The Hon Mr Justice Sales:
Introduction
- This is a claim brought by Law Debenture Trust Corporation plc ("the Trustee"), in its capacity as trustee in relation to certain bonds under a Trust Deed in amended form dated 15 November 2002 ("the Trust Deed"). The Trustee is suing to vindicate the rights of the holders of those bonds. The Interested Party ("Concord") appears as a representative bondholder.
- The bonds in question were originally issued in 1999 by a company incorporated in the Netherlands called Elektrim Finance B.V. ("Elektrim Finance"), which was a subsidiary set up the First Defendant ("Elektrim") as a vehicle for raising finance for Elektrim. Elektrim is a company incorporated in Poland with a range of business interests in Poland. The bonds were issued as convertible Eurobonds for a principal amount of the zloty (or PLN) equivalent of 440,000,000, bearing interest at 3.75% per annum. Elektrim assumed obligations as guarantor of the payment obligations of Elektrim Finance under the bonds.
- In 2002, Elektrim and Elektrim Finance were in financial difficulties and could not go on meeting their obligations in respect of the bonds, as they then stood. Against that background, they renegotiated the terms of the bonds with the Trustee and the bondholders. The redemption or face value of the bonds was restated as 510,000,000 (to reflect sums then due in respect of the bonds) and the bondholders agreed to accept a lesser rate of interest, below the current market rates, which Elektrim and Elektrim Finance would be able to service. As a quid pro quo Elektrim agreed subject to detailed terms set out in condition 6(k) of the renegotiated bond conditions appended to the Trust Deed ("the Conditions") - to pay a "Contingent Payment" to the bondholders after the end of 2005, calculated by reference to the fair market value of Elektrim's assets at that time. The basic arrangement, therefore, was that the bondholders would accept lower interest payments over a period of years, thereby assisting Elektrim to survive as a going concern, in return for participating in a share of the value of Elektrim's assets at the end of that period. Accordingly, if Elektrim's business interests prospered over that period, the bondholders would share in their growth in value. Under condition 6(k), the Contingent Payment was to be calculated as the result of application of a formula which depended on the assessment of the "Fair Market Value" of assets of Elektrim, as determined by two leading investment banks (one chosen and appointed by Elektrim and the other chosen by the Trustee and appointed by Elektrim at Elektrim's expense).
- In the event, in circumstances reviewed below, the principal and interest due under the bonds was fully paid off and the bonds were finally redeemed only on 25 April 2008. Elektrim did not implement the machinery in condition 6(k) for the calculation and payment of the Contingent Payment. No investment banks were appointed at the relevant time, there was no assessment of the Fair Market Value of the assets of Elektrim performed at the relevant time and no calculation of any Contingent Payment which might be due was carried out at the relevant time. Accordingly, the Trustee's primary claim is that Elektrim is liable for breach of contract in failing to implement the machinery in condition 6(k) and is liable to pay the Trustee (for the bondholders) damages assessed by reference to the loss of a chance of what the bondholders might have received by way of a Contingent Payment had the machinery in condition 6(k) been operated and investment banks been appointed to make the relevant assessment of Fair Market Value of Elektrim's assets at the proper time.
- Elektrim's principal response to this claim is to argue that there was no breach of contract, because on the proper construction of condition 6(k) a relevant pre-condition for triggering the requirement for operation of the machinery set out in that provision (namely, as Elektrim contends, that the bonds should in fact have been finally redeemed by the "Final Redemption Date" of 15 December 2005 at the latest) had not been fulfilled. If this defence of Elektrim is not accepted, the parties were agreed that the relevant date according to condition 6(k) at which the value of Elektrim's assets should be determined and any Contingent Payment calculated (called "the Contingent Payment Determination Date" "the CPDD") was 11 July 2006. Elektrim also disputes the value which the Trustee contends investment bankers would have placed on the assets of Elektrim as at 11 July 2006 if the machinery in condition 6(k) had been implemented, and submits that no Contingent Payment would have been found to be payable as at that date according to the terms of condition 6(k).
- In case it failed in its primary claim, by reason of Elektrim's response based on the construction of condition 6(k), the Trustee also presented an alternative case. This was to the effect that Elektrim had contractual obligations under the bond conditions to pay out and redeem the bonds or ensure that they were paid out and redeemed by 15 December 2005, and that if those obligations had been met the alleged pre-condition for the operation of condition 6(k) would have been satisfied. On this argument, the Trustee contended that Elektrim breached those distinct contractual obligations and that it is again liable to pay damages assessed by reference to the loss of a chance of what the bondholders might have received by way of a Contingent Payment had the relevant payment obligations been met at the proper time (with the result that the machinery in condition 6(k) was brought into operation, and investment banks appointed to make the relevant assessment of Fair Market Value of Elektrim's assets).
- Elektrim had a distinct reply to this alternative claim. It contended that the Trustee had already sued it to a judgment dated 14 September 2005 given by Hart J in the English High Court ("the Hart J judgment") in respect of breach of its obligations under the Conditions to pay out and redeem the bonds or ensure that they were paid out and redeemed, but in those proceedings the Trustee had not claimed damages in respect of non-payment of the Contingent Payment and was now precluded by the doctrine of res judicata from suing in later, separate proceedings for additional damages based on the same breach of those obligations. Elektrim's contentions as to the low value of its assets as at 11 July 2006, such that no Contingent Payment would have been due at that time, are also relevant to determination of this alternative claim by the Trustee.
- In the present proceedings, the parties agreed figures for the fair market value of a range of assets held by Elektrim as at 11 July 2006. Areas of dispute remained in relation to items under the following heads: (i) a holding of 226,079 shares in (about 48% - in fact 47.9998% - of the issued share capital of) Polska Telefonia Cyfrowa Sp. z o.o. ("PTC"), a leading company providing mobile telephone services in Poland ("the PTC shares"); (ii) a holding of 49% of the issued share capital of another Polish company, Elektrim Telekomunikacja Sp. z o.o. ("ET"); (iii) a substantial debt due from ET to Elektrim in the sum of PLN 216,421,000 ("the ET Receivable"); (iv) a further indirect holding of about 1.5% (in fact, 1.4648%) of the issued share capital in PTC, this being what was in substance Elektrim's share of a holding of about 3% of PTC's issued share capital owned by a company called Carcom Warszawa Sp. z o.o. ("Carcom") of which Elektrim owned 49%; (v) a holding of about 43% of the issued share capital of another Polish company, called Zespol Elektrowni Patnow-Adamow-Konin S.A. ("PAK"), which carried on business operating three electricity generating plants (known as Patnow I, Adamow and Konin); (vi) an area of real estate in Warsaw called Port Praski, owned by Elektrim through a subsidiary holding company; and (vii) various miscellaneous receivables and investments owned by Elektrim. The values which investment banks, if instructed to carry out the valuation exercise contemplated by condition 6(k), might have attributed to these items as at 11 July 2006 is examined later in this judgment.
The Trust Deed
- Wojciech Janczyk ("Mr Janczyk") gave evidence about the negotiations which culminated in agreement on the terms of the Trust Deed. He had been the President of the Management Board of Elektrim at the time of the re-structuring in late 2002 of the bonds which had been issued by Elektrim Finance in 1999. He was appointed to that position on 16 September 2002, after the Management Board of Elektrim had filed a bankruptcy petition in respect of Elektrim with the Polish courts on 13 September 2002. His task was to seek to negotiate new terms with the bondholders to save Elektrim from bankruptcy. An earlier attempt to agree a restructuring of the bonds in June 2002 had broken down.
- Mr Janczyk sought to negotiate for time for Elektrim to be able to sell off its main assets (its interests in PTC and ET and in PAK), which was expected would allow it to redeem the bonds in full. Elektrim agreed to rights of participation by the bondholders and Trustee in management decisions of Elektrim and to provide them with security over the assets of Elektrim. A lower rate of interest (2%) was negotiated. Finally, as additional compensation for the bondholders, the Contingent Payment provision was also agreed, which was linked to the value of Elektrim's assets once the bonds had been fully redeemed. It was designed to enable the bondholders to share in the value created in Elektrim's assets above a threshold of 160 million.
- The parties to the Trust Deed are Elektrim Finance (as the issuer of the bonds), Elektrim (as guarantor of the bonds) and the Trustee. The Trust Deed and the Conditions are governed by English law. Under the Trust Deed, the Trustee assumes responsibility and authority to act to enforce the terms of the bonds to which it relates in favour of the bondholders from time to time. By clause 2.2 of the Trust Deed, Elektrim Finance covenanted with the Trustee that it would pay or procure to be paid the principal and interest due in respect of the bonds on the final maturity of the bonds provided for in the conditions (15 December 2005) or on such earlier date as the bonds might become due and payable under the terms set out in the conditions. Clause 2.3 provided, in relevant part, as follows:
"The Guarantor covenants with the Trustee that it will, in accordance with these presents, on the Contingent Payment Date pay or procure to be paid unconditionally to or to the order of the Trustee or to such account as the Trustee may direct in Euro in immediately available funds the Contingent Payment PROVIDED THAT:
(A) every payment of the Contingent payment to or to the account of the Principal Paying and Transfer Agent in the manner provided in the Agency Agreement shall operate in satisfaction pro tanto of the relative covenant by the Guarantor in this Clause except to the extent that there is default in the subsequent payment thereof in accordance with the Conditions to the Bondholders;
(B) in any case where payment of the Contingent Payment is not made to the Trustee or the Principal Paying and Transfer Agent on or before the Contingent Payment Date, interest shall start to accrue on the Contingent Payment (both before and after any judgment or other order of a court of competent jurisdiction) at the rate that was applicable to the Bonds immediately prior to their final redemption (or, if higher, the rate of interest on judgment debts for the time being provided by English law) up to and including the date which the Trustee determines to be the date on and after which payment is to be made to the Bondholders in respect thereof as stated in a notice given to the Bondholders in accordance with Condition 16 (such date to be not later than 30 days after the day on which the whole of the Contingent Payment, together with an amount equal to the interest which has accrued and is to accrue pursuant to this proviso up to and including that date, has been received by the Trustee or the Principal Paying and Transfer Agent); and
(C) in any case where payment of the whole or any part of the Contingent Payment is improperly withheld or refused upon due presentation thereof (other than in circumstances contemplated by proviso (D) above) interest shall accrue on that part of the Contingent Payment, payment of which has been so withheld or refused (both before and after any judgment or other order of a court of competent jurisdiction) at the rate that was applicable to the Bonds immediately prior to their final redemption (or, if higher, the rate of interest on judgment debts for the time being provided by English law) from and including the date of such withholding or refusal up to and including the date on which, upon further presentation of the Bond, payment of the full amount (including interest as aforesaid) in Euro payable in respect of the Contingent Payment is made or (if earlier) the seventh day after notice is given to the Bondholder (either individually or in accordance with Condition 16) that the full amount (including interest as aforesaid) in Euro payable in respect of the Contingent Payment is available for payment, provided that, upon further presentation thereof being duly made, such payment is made."
- Clause 7.1 provided, in relevant part, as follows:
"The Guarantor hereby covenants with the Trustee that:
(C) it will procure the compliance by the Issuer with all the Issuer's obligations under the Bonds and this Trust Deed;"
- Clause 8.1 and 8.2 provided as follows:
"8.1 The Guarantor hereby irrevocably and unconditionally guarantees to the Trustee:
(A) the due punctual payment in accordance with the provisions of these presents of the Principal of and premium and interest on the Bonds and of any other amounts payable by the Issuer under the Bonds or otherwise under these presents;
(B) the due and punctual performance and observance by the Issuer of each of the other provisions of the presents on the Issuer's part to be performed or observed.
8.2 If the Issuer fails for any reason whatsoever punctually to pay any such Principal, interest or other amount, the Guarantor shall cause each and every such payment to be made as if the Guarantor instead of the Issuer was expressed to be the primary obligor under these presents and not merely as surety (but without affecting the Issuer's obligations) to the intent that the Bondholders will receive the same amounts in respect of Principle, premium, interest or such other amount as would have been receivable had such payment been made by the Issuer PROVIDED THAT:
(A) where the Issuer is or would be required to deduct or withhold from such payment any amount for or on account of any withholding taxes, upon a call being made under this Clause, the Guarantor shall pay the full amount due to the Trustee as if no withholding or deduction was required to be made by the Insurer; and
(B) where the Guarantor is required to deduct or withhold any amount for or on account of any withholding taxes, the Guarantor shall pay the amount due to the Trustee under deduction of any withholding taxes, together with such additional amounts as may be necessary to ensure that the Trustee receives a net amount equal to the full amount which it would have received had payment not been made subject to tax."
- Condition 6 of the conditions dealt with matters concerning redemption and purchase of the bonds. Condition 6(a) provided as follows:
"Unless previously purchased or redeemed as herein provided, the Bonds will be redeemed at the Adjusted Principle Amount together with accrued interest on December 15, 2005 (the "Repayment Maturity Date"). The Bonds may not be redeemed at the option of the Issuer or the Guarantor other than in accordance with this Condition 6. Although no further amounts of principle or interest will remain owing on the Bonds after redemption in full of the Bonds at the Adjusted Principle Amount together with accrued interest, the Bonds will remain in existence and retain a right to receive the Contingent Payment (if any) on the Contingent Payment Date in accordance with Condition 6(k)."
- At the hearing, Elektrim and the Trustee agreed that the effect of this provision is that the "Repayment Maturity Date" is a fixed date, namely 15 December 2005. This is so, even though it was agreed under condition 12 that if an Event of Default occurred on the part of Elektrim Finance and Elektrim prior to that date, the Trustee could give a notice to them accelerating the time for repayment of the bonds and any interest then outstanding. In fact, as described below and as determined in the Hart J judgment, Events of Default did occur before 15 December 2005 and a valid notice was given by the Trustee accelerating the date for repayment of the bonds to 18 January 2005.
- Condition 6(k) is central to the Trustee's claims in the present proceedings. It provided as follows:
"The Guarantor will pay an amount equal to the Contingent Payment (if any) to the Bondholders on the Contingent Payment Date. The Contingent Payment will be distributed to the Bondholders pro rata to the principal amount outstanding of the bonds that they held immediately prior to the final redemption of the bonds on the Repayment Maturity Date in accordance with Condition 6(a) or, if earlier, immediately prior to the final redemption payment in respect of the Bonds (the "Final Date").
Within five Business Days of the Contingent Payment Determination Date, the Guarantor shall give notice to the Bondholders (with a copy to Euroclear, Clearstream, Luxembourg, the Principal Paying and Transfer Agent and the Bond Trustee) of the size of the Contingent Payment (if any) and of the date fixed as the Contingent Payment Date.
The Bond Trustee shall be entitled to assume that no Contingent Payment is due under this Condition 6(k) unless and until expressly notified to the contrary in writing by the Guarantor and, if so notified, the Bond Trustee shall be entitled to rely absolutely on any certificate signed by any two directors of the Guarantor as to the amount of the Contingent Payment without being obliged to investigate or verify the accuracy thereof. Any such certificate will be binding on the Bond Trustee and the Bondholders in the absence of manifest error.
For the avoidance of doubt, the obligation to make the Contingent Payment under this Condition 6(k) is an obligation of the Guarantor and not of the Issuer. The Guarantor's obligation to make the Contingent Payment is secured only by the security described in paragraph (vi) of Condition 8(a) below.
In this Condition 6(k):
"Contingent Payment" means an amount calculated by the Guarantor that is equal to the Relevant Portion of:
(i) the Fair Market Value; minus
(ii) (a) 160,000,000 less (x) any payments made by the Guarantor in respect of the purchases or redemptions of its own shares, and (y) the amount of any loans to the Guarantor's shareholders made or acquired by the Guarantor, in each case before the Contingent Payment Determination Date; and
(b) 50 per cent of the costs incurred by the Guarantor of engaging the investment banks appointed to determine the Fair Market Value.
For the avoidance of doubt, no interest shall accrue on the Contingent Payment during the period between the Contingent Payment Determination Date and the Contingent Payment Date;
"Contingent Payment Date" means such date (being a Business Day) falling no later than 180 days after the Contingent Payment Determination Date as the Guarantor may select and notify as such to the Bondholders in accordance with this Condition 6(k);
"Contingent Payment Determination Date" means a date falling after, but no later than 20 Business Days after, the earlier of:
(i) the date on which the Guarantor publishes its annual audited consolidated financial statements for the year ending December 31, 2005; and
(ii) the date on which the Guarantor publishes its annual audited consolidated financial statements for the year ending on the December 31 immediately following the disposal of its interests in the ET Shares, the Carcom Shares and the PAK Shares,
provided that, in the event that the Bonds have been redeemed in full at the Adjusted Principal Amount together with accrued interest, the Guarantor may elect that the Contingent Payment Determination Date shall be the date on which the Guarantor publishes its annual audited consolidated financial statements for the year ending on the December 31 immediately following such redemption;
"Fair Market Value" means the fair market value of the assets of the Guarantor (including, without limitation, the Guarantor's interest in any affiliates, but excluding the receivables from any loans to the Guarantor's shareholders made by the Guarantor) after deduction of any debt (but excluding contingent liabilities or amounts due in respect of working capital) and assuming that the Guarantor has no obligations in respect of the Contingent Payment, as determined (by reference to the most recent annual audited consolidated financial statements of the Guarantor) on the Contingent Payment Determination Date by two leading investment banks of international repute, appointed by, and at the expense of, the Guarantor, one chosen by the Guarantor and one chosen by the Bond Trustee, on the basis that:
(i) if the higher of the two valuations is less than 15 per cent greater than the lower valuation or the two valuations are the same, then the Fair Market Value shall be the arithmetical mean of the two valuations;
(ii) if the higher of the two valuations is 15 per cent or more greater than the lower valuation, then the Guarantor shall, at the expense of the Guarantor, appoint a third investment bank chosen jointly by the Guarantor and the Bond Trustee to determine the Fair Market Value, which valuation must be no higher than the higher valuation and no lower than the lower valuation determined by the original two investment banks and which valuation shall be conclusive and binding on the Issuer, the Guarantor, the Bond Trustee and the Bondholders; and
(iii) the investment banks shall act as experts and not as arbitrators, and their determination and findings shall be conclusive and binding on the Issuer, the Guarantor, the Bond Trustee and the Bondholders; and
"Relevant Portion" means:
(i) in the event that the Final Date occurs in the year ending December 31, 2003, 10 per cent;
(ii) in the event that the Final Date occurs on or after January 1, 2004 but on or before December 31, 2004, the sum of (A) 10 per cent, plus (B) the percentage rate obtained by multiplying 10 per cent by a fraction (i) the numerator of which is equal to the actual number of days from and including January 1, 2004 to but excluding the Final Date, and (ii) the denominator of which is 366; and
(iii) in the event that the Final Date occurs on or after January 1, 2005 but on or before the Repayment Maturity Date, the sum of (A) 20 per cent, plus (B) the percentage rate obtained by multiplying 5 per cent by a fraction (i) the numerator of which is equal to the actual number of days from and including January 1, 2005 to but excluding the Final Date, and (ii) the denominator of which is 349.
"
- It is convenient at this point to address a principal submission of Elektrim, to the effect that, on proper construction of the first paragraph of condition 6(k), no Contingent Payment would be payable if the bonds were not redeemed by 15 December 2005. Despite the Hart J judgment of 16 September 2005 that repayment of the bonds had been accelerated to 18 January 2005, the bonds were not in fact redeemed until 25 April 2008. Accordingly, Elektrim submits that, on the Trustee's primary claim based on condition 6(k), no obligation to appoint investment bankers and operate the machinery in that condition arose.
- I reject that submission. In my view, on proper construction of condition 6(k), the contractual requirement to operate that machinery to determine whether a Contingent Payment was due and (if it was) to pay it was not dependent upon any pre-condition that the bonds should in fact have been redeemed on or before 15 December 2005:
i) The primary source and foundation for the obligation upon Elektrim to pay the Contingent Payment is the first sentence of condition 6(k). The obligation is to pay the Contingent Payment on the "Contingent Payment Date". The definition of the Contingent Payment Date in condition 6(k) depends on events entirely distinct from whether the bonds happen to have been redeemed or not. This point is also reinforced by the terms of clause 2.3 of the Trust Deed, which creates what on the face of it appears to be an unqualified obligation of Elektrim to pay the Contingent Payment "in accordance with these presents";
ii) In the scheme of condition 6(k), the second sentence which is the sentence upon which Elektrim fastens in order to found its submission is subordinate to the first sentence, and deals only with the mechanism for giving effect to the obligation expressed in the first sentence. The function of the second sentence is (a) to explain exactly which bondholders should be paid what part of any Contingent Payment and (b) to provide a definition of "Final Date", which is relevant to the definition of the "Relevant Portion" which appears later in the provision. Point (a) required to be addressed, particularly since the group of bondholders might change over time and the Trust Deed contemplated that the bonds might be redeemed prior to the Repayment Maturity Date (i.e. 15 December 2005); it was also relevant to provide a test by reference to the holdings of bonds as at the Repayment Maturity Date (which was contemplated by the parties as the latest time at which the bonds ought to be repaid), since the obligation to pay the Contingent Payment under the first sentence of condition 6(k) would only arise some time after 15 December 2005, while the right to receive the Contingent Payment was always intended to be an incident attaching to the bonds themselves. As a matter of the mechanics for operation of condition 6(k), point (b) only required a definition of the Final Date by reference to a latest date of 15 December 2005, since there was no possibility of the Relevant Portion exceeding 25%. Notwithstanding the somewhat infelicitous drafting of the second sentence, having regard to the limited object of that sentence in the context of condition 6(k) it is not plausible to read it as containing a qualification (in terms of a pre-condition that the bonds should be finally redeemed on or before the Repayment Maturity Date of 15 December 2005) which was intended to limit the full force and effect of the first sentence of that provision;
iii) Clause 2.3 of the Trust Deed reinforces the point in (ii) above, since as a matter of mechanics so far as they affect Elektrim - it requires Elektrim to pay the Contingent Payment to the Trustee or to its order. Accordingly, reading the Conditions with the Trust Deed (as the Conditions provide they should be read), the mechanics governing payment of the Contingent Payment set out in the second sentence of condition 6(k) are in effect instructions directed to the Trustee (telling it how to divide up and pay out the Contingent Payment as between bondholders), rather than to Elektrim. This feature of the contractual scheme serves to emphasise that the second sentence of condition 6(k) is remote from anything affecting the obligation of Elektrim to pay the Contingent Payment, and again indicates that that sentence cannot properly be read as limiting the primary obligation of Elektrim set out in the first sentence of that provision (i.e. to pay the Contingent Payment).
iv) It is clear from the terms of the Trust Deed that the general commercial objective for including an obligation to pay a Contingent Payment calculated according to the terms of condition 6(k) was to provide an additional element of consideration for bondholders in return for continued provision of finance to Elektrim under the bonds. That objective was confirmed by Mr Janczyk in his evidence. It would make no commercial sense whatever if the right to receive a Contingent Payment was to fall away simply because the final redemption of the bonds happened ultimately to be delayed beyond the Repayment Maturity Date, for whatever reason. That is especially so, given that when the Trust Deed was entered into the parties must have contemplated that one way in which a late repayment might occur might involve a deliberate withholding of payment for a period by Elektrim and its subsidiary, Elektrim Finance. On an objective approach to interpretation of the Trust Deed, it cannot have been intended that Elektrim should retain a practical ability to defeat the operation of condition 6(k) by the simple expedient of arranging for Elektrim Finance to withhold repayment of the bonds for a day or so beyond 15 December 2005. Certainly, I do not think that the language in the first paragraph of condition 6(k) gives any clear or sufficient indication that such a surprising and uncommercial result could have been intended by the parties (cf L. Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235, 251E per Lord Reid);
v) A presumption regarding the interpretation of contractual obligations reinforces the point at (iv) above. Non-repayment of the bonds by the Repayment Maturity Date at the latest would have involved a breach of Elektrim's obligations under each of clauses 7.1(C), 8.1 and 8.2 of the Trust Deed. Yet, on Elektrim's argument as to the interpretation of the first paragraph of condition 6(k), Elektrim would greatly benefit - by escaping any obligation to pay a Contingent Payment - if it delayed repayment of the bonds in breach of those obligations. There is a presumption of construction that a contracting party will not in normal circumstances be entitled to take advantage of his own breach of contract as against the other party to the contract: Alghussein Establishment v Eton College [1988] 1 WLR 587 (HL), 591D-594D and 595G per Lord Jauncey of Tullichettle, giving the lead speech in the House of Lords. If the parties in the present case had intended that non-repayment of the bonds by 15 December 2005, in breach of the obligations of Elektrim, should operate to prevent any obligation upon Elektrim to put the machinery in condition 6(k) into effect and pay a Contingent Payment arising from, contrary to the usual presumption, very clear language indeed would have been required to indicate that intention. In my view, the language used in the first paragraph of condition 6(k) is very far indeed from being capable of overriding that usual presumption;
vi) Mr Millett QC for Elektrim submitted that the points at (iv) and (v) above were not factors which should have any force, because if Elektrim Finance failed to redeem the bonds at the proper time the Trustee could sue Elektrim for breach of various of its obligations in the Trust Deed, including its obligations under clauses 7.1(C), 8.1 and 8.2 of the Trust Deed to repay or procure repayment of the bonds at the proper time. He pointed out that the Trustee's alternative claim was formulated in this way. Therefore, he said, any uncommercial result by adopting Elektrim's proposed interpretation of the first paragraph of condition 6(k) would be avoided. I do not accept this submission. There is no good reason to suppose that the parties intended that the bondholders' position should be protected only by this indirect, backdoor route, where the usual approach to contractual construction indicates that the Trustee/bondholders were to have the benefit of distinct contractual provisions in the form of clause 2.3 of the Trust Deed and the first sentence of condition 6(k) of the conditions conferring upon them a direct right to be paid a Contingent Payment. Moreover, there might be separate defences to a damages claim for the Contingent Payment based on clauses 7.1(C), 8.1 and 8.2 of the Trust Deed (as, in fact, Elektrim seeks to argue in relation to the Trustee's alternative claim that is, indeed, the reason why Elektrim presses this point of construction); therefore, since there is no necessary correspondence between the Trustee's/bondholders' direct right to receive a Contingent Payment and any damages claim they might have, the possible existence of a damages claim does not undermine the ordinary construction arguments in relation to the interpretation of the primary, direct rights of the Trustee/bondholders to receive a Contingent Payment. If anything, I think that Elektrim's acceptance by reference to clauses 7.1(C), 8.1 and 8.2 that as a matter of commercial substance it could not at any rate, in ordinary circumstances - defeat a claim for payment of a Contingent Payment by delaying repayment of the bonds tends to reinforce the Trustee's arguments as to the intention of the parties that there should be direct rights to be paid a Contingent Payment under clause 2.3 of the Trust Deed and condition 6(k).
