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

As I have already noted, Mr Kerr contends that neither the SPA nor the ROFR were legally binding agreements. He says they were no more than indicative heads of terms in respect of each proposed agreement. The two main points that Mr Kerr made in support of that contention were (i) the parties had no intention to create a legal relationship through either the SPA or the ROFR and (ii) the SPA was too uncertain to constitute a binding agreement.

There was no real dispute as to the applicable legal principles.

In relation to the issue whether there was an intention to create legal relations:

As to uncertainty and vagueness:

Before moving to deal with the facts of this case, I should also add that there was no suggestion in any pleading, or otherwise before or at the trial until Mr Kerr’s written closing submission, that the Court should apply anything other than English law to the issue of what was required for a contract to binding. Permission was given for evidence to be given on a narrow issue relating to the interpretation of the Model Code appended to the TISE Listing Rules as a matter of Guernsey law, (Footnote: ³) but not more generally. However, in his written closing submission, Mr Kerr suggested that the court should be “guided by the applicable laws of formation and settlement of contracts under Guernsey law”, suggesting that certain answers he contended had been given by the Guernsey law experts in the course of addressing questions focussed on the Model Code should be taken as evidence of the law of Guernsey in relation to the “formation and settlement” of a contract. That was not a course open to him in closing, given that it had not been pleaded, or previously suggested at all. What Lord Leggatt termed the “default rule” in Brownlie v FS Cairo (Nile Plaza) LLC [2022] AC 995 “treats English law as applicable in its own right where foreign law is not pleaded” (paragraph 112). It is up to each party to choose whether to plead a case that a foreign system of law is applicable, but if neither party does so the Court will apply its own law (see paragraphs 113-115). Here, the only matters in relation to which the law of Guernsey was mentioned in the parties’ statements of case were (i) the point of interpretation of the Model Code, where expert evidence was permitted, and (ii) the question what was sufficient under Guernsey law to transfer the PGC Shares (on which, as I have set out above, the parties exchanged positions, which turned out to demonstrate a large measure of agreement, such that permission to rely on expert evidence was not sought). There was no suggestion in any statement of case that the law of Guernsey was the governing law of the SPA or of the ROFR, or indeed that the law of Guernsey as it relates to the formation (or settlement) of contracts was any different from the law of England. In addition, permission for expert evidence was not sought or given in relation to any such issue.

I should also say that, in any event, the short passage of Mr Bamford’s evidence relied upon by Mr Kerr in this respect did not support a contention that the law of Guernsey was any different from English law on the question of formation of contracts. Mr Bamford said that what he referred to as the “formalities” of entering into a contract under Guernsey law were “similar to English law”, but in doing so he was not suggesting any particular degree of formality was required under Guernsey law; rather, he was referring to the necessary elements of an agreement that had to be in place, and that elements such as the identification of the parties had to be sufficiently certain. I did not understand him to be suggesting that the law of Guernsey requires anything different from the law of England in such respects. Nor, for the sake of completeness, did anything Mr Cordle said suggest there was any material difference between Guernsey law and English law on such an issue.