Blacklion Law LLP v Amira Nature Foods Ltd & Anor

An appellate court may entertain a point not pleaded or taken at trial, including a pure point of law, but admission remains discretionary. The court must assess the overall balance of justice, including prejudice, whether the point would have altered the evidence or conduct of the trial, the need for finality, and whether a remittal would be required.

A contractual fee payable in either cash or shares remains unpaid where neither cash nor freely saleable shares have been provided. A company’s election to issue shares is not irrevocable unless the retainer supports that construction. A director’s failure to plead the Said v Butt limitation will not necessarily defeat a claim for inducing breach of contract where the point was not taken below and was addressed, albeit obliquely, in closing submissions.

Blacklion Law LLP claimed fees under an Avatar Retainer from Amira Nature Foods Ltd and damages from its chairman, Mr Karan Chanana, for procuring Amira’s breach. The High Court held that a fixed fee of £300,000 was due as a debt, that Amira had not paid it by issuing restricted shares which could not be sold, and that Mr Chanana was liable in tort: [2022] EWHC 1500 (Ch). The appeal challenged the construction of the retainer, the implied obligation to facilitate sale of the shares, the debt and interest awards, evidential and pleading decisions, and the finding against Mr Chanana.

The central appellate issues were whether the fee had been paid, whether objections based on pleading and expert evidence could be raised for the first time on appeal, and whether the unpleaded Said v Butt requirements required the tort claim to be set aside.

1. Appeal dismissed. The Avatar Retainer provided alternative means of satisfying the £300,000 fixed fee: cash or ordinary shares which could be sold freely in the open market. Neither means had been utilised. The restricted, unsaleable shares therefore did not discharge the fee, which remained due as a debt.
2. The retainer did not make Amira’s election to issue shares irrevocable. The alternative payment mechanism was not complied with, so there was no basis for limiting Blacklion to a damages claim. The implied-term analysis was unnecessary to the result, although the judge was entitled to conclude on the evidence that Amira had to do what was reasonably necessary to enable sale of the shares.
3. Objections that the relevant matters were unpleaded, or required expert evidence of United States law, were raised too late. The issue had been joined in the pleadings, was understood at trial, and the parties had proceeded without expert evidence after the need for it had been considered. No material prejudice had been shown. The court applied the principles illustrated by Westbrook Resources Ltd v Globe Metallurgical Inc ([2009] EWCA Civ 310) and the authorities concerning new points on appeal.
4. The contractual-interest challenge fell away because the fixed fee was a debt, not unassessed damages.
5. The challenge to Mr Chanana’s liability also failed. The requirements associated with Said v Butt had not been expressly pleaded and were not properly raised below. Applying the overall-balance-of-justice approach, the court declined to admit the new point. It would have affected the conduct and evidence at trial, the findings were incomplete, and a remittal would have been necessary. Ground 1 concerning Mr Chanana’s excluded evidence was academic.
6. The remaining factual criticisms, including those concerning the transfer agent’s evidence and the absence of expert evidence, were either unfounded or too late.

• Court of Appeal (Civil Division) — The appeal from the High Court was dismissed. The court upheld the orders that the £300,000 fixed fee remained due as a debt, contractual interest was payable, and Mr Chanana was liable for procuring Amira’s breach.
• High Court of Justice, Business and Property Courts — HHJ Paul Matthews held that Blacklion was entitled to the fixed fee and interest and that Mr Chanana was liable in tort: [2022] EWHC 1500 (Ch). His separate evidential ruling was cited as [2022] EWHC 2370 (Ch).