- My decision on this point of construction of condition 6(k) means that I consider that the Trustee is entitled to proceed to claim damages based on the primary formulation of its claim in these proceedings (para. [4] above), and does not have to rely upon its alternative formulation (para. [6] above).
- If I had come to a different conclusion on the interpretation of the first paragraph of condition 6(k), the Trustee submitted that I should hold that Elektrim was estopped from denying that the Trustee's construction of that provision was the correct one or that the Trust Deed should be rectified so as to reflect that construction. For completeness, I should say that, if it had been necessary to do so, I would have accepted these alternative submissions of the Trustee. I deal with these issues at paragraphs [39] - [48] below. The effect of that would have been, again, that the Trustee would have been entitled to proceed to claim damages based on the primary formulation of its claim in these proceedings (para [4] above), and again would not have had to rely upon its alternative formulation (para. [6] above).
- Furthermore, again for completeness, I should say that even had I come to conclusions adverse to the Trustee on the interpretation of the first paragraph of condition 6(k) and on the issues of estoppel and rectification, so that the Trustee was compelled to seek to rely upon its alternative formulation of its case (para. [6] above), I would not have accepted Elektrim's contention that it has a good defence to that alternative claim by reason of the doctrine of res judicata (para. [7] above). I deal with that issue at paragraphs [49]-[52] below.
- Reverting to the Trust Deed, the parties were in agreement in relation to certain other aspects of the interpretation of condition 6(k), as follows:
i) The consolidated accounts of Elektrim for the year ending 31 December 2005 issued on 5 June 2006 ("Elektrim's 2005 accounts") qualified as Elektrim's "annual audited consolidated financial statements [for that year]" for the purposes of sub-paragraph (i) of the definition of the CPDD in condition 6(k). This is so notwithstanding that Elektrim's auditors, Ernst & Young Audit Sp. z o.o. ("Ernst & Young") issued an audit report dated 5 June 2006, having carried out an audit, disclaiming any opinion on Elektrim's 2005 accounts. 14 June 2006 was the starting date for the period of 20 business days referred to in the definition of the CPDD in condition 6(k). This is the basis for the parties' agreement that the CPDD for the purposes of assessment of the damages for breach of contract should be taken to be 11 July 2006;
ii) The concept of "fair market value" to be used in calculating the Contingent Payment was intended to engage a standard of measurement of value which is well understood by valuers and which is properly to be formulated in the following terms (as set out by Dr Ciepal, one of the expert witnesses called by Elektrim, and agreed by Mr Bezant, the relevant expert witness called by the Trustee): "The Fair Market Value is the price described in cash or cash equivalents, for which property passes from the hands of a hypothetical independent willing-and-able seller capable of concluding the transaction, both acting independently in an open and unrestricted market, where neither of the parties is acting under any form of compulsion to buy or sell and where both parties have sufficient knowledge of the relevant facts pertinent to the transaction and where the subject of the transaction is offered for sale in the market for a reasonable period of time";
iii) The word "debt" in the phrase "after deduction of any debt" in the definition of "Fair Market Value" in condition 6(k) has the wide meaning of "liability", and is not confined simply to determinate monetary obligations (the narrower and more usual sense of "debt"); and
iv) The meaning of the principal terms used in the definition of "Fair Market Value" "assets", "liability" (as the word "debt" was intended to mean) and "contingent liabilities" - was to be taken from published guidance in the form of International Accounting Standards ("IAS").
- The point at (iii) above serves to emphasise that the Fair Market Value calculation was intended, in broad terms and subject to the detailed wording of condition 6(k), to determine the net value of Elektrim's assets less its liabilities as at the CPDD. But, as submitted by Mr Miles QC for the Trustee, the provision required a structured approach, involving identification of assets and then, separately, identification of liabilities, without any process of netting off liabilities against assets within each of the categories of "assets" and "any debt [sc. liability]".
- The point at (iv) above is of particular significance in relation to the PTC shares. I will examine below the IAS and their effect upon condition 6(k) in greater detail when considering those shares. At this stage, however, it is convenient to refer to one aspect of the IAS which gave rise to a dispute between the parties on the proper construction of the definition of "Fair Market Value" in condition 6(k). The IAS draw a distinction between items which may constitute assets and liabilities according to the definitions given in the IAS (i.e. according to what I will call "the IAS definition standard"), on the one hand, and the circumstances in which such items are appropriate to be recognised in figures shown as line items in the financial statements of an entity (i.e. according to what I will call "the IAS recognition standard"), on the other. Put shortly, an entity may appear to own something (or have a liability) which might satisfy the definition of asset (or liability) according to the IAS definition standard, but according to the IAS recognition standard it may nonetheless be inappropriate e.g. on grounds of uncertainty about whether the asset or liability really exists - for that entity to recognise or treat it as an asset (or liability) for inclusion in any quantified figure set out in the line items in its financial statements. Instead, reference might be made to it in notes to the financial statements. Thus, the IAS recognition standard sets out a more demanding test than the IAS definition standard.
- The distinction between the IAS definition standard and the IAS recognition standard has a bearing on the proper construction of condition 6(k), and its effect in relation to the treatment of the PTC shares, because the Trustee submitted (with a view to maximising the items to be brought into account as assets in the "Fair Market Value" calculation) that the phrase, "the assets of the Guarantor", in the definition of "Fair Market Value" is to be interpreted by reference to the less demanding IAS definition standard. Elektrim, on the other hand, submitted that it is to be interpreted by reference to the more demanding IAS recognition standard.
- In fact, so far as concerns the treatment of assets in the IAS, a three-fold classification is relevant: assets which fall to be recognised in financial statements; contingent assets, which do not fall to be recognised but instead fall to be made the subject of a note to the financial statements; and contingent assets which do not fall to be recognised and are not required to be made the subject of a note to the financial statements. A "contingent asset" is defined as "a possible asset that arises from past events and whose existence will be confirmed only by the occurrence or non-occurrence of one or more uncertain future events not wholly within the control of the entity" (paragraph 10 of IAS 37). Paragraphs 31 to 35 of IAS 37 provide:
"31. An entity shall not recognise a contingent asset.
32 Contingent assets usually arise from unplanned or other unexpected events that give rise to the possibility of an inflow of economic benefits to the entity. An example is a claim that an entity is pursuing through legal processes, where the outcome is uncertain.
33 Contingent assets are not recognised in financial statements since this may result in the recognition of income that may never be realised. However, when the realisation of income is virtually certain, then the related asset is not a contingent asset and recognition is appropriate.
34 A contingent asset is disclosed, as required by paragraph 89, where an inflow of economic benefits is probable.
35 Contingent assets are assessed continually to ensure that developments are appropriately reflected in the financial statements. If it has become virtually certain that an inflow of economic benefits will arise, the asset and the related income are recognised in the financial statements of the period in which the change occurs. If an inflow of economic benefits has become probable, an entity discloses the contingent asset (see paragraph 89)."
- On this issue of interpretation, I consider that the true construction of condition 6(k) lies between the submissions of Elektrim and the Trustee. The assets which are to be brought into account for the purpose of the "Fair Market Value" calculation in condition 6(k) are those which would properly fall to be recognised in Elektrim's financial statements (i.e. where the realisation of any income associated with them is "virtually certain": paragraph 33 of IAS 37) together with those which would be required to be disclosed by way of a note (i.e. "where an inflow of economic benefits is probable": paragraph 34 of IAS 37). Where an asset is a contingent asset (and hence not to be recognised in the financial statements) and an inflow of economic benefits associated with it is improbable (so that no note is required), it does not qualify as an asset for the purposes of the definition of "Fair Market Value" in condition 6(k).
- There are the following indicators in the definition of "Fair Market Value" that the parties contemplated that it would operate in this way so far as concerns the assets of Elektrim to be brought into account:
i) The reference to "contingent liabilities" (as an item to be left out of the general class of "any debt [sc. liability]") is a reference to a concept which only has significance at the level of application of the IAS recognition standard. At the level of definition, an entity may have liabilities; but it is at the level of application of the IAS recognition standard that it becomes significant for them to be classified either as "contingent liabilities" (which is a category of liability which does not satisfy the IAS recognition standard) or, alternatively, as liabilities which satisfy the IAS recognition standard and hence in respect of which a provision should be included in the figures set out in the line items in the entity's financial statements. By contrast with "any debt [sc. liability]", the phrase "the assets of the Guarantor" in the definition is not qualified by exclusion of contingent assets. Therefore, it appears that the parties intended that at least some items which would qualify as contingent assets for the purposes of the IAS were to be brought into account in the calculation of "Fair Market Value", and that it was not a simple IAS recognition test which was to apply;
ii) However, the reference in the "Fair Market Value" definition to the fair market value of the assets of Elektrim less its liabilities being determined "by reference to the most recent annual audited consolidated financial statements of the Guarantor" is an indication that the parties contemplated that the elements in the definition should satisfy the IAS standards requiring recognition or disclosure by note in financial statements. In effect, this is an instruction to the investment banks appointed to carry out the valuation to have regard to the sort of items which should in principle be included in audited financial statements by way of inclusion in line item figures (where recognised) or disclosed in notes to audited financial statements;
iii) Further, it appears from condition 6(k) and the definition of "Fair Market Value" that the calculation it set out was intended to provide for the bondholders to participate in any real (as opposed to hypothetical or purely speculative) increase in the value of Elektrim's net assets in the three years or so after the bondholders agreed to the new bond terms. Given that object, it is reasonable to suppose on an objective approach to construction of condition 6(k) that the parties intended that the assets to be brought into account in the calculation were those where an inflow of economic benefits was "virtually certain" or "probable" (i.e. assets of a character which fell to be recognised or disclosed in financial statements: see paragraphs 33 and 34 of IAS 37), but not those where an inflow of economic benefits was improbable.
- In the event, I concluded that even if one adopted the different constructions of condition 6(k) in this regard proposed by the Trustee and by Elektrim, it would not make a difference to the outcome of the claim.
- There was an issue between the parties as to the period which any investment banks appointed under condition 6(k) would have in which to complete their valuation work. Mr Miles submitted, correctly, that there was no contractually stipulated start point for their appointment, so in theory they could be appointed before Elektrim published its 2005 accounts (perhaps, in the first phase, to work in parallel with the auditors working on those accounts and then to complete their work after those accounts in audited form had been published). Having said that, however, as a matter of impression, the provision for the CPDD to be 20 business days after the publication of the relevant accounts of Elektrim suggests that the parties contemplated that in practice the investment banks might well be instructed to do their valuations by reference to those accounts only once they were published. That impression is reinforced by the fact that the work to be carried out by the investment banks was required under condition 6(k) to be "by reference to the most recent annual consolidated financial statements of [Elektrim]", which is clearly a reference to the relevant published accounts referred to in the definition of the "Contingent Payment Determination Date".
- Mr Miles also submitted that valuation work by investment banks could in theory continue for a period up to five business days after the CPDD. This is because this was the time stipulated in the second paragraph of condition 6(k) by which Elektrim had to publish the size of the Contingent Payment (calculated by reference to the relevant investment banks' valuations) to the bondholders and others.
- The position here is somewhat complicated, since any timetable for work by the original two investment banks appointed under condition 6(k) would have to allow for the possibility that their valuations might be so far apart that a third investment bank would have to be appointed to produce a final conclusive "Fair Market Value" assessment as set out in condition 6(k), which could then be used to calculate the Contingent Payment to be notified to the bondholders and third parties. This contractual framework suggests that final valuation reports would be required from the original two investment banks some time before the final date for notification of the Contingent Payment. Those first valuation reports could not be finalised before the CPDD (i.e. the date as at which the investment banks were required to value Elektrim's assets). It would only be if those reports were too far apart that the requirement for appointment of a third investment bank would arise. The five business days between the CPDD and the requirement for Elektrim to publish the Contingent Payment to the bondholders and third parties appears in practice to have been built into the timetable to allow for appointment of a third investment bank if that proved necessary at the last minute. In practice, therefore, the contractual timetable contemplated that the original two investment banks should produce their valuations on or very shortly after (within perhaps a day of) the CPDD itself, and that they would probably be expected to have about 20 business days of time in which to do that.
- The exercise in which the court has to engage is to assess the value of the loss of opportunity for the Trustee/bondholders to receive a Contingent Payment by reason of the failure of Elektrim to operate the machinery in condition 6(k). Very sensibly, the parties have presented evidence and made submissions to me regarding how a single notional investment bank would have valued the assets and liabilities of Elektrim in mid-2006. It would not practically be possible to assess whether two investment banks appointed under condition 6(k) might have arrived at valuations so far apart as to require the appointment of a third investment bank to produce a further binding valuation, and there is no evidence which would allow me to assess such a possibility as anything other than highly speculative and remote. This means that I consider that the relevant timetable by reference to which the loss of a chance should be assessed is that which would have been applicable for production of valuations by the notional original two investment banks, and that the cut off in terms of information available for that work would have been the CPDD itself (11 July 2006) or perhaps 12 July 2006. One event occurred in relation to the PTC shares between that time and the date five business days after the CPDD, which would not in practice have been taken into account on this approach (contrary to the submission of Mr Miles). However, in the general scheme of information applicable to the developing picture in respect of the PTC shares I do not consider that event to be of material significance, so I do not think that the choice between a cut off date of 11 July 2006 or a later cut off date within five business days makes any difference to the result in this case.
- The issue about the timetable applicable upon notional operation of condition 6(k) in mid-2006 was related to another issue between the parties concerning the proper interpretation of that provision, namely whether (as Elektrim submitted) in carrying out the calculation of "Fair Market Value" in condition 6(k) the investment banks would be obliged to take the inventory of the assets of Elektrim to be valued in that calculation from Elektrim's 2005 accounts or whether (as the Trustee contended) the investment banks would be entitled and, as necessary, required to look at the matter from a broader perspective, without being limited by what was set out in those accounts. This dispute was of particular significance in relation to the PTC shares, because in Elektrim's 2005 accounts those shares were not shown in any line item in the accounts as an asset of Elektrim. Instead, by implication, they were reflected in the line item in the accounts which showed Elektrim's shareholding in ET (i.e. on the footing that ET rather than Elektrim held those shares) although, as set out in paras. [107] and [108] below, notes 39 and 40 to the accounts referred to the complex history of litigation which I review below and appeared to state that Elektrim was recognised in Poland as the owner of the PTC shares.
- On this issue, I accept the submission of the Trustee. It is true that, as Mr Millett pointed out, the definition of "Fair Market Value" stated that it was to be "determined (by reference to the most recent annual consolidated financial statements of the Guarantor)", which might be taken to suggest that the valuation exercise by the investment banks was to be conducted solely by reference to Elektrim's relevant consolidated financial statements (i.e. for present purposes, Elektrim's 2005 accounts). Mr Millett also submitted that the limited time which the parties contemplated that the investment banks might have available to conduct their valuations indicated that the parties intended that those banks should be strictly limited to valuing what was recorded as an asset or liability in Elektrim's 2005 accounts, and should not make any wider assessment of their own of what might be an asset or liability of Elektrim. These points have some force, but are in my judgment clearly outweighed by the following considerations:
i) At the most basic level, the financial statements referred to were to be Elektrim's consolidated accounts (i.e. consolidating the financial position of Elektrim and all its subsidiaries), rather than its accounts as a stand alone company. Group consolidated accounts of this kind do not provide authoritative or complete guidance concerning the assets of the parent company (here, Elektrim) taken by itself, because they amalgamate assets and liabilities (to third parties outside the group) of the parent and its subsidiaries, they exclude the parent's shareholdings in its subsidiaries within the group and they exclude inter-company debts within the group. But the valuation exercise required by condition 6(k) was to be in relation to Elektrim's own assets and liabilities, as a stand-alone entity distinct from the Elektrim group, and was to include its shareholdings in any subsidiaries and any receivables or payables it had in relation to inter-company debts within the group. Therefore, the reference to Elektrim's "consolidated financial statements" in condition 6(k) could not possibly have been intended to limit and confine the work of the investment banks themselves to establish what were the assets and liabilities of Elektrim, taken as a company by itself;
ii) The consolidated financial statements drawn up by Elektrim's management might not be accurate; e.g. they might exclude assets or overstate liabilities. The requirement that they were to be "audited" would not exclude this possibility, since at the end of the audit process (when the accounts would properly be described as having been "audited") the auditor might give only a qualified opinion, or decline to give an opinion. That is, in fact, what happened in respect of Elektrim's 2005 accounts. It is difficult to suppose that the parties intended to exclude the investment banks in such circumstances from doing their own work to determine whether assets and liabilities of Elektrim existed at the relevant time;
iii) The "consolidated financial statements" referred to in the definition of "Fair Market Value" would be drawn up by reference to ordinary accounting conventions, as set out in the IAS. They would not typically include figures recording the value of assets at their fair market values, but rather according to other conventional bases, including historic cost. Elektrim's 2005 accounts recorded the ordinary accounting conventions which had been used in their preparation - unsurprisingly, they were not prepared on a fair market value basis. Yet under condition 6(k) the investment banks were required to determine the fair market value of Elektrim's assets. The word "determined" was followed by "(by reference to the most recent annual audited consolidated financial statements of the Guarantor)", but in the particular context where the investment banks were required to determine the fair market value and the financial statements would not set that out, the phrase in parenthesis could not be taken as a direct qualification and restriction of the role of and methodology to be applied by the investment banks in carrying out their function under condition 6(k);
iv) The phrase in parenthesis must have been intended to have some different function. Mr Miles submitted that it was a simple reminder to the investment banks that they should have regard to Elektrim's relevant consolidated financial statements. Since he accepted that it was obvious that they would do so in any event, without having to be reminded, this in substance rendered the phrase otiose on his submission (as he also accepted). A court will not readily infer that parties have used language in a commercial contract for no sensible purpose, or have included otiose phraseology. In fact, I consider that sense and value can be given to the phrase in question in the context of condition 6(k): see para. [28] (ii) above. Even if I were wrong about that, it seems to me that the other indicators against Elektrim's submission about the meaning of this phrase to which I have referred above are so strong that it must be dismissed;
v) Although the timescale contemplated for the work to be done by the investment banks was short, if they were to do work of their own on identifying assets and liabilities of Elektrim, it was not impossibly so. They would no doubt be in a position to benefit from work done by the company and its auditors in preparing the financial statements and, as the principal expert witness for the Trustee (Mr Bezant) explained, investment banks are used to working to tight timetables when necessary, and would provide expanded resources as required to meet demanding reporting deadlines.
The IAS
- In the context of construction of the conditions, the following parts of the guidance provided by the IAS are of potential relevance for consideration of the treatment of the PTC shares under condition 6(k). The IAS Framework Guidance included the following:
"49. The elements directly related to the measurement of financial position are assets, liabilities and equity. These are defined as follows:
(a) An asset is a resource controlled by the entity as a result of past events and from which future economic benefits are expected to flow to the entity.
(b) A liability is a present obligation of the entity arising from past events, the settlement of which is expected to result in an outflow from the entity of resources embodying economic benefits.
(c) Equity is the residual interest in the assets of the entity after deducting all its liabilities.
50. The definitions of an asset and a liability identify their essential features but do not attempt to specify the criteria that need to be met before they are recognised in the balance sheet. Thus, the definitions embrace items that are not recognised as assets or liabilities in the balance sheet because they do not satisfy the criteria for recognition discussed in paragraphs 82 to 98. In particular, the expectation that future economic benefits will flow to or from an entity must be sufficiently certain to meet the probability criterion in paragraph 83 before an asset or liability is recognised.
51 In assessing whether an item meets the definition of an asset, liability or equity, attention needs to be given to its underlying substance and economic reality and not merely its legal form. Thus, for example, in the case of finance leases, the substance and economic reality are that the lessee acquires the economic benefits of the use of the leased asset for the major part of its useful life in return for entering into an obligation to pay for that right an amount approximating to the fair value of the asset and the related finance charge. Hence, the finance lease gives rise to items that satisfy the definition of an asset and a liability and are recognised as such in the lessee's balance sheet.
Liabilities
60 An essential characteristic of a liability is that the entity has a present obligation
61 A distinction needs to be drawn between a present obligation and a future commitment. A decision by the management of an entity to acquire assets in the future does not, of itself, give rise to a present obligation. An obligation normally arises only when the asset is delivered or the entity enters into an irrevocable agreement to acquire the asset. In the latter case, the irrevocable nature of the agreement means that the economic consequences of failing to honour the obligation, for example, because of the existence of a substantial penalty, leave the entity with little, if any, discretion to avoid the outflow of resources to another party.
The probability of future economic benefit
85. The concept of probability is used in the recognition criteria to refer to the degree of uncertainty that the future economic benefits associated with the item will flow to or from the entity. The concept is in keeping with the uncertainty that characterises the environment in which an entity operates. Assessments of the degree of uncertainty attaching to the flow of future economic benefits are made on the basis of the evidence available when the financial statements are prepared. For example, when it is probable that a receivable owed to an entity will be paid, it is then justifiable, in the absence of any evidence to the contrary, to recognise the receivable as an asset. For a large population of receivables, however, some degree of non-payment is normally considered probable; hence an expense representing the expected reduction in economic benefits is recognised.
Reliability of measurement
86. The second criterion for the recognition of an item is that it possesses a cost or value that can be measured with reliability as discussed in paragraphs 31 to 38 of this Framework. In many cases, cost or value must be estimated; the use of reasonable estimates is an essential part of the preparation of financial statements and does not undermine their reliability. When, however, a reasonable estimate cannot be made the item is not recognised in the balance sheet or income statement. For example, the expected proceeds from a lawsuit may meet the definitions of both an asset and income as well as the probability criterion for recognition; however, if it is not possible for the claim to be measured reliably, it should not be recognised as an asset or as income; the existence of the claim, however, would be disclosed in the notes, explanatory material or supplementary schedules.
88 An item that possesses the essential characteristics of an element but fails to meet the criteria for recognition may nonetheless warrant disclosure in the notes, explanatory material or in supplementary schedules. This is appropriate when knowledge of the item is considered to be relevant to the evaluation of the financial position, performance and changes in financial position of an entity by the users of financial statements."
- In addition to passages set out above, IAS 37, entitled "Provisions, Contingent Liabilities and Contingent Assets", included the following:
"Definitions
10. The following terms are used in this Standard with the meanings specified:
A provision is a liability of uncertain timing or amount.
A liability is a present obligation of the entity arising from past events, the settlement of which is expected to result in an outflow from the entity of resources embodying economic benefits.
A contingent liability is:
(a) a possible obligation that arises from past events and whose existence will be confirmed only by the occurrence or non-occurrence of one or more uncertain future events not wholly within the control of the entity; or
(b) a present obligation that arises from past events but is not recognised because:
(i) it is not probable that an outflow of resources embodying economic benefits will be required to settle the obligation; or
(ii) the amount of the obligation cannot be measured with sufficient reliability.
A contingent asset is a possible asset that arises from past events and whose existence will be confirmed only by the occurrence or non-occurrence of one or more uncertain future events not wholly within the control of the entity.
Relationship between provisions and contingent liabilities
12. In a general sense, all provisions are contingent because they are uncertain in timing or amount. However, within this Standard the term 'contingent' is used for liabilities and assets that are not recognised because their existence will be confirmed only by the occurrence or non-occurrence of one or more uncertain future events not wholly within the control of the entity. In addition, the term 'contingent liability' is used for liabilities that do not meet the recognition criteria.
13. This Standard distinguishes between:
(a) provisions which are recognised as liabilities (assuming that a reliable estimate can be made) because they are present obligations and it is probable that an outflow of resources embodying economic benefits will be required to settle the obligations; and
(b) contingent liabilities which are not recognised as liabilities because they are either:
(i) possible obligations, as it has yet to be confirmed whether the entity has a present obligation that could lead to an outflow of resources embodying economic benefits; or
(ii) present obligations that do not meet the recognition criteria in this Standard (because either it is not probable that an outflow of resources embodying economic benefits will be required to settle the obligation, or a sufficiently reliable estimate of the amount of the obligation cannot be made).
Recognition
Provisions
14. A provision shall be recognised when:
(a) an entity has a present obligation (legal or constructive) as a result of a past event;
(b) it is probable that an outflow of resources embodying economic benefits will be required to settle the obligation; and
(c) a reliable estimate can be made of the amount of the obligation.
If these conditions are not met, no provision shall be recognised.
16. In almost all cases it will be clear whether a past event has given rise to a present obligation. In rare cases, for example in a law suit, it may be disputed either whether certain events have occurred or whether those events result in a present obligation. In such a case, an entity determines whether a present obligation exists at the balance sheet date by taking account of all available evidence, including, for example, the opinion of experts. The evidence considered includes any additional evidence provided by events after the balance sheet date. On the basis of such evidence:
(a) where it is more likely than not that a present obligation exists at the balance sheet date, the entity recognises a provision (if the recognition criteria are met); and
(b) where it is more likely that no present obligation exists at the balance sheet date, the entity discloses a contingent liability, unless the possibility of an outflow of resources embodying economic benefits is remote
19. It is only those obligations arising from past events existing independently of an entity's future actions (ie the future conduct of its business) that are recognised as provisions. Examples of such obligations are penalties or clean-up costs for unlawful environmental damage, both of which would lead to an outflow of resources embodying economic benefits in settlement regardless of the future actions of the entity. Similarly, an entity recognises a provision for the decommissioning costs of an oil installation or a nuclear power station to the extent that the entity is obliged to rectify damage already caused.
Probable outflow of resources embodying economic benefits
23. For a liability to qualify for recognition there must be not only a present obligation but also the probability of an outflow of resources embodying economic benefits to settle that obligation. For the purpose of this Standard, an outflow of resources or other event is regarded as probable if the event is more likely than not to occur, ie the probability that the event will occur is greater than the probability that it will not. Where it is not probable that a present obligation exists, an entity discloses a contingent liability, unless the possibility of an outflow of resources embodying economic benefits is remote
Reliable estimate of the obligation
25. The use of estimates is an essential part of the preparation of financial statements and does not undermine their reliability. This is especially true in the case of provisions, which by their nature are more uncertain than most other balance sheet items. Except in extremely rare cases, an entity will be able to determine a range of possible outcomes and can therefore make an estimate of the obligation that is sufficiently reliable to use in recognising a provision.
26. In the extremely rare case where no reliable estimate can be made, a liability exists that cannot be recognised. That liability is disclosed as a contingent liability (see paragraph 86).
Contingent liabilities
27. An entity shall not recognise a contingent liability.
28. A contingent liability is disclosed, as required by paragraph 86, unless the possibility of an outflow of resources embodying economic benefits is remote.
