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

Most of the factual evidence at trial concerned the exchanges that took place after the signing of the agreements as Mr Perelman and Mr Kerr discussed points relating to settlement of the share sale transaction. I will therefore summarise the main relevant exchanges during that period. The exchanges between Mr Perelman and Mr Kerr all took place by WhatsApp message except where stated otherwise.

Shortly after the SPA and the ROFR had been signed, Mr Perelman sought to engage Mr Kerr in a discussion about how they would settle the transaction. On 19 June 2021, after the documents had been signed, Mr Perelman sent a WhatsApp message to Mr Kerr asking “how do we settle mechanically – I have the paper share certificates”, to which Mr Kerr responded “JP Morgan can receive with a share transfer. But will get settlement instructions well ahead of time.”

On 29 June 2021, Mr Perelman followed up in a message to Mr Kerr saying that they should “figure out logistics for settlement.” In response Mr Kerr said Mr Perelman should “hold fire until Jpm sorted". Mr Perelman told Mr Kerr that if he needed the physical certificates, he would need to figure out getting them from California. The share certificates were kept at Mr Perelman’s mother’s house (in California), and Mr Perelman at this time was in Israel.

On 14 July 2021, Mr Perelman messaged Mr Kerr asking to “talk logistics”. Mr Kerr said he would “get an email from JPM with details on where you need to send a scan and the original share certificate.” Mr Perelman asked if JP Morgan were going to “handle escrow for the share sale / wire etc” to which Mr Kerr responded that “To them it’s a normal off market physical settlement” and explaining that Mr Perelman would send a scanned share certificate and share transfer form to JP Morgan, who would load it into the system, but that JP Morgan would not send him the cash until they received the physical documentation from him. Mr Kerr mentioned there was “a way of avoiding the physical but required kyc which would extend beyond time”.Mr Perelman asked who he could speak to at JP Morgan, as he did not want to end up in a situation where JP Morgan had his physical documentation, but did not send him the cash. Mr Kerr said he would arrange a conference call for Friday afternoon (i.e. 16 July). The next day (15 July), Mr Perelman asked whether they had a time for the conference call with JP Morgan, and Mr Kerr said they were still aiming for the following day. That did not take place. Mr Kerr said in various WhatsApp messages that his contact at JP Morgan had caught Covid-19 and was off work.

On 16 July, Mr Perelman again said he would have to arrange to get the share certificates sent by FedEx from California. The two of them also briefly referred to the possibility of using “Link” for settlement. That was a reference to Link Market Services, a global share registry and financial services provider. Link Market Services (Guernsey) Limited (“Link”) was the administrator of PGC’s share register.

Mr Perelman called Link on 20 July and reported to Mr Kerr in a WhatsApp exchange that they could facilitate the trade and would be getting back to him with details. On 21 July, Mr Perelman asked Mr Kerr if “the funding” (i.e. to meet Mr Kerr's obligations under the SPA) was ready. Mr Kerr responded later that day saying his contact at JP Morgan who had had Covid was now back, and they would have a call the following day. He said he did not envisage problems. Mr Perelman responded that they had very little time and needed to “figure it out”.

On 22 July, Mr Perelman asked to speak. Mr Kerr stated that: “My preference is JPM” and suggesting speaking at 4pm. Mr Perelman responded that there would be no issue if JP Morgan could act as an escrow agent.

On 23 July, Mr Perelman again asked Mr Kerr for details for a call with JP Morgan, which Mr Kerr said he would organise, but no call took place. Mr Perelman, now getting frustrated, asked whether Mr Kerr could set up an email thread with the JP Morgan personnel so they could organise a call. Mr Kerr said he would email his contact, Louis Greig, copying Mr Perelman. Mr Perelman asked Mr Kerr whether JP Morgan knew the transaction needed to be done by the end of the following week. Mr Kerr did not reply to that message.

Also on 23 July, Mr Perelman told Mr Kerr in a series of messages that he had spoken to Mr Shaun Hand at Link, who explained that there were two options, the first being the use of an independent lawyer as an “intermediary/escrow” or second for Link to settle both parts of the trade. Mr Kerr also did not respond to those messages.

