Rosserlane Consultants Ltd & Anor v Credit Suisse International

In a lost-chance claim, the claimant must prove the hypothetical events on which the alleged chance depends. Where a prospective purchaser would not proceed without a site visit, the claimant must prove that the visit would have been allowed or procured. An established policy against such access cannot be displaced by speculation about a particular purchaser or commercial realities. Appellate courts should respect a trial judge’s assessment of the totality of witness evidence, contemporaneous documents and comparable events. A point that was not raised below, included in the grounds of appeal or within permission will not ordinarily be entertained.

The appellants owned an interest in a company holding a 51% interest in an Azerbaijani oil and gas venture. Under a participation agreement, the respondent bank could force a sale after a specified date. The bank exercised that power and the interest was sold to Berghoff Trading Limited for $245 million.

The appellants alleged that the bank had failed to approach Gazprom Neft and that, had it done so, Gazprom Neft would have made a substantially higher offer. The Chancery Division rejected the claim. It held that no relevant duty arose and, alternatively, that the appellants had not lost the alleged chance because Gazprom Neft would not have proceeded without a site visit, while the owner’s established policy prevented access before an acceptable final offer. The appeal concerned whether that factual conclusion was justified and whether the bank would have overcome the policy.

1. Appeal dismissed. The court decided the appeal on the second issue and found it unnecessary to determine whether the bank owed a duty to seek the best price reasonably obtainable.
2. The trial judge was entitled to find that Dr Leshkasheli and CEG had a policy of refusing site visits until a final offer acceptable in price and terms had been made. That conclusion was supported by the totality of the evidence, including Gazprom Neft’s evidence, Dr Leshkasheli’s evidence, contemporaneous correspondence and the conduct of the first and second sale processes.
3. Gazprom Neft would have required a site visit before making a firm priced offer. The appellants had not proved that an exception would have been made for Gazprom Neft. The evidence did not show that the owner’s concerns about SOCAR would have been assuaged by Gazprom Neft’s identity, and comparable requests from other substantial bidders had been refused.
4. The appellants could not establish that the bank would have overridden or procured an exception to the policy. That contention was raised for the first time on appeal, did not appear in the grounds of appeal and did not fall within the permission granted. In any event, the evidence pointed against it and there was no finding below that such intervention would have occurred. The burden of proving that hypothetical event lay on the appellants: Allied Maples v Simmons and Simmons [1995] EWCA Civ 17.
5. Since the appellants failed to prove that Gazprom Neft would have made a firm offer, they had not established the alleged lost chance. The appeal therefore failed without determination of the alternative duty issue.

• Court of Appeal (Civil Division): The appeal from the Chancery Division was dismissed. The court upheld the trial judge’s conclusion that the appellants had not proved the alleged lost chance because Gazprom Neft would not have proceeded without a site visit and no exception had been established.
• Chancery Division: Mr Justice Peter Smith found for the bank, holding that no relevant duty arose and, alternatively, that the appellants could not establish the loss of a chance to secure a bid from Gazprom Neft.