30. Contingent liabilities may develop in a way not initially expected. Therefore, they are assessed continually to determine whether an outflow of resources embodying economic benefits has become probable. If it becomes probable that an outflow of future economic benefits will be required for an item previously dealt with as a contingent liability, a provision is recognised in the financial statements of the period in which the change in probability occurs (except in the extremely rare circumstances where no reliable estimate can be made).
Measurement
Best estimate
36. The amount recognised as a provision shall be the best estimate of the expenditure required to settle the present obligation at the balance sheet date.
37. The best estimate of the expenditure required to settle the present obligation is the amount that an entity would rationally pay to settle the obligation at the balance sheet date or to transfer it to a third party at that time. It will often be impossible or prohibitively expensive to settle or transfer an obligation at the balance sheet date. However, the estimate of the amount that an entity would rationally pay to settle or transfer the obligation gives the best estimate of the expenditure required to settle the present obligation at the balance sheet date.
38. The estimates of outcome and financial effect are determined by the judgement of the management of the entity, supplemented by experience of similar transactions and, in some cases, reports from independent experts. The evidence considered includes any additional evidence provided by events after the balance sheet date.
39. Uncertainties surrounding the amount to be recognised as a provision are dealt with by various means according to the circumstances. Where the provision being measured involves a large population of items, the obligation is estimated by weighting all possible outcomes by their associated probabilities. The name for this statistical method of estimation is 'expected value'. The provision will therefore be different depending on whether the probability of a loss of a given amount is, for example, 60 per cent or 90 per cent. Where there is a continuous range of possible outcomes, and each point in that range is as likely as any other, the mid-point of the range is used.
40. Where a single obligation is being measured, the individual most likely outcome may be the best estimate of the liability. However, even in such a case, the entity considers other possible outcomes. Where other possible outcomes are either mostly higher or mostly lower than the most likely outcome, the best estimate will be a higher or lower amount. For example, if an entity has to rectify a serious fault in a major plant that it has constructed for a customer, the individual most likely outcome may be for the repair to succeed at the first attempt at a cost of 1,000, but a provision for a larger amount is made if there is a significant chance that further attempts will be necessary.
Risks and uncertainties
42. The risks and uncertainties that inevitably surround many events and circumstances shall be taken into account in reaching the best estimate of a provision.
43. Risk describes variability of outcome. A risk adjustment may increase the amount at which a liability is measured. Caution is needed in making judgements under conditions of uncertainty, so that income or assets are not overstated and expenses or liabilities are not understated. However, uncertainty does not justify the creation of excessive provisions or a deliberate overstatement of liabilities. For example, if the projected costs of a particularly adverse outcome are estimated on a prudent basis, that outcome is not then deliberately treated as more probable than is realistically the case. Care is needed to avoid duplicating adjustments for risk and uncertainty with consequent overstatement of a provision.
Future events
48. Future events that may affect the amount required to settle an obligation shall be reflected in the amount of a provision where there is sufficient objective evidence that they will occur.
49. Expected future events may be particularly important in measuring provisions. For example, an entity may believe that the cost of cleaning up a site at the end of its life will be reduced by future changes in technology. The amount recognised reflects a reasonable expectation of technically qualified, objective observers, taking account of all available evidence as to the technology that will be available at the time of the clean-up. Thus it is appropriate to include, for example, expected cost reductions associated with increased experience in applying existing technology or the expected cost of applying existing technology to a larger or more complex clean-up operation than has previously been carried out. However, an entity does not anticipate the development of a completely new technology for cleaning up unless it is supported by sufficient objective evidence.
Expected disposal of assets
51. Gains from the expected disposal of assets shall not be taken into account in measuring a provision.
52. Gains on the expected disposal of assets are not taken into account in measuring a provision, even if the expected disposal is closely linked to the event giving rise to the provision. Instead, an entity recognises gains on expected disposals of assets at the time specified by the Standard dealing with the assets concerned.
Disclosure
86. Unless the possibility of any outflow in settlement is remote, an entity shall disclose for each class of contingent liability at the balance sheet date a brief description of the nature of the contingent liability and, where practicable:
(a) an estimate of its financial effect, measured under paragraphs 36-52;
(b) an indication of the uncertainties relating to the amount or timing of any outflow; and
(c) the possibility of any reimbursement.
89. Where an inflow of economic benefits is probable, an entity shall disclose a brief description of the nature of the contingent assets at the balance sheet date, and, where practicable, an estimate of their financial effect, measured using the principles set out for provisions in paragraphs 36-52.
"
- Mr Bezant, who is an experienced accountant, gave some evidence as to how these provisions of the IAS might be interpreted by an accountant. I will refer to this in greater detail below. However, the IAS are well drafted and the general guidance provided by them relevant to the construction of condition 6(k), as to the meaning of terms such as "asset", "liability" and "contingent liability", is reasonably clear on its face. It is for the court to interpret and apply condition 6(k), with reference as need be to the IAS. I do not consider that expert evidence is relevant to the interpretation of condition 6(k) and the relevant passages in the IAS. It is the terms of the IAS themselves which form the relevant background as an aid to construction of condition 6(k), rather than the view of any particular accountant how the IAS might be applied in any given context. The view of an expert witness as to how he considered condition 6(k) might be applied in the context of the particular circumstances which existed as at 11 July 2006 - which in any event in themselves were not and could not have been in the direct contemplation of the parties when the Trust Deed and conditions were entered into in 2002 - cannot control the proper interpretation of condition 6(k) and its proper application in that context.
The Trustee's alternative case based on estoppel and rectification
- The Trustee would only need to rely upon this alternative case if I were wrong to accept its primary submission as to the proper construction of the first paragraph of condition 6(k). Although I have accepted that primary submission, I should briefly deal with this alternative case and the evidence in relation to it.
- When the Conditions were in the course of being negotiated in late 2002, a full draft of them and of a proposed notice to bondholders was circulated by Mr Tricot of Skadden, Arps, Slate, Meagher & Flom LLP (lawyers acting for Elektrim) to a range of addressees for consideration, including addressees at Simmons and Simmons (lawyers acting for the Trustee), at lawyers acting for the bondholders committee who were conducting the commercial negotiation with Elektrim on behalf of the bondholders and at lawyers acting for every other party with an interest in the transaction. The legal team at Simmons and Simmons dealing with the negotiation was headed by a partner, John Davies ("Mr Davies"). He was away on holiday when the draft conditions and notice were circulated, and two other members of his team, Mr Bresslaw (also a partner at Simmons and Simmons) and Mr McGladdery (an associate solicitor at the firm), dealt with the response.
- Mr Bresslaw marked a number of comments in manuscript on these circulated draft documents. Against condition 6(a) as it appeared in the draft Conditions, he noted the following question in manuscript: "Is the Contingent Payment payable even if there is no full redemption [i.e. of the bonds] on final maturity see 6(j) [?]". The reference to "6(j)" was to draft condition 6(j), which became condition 6(k) in the final version of the Conditions. The first paragraph of draft condition 6(j) appeared under the heading "Contingent Payment" and was in materially equivalent terms to the first paragraph of condition 6(k) set out at para. [16] above. Against that draft provision, Mr Bresslaw noted a further question in manuscript: "Is this [i.e. the Contingent Payment] payable even if they [i.e. Elektrim and Elektrim Finance] default on the final maturity date?". In relation to a reference to the Contingent Payment in the draft notice, Mr Bresslaw noted another question in manuscript: "Is the Contingent Payment due even if the bonds are not redeemed in full on the Final Maturity Date?"
- Mr McGladdery then sent an email dated 11 October 2002 to Mr Tricot and the same set of addressees, attaching the copies of the draft notice to bondholders and the draft Conditions with Mr Bresslaw's manuscript comments, and inviting their attention to those comments. In my view, the questions set out by Mr Bresslaw on the draft documents regarding the obligation for Elektrim to pay the Contingent Payment even if it transpired that the bonds were not fully redeemed by the Repayment Maturity Date of 15 December 2005 were very clear and directly to the point.
- Mr Tricot replied by email later the same day, sent to the same set of addressees, referring to the manuscript comments by Mr Bresslaw. Mr Tricot responded to Mr Bresslaw's questions about the Contingent Payment thus:
"The Contingent Payment is a separate payment obligation owed to Bondholders, separate from the obligation to repay principal [i.e. the obligation to redeem the bonds]. The Contingent Payment would technically be repayable even if the Issuer [i.e. Elektrim Finance] defaulted on the principal repayment."
- In my view, this was a direct and very clear answer to the questions which Mr Bresslaw had raised, to the effect that the Contingent Payment would still have to be paid even if it transpired that the bonds were not actually redeemed on or before the Redemption Maturity Date, 15 December 2005. Mr Millett submitted that the word "technically" qualified the reply in some way, and rendered Mr Tricot's response ambiguous. I do not think that is a fair or tenable reading of the response. In context, in 2002, Mr Tricot's use of the word "technically" was simply a reference to the expectation of everyone negotiating the conditions that the bonds would be redeemed on or before that date, so that the problem ought not to arise. But Mr Tricot was clear that, if the problem of late payment of the bonds did arise, the Contingent Payment would still be payable by Elektrim.
- Mr Davies returned to work shortly after this exchange and, as team leader at Simmons and Simmons, he reviewed the file, including these documents. He was satisfied that Mr Tricot's response to Mr Bresslaw's questions fully answered those questions as his client, the Trustee, would wish, and that in the light of Mr Tricot's response it was not necessary to raise the point with his client for any commercial decision nor to engage in any further round of drafting and negotiation about the terms of what became condition 6(k) in relation to this issue. On the basis of Mr Tricot's response, Mr Davies' view was that the draft Conditions relevant to the obligation to pay the Contingent Payment dealt with this point and could be left in the form in which they had been circulated by Mr Tricot, and so they were.
- On the basis of these facts, the Trustee submitted that (if its primary submission as to the meaning of the first paragraph of condition 6(k) was wrong) Elektrim should be estopped from denying that the provision did have that meaning. The Trustee submitted that Mr Tricot made a clear and unambiguous representation that the provision would have that meaning; that it (as, for present purposes, the relevant contracting party seeking to sue in reliance on the Conditions) had relied on that representation, by accepting the terms as drafted and not seeking to enter into a debate about them to have them redrafted and clarified; and that it would be inequitable now to permit Elektrim to deny that the provision has the meaning represented by Mr Tricot.
- Had it been necessary to do so, I would have accepted that submission. I agree with the Trustee that the representation by Mr Tricot was clear and unambiguous. I find that the Trustee did rely on that representation, by accepting the conditions as drafted on this point and not seeking to re-open the negotiation to clarify their terms. In my view, the Trustee had given Mr Davies authority to conduct the negotiation of the terms of the conditions on its behalf in relation to matters of legal drafting to reflect the commercial deal which had been negotiated between principals, and in considering Mr Tricot's representation and deciding that it was sufficient to deal with the drafting point Mr Davies acted in reliance on that response for and on behalf of the Trustee. I also consider that it would be inequitable for Elektrim to go back on that representation. There was no good commercial reason why Elektrim should be relieved from having to pay the Contingent Payment if it and Elektrim Finance did not honour the bonds at the proper time, and it is highly likely that if Mr Tricot had not given a clear and satisfactory answer to Mr Bresslaw's questions the terms of the draft conditions would have been re-drafted by agreement to make the position completely clear in the Trustee's favour.
- The Trustee also submitted on these facts that, if necessary, the terms of condition 6(k) should be rectified so as to make it clear that the Contingent Payment would be payable whether or not the bonds had been redeemed in full by the Redemption Maturity Date. Had it been necessary to do so, I would have accepted this submission as well. In my judgment, the exchange of emails on 11 October 2002, on an objective interpretation, manifested a clear agreement between the parties as to the intended meaning and effect of provisions to be included in the Conditions governing the circumstances in which the Contingent Payment should be paid. If, contrary to my ruling at para. [18] above, I had found that condition 6(k) on its proper interpretation did not accurately reflect the agreement made on 11 October 2002, I would have concluded that condition 6(k) should be rectified as submitted by the Trustee.
The Trustee's alternative formulation of its case relying on clause 8.1 of the Trust Deed and Elektrim's defence of res judicata
- It was only necessary for the Trustee to rely on its alternative formulation of its claim for damages, relying on clause 8.1 of the Trust Deed, if it failed on its primary submission as to the proper interpretation of the first paragraph of condition 6(k) and on its submissions in respect of estoppel and rectification. Those submissions have in fact succeeded, so it is not necessary to spend a great deal of time dealing with this alternative formulation of the Trustee's case.
- Elektrim accepted that in principle there could be a valid claim for damages for loss of a chance of receiving the Contingent Payment based on breach of clause 8.1 of the Trust Deed, but submitted that it has a good answer to it, as follows: the claim brought by the Trustee in the proceedings against Elektrim Finance and Elektrim which culminated in the Hart J judgment included a claim for damages against Elektrim based on breach of clause 8.1 of the Trust Deed; the claim for damages based on that provision merged in the judgment given by Hart J in favour of the Trustee; and it is not now open to the Trustee to bring another claim for damages for breach of clause 8.1 of the Trust Deed, including as a new head of damage the loss of opportunity to have the machinery in condition 6(k) brought into operation and payment of a Contingent Payment: Conquer v Boot [1928] 2 KB 336 (CA), 342 (Sankey LJ).
- Some parts of Elektrim's case on this point I do accept. It seems to me that on a fair reading of the Trustee's Points of Claim in those proceedings dated 24 March 2005, a claim for damages against Elektrim for breach of clause 8.1 of the Trust Deed was included. I refer, in particular, to paragraph 16 of those Points of Claim (in which clause 8.1 of the Trust Deed was pleaded) and paragraphs 34, 35 and 37 and the prayer for relief (which included a prayer for an order that Elektrim should pay the sums then outstanding in respect of the bonds). The nature of the claim for such relief based on the guarantee obligation in clause 8.1 of the Trust Deed was technically a claim for damages for breach of contract, even though the word "damages" and the phrase "breach of contract" was not used in the pleading: see Moschi v Lep Air Services Ltd [1973] AC 331, 352B-C and 356A-357F (Lord Simon of Glaisdale) and 348G-349H (Lord Diplock).
- However, in my judgment the doctrine of res judicata and of merger of a claim in a judgment only applies in respect of claims which could in principle have been included in the claim leading to the judgment in question. So far as concerns the Trustee's alternative formulation of its case as a claim for damages against Elektrim for breach of clause 8.1 of the Trust Deed in failing to repay or procure the repayment of the bonds on or before the Redemption Maturity Date (15 December 2005), as a result of which the Trustee/bondholders lost the opportunity to be paid the Contingent Payment, that condition is not fulfilled. The breaches of contract on the part of Elektrim Finance and Elektrim which were held to have occurred in the Hart J judgment involved non-repayment of the bonds on the accelerated date on which Hart J determined they had fallen due, namely 18 January 2005, and (by implication from the terms of the order made by him on 16 September 2005 requiring Elektrim Finance and Elektrim to pay the sums outstanding on the bonds and interest) down to that later date. But none of those breaches of contract were the basis for the Trustee's claim for damages based on clause 8.1 in the present proceedings. It was open to Elektrim after 16 September 2005 to repay or procure repayment of the bonds before the Redemption Maturity Date, and if it had done so there would have been no breach of clause 8.1 on its part which could have founded a claim in damages by reference to condition 6(k) and the Contingent Payment. The proper analysis is that Elektrim committed successive breaches of clause 8.1 day by day while the bonds remained unredeemed, and that it was only by its breach of clause 8.1 in failing to repay or procure repayment of the bonds on 15 December 2005 (i.e. well after the Hart J judgment) that if I am wrong in the interpretation I have given the first paragraph of condition 6(k) above a cause of action arose in respect of breach of that clause which included any claim for loss of opportunity to receive a Contingent Payment. At the time the proceedings before Hart J were commenced, down to the time of the Hart J judgment and his order, no cause of action had arisen in relation to any claim for such loss of opportunity which could properly have been included in the claims made in those proceedings. Accordingly, if it were necessary to do so, I would reject this defence of Elektrim to the Trustee's alternative claim based on clause 8.1 of the Trust Deed.
The facts
- I turn to deal with further aspects of the factual background, focusing on the bonds and Trust Deed and matters affecting the PTC shares.
- Certain of the agreements and proceedings to which I refer below were governed by foreign law (in particular, Polish law). In relation to the approach to the calculation of "Fair Market Value" in condition 6(k) in respect of the PTC shares it is obvious that the investment banks notionally appointed to do that calculation as at 11 July 2006 ("the notional investment banks") would have had access to and taken into account legal advice regarding the claims by various parties in relation to those shares ("the notional legal advice"). I consider below what the sources and content of the notional legal advice would have been. The parties had permission under case management directions to adduce expert evidence of Polish law, but chose not to do so. It is therefore relevant to explain at the outset the approach which I have adopted to matters of foreign law, where issues have arisen regarding the notional legal advice which would have been given to the notional investment banks.
- I have followed the usual approach where issues of foreign law arise for consideration by an English court, which is to apply English law (i.e. to assume that the foreign law and English law are the same) unless there is satisfactory evidence to show that foreign law is (and, in the present case, that advice about foreign law would have been) materially different: see Dicey, Morris & Collins, The Conflict of Laws, 14th ed., Rule 18, pp. 255ff. Mr Millett and Mr Miles agreed that that was the appropriate approach for me to adopt. They both sought to rely on certain judgments in arbitration and court proceedings which were in evidence before me to submit that in relation to various issues there was sufficient evidence of relevant Polish law which would justify departure from a simple application of English law when assessing the likely notional legal advice. Mr Miles also submitted that there was sufficient evidence, by inference from Elektrim's 2005 and 2006 accounts, of what legal advice had in fact been given in mid-2006 to Elektrim about the various legal claims and which would in fact have been available to the notional investment banks as to require me to assess the Trustee's damages claim on the footing that the notional investment banks would have had regard to that actual advice, without it being necessary for the court to make its own assessment of the likely notional legal advice which would have been available. I consider these submissions in detail below.
- In 1995, Elektrim entered into a joint venture with certain other companies, including DeTeMobil Deutsche Telekom MobilNet GmbH (I refer to this company and companies associated with it compendiously as "DT"), to set up a mobile telephone business in Poland. The joint venture vehicle, in which they all subscribed for shares, was PTC. Elektrim directly owned 32.5% of the share capital of PTC which after various acquisitions increased to 48% (represented by 226,080 shares) of the share capital. The parties entered into a shareholders agreement dated 21 December 1995 ("the PTC Shareholders Agreement"). By late 2000 it appears that DT had bought out the interests of the other principal joint venturers apart from Elektrim.
- The PTC Shareholders Agreement was governed by Polish law. It contained the following provisions:
"Article 8.
The transfer, pledge and any other disposal of a share in the Company or a part thereof or other interest therein (herein after referred to as the "Transfer") by a shareholder shall require the prior consent of the Supervisory Board.
The Supervisory Board may establish procedures which require the Party intending to transfer the interest to first offer the interest to the remaining Parties. If such procedures have been established, the Supervisory Board may require the Party intending to transfer the interest to first comply with such procedure before granting the consent.
Article 16: Call Option, Material Default, Damages
16.1 Each Party (each a "Grantor") hereby irrevocably offers to the Operational Parties the right to purchase the shares in the Company owned by the Grantor (the "Option Shares") at the price determined in accordance with Article 16 (3) hereof (the "Call Option"). The foregoing offer shall be subject to the condition that one of the following events has occurred:
(a) A Grantor admits in writing, that it has materially defaulted, or
(b) an arbitration court issues a declaratory award finding that such Grantor is in material default.
16.3 The price to be paid to a Party for the Option Shares shall be (i) such Party's proportional share in the net asset value of the Company (assets minus liabilities including loans granted by any of its shareholders but not including the share capital and any profit or loss carry forwards) as determined in the audited financial statements of the Company for the last completed fiscal year plus (ii) all of such Party's capital contributions made after the date of such financial statements and not reflected therein. Payment becomes due 30 days after the Option Shares have been transferred."
- PTC was a successful business venture, and increased greatly in value. In 1999, Elektrim wished to raise money by selling rights of participation in the stake in PTC which it owned to Vivendi S.A. (another large company with mobile telephone interests in Europe which, together with associated companies, I will refer to compendiously as "Vivendi"). To that end, Elektrim set up ET as a wholly owned subsidiary. Elektrim then subscribed for shares in ET paid for by Elektrim agreeing to transfer 226,079 of the PTC shares which it owned to ET. Elektrim then sold 49% of the share capital in ET to Vivendi for about US$1.2 billion, which was paid initially by way of a loan which was then cancelled.
- On 21 October 1999 the Supervisory Board of PTC purported to pass a resolution giving its consent to the transfer by Elektrim to ET of the PTC shares. However, the DT appointee to the Supervisory Board voted against that resolution. On 8 December 1999 Elektrim purported to transfer the PTC shares to ET.
- DT objected to the transfer of the PTC shares by Elektrim to ET and on 7 December 2000 launched arbitration proceedings in Vienna claiming, amongst other things, that Elektrim had committed a material breach of article 8 of the PTC Shareholders Agreement by effecting the transfer to ET without obtaining the proper approval of the Supervisory Board of PTC (I will refer to these proceedings, together with a second set of arbitration proceedings commenced by DT, as "the Vienna Arbitration"). DT claimed that by reason of that breach the transfer of the PTC shares to ET was not effective and that it (DT) was entitled to exercise the call option to purchase the PTC shares as provided for in article 16 of the PTC Shareholders Agreement. Elektrim rejected DT's claim.
- Meanwhile, Elektrim continued to negotiate with Vivendi and ET with a view to raising more money for Elektrim, and entered into further agreements with them culminating in the Third Investment Agreement between Elektrim, ET Vivendi and Carcom, dated 3 September 2001 ("the TIA"). Before the making of the TIA Carcom was jointly owned half and half by Elektrim and Vivendi. Carcom was the direct or indirect owner of about 3% of the issued share capital of PTC. Under the TIA, ET agreed to purchase certain fixed line and internet companies owned by Elektrim for 491 million (funded by means of a loan from Vivendi to ET) and Vivendi purchased from Elektrim 2% of the share capital in ET and 1% of the share capital of Carcom for 100 million. The effect of the transaction, therefore, was that Vivendi became the majority shareholder in ET and in Carcom (in each case owning 51% as against 49% owned by Elektrim), ET became the owner of the fixed line and internet companies and Elektrim received a further 591 million directly or indirectly from Vivendi.
- The TIA was governed by Polish law. The parties to the TIA were aware of the claims then being made by DT in the Vienna arbitration, and included provision in the form of clause 5.24 of the TIA to deal with what might happen to the PTC shares as a result of that arbitration, as follows:
"Outcome of Arbitrations
(i) In the event that [ET] is required, as a result of any final enforceable order in the Arbitrations or in any proceedings in relation thereto, to transfer any PTC shares to Elektrim, then Elektrim agrees that to the extent that there is no further order in either of the Arbitrations requiring the transfer of any shares to DT, it will retransfer all PTC shares held by it back to [ET] at a price (whether nominal or otherwise) and in a manner and at a time to be determined by Vivendi in its absolute discretion. Until Elektrim has transferred its PTC shares to [ET] as required by Vivendi, Elektrim agrees to hold such PTC shares on trust for [ET] and further agrees (a) not to seek to sell, agree to sell, transfer, encumber, or otherwise dispose of or create any interest in the PTC shares, and (b) to exercise all voting and any other rights attached to the PTC shares (including making all appointments to PTC's Supervisory and Management boards as well as any other PTC committees) strictly on [ET]'s instructions which shall be obtained before any such rights are exercised.
(ii) In the event that [ET] is required, as a result of any final enforceable order in the Arbitrations or in any proceedings in relation thereto, to transfer any of its shares in PTC to DT and Elektrim receives consideration for such transfer either directly from DT or indirectly through the other Respondents named in the PTC arbitration any such consideration shall be paid directly and immediately to [ET]."
- I pause here to examine the intended operation of this provision:
i) The parties recognised that one possible outcome of the Vienna arbitration was that ET would be divested of the PTC shares, which would revert to Elektrim, and that Elektrim might be required to transfer those shares to DT;
ii) If the PTC shares reverted to Elektrim, Elektrim would be required to hold them on trust for ET, and to act at Vivendi's and ET's direction. It was not spelled out what should happen if (as in fact occurred) a partial order was made in the Vienna arbitration re-vesting the PTC shares in Elektrim, but with the possibility that a future order might be made requiring Elektrim to transfer those shares to DT. Given the principle of priority for the outcome of the Vienna arbitration over the rights of ET and Vivendi against Elektrim which is inherent in clause 5.24, one possibility is that it is implied in the clause that in such circumstances ET and Vivendi would not be entitled to require Elektrim to transfer the PTC shares to ET, but that pending resolution of DT's right to have the shares transferred to it Elektrim would continue to hold the shares on trust for ET, and would continue to be bound to act on ET's instructions in relation to exercise of voting and other rights in respect of them. Alternatively, if ET and Vivendi were entitled to require the transfer of the PTC shares immediately to ET and the shares were transferred to ET pending resolution of DT's rights in the Vienna arbitration, ET would take the shares with notice of DT's rights and if it transpired that DT was entitled to require a transfer of the shares to it under the call option in article 16 of the PTC Shareholders Agreement (an obligation in relation to which the remedy of specific performance would be available, provided DT was ready, willing and able to pay the price under that option), DT could compel ET to give up the shares so that they could be transferred to DT. Clause 5.24(ii) would cover this situation. There never was any doubt that DT would be ready, willing and able to pay the purchase price under the call option, whatever it might be assessed to be in the Vienna arbitration. The net effect on either of these analyses would be the same: ET would have beneficial ownership of the shares in the interim, pending determination of DT's rights to have the shares transferred to it, at which point DT could insist upon the transfer of the shares in return for payment of the price under the option, and the price would be remitted by Elektrim to ET;
iii) What was clearly contemplated by clause 5.24 taken as a whole was that DT's rights as determined in the Vienna Arbitration could give it first claim to have the PTC shares (as against all of Elektrim, Vivendi and ET); that if DT was not to have the shares, then ET was to have them (not Elektrim); and if DT took the shares, any money it paid for them would accrue for the benefit of ET (not Elektrim). These last two points are entirely unsurprising, given that ET and Vivendi between them had given good value to Elektrim at the outset when ET acquired the PTC shares;
iv) If Elektrim received the price under the call option from DT, a question might arise whether by virtue of clause 5.24(ii) Elektrim would hold the monies on trust for ET, or would simply be subject to an in personam obligation to transfer them to ET. Mr Millett submitted that the latter was the correct analysis, which corresponded to the position which Elektrim had adopted in legal proceedings against Vivendi. In my opinion, however, the former analysis is the better view, having regard to the facts that (a) clause 5.24(ii) contemplates that the PTC shares might be in ET's, not Elektrim's, ownership until transferred to DT, so if a price is paid for them one would expect it to be held on trust for the owner of the shares (and this impression is reinforced by comparison with clause 5.24(i), which provided that if the PTC shares reverted to Elektrim they should be held on trust for ET, so that it would be natural to expect that the proceeds of sale of the shares by Elektrim to DT would also be held on trust for ET) and (b) clause 5.24(ii) imposes stringent obligations upon Elektrim as to what it is to do with the monies ("any such consideration shall be paid directly and immediately to [ET]").