Mr Perelman chased Mr Kerr for responses on 25 and 26 July, to no avail. On 26 July, Mr Perelman also stated to Mr Kerr that he had spoken to a UK lawyer who had acted as an intermediary for the purpose of settlement.

Mr Perelman chased again on 27 July, including noting they were “just a few days away from closing” at which point Mr Kerr responded, and said that he would “be in touch tomorrow with details”. Mr Perelman pointed out that they had said they would connect with JP Morgan, which had never happened, and that he had been in touch with a lawyer in the UK who could facilitate the settlement.

On 28 July, Mr Perelman asked to speak to Mr Kerr. It appears Mr Perelman called at the time they had ultimately agreed, though did not get hold of Mr Kerr. Further messages followed, including Mr Perelman suggesting he come over to London to facilitate the settlement of the SPA (although it would require isolation due to the Covid restrictions then in place). Mr Kerr replied that he did not think that it would help and asked Mr Perelman to “wait till I fwd the settlement email”, suggesting that JP Morgan would be sending him something to forward on to Mr Perelman.

On 29 July, Mr Perelman noted in a message that he had not received anything, and that “Today is my last opportunity to fly out”, to which Mr Kerr responded “Why would you fly out? This is a straightforward settlement in London”, and saying it made no sense for Mr Perelman to be there. Mr Perelman noted that the certificates for the PGC Shares were still in California. Mr Kerr asked why Mr Perelman had not yet given instruction for the share certificates to be sent to London. Mr Perelman responded that he had not yet done so because he did not yet know how they were going to settle the transaction or to whom to send the certificates. Mr Kerr stated that JP Morgan were confirming the mechanics and would put them in writing. Also on 29 June, Mr Kerr confirmed to Mr Perelman that he had “shifted cash into position and awaiting confirmation from my very sick Jpm guy on how to settle.”

Later on 29 July, Mr Kerr confirmed to Mr Perelman that JP Morgan would pay out the funds on receipt of the share certificate, asking where Mr Perelman wanted the money sent, and saying JP Morgan would then put things in writing. Mr Perelman confirmed that the money should be transferred to his own bank account at JP Morgan, and asked for precise details of to whom to send the certificates, what JP Morgan needed for KYC checks, etc. He asked to be connected to the relevant person at JP Morgan for exact details. Mr Perelman also suggested having a lawyer to assist, saying he had spoken to a lawyer who explained that a transfer lawyer to lawyer would be easy because the firms would effectively act as escrow agents and hold and release the funds. Mr Kerr responded (the next day) to that suggestion, saying that the “share certs will take ages to be converted to my ownership via lawyers.”

The first written communication in evidence from Mr Kerr to JP Morgan regarding the transfer of Mr Perelman’s PGC shares was an email he sent to Louis Grieg, of JP Morgan, on 29 July at 12:22. Mr Kerr’s email stated as follows:

“I have a contract to buy the principle of Baker Streets Pgc shares for 2m nzd.

If I send the 2m to you tomorrow morning is it possible for you to arrange settlement on receipt of the share certificate from him. Which would arrive late Friday or Monday?

He is a JP Morgan client in ny – Vadim Perelman.

Please advise.

Alternatively I have to use a lawyer as an escrow agent.”

He followed up with an email providing Mr Perelman’s bank account details. Mr Greig copied in Nigel Langridge of JP Morgan London, who asked some questions about the shares, which Mr Kerr answered, and Mr Langridge asked whether it would be possible to get a copy of the front and back of the share certificates to check. These email exchanges on 29 July appear, at least to some extent, to have been overlapping with Mr Kerr’s WhatsApp messages with Mr Perelman of the same date summarised above.

On 30 July 2021 (a Friday), Mr Perelman informed Mr Kerr that he understood that it could be done through Link with “the physical + transfer form” which should be “seamless”, and the lawyers would acknowledge that payment had been made and would hand over the certificates. He said he had instructed a UK lawyer (who he later identified as David Haffner, of the firm Asserson) to help coordinate and was having the share certificates FedEx’d to them in London, asking who they should be in touch with, and saying they could also facilitate with JP Morgan. Mr Perelman confirmed in his oral evidence that he arranged for the certificates to be couriered on an overnight basis to Asserson on 29 or 30 July.

