sending it earlier in draft to the parties, I indicated that the handing down would be adjourned for the purpose of preserving the time for filing any appellant’s notice under CPR 52.12 (only). I invited the parties to reach agreement upon any other consequential matters arising out of it. They have not managed to do so.

In solicitors’ correspondence, LCG has confirmed its election to recover damages for breach of warranty and invited me to make an order today which provides for judgment for the principal sum, interest and costs (in its favour) so that only the defendants’ contemplated application for permission to appeal would remain to be determined by me. LCG relies upon the terms of a Part 36 offer dated 7 February 2024 which, I now know, offered to accept the sum of £5,211,625 (the exact same amount as I have found to be recoverable in damages, which was expressed to be inclusive of interest up to the date of a timely acceptance) in settlement of the claim and counterclaim, together with its costs on the standard basis to the date of the defendants’ acceptance of the offer. LCG seeks orders in relation to interest, indemnity costs and an additional amount of £75,000 by reference to the provisions of CPR 31.17.

The defendants’ solicitors have signalled an intention to contest the effect of the Part 36 offer and to make applications for permission to appeal and a stay of execution of the judgment. The defendants have invited me to make an order today which addresses only the extension of time under CPR 52.12 pending a further hearing.

For the brief reasons separately given in support of it, I have decided the correct order to be made (pending a determination of consequential matters to be made on the papers in the absence of a further hearing being directed by me) is one that recognises LCG’s entitlement to judgment for £5,211,625, sets a date for payment which will enable the defendants to make any application for a stay in the meantime and which also addresses the timing of any application for permission to appeal.