- In relation to arbitration proceedings which later took place between Elektrim on the one hand and ET and Vivendi on the other, a document came into Elektrim's possession on 8 June 2006 which Elektrim then alleged showed that the TIA had been entered into by Vivendi in bad faith (see para. [130] below). The document was a copy of a memorandum dated 29 August 2001 written by Mr Gibert of Vivendi ("the Gibert memorandum"), which suggested that at the time of negotiating the TIA Vivendi was also, unbeknownst to Elektrim, negotiating with DT promptly to sell on its shareholding in ET to DT, contrary to representations which Vivendi had made to Elektrim. I consider the significance of the Gibert memorandum in the context of the present proceedings below.
- In 2002 Elektrim was in severe financial difficulties. As already set out above, it negotiated with the bondholders to restructure the terms of the bonds and agreed the terms of the Conditions and the Trust Deed with them and the Trustee. The parties to those instruments were aware of DT's claims in the Vienna Arbitration and of the terms of the TIA.
- Notwithstanding the accommodation reached with the bondholders, in June 2003 Elektrim suspended the member of its Management Board who had been nominated by the bondholders. This was the first of a series of events of default under the bonds which in the Hart J judgment were held to have the effect of accelerating the payment obligations under the bonds to 18 January 2005.
- On 22 August 2003 Vivendi commenced arbitration proceedings under the TIA in the London Court of International Arbitration ("the LCIA Arbitration"), seeking declarations that various obligations under the TIA had not been triggered.
- On 14 January 2004 Elektrim terminated the retainer of the solicitors (Watson Farley & Williams) who had been representing it in the Vienna Arbitration. Up to then, Elektrim and Vivendi had been cooperating to organise and agree Elektrim's defence in that arbitration, including by using solicitors instructed by mutual agreement. The termination of the retainer represented a point of divergence of approach in relation to the Vienna Arbitration as between Elektrim and Vivendi. Elektrim's and Vivendi's interests were no longer in alignment, and since Vivendi had the controlling shareholding in ET that company also became hostile to Elektrim.
- On 22 February 2004 Elektrim wrote to Vivendi asserting that Elektrim was entitled to and did avoid the TIA. This gave rise to issues which then had to be considered in the course of the LCIA Arbitration.
- On 15 March 2004 Elektrim served a defence and counterclaim in the LCIA Arbitration claiming that the TIA was null and void for bad faith and non-disclosure by Vivendi.
- On 29 September 2004 Elektrim revoked the appointment of three members of the PTC management board who were appointees of Vivendi.
- On 26 November 2004 the Vienna Tribunal (which is the term which, for simplicity, I will use collectively for the differently constituted tribunals in the Vienna Arbitration) issued an award ("the November 2004 Vienna Award"). It held (i) the transfer of the PTC shares by Elektrim to ET was ineffective because it was not properly approved by the PTC Supervisory Board so that those shares remained the property of Elektrim at all material times; (ii) the attempted transfer by Elektrim of the PTC shares to ET did not itself constitute a material default under the PTC Shareholders' Agreement, but that it would constitute a default if Elektrim were to fail to recover those shares from ET within two months of receipt of the award; (iii) the Vienna Tribunal had no jurisdiction over ET; and (iv) DT's distinct economic impairment claim was dismissed and its damages claim was withdrawn.
- On 10 December 2004 Elektrim issued notices of revocation of the appointment of four members of the PTC Supervisory Board who represented ET and Vivendi and informed PTC of such revocation. On the same day, Elektrim appointed its own nominees to the Supervisory Board in their place. This seems to have been done as part of an attempt by Elektrim to regain control of the PTC shares so as to "recover" them, as required by the Vienna Tribunal, and avoid being found in material default of the PTC Shareholders Agreement.
- Also on 10 December 2004 ET commenced proceedings in the Polish courts to obtain a declaration that it was the owner of the PTC shares ("the Polish Title Proceedings"). This was the first in a series of steps taken in the Polish courts by which ET (controlled by Vivendi) on the one hand, and Elektrim and DT on the other, sought respectively to challenge or to uphold and enforce the November 2004 Vienna Award and to maintain respectively that ET or Elektrim was the owner of the PTC shares.
- On 16 December 2004 Elektrim and DT filed a motion in the Warsaw Regional Court for recognition of the November 2004 Vienna Award in Poland ("the Polish Recognition Proceedings").
- On 17 December 2004 ET filed a motion with the Warsaw Regional Court in the Polish Title Proceedings for an interim injunction prohibiting any changes to the company share register of PTC in relation to registration of the PTC shares (i.e. so as to preserve the position of ET as registered owner of the PTC shares so far as that register was concerned). On 30 December 2004 the court granted ET an interim injunction in those proceedings restraining the PTC Management Board from making any changes to the company share register.
- Meanwhile, on 21 December 2004 Elektrim filed an application with another Polish court to request it to order an entry to be made on the National Court Register ("the KRS Register") to record in that register that Elektrim was the holder of the PTC shares ("the Polish KRS Registration Proceedings"). At this time the KRS Register in relation to PTC recorded ET as the holder of the PTC shares, reflecting the original transfer of the PTC shares by Elektrim to ET in 1999.
- On 10 and 11 January 2005 Elektrim and DT filed applications in the Warsaw Court of Appeal to be joined in the Polish Title Proceedings and appealing for an order that the injunctive relief granted in those proceedings be set aside.
- On 18 January 2005 the bondholders gave notice to Elektrim Finance and Elektrim to accelerate their payment obligations under the bonds.
- On 2 February 2005, in the Polish Recognition Proceedings, the Warsaw Regional Court ordered that the November 2004 Vienna Award should be recognised as effective in the territory of Poland, including that the sale of the PTC shares to ET was ineffective and that they remained the property of Elektrim at all times.
- Elektrim's efforts to regain control of the PTC shares after November 2004 were not fully successful. A confused situation had arisen in which both Elektrim and Vivendi/ET were asserting rights of control over the PTC shares and of participation in the management of PTC, with neither side being completely dominant and in a position fully to control the PTC shares or the management of PTC.
- Therefore, on 9 February 2005, after the expiry of the two month period allowed to Elektrim by the Vienna Tribunal to recover the PTC shares from ET, DT gave notice to Elektrim that Elektrim was in material default and that it (DT) was exercising its call option under article 16 of the PTC Shareholders Agreement to purchase the PTC shares from Elektrim.
- On 10 February 2005, in the Polish KRS Registration Proceedings, on ET's application the Warsaw Regional Court ordered that those proceedings brought by Elektrim be discontinued. This protected ET's registration on the KRS register as owner of the PTC shares.
- On 16 February 2005, in the Polish Recognition Proceedings, ET filed an appeal against the decision of the Warsaw Regional Court of 2 February 2005 recognising the November 2004 Vienna Award.
- On 23 February 2005 the PTC Supervisory Board adopted resolutions dismissing certain members of the PTC Supervisory Board and appointing persons nominated by Elektrim and DT in their stead. The same day the PTC Management Board (the executive tier of management, operating below the Supervisory Board) applied to the Warsaw Regional Court requesting a change to the KRS Register regarding the identity of the owners of the PTC shares, from ET to Elektrim.
- On 24 February 2005, in the Polish KRS Registration Proceedings, the Warsaw Regional Court ordered that ET be removed from the KRS Register as owner of the PTC shares and replaced by Elektrim. The court also ordered that certain members of the PTC Management and Supervisory Boards should be removed (i.e. those appointed by ET) and replaced by nominees put forward by Elektrim. The KRS Register was accordingly revised to record Elektrim as the registered shareholder of the PTC shares.
- On 3 March 2005 the Trustee lodged a bankruptcy petition against Elektrim in the Warsaw Regional Court, seeking an order to put Elektrim into administration and to sequestrate the PTC shares. In response to this petition, the court later caused a Bankruptcy Valuation Report to be prepared in July and August 2006, valuing Elektrim's assets ("the BVR").
- On 9 March 2005 ET filed a challenge to the November 2004 Vienna Award with the Vienna Commercial Court ("the Vienna Commercial Court Challenge"). The grounds for challenge included a complaint that the Vienna Tribunal had no jurisdiction over ET.
- On 10 March 2005, in the Polish KRS Registration Proceedings, ET appealed to the Warsaw Regional Court against the decision of that court of 24 February 2005 ordering that the KRS Register be amended to record Elektrim as the owner of the PTC shares.
- On 24 March 2005 the tribunal in the LCIA Arbitration ("the LCIA Tribunal") issued a provisional freezing order ("the LCIA freezing order") in favour of Vivendi and ET in relation to the PTC shares that Elektrim had recovered or might recover from ET (i) requiring Elektrim to ensure that the members of the PTC Supervisory Board appointed as a result of the rights attached to the PTC shares would be appointed by the management board of ET; (ii) requiring Elektrim to exercise all voting and any other rights attached to the PTC shares (including rights of appointment) strictly on ET's instructions, which were to be obtained before any such rights were exercised; (iii) enjoining Elektrim from "voluntarily" seeking to sell, agree to sell, transfer, encumber, or otherwise dispose of or create any interest in the PTC shares; and (iv) until such time as the requirement in (i) was implemented, enjoining Elektrim from exercising any rights attached to the PTC shares not in the ordinary course of PTC's business.
- The use of the word "voluntarily" in (iii) is significant. It meant that if the Vienna Tribunal ordered Elektrim to sell or transfer the PTC shares to DT, the LCIA freezing order would not prevent that sale or transfer from taking effect. The LCIA freezing order thus reflected the principle in clause 5.24 of the TIA that the claims of DT to the PTC shares in the Vienna Arbitration should rank prior to the claims of ET/Vivendi in respect of those shares in the LCIA Arbitration, and that the claims of ET/Vivendi in respect of the PTC shares should rank prior to any claim that Elektrim might have to benefit from those shares. The LCIA Tribunal later made further orders extending the LCIA freezing order indefinitely. It was in place as at 11 July 2006, and as at that date would have been expected to be in place for the foreseeable future.
- On 25 March 2005, in the LCIA Arbitration, Vivendi served an amended statement of case alleging various breaches of the TIA, including of clause 5.24(i). On 28 April 2005 Vivendi was given leave to serve this amended pleading.
- On 4 July 2005 ET filed proceedings against Elektrim in Poland claiming damages of approximately PLN 8 billion, alternatively the transfer of the PTC shares by Elektrim to ET ("the ET Polish Contribution Claim"). This claim was predicated on the assumption that the order of 2 February 2005 for recognition of the November 2004 Vienna Award was valid and binding.
- On 26 August 2005, in the Polish KRS Registration Proceedings, the Warsaw Regional Court revoked its previous decision of 24 February 2005 to record Elektrim as the owner of the PTC shares and ordered that the case be re-examined.
- On 15 November 2005, in the Polish KRS Registration Proceedings, the Warsaw Regional Court ordered the reinstatement of ET as registered owner of the PTC shares in the KRS Register and ordered the reinstatement of the members of the PTC Supervisory and Management Boards who had been removed in February 2005 and removal of Elektrim's replacement nominees. The KRS Register was amended accordingly.
- On 20 December 2005, in the Vienna Commercial Court Proceedings, the Vienna Commercial Court set aside the part of the November 2004 Vienna Award which determined that Elektrim's transfer of the PTC shares was ineffective and that title remained vested in Elektrim. The basis for this decision was that the Vienna Commercial Court considered that there was an inconsistency in the reasoning in the November 2004 Vienna Award, in that the Vienna Tribunal had correctly held that it had no jurisdiction over ET, but had produced an order which purported to have the effect that ET was deprived of its property (the PTC shares). Elektrim appealed.
- On 4 January 2006, in the Polish Recognition Proceedings, the Warsaw Court of Appeal reopened those proceedings on the application of ET, in light of the Vienna Commercial Court decision of 20 December 2005.
- In late March 2006 Elektrim, Vivendi and DT were in negotiation over a draft settlement agreement.
- On 29 March 2006, in the re-opened Polish Recognition Proceedings, the Warsaw Court of Appeal dismissed ET's appeal against the recognition decision of the Warsaw Regional Court of 2 February 2005 ("the March 2006 Judgment"). The Court of Appeal considered the suggestion (as reflected in the decision of the Vienna Commercial Court) that there was an inconsistency in the reasoning in the November 2004 Vienna Award, but rejected it. The Court of Appeal concluded that the award did not exceed the Vienna Tribunal's jurisdiction under the relevant arbitration clause, and that it should be recognised as legally binding in Poland.
- The March 2006 Judgment is of considerable importance when assessing the notional legal advice which would have been given to the notional investment banks on about 11 July 2006. The affirmation of the recognition order made on 2 February 2005 meant that the rulings in the November 2004 Vienna Award had binding effect in Polish law. Elektrim, ET and PTC were all Polish companies, so a ruling of the Polish courts on the question of the ownership of the PTC shares as between Elektrim and ET would in practice be determinative of that question, notwithstanding the decision of the Vienna Commercial Court. The fact that the judgment was given by the Warsaw Court of Appeal after full argument on the merits gave it considerable authoritative force in the Polish legal system. In my view, the notional legal advice would have been given on the basis that the March 2006 Judgment could in practice be regarded as determinative of the question of the ownership of the legal title to the PTC shares as at 11 July 2006. Although ET could be expected to try to appeal against the decision, its chances of doing so successfully would have appeared small. (In the event, ET did seek to appeal to the Polish Supreme Court; it was successful on certain procedural issues and the case was remitted to the Warsaw Regional Court for re-hearing; no re-hearing has yet taken place, but there is no evidence before me to suggest that the result on the merits is likely to be different from that arrived at in the March 2006 Judgment).
- On 13 April 2006 Vivendi and ET commenced an arbitration before the ICC International Court of Arbitration in Paris seeking a declaration that a settlement agreement which it alleged had been made on 29 March 2006 with Elektrim and DT was binding and an order for specific performance. I was not provided with much information about these proceedings. It does not appear that they got very far, and it seems reasonable to suppose that they would not have been treated as significant by the notional investment banks.
- On 22 May 2006 the LCIA Tribunal promulgated an award declaring that the TIA was and always had been valid ("the May 2006 LCIA Award"). It dismissed Elektrim's claims to have the TIA set aside.
- The May 2006 LCIA Award is, like the March 2006 Judgment, also of considerable importance when assessing the notional legal advice which would have been given to the notional investment banks on about 11 July 2006. It meant that the TIA, including clause 5.24, had been found authoritatively to be binding on Elektrim. Elektrim, therefore, could not expect to be entitled to enjoy use of the PTC shares for its own benefit (the LCIA freezing order, which remained in place, also tended to confirm this), and could not expect to keep any purchase price monies paid by DT for those shares for its own benefit. Those giving the notional legal advice would have appreciated that English law affords considerable respect to arbitration processes on well known principles, and allows only limited scope for seeking to have the results of an arbitration set aside. In my view, there was no material indication on the face of the May 2006 LCIA Award that the LCIA Tribunal had committed any error which might have supported an application by Elektrim to have the award set aside. That view is reinforced by the limited grounds on which Elektrim later did seek to challenge this award, and by the rejection of its challenge by Aikens J in a judgment delivered in January 2007 (see below).
- In May and June 2006, in parallel with work for and at the hearing in the next phase of the Vienna Arbitration (which took place on 15-18 May 2006), Elektrim and DT were in negotiation to agree between themselves, so far as possible, in advance of the next Vienna award the amount which DT should pay Elektrim as the price for the PTC shares under the call option, if the Vienna Tribunal determined that the call option had been validly exercised by DT. A draft Master Agreement was drawn up by DT on 10 May 2006, setting out the terms DT was prepared to agree to ("the Master Agreement"). On 11 May 2006 DT put the Master Agreement to Elektrim, inviting its agreement by 28 May. The general object of the Master Agreement was to allow the ownership and control of PTC to be clarified as speedily as possible. The proposed terms did not purport to prevent Elektrim from seeking a higher price for the PTC shares if the Vienna Tribunal eventually made a higher award. The minimum price payable by DT for the PTC shares as contemplated by the Master Agreement was about 1.45 billion, payable in instalments at defined points in time: (a) 600 million after events including an award determining that DT had validly exercised the option, Elektrim had allowed DT to appoint members of the Management Board of DT in place of its own nominees, Elektrim had created security interests in favour of DT in case the price had later to be repaid (and had used the payment to redeem the bonds, in relation to which DT would stand in the shoes of the bondholders), all injunctions prohibiting the transfer of the shares to DT had been set aside or DT was satisfied they would be set aside (consideration in this regard would have to include the LCIA freezing order, but that did not prevent an involuntary transfer to DT, i.e. pursuant to a determination of the Vienna Tribunal that DT had validly exercised the option) and all other disputes between Elektrim and DT were settled; (b) 150 million after Elektrim finally accepted such an award by the Vienna Tribunal in DT's favour, or it was recognised in Poland, and DT's ownership of the PTC shares and its management nominees for PTC had been registered in the KRS Register; (c) 150 million when ET's appeal against the March 2006 Judgment had been rejected and DT's representation on the management of PTC consolidated; (d) a final payment of 200 million once DT's ownership of the PTC shares was no longer disputed or had been finally determined by the Polish courts (with the possibility of a reduction of 100 million if DT was the party which effectively procured settlement with Vivendi and ET); and, in addition, (e) DT agreed to procure the declaration of a dividend by PTC for the benefit of Elektrim, as an addition to the price.
- The overall value of this proposal was put at 1.45 billion in the evidence of Dr Jδckle, who acted for DT in the negotiations, and there was no significant dispute about that at the trial. He explained that for reputational reasons (since DT was a German company operating in Poland) DT was concerned to ensure that the Master Agreement set out what would be considered to be a fair price, as perceived by both lawyers and the Polish public at large.
- On 28 May 2006 Elektrim sent a declaration to DT accepting the terms of the Master Agreement but qualified thus: "Elektrim's supervisory board approval required". It seems that Elektrim's Management Board approved the terms of the Master Agreement, and that all that remained was for it also to be approved by the Supervisory Board. Elektrim's Management Board also, therefore, appear to have regarded the terms of the Master Agreement as broadly fair. However, since there was no unqualified acceptance of the Master Agreement before the deadline imposed by DT, it did not come into effect as a binding contract. Nonetheless, I think that the notional investment banks would have been interested in the terms of the Master Agreement, as a good indication of the value which both parties to the Vienna Arbitration placed upon the likely outcome of that arbitration, in terms of the amount of the price which would ultimately be payable by DT under the option. Mr Millett emphasised that the Master Agreement was conditional on various matters, but in my view the principal conditions related to the resolution in favour of DT of its claim to the PTC shares as against ET and Vivendi, and since the TIA recognised that DT (if successful in the Vienna Arbitration in its claim for a transfer of those shares to it) would have a claim to those shares prior to the claims of ET and Vivendi, the conditional nature of the Master Agreement's provisions would not significantly have detracted from it being a fair and reasonable indication for the notional investment banks of the approximate minimum amount of the price DT would be likely to have to pay Elektrim for the PTC shares under the option.
- On 5 June 2006 Elektrim published its 2005 accounts. As explained above, in the line item figures in those accounts the PTC shares were implicitly treated as owned by ET, not Elektrim itself. However, note 39 to the accounts, headed "Contingent liabilities of companies consolidated with the Elektrim Group the size of which it is difficult to estimate", contained a long account of the litigation surrounding the PTC shares. The May 2006 LCIA Award was referred to. Note 39 included the following:
"The Registration Court's decision in the matter of PTC
On 2 February 2005 the Regional Court in Warsaw issued a decision on recognising the effectiveness of the [November 2004 Vienna Award].
On the basis of this decision, on 24 February 2005 the District Court for the Capital City of Warsaw 19th Division of the National Court Register issued a decision on amending the commercial registry entry of the company Polska Telefonia Cyfrowa Sp. z o.o (PTC). The court's decision included the following changes:
1. deletion of [ET] and entry in its place of Elektrim S.A. as a significant shareholder in PTC possessing 226,080 shares in PTC;
2. deletion of the following members of the Supervisory Board: Dariusz Oleszczuk, Michel Picot, Phillippe Houdouin and Jacek Nieweglowski and entry in their place of: Henryk Sobierajski, Dominik Libicki, Jozef Birka and Piotr Nurowski;
3. deletion of the following members of the Management Board: Boguslaw Kulakowski, Ryszard Pospleszynski and Honathan Eastick and entry in their place of Tadeusz Kubiak, Tomasz Holec and Andrzej Sykulski.
Piotr Nurowski became Chairman of the Supervisory Board, Michael Gunther its Deputy Chairman and Dominik Libicki its Secretary.
The Management Board composed as follows became the only body authorised to represent PTC in accordance with the provisions of the law:
Tadeusz Kubiak Director General
Wilhelm Stuckemann Director for Network Exploitation
Martin Schneider Director for Strategy, Marketing and Sales
Tomasz Holec- Administration Director
Andrzej Sykulski Finance Director
Towards the end of August 2005 the Local Court in Warsaw annulled the decision of the Regional Court dated 24th February 2005 and sent the case for renewed consideration.
On 15 November 2005 the Registration Court made new changes in the National Court Register, entering [ET] as a shareholder in place of Elektrim S.A.
In connection with the change in [PTC's] entry in the National Court Register (KRS) Elektrim S.A. undertook legal action aimed at again having Elektrim S.A. entered in the KRS as the shareholder in PTC in accordance with the legally binding judgement of the Vienna Arbitration Court of 26 November 2004. This judgement is binding for all parties to the proceedings, including [ET]. In its judgement in the Arbitration Court unambiguous determined that Elektrim S.A. was and has remained at all proper times the owner of 48% of shares in PTC. That [ET] is bound by the judgement of the Vienna court has been confirmed by Polish courts, including the Appeal Court, which in its decision of 11 May 2005 stated that it has direct legal consequences for ET and affects directly ET's ownership rights.
On 29th March 2006 the Appeal Court in Warsaw rejected and dismissed [ET's] appeal and the appeal of the Public Prosecutor against the Regional Court in Warsaw's judgement of 2 February 2005. This means that the decision of the International Arbitration Court in Vienna of 26 November 2004 is effective in Poland. The Appeal Court's judgment is legally binding."
- Note 40 stated:
"Significant events relating to past years which occurred after the balance sheet date and were not taken into consideration in the consolidated financial statements.
On 29 March 2006, the Appeal Court in Warsaw rejected and dismissed [ET's] appeal and also that of the Public Prosecutor against the decision of the Regional Court in Warsaw of 2 February 2005 relating to the decision to recognise the effectiveness of the judgement of the Vienna Arbitration Court of November 2004. In its judgement the Arbitration Court stated that the sale of 48% of the shares in [PTC] to ET was ineffective and the shares in PTC, which were its subject, remained the property of Elektrim at every proper time.
The Appeal Court's decision means that the judgement of the International Arbitration Court in Vienna of 26 November 2004 is effective in Poland. In view, however, of the complicated nature of all the matters connected to PTC these financial statements do not contain adjustments related to them.
The most important events after the balance sheet date were described in Notes 39 and 29.
The influence of events after the balance sheet date is difficult to assess. Apart from the above events and others described in these supplementary explanatory notes there were no events after the balance sheet date that were of significant importance and were not included in the financial statements."
- Ernst & Young declined to give an opinion on Elektrim's 2005 accounts. In their report explaining their position, they referred, amongst other things, to the litigation affecting the PTC shares, as follows:
"In 2002-2003, the company board of directors underwent many changes and, as of the date of issue of the present report, we had not yet received the declarations of some former members of the board in connection with the audit of the group's consolidated financial statements for previous periods. Accordingly, we cannot state whether as of the day of the present report the present members of the board are in possession of knowledge about all the major liabilities contracted, contingent liabilities, and transactions carried out by the company. In particular, for these reasons, the declaration of the company board of directors obtained during our audit in respect of the accuracy and integrity of the consolidated financial statement in the year ending on 31 December 2005 was modified significantly. In the event of existence of major undisclosed contracted liabilities, contingent liabilities, and transactions up to 31st December 2005, their influence on the enclosed consolidated financial statement cannot be determined. At the same time, one of the law firms with which the company ceased working in 2005 did not respond to our question on the current status of the cases that the firm conducted for the company. Moreover, one of the law firms working for the company did not give us an update of its response as of the day of the present report. Accordingly, as of the day of the present report, we cannot comment on the subject of the possible consequences of the court cases and of their possible influence on the enclosed consolidated financial statement for the year ending 31 December 2005. Additionally, during the audit, the company did not release to us full minutes of the meetings of the company board of directors and supervisory board. In accordance with the declaration of the company board of directors, the board delivered to us all the documents and agreements in its possession regarding period audited, which are not subject to business confidentiality. In accordance with the declaration of the company board of directors, the documents that have not been released to us represent the company's business secrets. Accordingly, as of the day of the present report, we cannot comment on the subject of the possible influence of our unresolved issues on the enclosed consolidated financial statement for the year ending on 31 December 2005. Moreover, on the basis of information obtained from the company, we could not affirm all the information included in the additional explanatory notes to the enclosed consolidated financial statement."
- Mr Miles submitted that Elektrim's 2005 accounts have great importance in consideration of the Trustee's claim for two reasons. First, he said that the notes to the accounts form part of the accounts themselves. The notes recorded the March 2006 Judgment and hence in substance acknowledged that Elektrim, not ET, was the owner of the PTC shares despite appearing to treat the PTC shares as an asset of ET in the line item figures in the accounts. Mr Bezant's evidence was that he read the notes as indicating that the management of Elektrim accepted that they should have redrafted the line items in the accounts in light of the March 2006 Judgment, recording the PTC shares as an asset of Elektrim. This point would have had considerable significance had I decided (contrary to my ruling at para. [35] above) that the calculation of "Fair Market Value" was required to proceed solely by reference to the terms of Elektrim's accounts. However, that is not the position, so the argument on this issue is less significant, since the notional investment banks would have been able to form their own view about whether the PTC shares constituted assets of Elektrim. In light of the uncertainty created by the contrast between the line item figures in the accounts and the notes to the accounts, and the decision of the auditors to withhold an audit opinion, there can be little doubt that that is what the notional investment banks would have done.