Mr Kerr responded later on 30 July with the contact details of Mr Langridge, of JP Morgan in London, and then asked Mr Perelman to send scans of the share certificates for the PGC Shares to Mr Haffner or Mr Langridge. Mr Perelman sent scans to Mr Langridge via email, coping Mr Kerr as well Mr Haffner and Mr Trevor Asserson, another lawyer from the same firm. Mr Perelman also asked in a WhatsApp message to Mr Kerr if there was a different contact for the “second agreement”, meaning the ROFR. Mr Kerr responded “Credit Suisse – but they pay as soon as the first is settled”.

It is clear that the exchanges that day were envisaging settlement on the following Monday (2 August 2021). They signed off their messages on the Friday evening with Mr Kerr saying “Let’s get this out of the way ASAP” and Mr Perelman responding “Let’s do it. This has my undivided attention.” They were both contemplating settlement on the Monday.

On Monday 2 August 2021, Mr Perelman messaged Mr Kerr saying he had just spoken with Mr Langridge, who said JP Morgan had only just learned of this transaction the previous Friday (30 July), and asking Mr Kerr to impress on JP Morgan the urgency of settling (given that “settlement is already late”).

Also on 2 August, Mr Langridge stated by email that the shares being in physical form added further complication, and suggested that Mr Perelman convert his share certificates into an electronic form and that JP Morgan would then set up a receipt versus payment transaction. Mr Perelman responded explaining why he could not do that – his account at JP Morgan was “just a checking account relationship (not brokerage)” and that his brokers (which he identified as Interactive Brokers) did not accept the PGC shares. He asked: “Why don’t we have lawyers act as escrow, to release shares to your side and hold cash to be released to me simultaneously?”

Mr Perelman also messaged Mr Kerr saying that Mr Langridge’s proposal was not possible with his JP Morgan account and that it “would take forever”. After Mr Kerr responded saying that he thought he had another solution and that they would speak, Mr Perelman sent a message to him saying it would be easier to instruct the lawyers to coordinate the settlement, with the lawyers to obtain the share certificates and payment, and to agree to exchange them between each other.

On 3 August, Mr Langridge emailed Mr Perelman saying that because the shares were held in physical form, and not electronic form, JP Morgan had concluded that they were unable to support the transaction.

Also on 3 August, Mr Kerr messaged Mr Perelman to say there was an “easy solution” and “can settle today with it”, suggesting they call, though that was difficult to achieve as both appear to have been in and out of bad phone reception.

On 4 August, Mr Perelman confirmed to Mr Kerr that the certificates were in London and asked him if he had the revised documentation for settlement. Mr Kerr said he would send through documents “in an hour, max 90m”, but no documents were sent through despite Mr Perelman following up. Mr Perelman also asked whether they could at least settle the ROFR transfer that day.

On 5 August, Mr Perelman and Mr Kerr started to get tetchy with each other in their messaging about why the SPA had not completed. Mr Kerr was blaming Mr Perelman for not having electronic trading capability and the shares not being held on CREST. Mr Perelman explained that the firms he had a brokerage relationship with were not willing to take the PGC shares electronically, and that he did not have a brokerage relationship with JP Morgan (only a banking relationship).

By this time, it appears that Mr Kerr had contemplated that, rather than have the shares transferred to him, it might work better if they were sold by Mr Perelman to PGC. Mr Kerr brought Mr Naylor into the picture to assist, and told Mr Perelman that Mr Naylor was preparing documentation. Mr Perelman asked Mr Kerr about the documents on 5 August, and was told Mr Naylor had to speak first with (the law firm) Carey Olsen. When Mr Perelman chased on 6 August, Mr Kerr told him Mr Naylor was about to get on a plane. The pattern of chasing but no documents continued. Mr Perelman spoke to Mr Naylor on 8 August, who told him he would try to get it sorted in the next few days. Mr Perelman then asked Mr Naylor for an update on 11 August, but did not hear back.

