Imamovic v Cinergy Global Trading Ltd

A contract governed by English law must be construed according to its terms. A collaboration agreement does not create a partnership where the parties contemplate a future corporate vehicle and expressly exclude partnership and agency. Profit-sharing arrangements and loose references to a consortium, joint venture or partners do not by themselves establish an English-law partnership or a holding out sufficient to bind one party to another’s contract. Agency, ostensible authority and ratification likewise require evidence that the alleged principal authorised or adopted the transaction. Fresh evidence on appeal should not be admitted where it could have been obtained at trial and would not probably affect the outcome.

Dr Imamovic claimed damages from Cinergy Global Trading Ltd under a contract made with Energa SA. He alleged that Cinergy was bound because it was in partnership with Energa and the Agricultural Bank of Greece, or because Energa had authority to contract for Cinergy, had held itself out as doing so, or because Cinergy later ratified the contract.

Cooke J rejected those claims in [2006] EWHC 323 (Comm). The application for permission to appeal challenged the construction of the contract, the findings on partnership, holding out, agency and ratification, and sought to introduce a Greek judgment and expert evidence concerning a possible kinopraxia.

Lord Justice Hooper refused permission to appeal.

1. Construction of the contract. The July 2001 contract was governed by English law and, on its terms, imposed obligations on Energa alone. Even if a kinopraxia existed under Greek law, that could not alter the construction of the contract or make Cinergy a contracting party.
2. Partnership. The joint co-operation agreements contemplated a future joint venture agreement and corporate vehicle. Their express terms excluded partnership, agency and the power of either party to bind the other. The parties were not carrying on a business in common with a view to profit within the meaning of the Partnership Act 1890. The later profit-sharing arrangement operated as a contractual allocation of profits and losses, not as a partnership. The non-binding memorandum of understanding created no legal obligations, and conduct pursuant to it did not create a partnership.
3. Holding out and agency. References to a consortium, joint venture or partners, shared names and letterhead showed collaboration but did not unambiguously represent an English-law partnership or agency. The appellant understood that his contract was with Energa alone and therefore could not establish reliance. Energa had neither actual nor ostensible authority to bind Cinergy, and there was no ratification or adoption because the alleged conversations were rejected and no later conduct accepted liability.
4. Fresh evidence. The court doubted whether the proposed evidence satisfied [1954] 1 WLR 1489. Assuming that the Greek judgment and expert evidence were admissible, they would not probably have influenced the outcome. The appellant knew of the memorandum and could have obtained evidence of Greek law at trial. The decisive issue was the English-law construction of the July 2001 contract, while the alternative cases had failed on the facts.
5. The challenges to the trial judge’s credibility and factual findings had no real prospect of success. The findings were supported by overwhelming evidence. The claim for a share of Cinergy’s profits therefore failed.

1. Court of Appeal (Civil Division): Permission to appeal from Cooke J’s decision was refused.
2. High Court (Commercial Court): Cooke J rejected the claims that Cinergy was bound by the July 2001 contract through partnership, holding out, agency or ratification in [2006] EWHC 323 (Comm).