- Secondly, Mr Miles submitted that in reaching their own view, the notional investment banks would have had access to the legal advice which the management of Elektrim must (so it was said) in all probability have obtained before 11 July 2006 about the litigation affecting the PTC shares (since the management would have required legal advice in order to make their own assessment of the likely outcome of that litigation in order to decide how to treat it in the accounts); that the notional investment banks would have carried out their valuations on the basis of that legal advice (since they would have been likely to accept that legal advice unless it was clearly suspect or doubtful in some way, and there was nothing to suggest that it would have appeared so); and that the court should draw inferences from the accounts about the legal advice the management of Elektrim had in fact obtained by 5 June 2006. He submitted that, if proper inferences were drawn from Elektrim's 2005 accounts (supplemented if necessary by inferences drawn from its 2006 accounts prepared a year later) the court could make findings about what the legal advice which Elektrim had in fact obtained about the PTC shares by 11 July 2006 ("the actual July 2006 legal advice") been, and should then approach the Trustee's damages claim by reference to the actual July 2006 legal advice rather than by reference to the notional legal advice based on the court's own attempt to assess what such advice would have been as at 11 July 2006.
- I do not accept this submission, for the following reasons:
i) Elektrim's 2005 accounts were published before a further important ruling of the Vienna Tribunal, promulgated on 6 June 2006, and other legal developments after that (see para. [114] below). Any legal advice which the management had received by time of publication of the accounts would have addressed a legal picture which was substantially different from that which existed (and had become much clearer) as at 11 July 2006. Since all the claims in relation to the PTC shares interacted with each other, the notional investment banks would have required a fresh, full and thorough legal review of the legal position as at 11 July 2006 for the purposes of performing their valuations under condition 6(k). They would not have been satisfied with such legal advice as Elektrim's management might in fact have obtained before publication of the accounts on 5 June 2006;
ii) I was not persuaded that any sound inferences could be drawn from the content of Elektrim's 2006 accounts so as to reconstruct the actual July 2006 legal advice, taking into account the impact of the award of the Vienna Tribunal of 6 June 2006. The legal advice in fact obtained by Elektrim for the purposes of preparing its 2006 accounts (published on 12th June 2007 was probably obtained later than 11 July 2006, and had to take account of other legal developments after that time (for example, the 2006 accounts accepted that the PTC shares had in fact become the property of DT in October 2006, and the notes to the 2006 accounts refer to new arguments being presented by DT).
iii) The main thrust of the Trustee's argument in relation to assessment of damages in respect of the PTC shares is that they should be treated as an asset of Elektrim, not ET. But the principal presentation of Elektrim's 2005 accounts (in the form of line item figures) did not show the PTC shares as an asset of Elektrim at all, so the proper accounting treatment of the claims of ET, Vivendi and DT if (contrary to that presentation) they were in fact to be treated as an asset of Elektrim was moot. In those circumstances, no inference can safely be drawn from Elektrim's 2005 accounts about the content of the actual July 2006 legal advice (if, indeed, any existed on these topics) as to how the various claims to the PTC shares might have worked themselves out, and what impact those claims might have for the purposes of assessment of whether the PTC shares were an asset of Elektrim or not according to the IAS, what liabilities Elektrim might or might not have in respect of them according to the IAS, and whether such liabilities were or were not properly to be assessed as contingent liabilities according to the IAS;
iv) Although the heading to note 39 in the 2005 accounts is "Contingent liabilities of companies consolidated with the Elektrim Group the size of which it is difficult to estimate", I do not think it can safely be inferred from that what the actual July 2006 legal advice was. In particular, I do not think it can be inferred that Elektrim had in fact received legal advice that any claims ET and Vivendi might have under clause 5.24 of the TIA in respect of the PTC shares were weak or speculative, such as would not have to be recognised in Elektrim's accounts but could be treated only as contingent liabilities. The line item treatment of the PTC shares as assets of ET already in substance gave effect to any claim ET might have to enjoy beneficial ownership of the shares under clause 5.24 (and given that treatment, it would have been inappropriate to record Elektrim as having, additionally, a distinct liability to ET in respect of the PTC shares). Also, discussion of DT's claims was located in note 39 under the same heading, yet those claims (including in particular as determined in the November 2004 Vienna Award and the March 2006 Judgment) and the account of them in that note were the basis for the Trustee's argument that Elektrim itself ought properly to be regarded as owner of the PTC shares. I think there is considerable force in this argument of the Trustee, so far as concerns the legal ownership of the PTC shares, and it is difficult to see that any actual legal adviser advising Elektrim before 5 June 2006 would have thought otherwise; but what the argument and the conclusion indicate is that one cannot safely draw inferences from the heading of note 39 as to the legal advice which Elektrim had actually received at the time;
v) The fact that Ernst & Young declined to express an opinion on Elektrim's 2005 accounts drawn up in this way also undermines the possibility of drawing any safe inference about what legal advice Elektrim may in fact have received about the various legal claims in respect of the PTC shares. This point is reinforced by what Ernst & Young stated in paragraph 9 of their audit report (see para. [109] above). Moreover, given the state of confusion set out in that paragraph, and the failure of Elektrim to provide even the company's auditors in June 2006 with a complete and coherent set of legal advices about the various legal claims affecting the PTC shares, it seems highly unlikely that Elektrim would in fact have provided satisfactory legal advice to the notional investment banks, and highly likely that those banks would have sought further legal assistance in the form of the notional legal advice to enable them to perform their function under condition 6(k);
vi) The Trustee also submitted that it was significant that Elektrim's 2005 accounts did not include a provision in respect of costs which Elektrim might have to pay in relation to the LCIA Arbitration, and suggested that this meant that the legal advice Elektrim had in fact received was that it would succeed in that arbitration. Again, I do not think that such an inference can be drawn from this feature of the accounts. By the time the accounts were published, the May 2006 LCIA Award had already been promulgated (and it was referred to in note 39 of the accounts), Elektrim knew it had lost but had still made no provision against or note acknowledging the costs that in all likelihood it would have to pay in respect of that phase of the arbitration proceedings. The same point may be made about the costs in respect of the Vienna Arbitration (both as to the November 2004 Vienna Award, in which Elektrim had in large part lost, and the June 2006 Vienna Award, in relation to which the hearing had been held and the award was imminent). The better inference, in my view, is that the management of Elektrim simply did not address questions of costs in the various legal proceedings affecting the PTC shares, and did not reason through those issues in the accounts by reference to detailed legal advice about all the various claims in which Elektrim was involved;
vii) The general discussion about all the litigation and arbitration proceedings in notes 39 and 40 to Elektrim's 2005 accounts is too remote from any detailed legal assessment of the overall position as at 5 June 2006 (let alone 11 July 2006) to allow any sensible inference to be drawn about what legal advice Elektrim might in fact have received by 5 June 2006. The notes recite the long and complex history of the various proceedings, without attempting to assess or express views about the significance of any part of that history or about the overall legal position; nor do the notes or the accounts attempt to show how any part of that history or the overall legal position might be worked through in terms of detailed accounting entries;
viii) Nor can Elektrim be criticised, nor any inference be drawn against it, because it did not call evidence to say what legal advice it had actually received by 11 July 2006, since legal professional privilege would relieve it from any obligation to reveal the contents of such advice.
- Accordingly, I consider that the proper approach for consideration of the Trustee's damages claim in relation to the PTC shares is to make an assessment of the notional legal advice available to the notional investment banks on the picture as it presented itself as at 11 July 2006. I make that assessment below, after completing my account of the relevant facts.
- On 6 June 2006 the Vienna Tribunal promulgated a further award in the Vienna Arbitration ("the June 2006 Vienna Award"). By this decision the Vienna Tribunal held that (i) DT had validly exercised the call option in article 16 of the PTC Shareholders Agreement in relation to the PTC shares; (ii) as a result, and subject to payment within 30 days of the price (which was to be determined at a future hearing), DT would acquire the shares in PTC and would be their owner; (iii) while DT argued that the price provided for by article 16(3) was the book value of the PTC shares (about 377 million), the limitation of the price to such a sum as compared to the fair market value of the PTC shares would constitute an illegitimate penalty, so the actual amount of the price to be paid remained to be determined by the Tribunal at a future hearing.
- The Vienna Tribunal observed, at paragraph 70:
"Having found for [Elektrim on the relevant Polish law in relation to penalties], the Arbitral Tribunal is not yet in a position to determine how the reduction of the penalty which is included in Article 16 (3) of the Shareholders Agreement will affect the determination of the price. The tests that will guide the Arbitral Tribunal in examining that question for a further determination in the next substantive award are likely to be as follows:
* The common will and intent of the Parties at the time of entering into the contract which contains the penalty.
* The dolus directus of Elektrim when transferring control of PTC to Vivendi and a certain violation of the Shareholders Agreement when introducing a foreign partner as a controlling partner without DT's consent.
* The exact or approximate damage which has been incurred by DT as a result of Elektrim's conduct.
* The difference between the book value and the fair market value of the shares."
- The June 2006 Vienna Award is, along with the March 2006 Judgment and the May 2006 LCIA Award, the third of the most important parts of the legal background relevant to assessment of the notional legal advice on about 11 July 2006. The Vienna Tribunal held that DT had validly exercised its right under article 16 of the PTC Shareholders Agreement to call for the sale of the PTC shares to it. The price to be paid could not be less than the book value of about 377 million, but to limit it to this would constitute an unlawful penalty. Accordingly, the price to be paid by DT would be increased, the final amount to be determined at a further hearing of the Vienna Tribunal. The factors relevant to this determination would be those identified at paragraph 70 of the award.
- The parties agreed that at 11 July 2006 the value of a holding of 49.4326% of PTC the PTC shares (i.e. slightly more than the 48% represented by the PTC shares), leaving aside the impact of legal disputes, was worth PLN 9,798,451,127 (approximately 2.4 billion).
- Taking stock of the various proceedings at this stage, the three decisions which had particular importance were the March 2006 Judgment of the Warsaw Court of Appeal (confirming recognition of the Vienna November 2004 Award in Poland and so recognising Elektrim as owner of the PTC shares), the May 2006 LCIA Award (upholding the validity of the TIA contrary to the claims of Elektrim) and the June 2006 Vienna Award (confirming the validity of the exercise by DT of the call option under article 16 of the PTC Shareholders Agreement, which therefore established an obligation upon Elektrim to sell the PTC shares to DT at a price to be ruled upon by the Vienna Tribunal). So far as that price was concerned, (i) DT accepted that it would have to pay at least about 377m; (ii) the Vienna Tribunal had ruled that it would have to pay more than that to eliminate the element of penalty; (iii) Elektrim and DT had conducted a preliminary negotiation of the further sums to be paid, and under the Master Agreement, which had been accepted in principle by Elektrim although not formally agreed, a minimum overall price to be paid by DT of some 1.45 billion was contemplated; and (iv) there was never any serious doubt but that DT would be ready, able and willing to pay the purchase price under the call option whatever it might be determined to be by the Vienna Tribunal. In my view these were the key elements of the legal position which would have been available to any legal adviser providing the notional legal advice and to the notional investment banks.
- On 12 June 2006, Elektrim held a press conference to discuss the latest Vienna Arbitration award. The award was not put into the public domain, but statements were made on behalf of Elektrim about it. Elektrim said that the effect of the award was that DT was the owner of the PTC shares. This was not an accurate reflection of the award. Nonetheless, Mr Millett submitted that the notional investment banks would have given weight to this statement in their assessment of the situation, and as a result would have regarded DT, not Elektrim, as owner of the PTC shares. I reject that submission. In the context of the battle which was going on between Elektrim and ET at the time to assert management control over PTC, it seems to me that the statement was probably a tactical manoeuvre by Elektrim to bolster its position in its arguments with ET, knowing that it was unlikely to weaken its position vis-ΰ-vis DT in the Vienna Arbitration (in which the Vienna Tribunal would be guided by the legal arguments already being put before it). The statement was at odds with the actual ruling in the June 2006 Vienna Award (which made it clear that DT would only become owner of the PTC shares when it had paid the price due under the call option, which had not occurred by 12 June 2006) and at odds with the position adopted by Elektrim in the continuing Vienna Arbitration, in which it continued to argue that DT would not become owner of the PTC shares until the price for them was determined and paid. I do not consider that the notional investment banks and the notional legal advice would have attributed any significant weight to this statement.
- On 14 June 2006, in the Polish KRS Registration Proceedings, the Warsaw Regional Court reversed the decision of that court of 11 November 2005 (which had reinstated ET as the holder of the PTC stake in the KRS Register) and remitted the decision on registration in the KRS Register to the Regional Court for review. This decision reflected the rulings in the Polish Recognition Proceedings.
- In light of Elektrim's statements about the June 2006 Vienna Award at the press conference on 12 June 2006 and information that the PTC Management Board controlled by Elektrim had convened a meeting of PTC's shareholders for 28 June 2006 to vote on distribution of PTC's retained profits (which were worth in the hundreds of millions of Euros) by way of a dividend, on 16 June 2006 Vivendi and ET applied to the LCIA Tribunal for further interim relief in respect of the PTC shares. The proposal for distribution of PTC's retained profits represented an attempt by Elektrim to derive value for itself from the PTC shares, contrary to what was set out in the TIA. Vivendi and ET invited the Tribunal to reiterate and emphasise the terms of the LCIA freezing order enjoining Elektrim "from voluntarily seeking to sell [etc]" the PTC shares and enjoining Elektrim "from exercising any rights attached to the PTC shares not in the ordinary course of PTC's business", including by indicating in the latter case that Elektrim was enjoined "from participating in or voting at the
meeting of PTC shareholders in connection with the distribution of the 'entire PTC profit'". They also sought an order that Elektrim disclose the June 2006 Vienna Award.
- On 20 June 2006, in the Polish Title Proceedings, the Warsaw Court of Appeal allowed appeals by Elektrim and DT against the injunction granted to ET on 30 December 2004 enjoining the PTC Management Board from making changes to the PTC share register to record Elektrim as owner of the PTC shares. This decision reflected and gave effect to the March 2006 Judgment, indicating the authoritative nature of that judgment within Poland.
- On 23 June 2006 Elektrim wrote to PTC informing it that according to the June 2006 Vienna Award, DT had validly exercised its option under the PTC Shareholders Agreement on 15 February 2005 and that accordingly an agreement for the sale of the PTC shares to DT had been concluded by Elektrim. The letter stated, "Under the said agreement, title to these shares has passed to [DT]". Elektrim sought to rely on this letter to show that it did not in fact own the PTC shares as at 11 July 2006, but called no evidence to explain why or in what circumstances it was written. In the light of the battle which was going on between Elektrim and ET at the time to assert management control over PTC, it seems to me that the letter (like Elektrim's statement to the press on 12 June 2006) is likely to have been a tactical manoeuvre by Elektrim to bolster its position in its arguments with ET. I do not consider that the notional investment banks and the notional legal advice would have attributed any significant weight to this letter.
- Also on 23 June 2006, Elektrim gave notice to the LCIA Tribunal that it was preparing an application to the High Court in England to challenge the May 2006 LCIA Award and requesting that the LCIA Tribunal refrain from making any other orders or directions until the outcome of that challenge was known.
- Despite that, on 27 June 2006 the LCIA Tribunal acted on the application of 16 June 2006 by Vivendi and ET and issued a further interim injunction until 12 July 2006 (when a full hearing of the application would take place) enjoining Elektrim from participating in voting at the PTC shareholders meeting scheduled for 28 June 2006 or at any such meeting to be held prior to 12 July 2006 in connection with the distribution of retained profits by PTC ("the June 2006 LCIA injunction").
- Also on 27 June 2006 the Warsaw Regional Court issued a similar interim injunction on the application of ET, enjoining Elektrim from accepting any dividends from PTC until the hearing of ET's claims, to take place within two weeks ("the June 2006 Polish injunction").
- The same day, DT requested the Vienna Tribunal to make an award on the mechanics of the transfer of legal title to and the payment for the PTC shares and the PTC Management Board wrote to shareholders of PTC listing Elektrim as holder of the PTC shares.
- On 28 June 2006 a PTC shareholders' meeting was held. Representatives of ET sought to attend the meeting but were told that ET was not on the list of shareholders in PTC, albeit the KRS Register in respect of PTC still recorded ET as the registered shareholder of the PTC shares.
- On 3 July 2006 Vivendi and ET filed additional submissions on interim relief in the LCIA Arbitration, including a prayer for interim relief to prevent Elektrim from taking any measures which would further jeopardize ET's rights to the PTC shares pending resolution of the issues in the LCIA Arbitration.
- On 10 July 2006 Elektrim filed a skeleton argument in the LCIA Arbitration referring to an application shortly to be made in the English High Court under section 68 of the Arbitration Act 1996, to have the May 2006 LCIA Award set aside. The application was filed on 12 July, and was supported by a witness statement of a Mr Black dated 11 July which explained the basis for the challenge to the award. That witness statement referred to the Gibert memorandum and complained that Vivendi's failure to disclose it in the course of the LCIA Arbitration amounted to fraud or was otherwise contrary to public policy (so as to entitle Elektrim to have the award set aside or remitted) and submitted that the letter gave rise to a new line of defence or ground for rescission of the TIA (to the effect that Vivendi had misled Elektrim as to its true intentions in respect of ET) and supported other arguments previously advanced by Elektrim to have the TIA set aside. Mr Black made the point that Vivendi had not provided an explanation why the Gibert memorandum had not been disclosed as it should have been in the course of the LCIA Arbitration. This material would have been available to the notional investment banks and legal advisers providing the notional legal advice.
- In assessing the significance of the Gibert memorandum and Elektrim's application to set aside the May 2006 LCIA Award and the notional legal advice to be given in light of them it is, in my view, relevant to have regard to the ruling and reasoning of Aikens J on that application in his judgment handed down on 19 January 2007: Elektrim SA v Vivendi Universal SA [2007] EWHC 11 (Comm). I consider that this judgment gives a clear indication of what assessment any legal adviser asked to provide the notional legal advice would have made of the Gibert memorandum and Elektrim's application (a point reinforced by the fact that there was no appeal by Elektrim against his judgment).
- Aikens J dismissed the application with full and careful reasons. His judgment was firmly grounded on principles governing the interpretation of the Arbitration Act 1996 set out by the House of Lords in Lesotho Developments v Impregilo SpA [2006] 1 AC 221: see the discussion by Aikens J at [75]-[77], where he emphasised that the established approach of English law under the Act is to afford considerable respect to the results of an arbitral process and to create only very limited powers for the courts to intervene to set aside such results. In my view, in light of the reasons given by Aikens J, the notional legal advice would have been to the effect that Elektrim's application to set aside the May 2006 LCIA Award was very unlikely to succeed, and that there was still less prospect of success in actually ultimately achieving a different substantive result from that arrived at in that award (in which the LCIA Tribunal upheld the validity of the TIA). Accordingly, notwithstanding Elektrim's application to the English High Court, the notional legal advice would have been framed by reference to the May 2006 LCIA Award and on the footing that the TIA was a valid agreement binding Elektrim. It would have been foolhardy for any legal adviser advising on the position as at 11 July 2006 to have taken any different view.
- It is true that, by the time of the hearing before Aikens J, Vivendi had filed evidence to explain why it had not disclosed the Gibert memorandum in time for the hearing leading up to the making of the May 2006 LCIA Award. That evidence was not available on 11 July 2006, and so the detail of it could not have been taken into account in formulating the notional legal advice. However, in the context of the hard-fought litigation between Elektrim and Vivendi, I think the natural expectation (despite the argumentative point made by Mr Black in his witness statement) would have been that Vivendi would be bound to put forward some explanation why the Gibert memorandum had not been disclosed. The important point, as analysed by Aikens J, was that for Elektrim to succeed on its complaint that the award had been obtained by fraud or should be set aside on public policy grounds by reason of such non-disclosure, Elektrim had to show that the Gibert memorandum had been deliberately withheld by Vivendi in bad faith, knowing that it had an obligation to disclose it: see [88]-[107] of his judgment. Such an allegation of fraud would have to be proved to a high standard, and in Aikens J's clear view there was no evidence to establish Elektrim's case to such a standard. I do not think that there was any significant difference in that regard between the position after Vivendi had filed its evidence on the point and the position on 11 July 2006, before it had done so (at which point Elektrim's case was necessarily speculative to a significant degree and the difficulties likely to arise in ultimately making out such a case to the satisfaction of a court would have been obvious to any legal adviser).
- Aikens J also analysed, by means of detailed reference to the findings of the LCIA Tribunal in the May 2006 LCIA Award, why the Gibert memorandum would not have made any difference to the ruling of the Tribunal in that award upholding the validity of the TIA: see [108]-[113] (even assuming that the Gibert memorandum showed that evidence given by Mr Gibert to the Tribunal was false, it would have made no difference, since his evidence had in any event not been accepted for other reasons) and [114]-[120] (the Gibert memorandum, if available, would not have enabled Elektrim to establish any additional ground for setting aside the TIA, on the basis that it was induced to enter into it by any misrepresentation by Vivendi: the Tribunal had found that Elektrim was determined to enter into the TIA in order to meet its then desperate need to raise cash). Aikens J's reasoning on these points is clear and compelling, and is based on materials which would have been available to a legal adviser providing the notional legal advice. There is no basis to suppose that such an adviser would have analysed the position any differently.
- On 11 July 2006 Elektrim filed an appeal against the interim injunction obtained by ET and Vivendi from the Warsaw Regional Court on 27 June.
- On 12 July 2006 there was a hearing before the LCIA Tribunal in respect of Vivendi's application of 16 June 2006 for further interim relief.
- On 13 July 2006 in the Polish KRS Registration Proceedings, the Warsaw Regional Court struck ET off the KRS register as the registered holder of the PTC stake and ordered that Elektrim be recorded as the holder of the PTC stake. By this means the court gave further effect to the March 2006 Judgment. The KRS Register was amended accordingly.
- At this point in this lengthy chronology it should be recalled that, as set out above, the Contingent Payment Determination Date for the purposes of condition 6(k) was 11 July 2006, and that the work of the notional investment banks under that provision had to be completed by about that date (or, on the Trustee's argument, by a few days after that). A good deal of activity continued on various legal fronts after this, but it is not necessary to go through it in great detail. A few salient matters should, however, be noted.
- On 2 August 2006 the LCIA Tribunal acceded to the application of ET and Vivendi of 16 June 2006 and extended the LCIA freezing order. In my view, in light of the May 2006 LCIA Award upholding the validity of the TIA and the terms of the TIA itself, it was always very likely that the LCIA Tribunal would take this approach to that application, and this would have been appreciated by any legal adviser providing the notional legal advice.
- On 5 August 2006, in the Polish Recognition Proceedings, ET lodged its appeal to the Polish Supreme Court against the March 2006 Judgment. It had been clear since that judgment was handed down that ET was likely to do this. However, I do not consider that the mere fact that such a move by ET was on the cards as at 11 July 2006 would have had a material effect upon the notional legal advice. The fact that the Polish courts at both first instance and in the Court of Appeal had, in carefully reasoned judgments, recognised the binding legal effect in Polish law of the November 2004 Vienna Award would have provided very powerful evidence for any legal adviser providing the notional legal advice as at 11 July 2006 of the correct legal position in Poland in relation to the PTC shares. The outcome of any such appeal would have been speculative, and in my view such a legal adviser would again have been foolhardy in advising at that time on any basis other than that the November 2004 Vienna Award was binding in Polish law. This view is reinforced by the fact that when, subsequently, the Polish Supreme Court heard the appeal, it was allowed on procedural grounds (which meant that the case and Elektrim's and DT's application for recognition of the November 2004 Vienna Award fell to be remitted for re-consideration by the lower courts) but not on the basis of any finding that the lower courts had gone wrong on the substantive merits in their decisions.
- On 16 August 2006 the Warsaw Court of Appeal suspended the effectiveness of its March 2006 Judgment in the Polish Recognition Proceedings pending the hearing of the appeal filed by ET.
- On 4 September 2006 the Master Agreement, as amended by an additional set of provisions, was entered into by Elektrim and DT, setting out their agreement as to how the November 2004 Vienna Award and the June 2006 Vienna Award were to be implemented (the amended, binding agreement was referred to at trial as "the Implementation Agreement"). The provisions for payment of the price by DT under the call option set out in the Master Agreement were confirmed in the Implementation Agreement. Accordingly, it appears that Elektrim's Supervisory Board as well as its Management Board regarded the payment terms in the Master Agreement as a reasonably fair estimation of the price to be paid by DT (subject to any possible increase as a result of further proceedings in the Vienna Arbitration). This serves to reinforce the significance which the notional investment banks and any legal adviser would have been likely to attribute to the terms of the Master Agreement as at 11 July 2006 in evaluating the price payable by DT for the PTC shares, since if inquiry had been made at that time about the fairness of the terms in the Master Agreement the high probability is that the Elektrim management would have confirmed their view that they were fair.
- Clause 2.4 of the Implementation Agreement referred to Elektrim's letter of 23 June 2006 to the management of PTC (para. [123] above) in these terms:
"The Parties hereby clarify and confirm, that [DT] has validly exercised the Vienna Call Option for the Shares (as decided by the Second Vienna Tribunal). Elektrim confirmed in writing to the management board of PTC that [DT] has acquired title to the Shares and has provided [DT] with a copy thereof at the date of this Agreement which is attached hereto as Annex 2.4."
- The circumstances in which and purpose for which that letter had been written were not explained in the Implementation Agreement. The reference to it in clause 2.4 suggests that the writing of such a letter had been a matter of negotiation between DT and Elektrim, presumably because DT wished to bolster its claims to ownership of the PTC shares as against the rival contender for ownership, ET. The inclusion of clause 2.4 in the Implementation Agreement therefore tends to reinforce my conclusion (para. [123] above) that the letter of 23 June had been written by Elektrim as a tactic to improve its (and therefore DT's) position as against ET, and hence reinforces my conclusion that the notional investment banks and any legal adviser providing the notional legal advice would not have attached significant weight to the letter as an indication of the correct legal position so far as concerned the current legal ownership of the PTC shares as at 11 July 2006.
- On 5 September 2006 DT appointed its nominees as members of the PTC Supervisory Board.
- On the same day, Vivendi filed a statement of claim in the next phase of the LCIA Arbitration relying on clause 5.24 of the TIA and claiming re-transfer of the PTC shares from Elektrim to ET (i.e. on the footing, contested by ET on other fronts, that the November 2004 Vienna Award had been effective to re-vest ownership of the shares in Elektrim) or alternatively the transfer to ET of any proceeds of the sale of the PTC shares to DT or, alternatively, damages in the amount of 1.994 billion (representing what Vivendi maintained was the value of its share of ET's holding of the PTC shares, valued at their current market value, which Elektrim had failed to transfer to ET). In my view, the two main claims based on clause 5.24, for re-transfer of the PTC shares or payment of the proceeds of sale to ET, properly reflected the terms of clause 5.24 and the existence of such claims (on the footing that the November 2004 Vienna Award had indeed been effective to re-vest ownership of the shares in Elektrim, as had been confirmed by the March 2006 Judgment) and their validity would have been clear to any legal adviser providing the notional legal advice as at 11 July 2006.
