CL-2022-000025 - [2025] EWHC 2331 (Comm)

On the face of it, the SPA contained the key terms necessary for there to be a valid contract for the sale of shares, including a) identification of the parties, b) identification of the number of shares being sold, and c) the price to be paid for the shares. Mr Kerr, however, advanced a number of points relating to uncertainty. His two main points, which I will deal with first, were i) that there was uncertainty as to the identity of the buyer, and ii) there was uncertainty as to the method of settlement.

The first of these points, as to uncertainty of the buyer, was based on the fact that, under the terms of the SPA, Mr Kerr had the right to nominate another party to purchase the shares. This point goes nowhere:

The second point was Mr Kerr’s contention as to the uncertainty as to the method of settlement. He argued that, to be binding, the agreement should have identified how the transaction would be settled. In his presentation at trial, this point tended to bleed into his point that, if (in the alternative to his primary case) the SPA was binding, it contained an implied term that settlement should be carried out through CREST (which was clearly what he thought should happen). I deal with that point separately below. In relation to the point that the absence of an expressly set out mechanism gives rise to sufficient uncertainty that the SPA could not be legally binding, I reject the argument. The key terms necessary had been agreed (including parties, price, and number of shares), such that Mr Kerr had to pay the agreed price, and Mr Perelman had to transfer the agreed number of shares. As set out above, it was common ground between the parties that there were two possible ways for Mr Perelman to transfer his shares: i) through the delivery of a stock transfer form (together with the paper certificates), or ii) through Mr Perelman dematerialising his PGC shares and then transferring them electronically. There is no doubt that the parties could have agreed, in the SPA, which of these routes was to be followed. But they did not do so. And nor did they need to do so. The existence of two possible methods of performance for Mr Perelman to transfer his shares simply means that he could adopt either method in order to fulfil his obligations. It does not mean that the obligations were too uncertain to be enforceable.

Other points going to uncertainty were made in Mr Kerr’s pleaded Defence, which at trial Mr Kerr said he continued to rely upon, though he did not develop them to any great extent. None of them render the SPA incomplete or uncertain in any material respect such that it could not be a binding agreement:

I should also add that, in his written closing submission, Mr Kerr relied upon the case of Cooper v Dnata Catering Services Limited [2022] EWHC 2216 (Comm), in which HHJ Klein (sitting as a High Court Judge) had concluded (although preferring not to finally determine the case on this basis – see paragraph 97) that an alleged agreement was too uncertain to be a contract (at paragraphs 95-96). That was, however, a somewhat different case from the present one. As HHJ Klein said, in that case, a “fundamental element” of the agreement, namely the price to be paid, had not been agreed, and the price could not be established by the application of any formula. Here, by contrast, there is no dispute as to the price, which was clearly agreed between the parties. Nor was there here any other fundamental element lacking from the agreement. That is not to say that there were not other elements or matters that could have been agreed, but that does not mean that the failure to agree them renders what was agreed unenforceable.