Iconic Sports Eagle Investment, LLC v John Textor

Abuse of process in phased litigation requires a broad, merits-based assessment of whether raising the point later misuses the court’s process. The fact that a point could have been raised earlier is insufficient. A new legal argument may be permitted where the litigation was expedited, the argument does not introduce a new cause of action, and any prejudice can be addressed by costs.

Specific performance is a flexible and discretionary equitable remedy. Where a defendant has repudiated the contract, and the claimant has kept it alive, the claimant need not prove readiness and willingness to perform during the period of repudiation. It is sufficient to establish readiness and willingness at the date of the order for specific performance.

Iconic sought specific performance of a put option agreement concerning shares in Eagle Football Holdings Limited. At a preliminary trial, the Commercial Court held that Iconic had to be ready and willing to perform on 26 July 2024, but found that John Textor was not ready and willing to perform on that date. The Court of Appeal dismissed one ground of appeal and remitted the remaining issues.

The remitted issues were whether Iconic could advance a new argument based on Snell’s Equity, and whether the proposed test was legally correct. Iconic contended that, following Mr Textor’s repudiation, it was sufficient to be ready and willing to perform when the order for specific performance was made.

1. Abuse of process. The court permitted Iconic to advance the new argument. The governing approach is the broad, merits-based judgment identified in Johnson v Gore Wood & Co [2002] 2 AC 1 and approved in Test Claimants in the FII Group Litigation v Revenue and Customs Commissioners [2022] AC 1. It is insufficient that the point could have been raised earlier. The court must decide whether it should have been raised earlier and whether raising it later is abusive.
2. The doctrine can apply to separate stages of the same litigation, but doing so is unusual. This was expedited phased litigation. Iconic advanced a legal argument, not a new cause of action, and the issue did not require a lengthy factual investigation. Mr Textor had notice of the changed position, and any financial prejudice could be addressed through costs. Preventing the point would risk the determination of a potentially decisive issue without the Court of Appeal having regard to it.
3. Specific performance. The principle stated in Snell’s Equity at [17-038], supported by Davis v Spalding (1974) 231 E.G. 373, was held to state the correct test in this case. Where the defendant has repudiated the contract, the claimant has elected to keep it alive, and the claimant seeks specific performance, the claimant need not show readiness and willingness to complete during the period from repudiation to the order. Readiness and willingness at the date of the order is sufficient.
4. The rule is equitable rather than contractual. Although an unaccepted repudiation leaves the contract alive for contractual purposes, the question whether the claimant remained contractually obliged to perform is distinct from the equitable question whether specific performance should be granted. The remedy remains flexible, discretionary and fact-sensitive.
5. The court did not decide whether the same principle applies where the defendant has not repudiated the contract. On the facts, Mr Textor’s repudiation was found at the preliminary trial and had not been accepted by Iconic. The Snell Point was therefore engaged, subject to Iconic proving that it was ready and willing to complete at the date of the order.
6. Further submissions were directed on the future conduct of the proceedings, including whether directions were required to determine Iconic’s present readiness and willingness.

• Commercial Court: The preliminary issues were decided by HHJ Pelling KC in [2025] EWHC 2620 (Comm).
• Court of Appeal: Ground 1 was dismissed in a judgment handed down on 25 March 2026. Ground 2 was remitted to the Commercial Court by order dated 30 January 2026.
• Commercial Court: The present judgment permitted Iconic to advance the Snell Point and held that the test in Snell’s Equity at [17-038] was legally correct.