- On 2 October 2006 the Vienna Tribunal published a further award ("the October 2006 Vienna Award") declaring that DT would acquire legal title to the PTC shares held by Elektrim on payment of the current book value of the PTC shares (about 643 million) and upon giving an irrevocable undertaking to pay any subsequent adjustment of the price later ordered by the Tribunal on the basis that the price stipulated in article 16(3) of the PTC Shareholders Agreement was a penalty and an uplift was required (the terms of the award made it clear that although Polish law included a doctrine whereby ownership of property could be retroactively treated as transferred at the time of contract once the price under a contract had been paid, DT would only acquire legal title to the PTC shares when it had paid the part of the price and given the undertaking in respect of the price to which the award referred). The Vienna Tribunal also ordered Elektrim to transfer full factual control of the PTC shares to DT, including by ensuring that DT would be listed as the owner of the shares in the KRS Register and that its nominees to PTC's Supervisory and Management Boards would be listed in the KRS Register. The full amount of the price to be paid by DT under the call option remained to be determined at a later hearing.
- The same day, DT filed a motion with the Warsaw Regional Court to allow DT to deposit with the court approximately 600 million payable to Elektrim as part of the purchase price of the PTC shares.
- On 10 October 2006 the Higher Regional Court of Vienna accepted the appeals of Elektrim and DT against the Vienna Commercial Court decision of 20 December 2005, but on the basis that it reasoned that ET was not bound by the November 2004 Vienna Award because the Vienna Tribunal had held that it did not have jurisdiction over ET. On 18 December 2006 the Vienna Supreme Court confirmed the decision of the Higher Regional Court of Vienna and dismissed ET's appeal. The reasoning of these courts, however, ignored the fact that the Polish courts had recognised that award (which recorded that Elektrim had at all material times remained the owner of the PTC shares) and had acted to give effect to it as set out above, by treating Elektrim as the owner of the shares and rectifying the KRS register and PTC's company register to record that position.
- Later in October 2006, DT paid sums to Elektrim and into the Warsaw Regional Court totalling about 643.667 million, as indicated in the October 2006 Vienna Award. Thereafter, Elektrim and DT treated DT as the owner of the PTC shares. DT paid that sum on the basis of an agreement with Elektrim that the main part of it would be used to pay the bondholders under the bonds, so as to prevent Elektrim from being made bankrupt. Elektrim made an application to the LCIA Tribunal (opposed by Vivendi and ET) for permission to use 600 million of the monies paid by DT for this purpose. On 23 October 2006, upon Elektrim undertaking to pay the balance of the sums paid by DT into an escrow account under the control of the LCIA Tribunal, the Tribunal issued an order permitting the major part of the sum paid by DT to Elektrim to be used to discharge Elektrim's liability to the bondholders under the bonds. Although the greater part of the sums for principal and interest owing under the bonds were then repaid, there remained an issue whether sufficient monies had been paid in order to discharge in full the interest due according to the Hart J judgment. In the event, full repayment of the principal and interest payable in respect of the bonds was only achieved on 25 April 2008, leaving only the claim by the bondholders in respect of a Contingent Payment.
- On 22 December 2006, since Elektrim did not honour its undertaking, the LCIA Tribunal ordered Elektrim to pay the balance of the price it had by then received from DT (about 118 million) into an escrow account under the control of the Tribunal. In effect, therefore, the price payable by DT was separated from Elektrim's general assets and potentially treated as a fund held by Elektrim to satisfy claims made by ET and Vivendi.
- On 18 January 2007, in the Polish Recognition Proceedings, the Polish Supreme Court allowed ET's appeal against the March 2006 Judgment of the Warsaw Court of Appeal. I was informed that the appeal was allowed on a technical procedural basis, rather than on the substantive merits of the underlying legal dispute. The Supreme Court remitted the claim for recognition of the November 2004 Vienna Award to the Warsaw Regional Court. That claim remains pending down to the present time.
- On 9 August 2007, the management of Elektrim filed a Bankruptcy Petition in respect of the company. On 21 August 2007 the Warsaw Regional Court declared that Elektrim was bankrupt.
- On 19 March 2008 the LCIA Tribunal issued a further award dealing with issues of liability on the claims and counterclaims between Vivendi and ET on the one side and Elektrim on the other ("the March 2008 LCIA Award"). Elektrim had argued that Vivendi and ET were subject to an obligation to be implied into the TIA to co-operate with Elektrim in light of the November 2004 Vienna Award to transfer or confirm Elektrim's full ownership of the PTC shares in order to preserve their value and allow Elektrim to take advantage of the two month opportunity afforded it by the Vienna Tribunal in that award to take steps to recover the shares and avoid being in material default of the PTC Shareholders Agreement (and hence avoid a sale at an under-value to DT). That argument was rejected by the LCIA Tribunal, on the basis that Vivendi and ET had been entitled to take steps to defend their own interests in circumstances in which Elektrim had been denying the validity of the TIA and had been seeking to manoeuvre to keep the PTC shares for itself (rather than to further any joint enterprise between it and Vivendi and ET) and Vivendi had acted reasonably and without fault in negotiations with Elektrim at the relevant time up to the exercise by DT in February 2005 of its call option under the PTC Shareholders Agreement. On the other hand, the Tribunal found that Elektrim at the relevant time had had no intention of complying with its obligations under clause 5.24 of the TIA and, in breach of its obligations, had sought to exploit the uncertainty created by the November 2004 Vienna Award in order to try to keep the PTC shares for itself.
- In the March 2008 LCIA Award the LCIA Tribunal dealt with arguments put forward by the parties regarding the operation of clause 5.24 of the TIA. Mr Millett submitted that since, in the Award, the LCIA Tribunal was purporting to apply Polish law in interpreting the TIA, the Award represented valid evidence of Polish law in relation to the proper interpretation of the meaning and effect of clause 5.24 from which it could be inferred what advice on the interpretation of that clause would have been given by Polish lawyers in July 2006 for the purposes of the notional legal advice. Mr Millett said that the court should treat the March 2008 Award as compelling evidence of Polish law sufficient to dislodge assessment of the meaning and effect of clause 5.24 by reference to English law in line with the approach set out at para. [55] above.
- I was not persuaded by that submission. Only one of the three members of the LCIA Tribunal was a Polish lawyer. It was not a body which was an authoritative exponent of Polish law for general purposes (although its rulings were obviously authoritative and binding for the parties to the arbitration; but they did not include DT or the Trustee). I have not seen the underlying evidence of Polish law which was presented to the Tribunal, and so am not in a position to evaluate that evidence or the Tribunal's assessment of it. Moreover, the March 2008 LCIA Award did not address precisely the questions in relation to which interpretation of clause 5.24 of the TIA is relevant in the present proceedings (i.e. what advice might have been given by a Polish lawyer about its meaning and effect in the circumstances obtaining in July 2006). In addition, DT and the Trustee had no opportunity to play any part in the LCIA arbitration proceedings, by putting in evidence and submissions on the matters of Polish law on which the LCIA Tribunal had to form a view, and the Trustee has had no opportunity to explore with any expert on Polish law put forward by Elektrim in the present proceedings the proper interpretation of clause 5.24 and, indeed, of the March 2008 LCIA Award in light of Polish law. I therefore do not have confidence that I can take from the March 2008 LCIA Award a full and accurate picture of relevant Polish law bearing on the matters I have to decide, sufficient to displace assessment of those matters by reference to English law.
- However, I have had regard to the March 2008 LCIA Award as a cross-check on the reasonableness of the views I have formed about the meaning and effect of clause 5.24 of the TIA and my assessment of the notional legal advice which would have been given in July 2006. The LCIA Tribunal was composed of experienced commercial arbitrators, who had examined the relationship between Elektrim, Vivendi and ET and the TIA in great detail and could be expected to have a sound grasp of the basic commercial reality underlying the TIA and what the parties to it may reasonably have been expected to have intended by its terms.
- At paragraphs 458ff of the Award the LCIA Tribunal considered the operation of clause 5.24. At paragraphs 469 to 471 (in particular) the Tribunal identified that the object of the parties in that clause was to preserve their respective stakes in ET/PTC and their original investments, and that that objective was reflected in the two alternative outcomes contemplated in clause 5.24, namely that as a result of the Vienna Arbitration either the PTC shares should be transferred to ET via Elektrim (clause 5.24(i)) or the consideration that DT would have to pay for such shares should be paid to ET (clause 5.24(ii)): "In other words, the Parties' objective was (i) either to re-instate [ET's] shareholding in PTC or (ii) to transfer to [ET] the consideration for the PTC shares to be paid by DT." At paragraph 476 (in particular), the Tribunal identified that the parties to the TIA intended to comply with any final enforceable award made in the Vienna Arbitration, and that this coloured the interpretation of their rights and obligations under the TIA (in other words, the Tribunal considered that the TIA recognised the priority of DT's possible rights to be determined in the Vienna Arbitration in respect of the PTC shares as against the rights of ET or Elektrim, but that as between ET and Elektrim ET would have the prior entitlement to those shares). At paragraphs 468 and 531 (in particular) the Tribunal gave its assessment of the basic commercial position, that the parties to the TIA did not intend that Elektrim could keep the PTC shares (or the proceeds of sale of those shares to DT) for itself as well as keeping the benefit of the consideration previously given by ET and Vivendi for participating in ownership of those shares (which the Tribunal valued at about 1.8 billion: cf paras. [58] and [61] above). At paragraphs 489, 490, 500, 641 and 672 (in particular) the Tribunal emphasised that the intention of the parties under clause 5.24(i) was that Elektrim should hold the PTC shares on trust for ET, if it (Elektrim) was to be treated as having legal title to those shares.
- In light of this, I draw a degree of confirmation from the reasoning in the March 2008 LCIA Award in relation to my own views regarding the proper meaning and effect of clause 5.24 of the TIA, so far as that provision is relevant to the determination of the issues which arise in the present proceedings.
- On 12 February 2009 the LCIA Tribunal issued a further award, dealing with the quantum of damages payable by Elektrim to Vivendi for breach of the TIA.
The proper approach in law to the Trustee's claim
- The Trustee's claim is for damages for loss of a chance, being the chance to have the machinery in condition 6(k) operated in mid-2006 and a Contingent Payment determined by reference to a CPDD as at 11 July 2006 and paid in favour of the Trustee and bondholders. It is said by the Trustee that if the machinery in condition 6(k) had been operated in mid-July 2006, the notional investment banks would have assessed the "Fair Market Value" of Elektrim's relevant assets less relevant liabilities at an amount which would have produced an obligation on the part of Elektrim to pay a substantial Contingency Payment.
- In a claim based on loss of a chance of a third party (here, the notional investment banks) acting in a particular way in certain circumstances so as to produce a benefit for the claimant, the claimant is not required to prove the hypothetical action of the third party on a balance of probabilities. As submitted by Mr Miles, the claimant only has to prove that in the absence of a breach of duty there was a real or substantial chance (as opposed to a speculative one) that the third party's action would have yielded a benefit: Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602, 1614C per Stuart-Smith LJ. It is for the court then to assess the probability of such action being taken in the absence of such breach of duty and to apply that probability to the outcome in question.
- Where the court concludes that it is clear that the third party would have acted in a given way, there is no need to apply any discount to the amount of the benefit the claimant would have derived from that outcome: Harrison v Bloom Camallin [2001] PNLR 195, [86]-[88] per Neuberger J.
- The proper approach to a claim for damages in respect of an opportunity lost as a result of breach of duty by the defendant was set out by Simon Brown LJ (with whom Ward LJ agreed) in Mount v Baker Austin [1998] PNLR 493. The claimant complained that the defendant solicitors, who had acted for him in respect of a claim he wished to bring against a bank, had by their negligence caused that claim to be dismissed for want of prosecution. He claimed damages for the loss of opportunity to succeed in his claim against the bank. The judge at first instance dismissed the claim on the basis that the claimant's action against the bank had no reasonable prospect of success. The claimant's appeal was dismissed by the Court of Appeal. Simon Brown LJ summarised the relevant principles at 510D-511C:
"1. The legal burden lies on the plaintiff to prove that in losing the opportunity to pursue his claim he has lost something of value, i.e. that his claim
had a real and substantial rather than a merely negligible prospect of success.
2. The evidential burden lies on the defendants to show that despite their having acted for the plaintiff in the litigation and charged for their services, that litigation was of no value to their client, plainly the burden is heavier in a case where the solicitors have failed to advise their client of the hopelessness of his position. If, of course, the solicitors have advised their client with regard to the merits of his claim such advice is likely to be highly relevant.
3. If and in so far as the court may now have greater difficulty in discerning the strength of the plaintiff's original claim
than it would have had at the time of the original action, such difficulty should not count against him, but rather against his negligent solicitors.
4. If and when the court decides that the plaintiff's chances in the original action were more than merely negligible, it will then have to evaluate them. That requires the court to make a realistic assessment of what would have been the plaintiff's prospects of success had the original litigation been fought out. Generally speaking one would expect the court to tend towards a generous assessment given that it was the defendants' negligence which lost the plaintiff the opportunity."
- This statement of principle takes account of the old authority of Armory v Delamirie (1722) 1 Strange 505 regarding the proper approach to issues of evidence where a party has by his own act created the factual uncertainty which the court has to resolve. The Court of Appeal considered that authority in the similar context of a claim in respect of solicitors' negligence in Browning v Brachers [2005] EWCA Civ 753, at [204]-[213]. Having referred to Mount and other authority, Jonathan Parker LJ concluded at [210] that the principle in Armory v Delamirie "raises an evidential (i.e. rebuttable) presumption in favour of the claimant which gives him the benefit of any reasonable doubt. The practical effect of that is to give the claimant a fair wind in establishing the value of what he has lost."
- A court's assessment of the value of a lost chance of a beneficial outcome for the claimant is not a precise science, but is rather an exercise in which it may well be appropriate for the court to weigh a range of factors with a view to forming a broad view of the value of what has been lost: see e.g. Sharif v Garrett [2002] 1 WLR 3118, [22] (Tuckey LJ).
- Harrison v Bloom Camallin concerned a damages claim brought by a client against the firm of solicitors acting for him in relation to a claim, where due to the solicitors' negligence the proceedings necessary to assert the claim were not issued in time, with the result that the client lost the opportunity of having his claim adjudicated upon by a court (the relevant third party). Neuberger J said this at [88]:
"
it may be that the court [i.e. the court considering the claimant's loss of opportunity damages claim] would not think it right to assess the likely level of damages which would be awarded and then apply a single fraction to those damages. The court may think that, although there is only one cause of action, the claimant would, if successful, stand a very good chance of recovering, say, one of the two heads of damages which he seeks, but a significantly poorer prospect of recovering the other head of damages. In such a case, I would have thought that the court would think it right to apply a higher discount to the second head of damages than to the first."
- Other authority indicates that where there is a real prospect of one outcome (outcome A) and also a real prospect of another outcome occurring (outcome B), or indeed real prospects of a number of other outcomes occurring (outcomes B, C and so on) it may be relevant for the court to assess the probability of each such outcome occurring in order to arrive at a composite figure representing the overall value of the chance which has been lost: see eg Blue Circle Industries Plc v Ministry of Defence 1998] Ch 289 (CA), esp. at 314E-316D. This approach is also implicit in the many cases which indicate that a discount is applicable in evaluating the ultimate benefits which the claimant has lost when he suffers a loss of a chance: the discount is to take account of the possibility (or, depending on the case, the probability) that some less valuable outcome for the claimant might have resulted. The discount therefore has to take into account what that less valuable outcome might have been.
- In relation to the value of the loss of the opportunity to receive a Contingent Payment under condition 6(k), the Trustee submitted that for certain elements included in the relevant calculation (in particular, Elektrim's interests in PAK and Port Praski) the proper approach was for the court to assess, on the basis of the materials which would have been available to the notional investment banks in July 2006, the probable valuation which would have been given to each such element. I agree and have adopted this approach.
- However, the Trustee submitted that in relation to the valuation of the PTC shares a more complex approach was required: the court should assess the value the notional investment banks would have given to those shares by reference to a number of different assumptions as to what the notional legal advice and operation of the relevant IAS rules might have been, then calculate for each such assumed set of facts the probability that it would have arisen, then in each case multiply the value of the PTC shares on the assumed set of facts by the probability that it would have arisen and aggregate the resulting figures so as to arrive at an overall valuation of the lost opportunity under condition 6(k) in respect of the PTC shares.
- In the circumstances of this case, I do not consider that this is the appropriate approach in relation to assessment of the Trustee's claim in respect of the PTC shares. As was clear from the expert evidence, and was in any event obvious, the notional investment banks would have required legal advice in relation to the ownership of and claims in respect of the PTC shares in order to carry out their valuation task under condition 6(k), including by reference to the IAS. The application of the definitions in the IAS and the operation of condition 6(k) would critically have depended on, and been determined by, the notional legal advice received. In the course of setting out the factual chronology above I have set out what I consider the sensible and appropriate notional legal advice would have been in analysing the overall legal picture which the notional investment banks would have had to take into account. In doing so, I have already implicitly taken into account (and dismissed as unrealistic) possible different legal opinions which might have been expressed if legal advice had been sought in July 2006. I do not think it would be right to attempt to value the Trustee's loss of a chance claim by reference to the possibility that some legal adviser might have given advice which, on the view I have formed, would have been less than sensible and inappropriate.
- The Trustee's claim is for a single loss of an opportunity, based on what is essentially a unified set of contingencies (where one has to assess the appropriate notional legal advice as part of that set - the notional investment banks required the notional legal advice to inform them of the best overall view of the legal position, and then they would know how to carry out the calculation in condition 6(k)), rather than for loss of a combination of different opportunities, each dependent on a different set of contingencies (which was the type of situation contemplated in both Blue Circle Industries v Ministry of Defence - where the claimant lost both the opportunity to sell property to a specific purchaser at a particularly high price and a fall-back opportunity, if that specific sale had not occurred, to sell the property at its lower general market price - and in Harrison v Bloom Camillin at [88], in which Neuberger J considered a situation in which a distinct part of the loss claimed might be subject to a discrete set of contingencies). Yet the Trustee's submission seeks (incorrectly, in my view) to characterise its loss of opportunity in respect of the PTC shares as falling within this latter class of case. The submission amounts to saying that the Trustee should be compensated by reference to a range of possibilities that poor and inappropriate legal advice (excessively optimistic or excessively pessimistic, depending on one's point of view) might have been given in relation to the PTC shares. This does not strike me as realistic or fair.
- I also consider that the approach I have adopted is supported by authority. Since the valuation exercise by the notional investment banks in respect of the PTC shares would have depended critically on the notional legal advice (in effect, a view of the legal merits of the various claims) the situation is analogous to that in cases such as Kitchen v Royal Air Forces Association [1958] 1 WLR 563, Mount v Baker Austin, Sharif v Garrett and Harrison v Bloom Camillin. Those cases deal with the situation where a legal claim is lost through being struck out or by reason of limitation, as a result of negligence on the part of defendant solicitors, so that the claimant loses the opportunity to present that case for judgment on the merits by a court. In this type of case, the court hearing the negligence claim usually makes a single broad assessment of the value of the opportunity which has been lost, assessing the legal merits for itself and allowing an appropriate discount to take account of contingencies which might have affected the claimants' prospects of winning at trial. The court does not usually try to assess a range of different possible judgments on the legal merits which might have been given by the notional trial court, and then produce a table of probabilities in respect of the possibilities in that range and aggregate the resulting values. Rather, the court draws on its own legal knowledge and expertise to produce the best assessment it can of the legal merits, with a discount primarily to take account of contingencies and uncertainties in relation to the evidence which might have been called in the case. On the legal merits to be reflected in the notional legal advice in the present case, that is in substance what I have sought to do.
- Neuberger J in Harrison v Bloom Camillin considered the proper approach to assessment of legal arguments in a loss of opportunity case concerning a legal claim lost through the negligence of solicitors in some detail at [100]-[103]. He said:
"100. Before leaving this topic, I should like to discuss how the court should deal with a pure question of law which might have arisen in the action. For instance, in a case such as the present, assuming that the claimants establish that, on the balance of probabilities, they would have maintained the action against Touche Ross, and that there was a real chance of recovering substantial damages from Touche Ross in the action, the question whether a certain head of damage would have been recoverable from Touche Ross may well turn on whether, as a matter of law (if all the relevant facts are clear) a certain head of damage would have been recoverable. Should the court assessing the damages for loss of the chance resolve that issue of law or, provided that it is satisfied that there is a real argument both ways on the issue, should the court award something for loss of this particular head of damage, but, because there was a prospect of the head of damage failing in law, should a further discount be applied to that head of damage?
101. In my judgment, the proper approach to the court to an issue of law which would have arisen in the action, which the claimant has been deprived of the opportunity to bring, is the same as in relation to an issue of fact or opinion which the claimant would have established in the action. However, at least in general, the court should in my judgment be far more ready to determine that the claimant would have failed or succeeded on a point of law than to determine that the claimant would have failed or succeeded on a point of fact or, even, opinion. That conclusion appears to me fair and practical, as well as consistent with the approach of the Court of Appeal in the three cases to which I have referred (albeit that they are not, as I have mentioned, determinative of this issue).
102. Indeed, where the defendant to a loss of a chance claim raises a point of law which, if correct, would have defeated the action, interesting issues can arise. For instance, a Judge at first instance determining a claim for repayment of money paid under a mistake of law prior to the decision of the House of Lords in Kleinwort Benson v Lincoln City Council [1998] 4 All ER 513, would have been bound to dismiss the claim. However, I do not think that it follows that, faced with a claimant contending that, through the defendant's negligence he had been deprived of the opportunity to pursue an action for the recovery of money paid under a mistake of law, such a judge would have been constrained to dismiss the claim. However, I do not think that it follows that, faced with a claimant contending that, through the defendant's negligence, he had been deprived of the opportunity to pursue an action for the recovery of money paid under a mistake of law, such a judge would have been constrained to dismiss the claim: he would have been entitled to take into account the prospect of the House of Lords entertaining an appeal in the action and changing the law (as in fact it did in Kleinwort Benson). Because the issue did not arise, there is little assistance on this point in any of the cases to which I have referred. It is true that in Mount, the claim failed because the court formed the view that the claimant would have failed in his action as a matter of law, but, as I read the judgments, the court would have reached that conclusion on either approach (bearing in mind that, even if the court was considering the issue on the loss of a chance basis, it was of the view that the claimant's prospects of success were so poor that, in that event, he did not lose anything of value).
103. However, it is, I think, arguably implicit in the third and fourth numbered principles in the judgment of Simon Brown LJ in Mount that, at least in an appropriate case, it is right to assess damages on the loss of a chance basis even where the issue in the action would be one of law. At the end of his third numbered paragraph, Simon Brown LJ said that the assessment of the claimant's claim may not be more difficult than in the action itself where the original claim turned on questions of law or the interpretation of documents; his fourth numbered paragraph
seems to apply to all types of case encompassed within the previous paragraph. However, it would be wrong for me to place much weight on that, because, as I have mentioned, it does not seem to me that the Court of Appeal in Mount has to consider the aspect which I am now discussing."
- In the present case, I consider that it is appropriate to follow the general approach identified by Neuberger J at [101]. The law to be applied is English law, subject to the approach set out in para. [55] above where rights were established by July 2006 in the various arbitration and court proceedings or there was some authoritative view of relevant Polish law which I ought to apply (of which the March 2006 Judgment is the main example). This court can therefore have confidence in forming its own view about the likely form of the notional legal advice. There was no dimension of doctrinal uncertainty in the law which corresponded to the Kleinwort Benson example given by Neuberger J which might call for a different approach to be adopted.
- In addition to the general approach to be adopted in assessing the value of a lost opportunity set out by Simon Brown LJ in Mount and Jonathan Parker LJ in Brachers (para. [164] and [165] above), there are aspects of the present case in which a more stringent evidential principle comes into play. Where a party elects not to call available witnesses to give evidence on a relevant matter, the court may draw inferences of fact against that party: Wisniewski v Central Manchester Health Authority [1998] Lloyds Rep Med 223, 240; Herrington v British Railways Board [1972] AC 877, 930G-H (Lord Diplock). Armory v Delamirie supports such an approach where evidence is available to be produced by a party, but he does not produce it. In that case, the defendant goldsmith had retained a jewel given to him by the claimant (a chimney-sweeper's boy who had found the jewel and had taken it to the defendant to find out what it was worth) and would not produce it for it to be valued for the purposes of the damages claim brought against him in trover; the Chief Justice's direction to the jury was that "unless the defendant produce the jewel and show it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewels the measure of their damages".
- This principle does not apply in relation to the question of the legal advice actually available to Elektrim in July 2006 in respect of the PTC shares, because Elektrim would have a good justification (legal professional privilege) to decline to disclose the content of any legal advice it had in fact obtained. However, it is relevant to my assessment of other aspects of the evidence, especially in relation to the valuation of PAK. It was common ground that it was appropriate for the valuation of PAK and the shares in it to be carried out by means of a discounted cash-flow method. However, in relation to the application of that method, it is necessary to consider what should be taken as a suitable set of cash-flow forecasts available to the notional investment banks in July 2006.
- There were a number of budgets for costs, forecasts of income and cash-flow models in relation to PAK in existence in July 2006, which I consider in detail below. These were disclosed by Elektrim. Although the documents were disclosed by Elektrim, Elektrim called no witnesses of fact at the trial in relation to them. The basis on which these budgets, forecasts and models had been prepared and precisely who prepared them and whose views were reflected in them (e.g. those of the management of PAK, or external consultants or a combination of the two) were by no means clear from the documents themselves. Nonetheless, in the absence of any witnesses from Elektrim to explain the documents, Mr Bezant (the expert witness for the Trustee on the question of the valuation of PAK) and Mr Zielinski (the expert witness for Elektrim on this issue) were forced to seek to draw inferences about these matters from the documents, in order to decide which data should be taken from them as representing the best source of information in July 2006 to conduct a valuation of PAK using the discounted cash-flow method.
- There was nothing to suggest that Elektrim did not have available to it personnel who (as would naturally have been expected) could have explained the basis on which and the persons by whom these budgets, forecasts and models were prepared. Accordingly, where there was significant doubt about the information available for inclusion in the notional cash-flow forecasts which the notional investment banks would have used in July 2006 to value PAK, which was not clearly resolved by consideration of the documents disclosed by Elektrim, I have drawn inferences of fact in favour of the Trustee and against Elektrim.
