CA-2024-001924 - [2025] EWCA Civ 1206

The ground of appeal in part suggests that the pre-existing relationship between the individuals involved ought to have been taken into account, but was not, in the construction of the SHA. It seems to me, however, that the thrust of Mr Kulkarni’s case is to the effect that the relationship was relevant to whether the various breaches were “capable of remedy” on the facts. At any rate, I have not identified any way in which the relationship could have affected the construction of the contract in a way that would have been relevant to these proceedings.

I also, and more importantly, consider that the Judge was justified in concluding, for the reasons he gave, that the “background relationship between some or all of the parties” was “irrelevant to remediation”. While Mr Lewis may have become involved with the Hospital as a result of friendship with Mr Kulkarni, the SHA was in the end, on the Judge’s findings, the product of a “business negotiation” in which Mr Lewis had acted “as a commercial investor” “in his own commercial interests” and, in so doing, “secured control of the board, a reduction in Gwent’s capital investment and the majority of the A shares”. Further, the SHA took the form of a commercial agreement, included no obligation of good faith and was expected to apply to shareholders other than Mr Kulkarni and Gwent.

In the circumstances, the SHA had to be viewed as what it was, a commercial agreement, when assessing remediability. I agree with the Judge that the pre-existing relationship between Mr Kulkarni, Mr Lewis and Mrs Lewis did not matter.

This issue is raised by grounds 6 and 7 of the grounds of appeal.