Global Asset Capital, Inc & Anor v Aabar Block SARL & Anor

On an application for summary judgment or strike out, the court must assess whether the claim has a realistic prospect of success without conducting a mini-trial. A contract may arise from a later oral agreement relating to terms originally expressed to be subject to contract. The fact that further terms remain to be agreed does not necessarily make the bargain void for uncertainty where the parties intended to be bound and objective criteria or implied terms can give effect to it.

For an alleged contract formed by telephone, the meaning of the words used is ordinarily assessed by reference to the background and the conversation, rather than subsequent events. A claim for intimidation must plead a threat of unlawful conduct, but the defect may be cured by amendment where the amended case has a realistic prospect of success.

Global Asset Capital, Inc and Glenn Maud claimed that an agreement had been concluded with Aabar Block SARL and Aabar Investments PJS for the purchase of Aabar’s rights relating to the Marme and Edgeworth groups. They also claimed that Robert Tchenguiz had procured a breach of that agreement and had committed the tort of intimidation.

The Aabar defendants and Mr Tchenguiz applied for summary judgment or strike out. They argued that no binding agreement could have been made, that no agreement was in fact made, and that the pleaded tort claims could not succeed. The central questions were whether the contractual claim had a realistic prospect of success and whether the intimidation claim was adequately pleaded.

1. Applications refused. Global’s contractual claim had a realistic prospect of success. The claim was therefore neither struck out nor suitable for summary judgment.
2. The defendants’ argument that the undated letter could not be accepted because it was marked subject to contract misconceived the pleaded case. The case was that the parties later reached an agreement during the 6 May telephone conversation. A letter initially subject to contract does not prevent a later binding agreement on its terms.
3. Uncertainty arguments concerning the purchasing and selling entities, waivers and releases, and the need for further documentation could not be resolved summarily. Parties may conclude a binding bargain while leaving further terms to be agreed, provided the bargain is workable or capable of enforcement by objective criteria or implied terms.
4. Because the application proceeded on the assumption that Global’s account of the 6 May call was correct, the defendants could not rely on later evidence to undermine that account. There was at least a realistic prospect that the meaning of the alleged oral agreement had to be determined from the background and the words used during the call, without reference to subsequent events.
5. The claim for procuring breach of contract could proceed. Global had a realistic prospect of proving the existence of a contract, Mr Tchenguiz’s knowledge of it, his intention to interfere, interference causing loss, and the resulting loss.
6. The original intimidation pleading was defective because it did not allege that the threatened litigation involved unlawful conduct. Permission was granted to amend the pleading to allege that the threatened proceedings would knowingly be groundless and would amount to abuse of process. With that amendment, the claim had a realistic prospect of success.