The PTC Shares
- The approach of the notional investment bankers to the application of condition 6(k) in respect of the PTC shares would have depended critically upon the notional legal advice they would have received about the position by 11 July 2006. For reasons set out above, the notional legal advice would have been to the effect that:
i) Elektrim was the legal owner of the PTC shares (as established by the recognition of the November 2004 Vienna Award in Poland in the March 2006 Judgment);
ii) Elektrim was, however, obliged as a result of its material breach of the PTC Shareholders Agreement and the exercise by DT of its call option under article 16 of that agreement to sell the PTC shares to DT (as established by the November 2004 Vienna Award and, in particular, the June 2006 Vienna Award). There was some doubt about the amount of the price which would be payable by DT, but it was certain to be at least about 377 million (as established by DT's position in the Vienna Arbitration up to July 2006) and was likely to be at least about 1.45 billion (as indicated by the Master Agreement). It was speculative whether DT would ultimately be found to be obliged to pay any sum more than that amount. There was no doubt that DT was ready, willing and able to pay the price under the call option (at whatever level it was ultimately established to be). DT would be entitled to specific performance of Elektrim's obligation to convey the PTC shares to it;
iii) Elektrim was bound by the terms of the TIA (as established by the May 2006 LCIA Award). Clause 5.24 of the TIA created a regime according to which the rights of Elektrim, Vivendi and ET in relation to the PTC shares were all acknowledged to be subject to the rights of DT in respect of those shares (as might be determined by the Vienna Tribunal); subject to that, if Elektrim had legal ownership of the PTC shares as a result of the Vienna Arbitration (which it did: see (i) above) it was to hold them on trust for ET in accordance with clause 5.24(i) (a view which was also supported to some degree by the June 2006 LCIA injunction and the June 2006 Polish injunction); and if Elektrim received payment from DT for the PTC shares, it was to ensure that such payment was remitted directly and immediately to ET under clause 5.24(ii) (and pending such remittance, Elektrim would hold the payment on trust for ET).
- On the basis of notional legal advice to this effect, the notional investment banks would not have treated the PTC shares as "assets of the Guarantor [Elektrim]" falling within the meaning of condition 6(k), since the definition of an asset in paragraph 49 of the IAS Framework Guidance would preclude this. Mr Bezant, who gave evidence as an expert accountant on this part of the case, confirmed that property held on trust for another person does not qualify as an asset of the trustee for the purposes of the IAS. Here, Elektrim held the PTC shares subject to a constructive trust in favour of DT, based on the availability of specific performance as a remedy for DT, and (more importantly) until the transfer of the shares to DT Elektrim held them on trust for ET. It was clear from the pattern of rights which existed in July 2006 in relation to the PTC shares that Elektrim itself had no good claim to enjoy beneficial ownership of the shares such as to allow them to be treated as its assets.
- Elektrim had a right in law to receive the price for the PTC shares from DT. As to about 377 million the amount to be paid for the shares was "virtually certain" in July 2006 within the meaning of paragraph 33 of IAS 37 and hence was capable of being recognised as an asset in financial statements (rather than being treated merely as a contingent asset, not for recognition in financial statements). Above 377 million up to 1.45 billion, the amount to be paid for the shares was "probable" within the meaning of paragraph 34 of IAS 37, such that the additional obligation in respect of such sum would be capable of being regarded as a contingent asset, and noted as such, in financial statements. Any addition to the amount to be paid for the shares above 1.45 billion would, in my view, have been speculative and the additional obligation in respect of it would not have fallen to be disclosed even as a contingent asset in financial statements.
- However, any sale proceeds Elektrim might receive would have to be held by it on trust for ET and in any event would fall to be paid immediately to ET. Therefore, Elektrim's right in law to receive the price for the PTC shares from DT would not give rise to the possibility of an inflow of economic benefits to Elektrim and would not have been regarded as "a resource controlled by the entity [Elektrim]
from which future economic benefits are expected to flow to the entity" (the definition of an asset in paragraph 49 of the IAS Framework Guidance) so as to qualify as an asset of Elektrim. Even if, contrary to this analysis, the right to receive the price for the PTC shares from DT were regarded as an asset of Elektrim, Elektrim would then also have to bring into account its liability to ET to pay any sum received in respect of the price to ET. As to the amount of the price up to 1.45 billion, there would be a sufficiently reliable estimate of Elektrim's obligation to be recognised by way of a provision rather than treated as a mere contingent liability (paragraphs 14, 25 and 36 to 40 of IAS 37), and it would qualify as a "debt" to be deducted in the calculation of "Fair Market Value" in condition 6(k). It would thus cancel out Elektrim's notional asset in that calculation, and the net result under condition 6(k) would be the same as if Elektrim were treated as not having an asset in the form of a right to receive the price from DT.
- In substance, looking at the position in mid-July 2006, it was ET which was to have the benefit of the price for the PTC shares to be paid by DT. This would have had an impact on the value of ET, and hence on the value of the shares in ET which Elektrim owned. On the footing that ET was insolvent in mid-July 2006 (i.e. leaving aside the possibility of receiving monies from DT, via Elektrim, in respect of the PTC shares), the parties agreed that no value would have been given to Elektrim's assets in the form of the shares in ET which it owned. If, however, the position was (as I consider it was) that ET would receive the sums payable by DT by way of price for the PTC shares, then the value of ET would have been treated as increased by those sums, to the extent that they were greater than any liabilities ET had at the time. ET was a holding company for the PTC shares in the context of a joint venture between Elektrim and Vivendi. It did not have a substantive business of its own, and once the position in relation to the PTC shares had been resolved (with ET not owning those shares, but owning the proceeds of their sale) it is likely that, after paying its outstanding debts, ET would simply have distributed what remained of those proceeds to its shareholders. Therefore, it is in my view clear that the notional investment banks would have valued ET on a net asset basis and that they would have valued the 49% holding of ET's shares owned by Elektrim by reference to 49% of ET's net asset value.
- In valuing ET and Elektrim's holding in ET, I consider that the notional investment banks would have brought into account that element of the price to be received from DT which was likely to be payable, and would have left out of account any additional element which was only speculative. Therefore, ET's net asset value would have been treated as increased by 1.45 billion. Against that, they would have set off ET's liabilities at the time, including its liability in respect of the ET receivable. On the basis of the figures for ET's liabilities agreed between the parties, therefore, the net asset value of ET in mid-July 2006 would have been PLN 3,057.9 million. Hence, the fair market value which the notional investment banks would have assessed for Elektrim's 49% shareholding in ET would have been PLN 1,423.452 million. This is the sum by which the fair market value of Elektrim's assets would have been assessed to have been affected (indirectly) in respect of the PTC shares.
- This assessment of the position which the notional investment banks would have arrived at follows from the notional legal advice in combination with the proper construction of the definition of "Fair Market Value" in condition 6(k), as informed by the definitions contained in the IAS. In my view, this assessment strongly accords with the underlying commercial merits. Elektrim had been paid a sum by Vivendi and ET equivalent to about US$ 1.2 billion for ET to acquire the PTC shares. As against DT, Elektrim had committed a material breach of the PTC Shareholders Agreement as a result of which DT was entitled to acquire the PTC shares. Vivendi, ET and Elektrim had agreed in the TIA that, subject only to DT's rights, ET should have the benefit of the PTC shares, and if DT paid the relevant price to acquire those shares then ET should have the benefit of the monies. Under these arrangements, Elektrim was not intended to have the benefit of the PTC shares or their proceeds - ET was. Therefore, it seems contrary to the expectations of Elektrim and the bondholders under condition 6(k) that the fair market value of Elektrim's assets should include the value of the PTC shares (as the Trustee submitted) or that the price to be received from DT in respect of those shares should altogether drop out of the calculation of "Fair Market Value" (as Elektrim submitted).
- It follows from the above that I did not accept the analysis of the operation of condition 6(k) in relation to the PTC shares proposed by Mr Bezant in his evidence, and supported by Mr Miles in his submissions. That analysis was to the effect that the PTC shares should be treated as an asset of Elektrim (to be valued at their fair market value); that as to Elektrim's liability to transfer the PTC shares to DT, that fell to be left out of account as a contingent liability save to the extent that a provision ought to be made in respect of it; and the proper way to measure that provision was by assessing the amount by which the fair market value of the PTC shares should be reduced by the amount to which the price payable by DT might ultimately be held to be less than that fair market value (and hence depended on the extent to which the Vienna Tribunal might hold that what was to be paid by DT below the full market price would constitute a penalty, which DT was not entitled to insist upon). Since in July 2006 the amount of the price payable by DT for the PTC shares was uncertain beyond about 377 million (which was the minimum payable by DT on DT's own case), and the amount of the penalty element was unknown, Mr Bezant suggested and Mr Miles submitted as the Trustee's primary case that the proper operation of the calculation of "Fair Market Value" should be to treat the PTC shares as Elektrim's assets at their full fair market value (2,429.946 million), and that should be reduced by deduction of "debt [sc. liability]" to DT only in the amount of 377 million (since beyond that amount the penalty element in respect of the price payable by DT was uncertain, and so fell to be treated as a "contingent liability" rather than a provision, with the result that the possible balance of the price payable by DT was simply to be left out of the calculation). The net effect of this analysis was massively to increase the amount arising from the "Fair Market Value" calculation, for the benefit of the Trustee, contrary to the underlying commercial reality - which was that Elektrim in fact had extremely weak, if any, claims to be entitled to have the full beneficial value of the PTC shares treated as part of its assets. The analysis did not take the notional legal advice into account, and left out the operation of the TIA. Even to the extent that the Trustee's case was that the TIA should be treated as an agreement which could be set aside, the Trustee did not bring into account the sum of about 1.8 billion which one might have expected that Elektrim would then have had to return to Vivendi and ET; rather, the Trustee's position was that the "Fair Market Value" calculation should treat Elektrim as, in effect, the beneficial owner of the PTC shares and of the price which Vivendi and Elektrim had paid for them.
- Moreover, even if one were to focus only on the position as between Elektrim and DT, whatever the merits of this proposed analysis as a possible method of presenting notional financial statements (presumably as amplified by a careful disclosure note to explain what lay behind the figures presented in such statements), I do not think that it would represent a proper application of condition 6(k) as a matter of law. If, contrary to the conclusion I have arrived at, the PTC shares were to be treated as "assets of [Elektrim]" for the purposes of the calculation of "Fair Market Value" in condition 6(k), then the question would arise what "debt [sc. liability]" would fall to be deducted in respect of them at the next stage in the calculation. The June 2006 Vienna Award made it clear that DT had a right to have the PTC shares transferred to it, upon payment of a price still finally to be determined; and there was no significant doubt but that DT would be ready, willing and able to pay that price whatever it was determined to be. DT was entitled to claim specific performance of Elektrim's obligation to transfer the PTC shares to it (DT) (this would mean that in a certain sense Elektrim would be regarded as a constructive trustee of the PTC shares for DT, but probably that would not in itself be a form of trusteeship which would disqualify the PTC shares altogether from being treated as assets of Elektrim). In mid-July 2006 Elektrim had an established, present obligation by virtue of which it was probable (indeed, practically certain) that "an outflow of resources embodying economic benefits [would] be required to settle the obligation" (paragraphs 14 and 23 of IAS 37) and "a reliable estimate [could] be made of the amount of the obligation" (paragraphs 14 and 25 of IAS 37). Since Elektrim was subject to a specifically enforceable obligation to transfer the PTC shares to DT, the "amount of the obligation" was the value of those shares. Therefore, Elektrim's liability to transfer the PTC shares to DT was not a mere "contingent liability" for the purposes of condition 6(k), and fell to be deducted as a "debt [sc. liability]" in the calculation of "Fair Market Value".
- The corollary of this would be that Elektrim's right to receive the price from DT would count as a further asset of Elektrim to be brought into account in the calculation of "Fair Market Value" in accordance with the proper construction of condition 6(k) (see para. [27] above): beyond Elektrim's right to receive 377 million it would be a contingent asset, but one in relation to which an inflow of economic benefits would be probable. The probable inflow of economic benefits would be about 1.45 billion.
- This analysis of the position, focusing (as I again emphasise) purely on the position of Elektrim and DT and leaving the TIA out of the picture, is supported by the following:
i) The approach under condition 6(k) requiring the assets of Elektrim and then the liabilities of Elektrim to be brought into the calculation as distinct items, without any element of setting off within those items -since the process of deduction of "any debt [sc. liability]" from "the assets of the Guarantor" is stipulated as a distinct step in the definition of "Fair Market Value", to be applied after identification of each and every asset of Elektrim and of each and every liability of Elektrim. There is nothing odd or untoward about identifying Elektrim's assets as including both an asset in the form of the PTC shares and an asset in the form of DT's obligation to pay a price for those shares, provided one also identifies a liability on the part of Elektrim to transfer those shares to DT;
ii) The analysis produces a result which is in line with the commercial merits and the likely commercial expectations of the bondholders and Elektrim, since in substance Elektrim is not to have the benefit of the PTC shares (DT is to get that) but would have the benefit of the price to be paid by DT for those shares. By contrast, the approach suggested by Mr Bezant and as submitted by Mr Miles would have the practical effect of treating Elektrim as having the benefit of the PTC shares themselves, which would be contrary to the commercial merits and the likely commercial expectations of the parties;
iii) Paragraphs 25 and 26 of IAS 37 indicate that it is only in "extremely rare cases" that an entity will not be able to make a reliable estimate of an obligation for the purposes of making a provision, with the result that it will be driven to treat the obligation as a contingent liability. Mr Bezant's evidence was to the effect that liabilities to be determined in legal proceedings are often treated as contingent liabilities because of the difficulty of making a reliable estimate of their value, but he did not suggest that such liabilities are invariably treated as contingent liabilities. It is clear from IAS 37 that the standard to be applied in each case is always that stated in paragraphs 25 and 26 of IAS 37. The point of emphasising that it will only be in "extremely rare cases" that a liability will be treated as a contingent liability on grounds that no reliable estimate can be made of the amount of the obligation is to ensure that most liabilities are not treated as contingent liabilities, but are actually recognised in financial statements. I think it is impossible to say that the liability of Elektrim to transfer the PTC shares to DT falls into the class of "extremely rare cases" where no reliable estimate can made of the amount of the obligation; on the contrary, since Elektrim's liability is to transfer the shares themselves, the amount of the obligation is the value of the shares (the amount of which is reliably known for the purposes of the calculation in condition 6(k));
iv) It is important to recognise that the definition of "Fair Market Value" in condition 6(k) does not replicate the way in which an entity's financial statements might be drawn up in accordance with IAS guidance and conventions (albeit that the parties are agreed that the meaning of certain terms used in the definition is informed by the meaning those particular terms bear in the IAS). The Trustee's own submissions emphasised that assets were to be brought into account in performing the calculation given by that definition even though they would not in fact be recognised in financial statements prepared in accordance with IAS, and I have held that that is correct to an extent: paras. [25]-[28] above. The object of the calculation of "Fair Market Value" in condition 6(k) is to bring into account specific plus and minus items to arrive at a final resultant figure, rather than (as with financial statements prepared in accordance with IAS) to present a true and fair view of an entity's financial figures. Therefore, for example, under condition 6(k) there is no scope for dealing with contingent assets or contingent liabilities by means of notes (as there would be in financial statements) either an item has to be included in the calculation or excluded from it. Further, condition 6(k) supplies its own standards of measurement of the value of the plus items in the calculation ("fair market value") and the minus items in the calculation ("debt" is to be deducted, meaning the probable or fair value of the liability in question), which do not necessarily correspond with those which would be given by application of IAS conventions. That point is underlined by the fact that the valuation of "Fair Market Value" is to be performed by leading investment banks (i.e. having regard to commercial reality), and not by accountants having regard to accounting conventions.
- Accordingly, in my judgment, even if one left out of account the operation of the TIA, the proper analysis would be very different from that suggested by Mr Bezant and submitted by Mr Miles.
The value of 49% of the shares in ET owned by Elektrim and the ET Receivable
- As a result of working out the position in relation to the PTC shares, the notional investment banks would have come to the conclusion that by virtue of clause 5.24 of the TIA ET was the beneficiary of the price payable by DT for those shares, which was likely to be about 1.45 billion. Accordingly, despite substantial debts which ET owed totalling PLN 2,829,894,000 the notional investment banks would have concluded that after setting off those debts against the sum which ET was due to receive in respect of the price to be paid by DT for the PTC shares (worth of the order of about PLN 5.8 billion, since in 2006 the exchange rate PLN:Euros was about 4:1) and other assets recognised in ET's balance sheet of PLN 37,044,000 ET was a company with substantial value of PLN 3,057,900,000. I look to the parties to agree in due course a precise figure for ET's value, by reference to the particular PLN:Euro exchange rate as at 11 July 2006.
- The notional investment banks would also have assessed that since ET had a substantial surplus of assets in July 2006, it was able to repay that part of its debts which was owed to Elektrim in the form of the ET Receivable (PLN 216,421,000). Therefore, the "Fair Market Value" in respect of the assets of Elektrim as at 11 July 2006 for the purposes of condition 6(k) would have included the ET Receivable at its full value.
- The assets of Elektrim as at 11 July 2006 also included 49% of the issued shares in ET. Under condition 6(k) the notional investment banks would have had to assess the fair market value of Elektrim's 49% stake in ET, in circumstances where the value of ET was roughly PLN 3,057,900,000 and where the remaining 51% of ET was controlled by Vivendi.
- Mr Bezant, the expert witness for the Trustee on this issue, acknowledged that a non-controlling interest in a private company such as ET where there is one other shareholder with a controlling interest is liable to be valued at less than the pro rata share of the value of the whole of the issued share capital. The discount to be applied reflects a risk that the non-controlling shareholder's interests may be prejudiced to some extent by the actions of the controlling shareholder. However, having regard to the value of Elektrim's stake in ET (which made it likely that the owner of such a stake would be willing to bear the costs of monitoring for prejudicial behaviour and enforcing legal rights) and the substantial rights under the TIA associated with the ET shares held by Elektrim (in particular, clause 3.8 of the TIA, which imposed a duty on the shareholders in ET to procure the distribution of ET's profits in each year), Mr Bezant's view was that the discount applicable in respect of Elektrim's 49% holding in ET would have been a relatively small one of 5%. I accept that evidence.
- Therefore, the "Fair Market Value" calculation in condition 6(k) would have included assets of Elektrim in the form of its 49% shareholding in ET valued at 49% of roughly PLN 3,007,180,000 less a discount of 5%. The precise figure remains to be agreed between the parties.
The additional 1.5% of PTC owned by Elektrim via Carcom
- In addition to the PTC shares (about 48% of PTC) which were the subject of disputes between Elektrim, DT, Vivendi and ET as described above, Elektrim in substance owned indirectly an additional stake of about 1.5% of PTC. This represents Elektrim's interest in a stake of about 3% of PTC owned directly or indirectly by Carcom on 11 July 2006. At that date Elektrim owned 49% of the issued share capital of Carcom. There was common ground on the pleadings that Elektrim's asset in the form of its stake in Carcom should be valued for the purposes of condition 6(k) as if it were an asset held by Elektrim in the form of a shareholding of about 1.5% of PTC ("the additional PTC shares").
- The additional PTC shares were not affected by the disputes between Elektrim, DT, Vivendi and ET. The notional investment banks would have treated the additional PTC shares as assets of Elektrim which fell to be valued and included in the calculation of "Fair Market Value" in condition 6(k).
- The parties agreed that the fair market value as at the CPDD (11 July 2006) of an interest in a notional 49.4326% of the issued share capital of PTC was PLN 9,798,451,127 (ignoring the impact of the disputes referred to). Taking that figure as a fixed reference point, it is possible to work out the fair market value at 11 July 2006 of the additional PTC shares.
- Dr Ciepal, the expert witness for Elektrim on this part of the case, suggested that the fair market value of the additional PTC shares should be nil, since that shareholding in PTC was so small. I regard that evidence as incredible and reject it. The additional PTC shares carried valuable rights in relation to a mobile telephone business which was successful and very valuable. It is not possible that a willing buyer and willing seller, according to the fair market value standard, would have agreed that the additional PTC shares should be transferred for nothing.
- In my view, the evidence of Mr Bezant on the issue of the valuation of the additional PTC shares was better reasoned and persuasive. In his reports he valued the additional PTC shares pro rata by reference to the agreed value of a notional 49.4326% stake in PTC. However, in giving his evidence orally he said that a stake as small as about 1.5% in PTC should be valued as subject to a greater discount than the much larger 48% stake represented by the PTC shares. He assessed the appropriate discount in respect of the additional PTC shares from the pro rata value he had originally given them to be about 15% to 20%. I think that a discount at the upper end of that range (i.e. 20%) is correct. The parties should agree the precise figure to be included in respect of the additional PTC shares in the "Fair Market Value" calculation in condition 6(k) on this basis.
PAK
- PAK is a company which operates three coal-fired electricity generating plants in Poland at Adamow, Konin and Patnow I. The plants are located close to mines for brown coal, or lignite, which is what the plants burn. The plants were constructed in the 1960s and 1970s and are ageing. In 2006 Elektrim owned 43.3939% of the issued share capital in PAK.
- The parties agreed that the notional investment banks would have valued PAK using the discounted cashflow method. This would have involved constructing detailed cashflow forecasts over the years from 2006 to 2025 (together with an estimate of residual value based on cashflows until 2031), by reference to forecasts available at the time of the costs of operating the plants (such as the cost of lignite, employment costs, maintenance and improvement costs and the like) and forecasts available at the time of the income generated by the plants from, in particular, sales of electricity and heat.
- The expert evidence for the Trustee on the issue of the valuation of PAK was given by Mr Bezant. Mr Bezant is an accountant with extensive experience of providing valuations of businesses, including by use of the discounted cashflow method. He has had considerable experience of working in conjunction with investment banks. His experience of valuing businesses involved in the energy sector was limited, but this was of less significance in the context of this case, since the task which he had to perform was to replicate the assessment which would have been made by the notional investment banks on the basis of materials which would have been available to them at the relevant time, including forecasts available to PAK and Elektrim from consultants and the views of the management of PAK. In my view, Mr Bezant was well qualified to assimilate and analyse such information, and to apply the discounted cashflow methodology in light of it. Accordingly, he was well qualified to give evidence on the issue of the valuation of PAK. Mr Bezant valued the entirety of PAK at PLN 4,071 million. Since it was common ground that the value of Elektrim's shares in PAK would have been given pro rata by reference to the total value of PAK, this figure yields a value of PLN 1,767 million for Elektrim's holding of about 43% of PAK.
- The expert evidence for Elektrim on that issue was given by Mr Zielinski. Mr Zielinski's training was as an engineer, and he has not had extensive training in the use of the discounted cashflow methodology. However, he has had considerable experience of being involved in the provision of valuations of businesses involved in the Polish electricity sector, and appeared familiar with the use of the discounted cashflow methodology in practice. Overall, Mr Bezant demonstrated a better understanding of the methodology and the implications of that methodology. Mr Zielinski valued the entirety of PAK at between PLN 784 million and PLN 769 million, giving a value of between PLN 340 million and PLN 334 million for Elektrim's holding of about 43% of PAK.
