Court of Appeal provides a timely reminder of the principles relating to clear and unambiguous contractual negotiations
In Global Asset Capital, Inc and another v Aabar Block SARL and others the Court of Appeal found that the High Court had erred in its finding that in assessing whether a contract had been concluded, it need not take account of inconsistent subsequent communications between the parties following the arguable conclusion of a contract during a telephone call that had followed a "subject to contract" offer letter.
The appeal arose out of a claim brought by Global Asset Capital, Inc (Global) against Aabar Block SARL (Aabar) in June 2015 for enforcement of a contract that it alleged had been entered into between the parties on 6 May 2015, pursuant to which Aabar agreed to sell Global a package of rights and other debt interests for $250 million. Global sought a declaration that the contract was valid and specific performance of the terms of the contract.
At first instance, Aabar applied for summary judgment of the claim on the basis that Global's claims had no real prospect of success. The judge dismissed the application for summary judgment and Aabar appealed.
In coming to its judgment, the Court of Appeal considered the following timeline, which was agreed by the parties for the purpose of the appeal:
On 23 April 2015, Global sent Aabar an offer letter marked "without prejudice – subject to contract" pursuant to which Global offered to pay $250 million for a package of rights and debt interests (Offer Letter).
On 6 May 2015, in the course of a telephone conversation, a representative of Aabar said that it accepted the offer subject to two conditions: (1) that Global re-send the offer letter in "open and binding form"; and (2) that satisfactory evidence be provided of Global's ability to fund the transaction (together, the Conditions).
On 7 May 2015, Global sent a text message saying that "fully committed binding terms and funding commitment" would follow later that day or the following day. An email reiterating this message was sent later that day.
On 9 May 2015, Global sent an email attaching what were stated to be "binding and committed letters of finance and offer". That letter included a number of key terms that had been included in the Offer Letter, but also included a number of further and different terms. The covering email noted that Global looked forward to receiving confirmation of the acceptance of its offer.
On 10 May 2015, Aabar emailed to say that the offer had not been accepted.
The issues considered by the Court of Appeal were as follows:
(1) whether the High Court was wrong to conclude that it should not take account of the parties' communications immediately following the 6 May 2015 telephone call when considering whether a contract had been made on that date.
(2) whether the High Court was wrong to conclude that Global had real prospects of establishing their case that the contract was concluded on 6 May 2015.
(3) whether the judge was wrong to conclude that Global's case that the conditions were satisfied had real prospects of success.
Should subsequent communications be considered?
The Court of Appeal revisited established principles in considering whether subsequent communications should be considered when assessing whether a contract had been formed. Referring to the decision in Hussey v Horne-Payne (1878) 4 App Cas 311 it confirmed that when deciding whether a contract has been made, the court will look at the whole course of negotiations. The rationale for this approach was articulated in Hussey, namely that focusing on one part of the parties' communications in isolation, without regard to the whole course of dealing, can give a misleading impression that the parties had reached agreement when they had not.
The Court of Appeal also confirmed that authority establishes that this rationale applies regardless of whether the negotiations are conducted in writing, orally or by conduct (or indeed by a combination of these).
The Court of Appeal also considered the relevance of subsequent communications to the interpretation of a contract once formed. It confirmed the established principle that one "cannot interpret the meaning of words used in a contract by reference to what happened later". Similarly, once formed, further negotiations cannot "get rid of the contract already arrived at" without consent of both parties. However, in this case, the court was considering the primary issue, which was whether a contract had been formed in the first place.
Consequently, on the first issue, the Court of Appeal found that the High Court had erred in concluding that it would not take account of subsequent communications when considering whether a contract had been made on 6 May 2015.
Did Global have real prospects of establishing its case that the contract had been concluded?
The Court of Appeal considered whether, even if the subsequent communications were ignored, Global could establish that the contract had been concluded during the telephone conversation on 6 May 2015. It concluded that Global could not.
Global's primary pleaded case was that the offer set out in the Offer Letter had been accepted on the telephone by Aabar's representative. However, the fact that the Offer Letter had been marked "without prejudice – subject to contract" was effectively the final nail in the coffin for this argument. The Court of Appeal referred to well-established principle that dealing on a "subject to contract" basis negates contractual intention, in effect rendering the offer incapable of being accepted.
Global put forward an alternative analysis namely that Aabar had made an oral offer that it was prepared to sell the package of rights and debt interests on the terms of the Offer Letter subject to satisfaction of the Conditions, which had been orally accepted by Global. The Court of Appeal did not accept that this was Global's pleaded case and even if it were, there was nothing to show that the words used during the telephone conversation could have amounted to an offer and acceptance.
Furthermore, there was nothing to show any intention that the "subject to contract" status of the dealings had been waived. The agreement to waive this status must be unequivocal. The fact that there was a condition to resend an offer in "open and binding" terms was held to be inconsistent with there already being an agreement in open and binding terms.
Taking into consideration the subsequent communications, it became yet clearer that no contract had been concluded on 6 May 2015. The offer letter sent on 9 May referred to a "proposed transaction"; required agreement that Aabar was willing to proceed with the proposed transaction; set out an expiry term for the offer; put forward a number of materially different terms to the Offer Letter; and included an exclusivity period, all of which pointed to the fact that the Offer Letter could not have been accepted.
On the second issue, the High Court had erred in concluding that Global had a real prospect of establishing that the contract was made on 6 May 2015.
Did Global's case that the Conditions were satisfied have real prospects of success?
As regards the first Condition, which required Global to "resend the Offer Letter in 'open and binding form'", the Court of Appeal found that Global had no real prospects of succeeding on its case that the Condition had been satisfied: "resending" meant that the same letter should be sent again; however, there were materially different terms in the 9 May letter which created a new offer; and the 9 May letter was stated to be "subject to" agreement on final form documentation, which meant that it did not fulfil the requirement that it be "binding".
As regards the second Condition, which required "satisfactory evidence of an ability to fund the transaction", the funding letter did not provide satisfactory evidence. The funder's intention to provide funding was subject to a number of matters, including due diligence. As such it was a non-binding indication of a potential ability to fund the transaction not an actual ability. This was not "satisfactory evidence" on either an objective or subjective basis.
The Court of Appeal therefore concluded that Global had no real prospect of showing that the Conditions were satisfied.
While the Court of Appeal's decision confirms established principles about the significance of the whole course of dealings when establishing whether a contract has been formed, and the effect of denoting such dealings as "subject to contract", it serves as a timely reminder about how to progress contractual negotiations so as to avoid uncertainty and potential disputes later on.
It is worth remembering that in order to avoid any uncertainty about the point at which a contract has been formed, all relevant pre-contractual correspondence and drafts of contractual documentation should be marked "subject to contract". The Court of Appeal's decision is a reminder that this status can only be waived if there is an unambiguous agreement between the parties to do so.
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