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

Mr Kerr pleaded that, subsequent to the SPA being entered into, he and Mr Perelman entered into an agreement that settlement was to be effected electronically using the services of JP Morgan, or alternatively that the terms of the SPA was varied to the effect that settlement was to be effected electronically using the services of JP Morgan. The pleaded bases for this were (i) “oral discussions on dates unknown during June and July 2021” and (ii) certain WhatsApp messages in the same period.

This point was not expressly pursued by Mr Kerr in his submissions at the trial. There was, in any event, no basis for it. The allegation based on oral discussions was, as set out above, vague, and there was no reference to any such discussions in Mr Kerr’s witness statement. There was, in short, no evidence of any alleged oral discussion in which such an agreement, or variation, was reached.

As to the WhatsApp messages identified in the pleading, they do not support the allegation. There is no doubt that, in those messages, Mr Kerr and Mr Perelman were discussing potential modes of settlement, and that Mr Kerr proposed using JP Morgan. Mr Perelman indicated he was content to use JP Morgan in principle, but that did not constitute an agreement that settlement could only be done through JP Morgan, still less an agreement that settlement would be effected electronically through JP Morgan. In fact, in one of the messages on which Mr Kerr relied, dated 14 July 2021 (at 15:36), Mr Kerr described the proposed JP Morgan process to Mr Perelman as: “To them it’s a normal off market physical settlement” (underlining added) and saying it would involve Mr Perelman sending the certificate and share transfer form to JP Morgan. Similarly, in an exchange on 19 June 2021, in response to Mr Perelman asking (at 15:26) “how do we settle mechanically – I have the paper certificates”, Mr Kerr responded (at 15:31) “JP Morgan can receive with a share transfer.”

Also, when Mr Kerr emailed JP Morgan on 29 July 2021 asking whether they could arrange settlement on receipt of the share certificate from Mr Perelman, he also said “Alternatively I have to use a lawyer as an escrow agent”. That is inconsistent with the suggestion that he and Mr Perelman had come to a binding agreement that the transfer would be done electronically through JP Morgan.

In short, there was no variation to the SPA (or otherwise an agreement) either that the transaction had to be settled through JP Morgan or that it had to be settled electronically.