Mr Perelman messaged Mr Kerr on 12 August saying that Mr Naylor had told him there was a “long list of issues to work through for pgc”, and suggesting that they could settle it “easily between you and me as documented”. Mr Kerr’s response was to say “You haven’t got the cert on a platform” (i.e. the shares were held in paper, not electronic, form) and that PGC could do it far more quickly. Mr Perelman explained it was easy to do it with paper certificates, saying “its done lawyer to lawyer as an undertaking” and asking to put his lawyer in touch with Mr Kerr’s lawyer. Mr Kerr disagreed that transfer was possible in that way. Mr Perelman pointed out to Mr Kerr that all that was needed to transfer the shares was a transfer form and the certificates, and lawyers could be used to “facilitate payment to remove risk”. They both decided to get on a call with Link to discuss it.

Accordingly, the same day, Mr Perelman emailed Mr Hand at Link, copying Mr Kerr and Mr Naylor asking to set up a call to discuss settlement mechanics. However, Mr Naylor responded saying that a call would be premature and that there was a raft of issues to work through before PGC would be in a position to enter into a transaction.

Later that day, Mr Kerr messaged Mr Perelman to say that he needed to speak to Mr Naylor, who he said had a solution. Mr Perelman asked for an update on 13 August, but received no response. Then he asked again on 16 August, in response to which Mr Kerr said he was flying to London and would call late afternoon. He did not do so. Mr Perelman tried calling Mr Kerr on 17 August, but did not get him. On 18 August, Mr Kerr said that he would call Mr Perelman but did not do so. On 19 August, Mr Perelman and Mr Kerr spoke by telephone, following which Mr Kerr stated that he would call Mr Perelman back within an hour but did not do so.

On 20 August, in a WhatsApp exchange Mr Kerr raised, for the first time, what he referred to as an “item” that Mr Naylor had identified “by working through the words for Market compliance In window” (though did not explain what that meant), but he did not suggest it would cause a problem.

On 23 August and 25 August, Mr Perelman sought updates from Mr Kerr, and suggested he would hand it off to his lawyers to sort out, to which Mr Kerr responded that would not help and he was confident they could resolve it. On 30 August, Mr Kerr said he would revert that day with a “settlement mechanism that will work and is signed off.”

On 31 August, Mr Perelman messaged Mr Kerr saying he had received nothing, and reminding him they had negotiated an interest rate for delayed settlement under the SPA.

Mr Kerr responded on 2 September, stating “Vadim – you cant deliver the stock in the way I nominated” (by which he was referring to electronic transfer), but that he had found another path which he would get to Mr Perelman “ASAP”. Mr Perelman in his reply pointed out that “the nomination relates to who the buying party is” (i.e. not to the mode of transfer of the shares), as well as rehearsing some of the history, and saying that the transfer should take 24 hours using a lawyer to lawyer transfer as an escrow arrangement.

On 10 September 2021 (a Friday), Mr Kerr said he would revert with his proposed settlement mechanism at 9am on Monday morning. Mr Perelman messaged on Monday 13 September to say he had “received nothing”, in response to which Mr Kerr said “coming today”. But nothing was sent, despite further chasing from Mr Perelman.

On 15 September 2021, Mr Kerr stated that there was a specific issue that was being resolved, the only question being whether that occurred tomorrow or took another 10 business days. But Mr Perelman heard nothing further over the next few days. He therefore instructed his lawyers, Mishcon de Reya LLP, to write to Mr Kerr’s lawyers, Bryan Cave Leighton Paisner LLP (“BCLP”), which they did on 20 September 2021.

On 21 September 2021, Mr Perelman queried what Mr Kerr had meant by "specific issue" in his message of 15 September 2021. Mr Kerr explained that the specific issue was the “trading window” and that he had a call with his lawyers to discuss.

The exchanges between Mr Perelman and Mr Kerr thereafter became more sporadic, and the lawyers were now also in contact. However, no real progress was made. On 17 November 2021, Mishcon de Reya sent Mr Kerr a letter before action. Between 30 November 2021 and 9 December 2021, Mr Kerr and Mr Perelman exchanged messages discussing a proposed lawyer-to-lawyer settlement, but this did not bear fruit.