CW & CG Claims Limited v Clarkewood Limited & Anor.

A contract is construed by identifying what was expressly agreed and then determining objectively what bargain the parties made, having regard to context and commercial reality. Terms are not added merely because they would be commercially desirable. A term is implied only where necessary to give the contract commercial or practical coherence.

Where an agreement entitled an introducer to 50% of commission from successful claims, the entitlement covered claims falling within the agreed commercial scope, including claims not separately identified at introduction and Plevin claims. The principal’s overheads could not be deducted without agreement. Deliberate manipulation of records to avoid accounting constituted breach. The claim against an agent for procuring breach failed for want of the necessary intention.

The claimant introduced PPI and packaged bank-account claims to the first defendant under an oral agreement made through discussions and WhatsApp messages. The agreement provided for an equal division of commission received from successful claims and for start-up funding to be repaid from the claimant’s share.

The dispute concerned whether RBS claims, additional claims, Plevin claims and the first defendant’s overheads fell within the agreement. The claimant also alleged deliberate manipulation of CRM records, breach of an implied term and fiduciary duty, and procurement of breach by the second defendant, who had acted as the first defendant’s agent.

1. Contract terms. The court determined the express terms by making factual findings about the discussions and contemporaneous messages, then construing the bargain objectively in its commercial context. The agreement included RBS claims, Additional Claims and Plevin claims. There was no agreement, express or implied, permitting deduction of the first defendant’s overheads from the claimant’s 50% share. The start-up loans were repayable from that share.
2. Breach and manipulation. The first defendant breached the agreement by failing to account on that basis. The evidence concerning apparently cancelled claims, duplicate claim references and successful claims attributed to the first defendant provided sufficiently strong evidence that BrightOffice data had been deliberately manipulated to avoid payment to the claimant. The industry-conversion evidence was treated as neutral because its application and reliability were uncertain.
3. Implied term and fiduciary duty. Applying Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Limited, a term was not implied merely because it would be desirable. The express bargain remained commercially coherent without a general obligation to act in good faith or fairly. The relationship was contractual, not fiduciary.
4. Remedy. The proper relief was an account and inquiry into the amount payable, with credit for the loans. The existing spreadsheets were unreliable because of the manipulation, and the conversion-rate evidence did not provide a sufficiently certain basis for assessment.
5. Procurement. The claim against the second defendant failed. The agency principle in Said v Butt did not automatically defeat the claim, since the alleged misrepresentation to the principal could potentially have been outside the protection of the principle. However, the claimant failed to prove that the second defendant knowingly misrepresented the agreement to the first defendant with the intention of procuring a breach.

First-instance decision. No appellate history was stated in the judgment.