- The principal potential sources of figures from which cashflow forecasts would have been compiled by the notional investment banks in about mid-July 2006 were the following:
i) A very detailed and sophisticated cashflow model for PAK known as the Caminus model. The Caminus model contained three main scenarios, known as "Caminus low" (according to which PAK's cashflow and profitability would be comparatively weak, with the consequence that its value would be low), "Caminus high" (according to which PAK's cashflow and profitability would be comparatively high, with the consequence that its value would be high), and "Caminus base" (which pitched PAK's cashflow and profitability, and resultant value, between the low case and the high case). It appears that the Caminus model was prepared in 2003. It provided forecasts from 2004 onwards. It was treated as a particularly good source for forecasts, since a range of subsequent valuations of PAK and cashflow forecasts for PAK were based upon it;
ii) A financial model dated 19 July 2004 produced by PwC Polska Sp. z o.o ("PwC") in relation to the proposed financing of a new electricity generating plant called Patnow II, separate from PAK's three existing plants, to be constructed by PAK or Elektrim ("the PwC model"). The model included a disclaimer: "This model has been prepared on the basis of the assumptions submitted by PAK for whose accuracy PwC assumes no responsibility". The PwC model covered the period to 2027. It allowed for settings for various sets of assumptions about the future movement of electricity prices in Poland, which is why it is of relevance to the valuation exercise in respect of PAK and its three existing plants. The PwC model included a case which was derived from the Caminus base case, but with some adjustments upwards in the forecasts of electricity prices over the period. The electricity price forecasts in the PwC model by adjustment of the Caminus base case were in all probability forecasts updated by PAK management subsequent to the preparation of the Caminus model, reflecting changes in the market position since the Caminus model was prepared. (Mr Bezant relied on the price forecasts in the PwC model; there was a suggestion by Elektrim that he was wrong to do so, since it was said that these were distorted by including excise tax in the price forecasts they used; in my view, Mr Bezant gave good reasons to think they were not so distorted it would have been extraordinary if both PwC and PAK management had made the sort of elementary mistake which Elektrim suggested they had);
iii) A valuation report in relation to PAK dated 16 December 2004 by a consultancy called Taurus Partners ("the Taurus report"). In relation to forecasting trends in electricity prices the authors of the report stated that they had used the Caminus model prepared for PAK, and described the three scenarios set out by Caminus. The Caminus base case was a scenario "assuming continuation of the current market trends" and the Caminus low case was a scenario "assuming the stagnation of the use of electricity and low costs in the sector". This was the best evidence in the documents available to me to explain in general terms the assumptions underlying the Caminus model. The report recorded the view of PAK's management that the Caminus low case would be the most probable scenario "in the event of a failure to resolve the problem of [power purchase agreements "PPAs"] over the next few years". The position in relation to PPAs is described in greater detail in para. [216] (ix) below. By mid-2006 it appeared that the problem of PPAs was being resolved. By 11 July 2006, therefore, the Taurus report tended to support selection of the Caminus base case out of the three Caminus cases as the most likely scenario for the Polish electricity market;
iv) A presentation entitled "[PAK] Strategy 2005-2020" dated January 2005 ("the PAK Strategic Plan"). This was compiled by the management of PAK. The Plan stated "
demand for [electric power] will certainly grow", forecast "stable growth of the demand for electric power" and included a graph based on Polish government figures showing expected steady growth in the demand for electric power in Poland from 2003 (140 TWh) to 2025 (about 275 TWh). The Plan included a graph showing the prognosis for electricity prices to 2020 according to various models, including the Caminus base case and low case and the base case and low case prepared by the Polish electricity regulator ("URE"). The URE's base case was broadly similar to the Caminus base case. Mr Zielinski for Elektrim suggested that the URE model was prepared by reference to prices affected by the PPAs, and hence did not support the Caminus base case. There was no good evidence of this, and the way in which the PAK management compared the models indicates that they did not understand the URE model to be distorted in this way. The PAK Strategic Plan indicated that lignite prices were expected to fall in real terms over the period to 2020. It indicated that there was to be a reduction in the labour force employed by PAK. It showed significant reductions in the emission of sulphur dioxide which were expected to be achieved through modernisation of the plant at Patnow I by 2008 (which would reduce the environmental costs which PAK had to bear). The Plan included graphs showing forecasts of increasing profitability of sales of electricity and increasing net profits according to both the Caminus low case and (still more strongly) the Caminus base case;
v) PAK's budget for 2005 ("the PAK 2005 Budget"), compiled by the management of PAK in March 2005. The Budget stated that 2005 would be "another difficult year in which to achieve the planned volume of sales", and noted that there was a surplus of electricity supply over demand in Poland of about 30% and that the absence of a decision at that stage to dissolve the PPAs had a negative impact upon PAK. However, notwithstanding these pressures, the Budget forecast an increase in electricity prices. It assumed there would be no change in the cost of coal (which, allowing for inflation, indicated a reduction in the real price of coal for the year). The Budget referred to various PAK subsidiaries and stated (according to a corrected, proper translation): "Taking into account that the costs of services provided by the [PAK subsidiary] companies (refurbishment, maintenance and warehouse management) in the budget of [PAK's] Production Department declined by PLN 7.8m and the budget increased by PLN 18.1m when compared with 2004, the Production Department's costs have increased by almost PLN 25.9m". A mistranslation of this comment caused an error to creep into Mr Bezant's evidence;
vi) A report dated July 2005 by Inwestexpert Sp. z o.o business consultants ("the Inwestexpert report") valuing PAK as at 31 May 2005. It appears it may have been commissioned in order to explain and justify the price which, at about that time, Elektrim sought to transfer its interest in PAK to a related company called Embud. The outline of this transaction was set out in note 13 of Ernst & Young's audit opinion in relation to Elektrim's 2005 accounts. Elektrim called no evidence to dispel the legitimate concern articulated by the Trustee that the report may have been commissioned by Elektrim to justify as low a price as possible for this transfer (which was later unwound). The materials on which the Inwestexpert report was based included the PAK 2005 Budget, the PAK Strategic Plan and the Caminus model. The authors of the report disclaimed responsibility for the truth and reliability of such materials provided to it by PAK;
vii) A report dated 27 July 2005 by the accountants Moore Stephens ("the Moore Stephens report") valuing PAK as at 31 May 2005. This report duplicated the Inwestexpert report and valuation;
viii) PAK's budget for 2006 ("the PAK 2006 Budget"), compiled by the management of PAK in March 2006. In terms similar to those of the PAK 2005 Budget, the PAK 2006 Budget stated that 2006 would be "a difficult year to achieve the budgeted value and volume sales targets", and noted that there was a surplus of electricity supply over demand in Poland of about 30%. The PAK 2006 Budget noted that PPAs still in place restricted free competition by producers such as PAK which did not have the benefit of them. However, the 2006 Budget noted that electricity prices had risen in 2005 and again forecast an increase in electricity prices. The 2006 Budget again assumed there would be no change in the price of coal (which, allowing for inflation, indicated a reduction in the real price of coal for the year).
ix) The BVR, being a valuation report to the Polish Bankruptcy Court by Dr Ciepal and Mr Kotrasinski (with assistance from Mr Zielinski) dated 25 July 2006 together with a supplementary report dated 2 August 2006. It was drawn (indeed, copied) to a considerable extent from the Inwestexpert report.
- These materials were provided by Elektrim on disclosure, but no witnesses of fact were called to give evidence to explain their provenance, the assumptions on which they were based and who exactly had made those assumptions. This left the expert witnesses on both sides in a position where they were forced to make assessments as to these matters, rather than being provided with information about them by the parties and invited to give their opinions on the basis of such information. It is in the context of drawing conclusions of fact about the provenance of these documents, the assumptions on which they were based and who exactly made those assumptions that the principles of law referred to in paras. [164]-[165] and [176]-[179] are particularly important. In light of those principles, I have reached conclusions on the basis of reasonable inferences to be made contrary to Elektrim's interest. Such conclusions have an impact upon assessment of the expert valuation evidence in relation to PAK.
- In particular, disputes arose about the significance of the Caminus model and its various elements. The Caminus model had especial importance, because it was a very complex, sophisticated and detailed financial model which formed the basis for later financial modelling of PAK's business in the PwC model, reports such as the Taurus report, the Inwestexpert report and the Moore Stephens report and by PAK management in the PAK Strategic Plan. It was clearly regarded by PAK's and Elektrim's management and those who had dealings with them as a particularly authoritative financial model. But despite this, and despite the absence of any explanatory text in the model itself, none of PAK's or Elektrim's management gave evidence to explain the Caminus model.
- The most likely explanation for the provenance of the Caminus model is that it was work commissioned by Elektrim or PAK from a well-regarded financial consultancy with particular expertise in the Polish electricity market called Caminus, and compiled by Caminus from a combination of their own forecasts about likely movements in Polish electricity prices in the Polish electricity market generally and their review of detailed information provided by PAK's management regarding PAK's likely future costs. On both the revenue and costs side of the model, therefore, the Caminus model reflected input and assessment by Caminus itself. Mr Zielinski, the expert witness for Elektrim in relation to the valuation of PAK, gave evidence that he had encountered the Caminus model previously in his work valuing power stations. I find that the model he had encountered was a general Caminus model of forecasts for Polish electricity prices, rather than the detailed Caminus model specific to PAK with which I was concerned in this case. The fact that Mr Zielinski had encountered a general Caminus model forecasting movements in Polish electricity prices when conducting work valuing a range of power stations reinforced the impression that Caminus was a well-regarded independent consultancy familiar with Poland's electricity industry and that Caminus' projections of price movements were regarded as particularly authoritative within the Polish electricity industry at this time. Accordingly, it is very likely that the notional investment banks would have given particular weight to figures based on the Caminus model. This is what Mr Bezant did. I also think that the notional investment banks would have regarded the updated electricity price forecasts in the PwC model, based on the Caminus model as updated by PAK management for the purposes of presentation to potential investors, as a sound basis for the valuation of PAK, in the way that Mr Bezant did.
- Mr Zielinski suggested that the most appropriate forecast of revenue for PAK as at 11 July 2006 would have been the Caminus low case. Mr Bezant, on the other hand, suggested that it would have been the Caminus base case, as adjusted in the PwC model. In my view, it is likely that it would have been explained to the notional investment banks that the Caminus base case represented Caminus' own view in about 2003/4 as to the likely revenue of PAK in future. The base case was pitched between the Caminus low case and the Caminus high case, giving the strong impression that it represented Caminus' own view of the future, while at the same time giving the user of the model a sense of the possible variations on the high side and on the low side. The use of the term, "base case", also suggests that it was used by Caminus to express their basic view about future revenues. The explanation for the assumptions underlying the Caminus base case given in the Taurus report (that it assumed a continuation of existing trends) also supports that view (since there was no significant indication that the existing upward trend in electricity prices would not continue). Already in 2005 the Caminus low case in relation to electricity prices was underperforming the market, so that upward adjustments had to be made to it in the Inwestexpert and Moore Stephens reports this again suggests that the Caminus base case represented Caminus' own best view of the movement of electricity prices. In his expert report, Mr Bezant gave reasons for inferring that the Caminus base case would have been regarded by the notional investment banks as representing the view of Caminus and hence as being most appropriate model to use. Elektrim called no witness of fact to dispute those reasons. The reasons given by Mr Bezant were plausible and cogent, and the absence of evidence from witnesses for Elektrim to explain how or why he was wrong also leads to an inference that he is right. I accept Mr Bezant's evidence and view on this matter.
- There was also an issue whether the Caminus price forecasts included a sum for transmission charges. Mr Bezant inferred that they did not, and included a separate revenue stream from this source drawn from the 2006 PAK budget (on the footing that the notional investment banks would have spoken to PAK's management and obtained such an indication) and increasing with inflation. Mr Zielinski suggested that the Caminus price forecasts included transmission charges. This is an area where the position is unclear. The reasons given by Mr Bezant for inferring that they did not (that transmission services seem distinct from the price for electricity, and did not seem to be treated as rolled into electricity prices in the Taurus report and the PAK budgets) appear reasonable. Elektrim called no witness of fact to explain that the position was not as Mr Bezant assumed it to be. In corrected spreadsheets produced by Mr Zielinski in the course of the trial, he inserted transmission charges as a distinct income line, thereby appearing to accept to some degree that Mr Bezant had been correct to treat them distinctly (albeit Mr Zielinski's reasons for doing so, and how his figures were arrived at, were not explained). Taking all this into account, I consider that Mr Bezant's approach on this issue was correct.
- Both Mr Bezant and Mr Zielinski constructed very detailed and elaborate cashflow models from the materials available to them, in order to produce a valuation of PAK according to the discounted cashflow method. These models each reflected a large number of assumptions, changes in any of which could have impacts upon the figures in the models at a number of different points. By way of example, the cashflow forecasts compiled by Mr Bezant showed significant expenditure to upgrade the plants over a period of years, which was then assumed to reduce the costs of operating the plants in future years by reducing environmental charges and improving efficiency of the plants.
- There were significant differences between the cashflow models of Mr Bezant and Mr Zielinski and between the valuations given by each of them for PAK. In light of the complexity of the cashflow models they had constructed, Mr Miles, for the Trustee, submitted that the proper approach for the court was to decide on the basis of a general assessment of their evidence whose model appeared generally to be most reliable and to give the best picture of the model likely to be constructed by the notional investment banks, and then to make specific findings regarding any particular parts of the model so chosen which the court considered were not properly justified and in respect of which the model required adjustment. He suggested that having completed this exercise the court should leave it to the experts and the parties to work through and seek to agree the impact of any such finding upon the chosen cashflow model and in relation to the valuation of PAK given by such model. Mr Miles submitted that the court should not attempt to construct de novo a completely distinct cashflow model of its own, drawing on and blending aspects of the models of Mr Bezant and Mr Zielinski, since it would be extremely difficult for the court itself to construct in this way a model with the necessary degree of detail and complexity, and very likely that the court would fall into error by failing to take properly into account the various impacts throughout the model of changes to the assumptions made. Also, he submitted that it is important to use data which are consistent and which, where possible, come from the same source since there would be a serious danger in trying to combine items of information from different sources that they may be based on different assumptions and hence in fact inconsistent with each other.
- Having gained some insight into the elaborate detail contained in the competing cashflow models through listening to the evidence of Mr Bezant and Mr Zielinski, I consider that there is considerable force in the submission of Mr Miles as to the proper approach for the court in relation to evaluation of the evidence on the value of PAK. I accept his submission and I follow the approach proposed by him.
- The first stage is to decide which of Mr Bezant's and Mr Zielinski's cashflow models appears, in general terms, to reflect most reliably the information which would have been available to the notional investment banks and to present the most likely cashflow scenario which would have been adopted by the notional investment banks as the basis for their valuation of PAK. On that question, I have no doubt that Mr Bezant's model provides the best starting point for assessment of the value of PAK:
i) Mr Bezant was well qualified to compile and assess the sort of cashflow model which the notional investment banks would have used;
ii) His model was constructed with meticulous attention to detail. It was clear from his evidence, both in his reports and under cross-examination, that he had a very thorough understanding of the figures available in various sources, the reasons why one might prefer a certain source to another for a particular set of figures, and how adoption of one set of figures on the basis of particular assumptions would feed through to affect other parts of the model;
iii) Mr Bezant was right to take the Caminus base case as a particularly important source for compilation of the cashflow model which would have been used by the notional investment banks;
iv) Mr Bezant tested the valuation given by his model, so far as it was possible to do so, against other indicators of the value of electricity generating businesses in central Europe. This gave confidence as to the realism and robustness of his model;
v) Mr Bezant's model was constructed from materials provided by Elektrim on disclosure, but not explained by any witnesses of fact called by Elektrim. Mr Bezant had therefore been forced to make educated assessments regarding what the figures in the various materials represented, on what assumptions they had been made and who had made those assumptions (e.g. were they assumptions made by PAK management or by external consultants). The reasons Mr Bezant gave for selecting particular figures and assumptions to incorporate in his model were well thought through and persuasive. Moreover, since the full position was left unexplained, it is in relation to this aspect of the case that the Trustee is entitled to the benefit of presumptions of fact as set out at paras. [164]- [165] and, in particular, [176]-[179] above;
vi) As further information came to light, Mr Bezant was prepared to re-consider the impact of it on his model and to make appropriate adjustments. He was also even-handed in his evidence, most obviously by his adoption of a discount rate for the weighted average cost of capital which was markedly more generous to Elektrim than that which Mr Zielinski picked.
- By contrast, Mr Zielinski's evidence did not appear nearly so well thought through and reliable:
i) Mr Zielinski was not so well qualified as Mr Bezant in use of the discounted cashflow methodology;
ii) Mr Zielinski's valuation of PAK in his first report contained a major error, as he was constrained later to recognise. It left out of account income to be received by PAK in the relevant period up to 2025: Mr Zielinski had only added up PAK's income up to 2020. This error reduced Mr Zielinski's valuation of PAK from about PLN 711 million (according to his second report, which corrected this error) to only about PLN 548 million (as set out in his first report). This was a very basic and significant error in his first report, which indicated a considerably lesser degree of care in preparation of his evidence than was demonstrated by Mr Bezant;
iii) Mr Zielinski's revenue projections from 2007 were taken from the Inwestexpert report. The circumstances in which and purposes for which that report was prepared were very unclear. The Trustee contended that the report had been compiled at the instigation of Elektrim's management in a deliberate attempt to justify a low price for Elektrim's disposal of its shares in PAK to Embud, a related company, in 2005 in a transaction which was later unwound. Elektrim called no evidence to explain the position. In the circumstances, I had no confidence in relying on projections taken from the Inwestexpert report;
iv) In any event, Mr Zielinski did not have a thorough understanding, and was unable to give a complete account, of the basis on which the Inwestexpert forecasts had been prepared. The Inwestexpert forecasts used figures taken from the Caminus low case, but with an uplift the reason for which was obscure and could not be explained by Mr Zielinski;
v) The Inwestexpert and PwC forecasts both made use of the Caminus model, building from forecasts made in Euros and then converted into Polish zlotys (PLN). Mr Zielinski suggested that this was a mere matter of presentation for investors, and that the forecasts had in fact been produced originally in zlotys. I think he was clearly wrong about that. I can see no reason why only part of the forecasts should have been converted into Euros from zlotys, when the rest of the financial models (including the total and summary figures which investors would be most likely to focus upon) were constructed and presented in zlotys. I accept Mr Bezant's evidence to the effect that the relevant parts of these forecasts were prepared in Euros then converted into zlotys;
vi) Mr Zielinski was wrong to reject the Caminus base case as the appropriate basis for the forecast of PAK's revenues which would have been used by the notional investment banks;
vii) Generally, Mr Zielinski did not demonstrate such thorough and detailed command of the figures as Mr Bezant. At points in his evidence, he had considerable difficulty in explaining the source for particular figures which he had used in his cashflow model;
viii) He used the Caminus model as a source for the figures for heat revenues in his cashflow model, but was unable to explain the justification for doing this;
ix) He sought to suggest that the PPAs which the Polish government had previously entered into with certain electricity producers to ensure that they had a sufficient revenue to justify their investment in plants did not have an effect in tending to depress the price for electricity in Poland. However, this was contrary to the view of the authors of the BVR, who noted that electricity generating companies with the protection of PPAs were free to sell their surplus production (beyond what was covered by the PPAs) on the market "even at less than production cost, thereby reducing the market price for electric energy". It was also contrary to the Taurus report, which recorded the view of PAK's management that the privilege conferred by PPAs produced a disadvantage for "power stations operating exclusively on the free market", such as the three generating plants owned by PAK. It was also contrary to the PAK 2005 Budget and PAK 2006 Budget, which included commentary by PAK management as set out above indicating that the PPAs had a detrimental effect upon PAK. Mr Bezant gave a similar, cogent explanation why the presence of PPAs in the Polish electricity market tended to depress the general market price for electricity there. Poland had joined the European Union in May 2004, and by mid-July 2006 it was known that the EU Commission regarded the PPAs as an illegitimate form of state aid and required that they should be terminated. In 2005 the Polish government had introduced a legislative proposal to achieve this. By July 2006 there appeared to be a firm impetus in this direction. This provided grounds for expecting that the general market price for electricity in Poland would go up, to the benefit of PAK, but it was a factor which Mr Zielinski left out of account;
x) Mr Zielinski produced a cashflow model drawn up as if at 31 December 2005 and another drawn up as if at 31 December 2006, with a view to producing a likely valuation as at mid-2006. In each of the models he purported to take the first year of expenses in the model from the relevant PAK budget, and then took figures for the following years from the Inwestexpert report. His models incorporated a number of defects, as follows: (a) in the 2006 model Mr Zielinski inflated the Inwestexpert expenses figures for each year by 1% - he had no good explanation why he had done this; (b) in the fixed costs figures shown in the first year for the 2006 model there was an error in transposing the costs from the relevant PAK budget Mr Zielinski could not explain how this had occurred, nor could he justify the figure he had used; (c) the variable costs figures drawn from the Inwestexpert report reflected lignite prices as stable in real terms over the whole period of the model but that was contrary to the view in the Caminus model and the Taurus report and was contrary to the view of PAK's management as shown in the PAK Strategic Plan, the 2005 PAK Budget and the 2006 PAK Budget, which showed lignite prices reducing in real terms during the period, and Mr Zielinski did not give good reasons for preferring the Inwestexpert view on this issue (he suggested that the mines which supplied PAK's generating plants might engage in opportunistic pricing strategies, since the plants were in practice dependent on them; but the mines were as dependent upon the plants to take their lignite as the plants were upon them perhaps more so, since the plants would have an option to buy in lignite at market prices from elsewhere, albeit with additional transportation costs, while the mines would not be able to sell their lignite elsewhere at prices higher than the market price; the best judge available to the notional investment banks of whether the mines could in practice maintain the price of their lignite above market levels would have been the management of PAK, and they were predicting that the real cost of lignite for PAK would fall); (d) the Inwestexpert costs figures used by Mr Zielinski in his models did not show a reduction in the environmental costs to be borne by PAK by virtue of PAK's significant expenditure in the early years of the model to improve the emissions and efficiency profile of its generating plants this was a clear omission in those models which Mr Zielinski was unable to explain or justify (and which he would not readily accept, which further undermined the impression given by him as a witness); (e) the Inwestexpert forecasts for fixed costs in respect of wages, adopted by Mr Zielinski, were based on a crude assumption of the application of inflation to an original figure, without making reductions to reflect the closure of PAK's generating plants over time Mr Zielinski could offer no good justification for adoption of these forecasts; (f) a similar problem arose in relation to other fixed costs taken by Mr Zielinski from the Inwestexpert report, which were not shown as reducing as PAK's plants were closed;
xi) In relation to his 2006 model, Mr Zielinski was unable to explain the source for the figure he gave for "fixed costs without amortisation" in 2007. His general approach was to take the figures in the 2007 column from PAK's budget for 2007, but that figure was not consistent with that budget.
- The broader picture in relation to the Polish electricity market according to indicators which would have been available to the notional investment banks in mid-2006 also strongly supports the general picture of PAK's likely financial performance set out by Mr Bezant:
i) PAK management (in the PAK Strategic Plan) and the URE predicted steady growth in Polish electricity demand (as did a report published by the Economist Intelligence Unit in April 2006), which would naturally be likely to have an impact in tending to drive electricity prices up;
ii) The market in electricity in Central Europe in 2006 was in the course of being liberalised under the auspices of the EU Commission. That was likely to have an effect in tending to allow for electricity prices in the region to converge towards the comparatively high prices for electricity in Germany. Mr Bezant's evidence to this effect was supported by comments from a number of analysts in May to August 2006 and appears to have been a common view in about mid-2006 (e.g. an analyst report by Deutsche Bank dated 18 May 2006 commented on strong performance by a Czech company involved in the electricity industry, including the observation: "Czech electricity prices are still some 35% lower than in the German market, so the convergence argument remains intact", supporting the view that the company had "positive long term prospects");
iii) The EU Commission required Poland to unwind the PPAs, and in 2005 the Polish government introduced legislation to achieve that. It was likely that this would have the effect of allowing the electricity prices which could be achieved by PAK's three existing power stations to rise;
iv) Poland's stock of electricity generating plants was ageing and would have to be replaced. The EU Commission issued a letter to the Polish government dated 23 November 2005 regarding the government's proposal for legislation to unwind the PPAs. In that letter, the Commission observed:
"The price development hypotheses adopted by the Polish authorities to calculate maximum compensation to invalidate the PPA [i.e. compensation payable to electricity producers which were encouraged to invest against the guaranteed receipts set out in PPAs, and which therefore incurred costs of investment referred to as "stranded costs"] are based on a scenario, which presents a slow rise of the average market price for electricity. This average market price remains below generally accepted costs for the best new market participant, which utilises a CCGT type power plant (approx. EUR 36/MW) up to 2016.
The Commission is aware that the best new participant on the Polish market may choose to use technology based on burning coal, where, according to the Polish authorities, the costs may vary somewhat between EUR 30 and 35/MW. Although, the hypothesis regarding average price development in Poland anticipates that these prices will also remain below that range for a long period of time, at least until 2015.
Thus the Commission has serious doubts whether the hypothesis adopted by the Polish authorities to calculate the maximum stranded costs compensation are consistent with the necessity to ensure new participants' ability to enter the market, pursuant to [the Commission's standard methodology and practice] in this area
."
The Commission thus indicated that it expected there would be a need for further price increases in Poland, beyond those forecast by the URE, to allow for new entrants to generate the returns necessary for them to invest to set up new generating plants. Where prices rose to allow this to occur, existing electricity generating businesses such as PAK's would be able to generate increased profits during the remaining life of their established plants. This feature of the Polish electricity market therefore provided a degree of comfort that prices in accordance with the Caminus base case and the figures derived by Mr Bezant from the PwC model were indeed likely to be achieved.
- Having identified Mr Bezant's cashflow model as the most appropriate starting point for assessment of the valuation of PAK which would have been arrived at by the notional investment banks, I turn to consider whether any adjustments are required in respect of that model. Adjustments may be required in relation to any item which Mr Bezant accepted in his evidence should be changed. There were not many instances where Mr Bezant did accept that a change was required, and I expect the parties to be able to agree them. If there is any dispute, the matter can be referred back to the court for a decision. The parties will need to consider whether adjustments are required in respect of, in particular, the following matters:
i) The ratio given by Mr Bezant in Appendix 6-1 to his second report of fixed costs to variable costs for heat related costs was incorrect. It should have shown two thirds of such costs as variable and one third as fixed;
ii) Such change as is necessary to reflect the correction of the translation of the PAK 2005 Budget referred to at para. [206] (v) above.
- There was a dispute about the treatment of PAK's subsidiaries in the valuations by the experts, which depended upon whether their values were already taken into account in the valuation of PAK. If they were not so taken into account, they should be valued separately and added to that valuation. Mr Zielinski's view was that none of the subsidiaries should be added to the valuation of PAK. Mr Bezant accepted that one subsidiary (PAK Odsiarczanie), a company carrying out flue gas desulphurisation work, had been taken into account in that valuation, for particular reasons explained by him. But his evidence was that on his cashflow model the values of the other subsidiaries had not been brought into account. The subsidiaries provided services to PAK and charged PAK for those services. Those costs had been reflected in the PAK cashflows in his model, i.e. the subsidiaries had been treated as businesses distinct from PAK's business, and their revenues should be treated as creating value in assets (the subsidiaries) distinct from PAK and not covered by the discounted cashflow valuation of PAK. The value of those subsidiaries ought properly, therefore, to be added to the valuation of PAK. In my view, Mr Bezant's reasoning on this issue is sound, and the values he assessed for the subsidiaries should be added to the valuation of PAK in accordance with his evidence.
- There was a dispute about the treatment of a receivable owed to PAK by a company called Elektrim Megadex. Mr Bezant included that at its full value in his valuation of PAK. Elektrim submitted that it should have been written down, since Elektrim Megadex was a company in financial distress. In my view, Mr Bezant's approach on this issue was correct. In PAK's audited accounts for 2005 and 2006 the receivable appeared at its full value it was not written down. It is likely that the notional investment banks would have had regard to the treatment of the receivable by PAK in its 2005 accounts, and would have checked with PAK management that it was recoverable (and, as PAK's 2006 accounts indicate, they would have said that it was). Elektrim has not adduced any clear evidence to suggest that the notional investment banks would have been given, or compelled to reach, any different view on that.
Port Praski
- The assessment by the notional investment banks of the fair market value of the assets of Elektrim consisting of the share capital of its subsidiary which owned Port Praski would have been carried out by valuing that subsidiary's assets (in particular, the real estate it owned at Port Praski) and deducting from that the amount required to settle its liabilities. The dispute between the parties on this aspect of the case concerned the value of Port Praski. (There were also some small discrepancies between the relevant experts' views as regards other assets and liabilities of Elektrim's subsidiary; Mr Bezant for the Trustee was not challenged in relation to these points and I accept his evidence on them).
- Port Praski is an area of Warsaw of about 38 hectares situated on the east bank of the Vistula river, directly opposite the central business district of Warsaw located on the west bank of the river. Port Praski is a large undeveloped area consisting of old river docks, woodland and a few dilapidated buildings. Part of the wooded area on the site is protected as Green Belt. The site is bounded on the river side by a strip of woodland (which is subject to protection as a bird sanctuary as part of the European Union's Natura project) and a busy road. It is bounded to the north and east by a relatively under-developed and run down area of Warsaw known as Praga North. It is bounded to the south by a busy railway line. At both the northern and southern ends of Port Praski there are bridges across the Vistula to the central business district.
- The part of the Port Praski site closest to the Vistula is 1.5 km due east of the prestigious "Royal Route" at the heart of the central business district (on and around which are located the most valuable commercial properties in Warsaw) and 2 km due east of Warsaw's main north to south central trunk route, Marszalkowska Street. Port Praski is serviced by public transport in the form of bus routes and a local railway station (Warszawa Station). In mid-July 2006 it was known that the Warsaw city authorities had earmarked a location by Port Praski for construction of a new Metro Station on a proposed new Metro line to be constructed at some point in the future.
- In mid-2006, Warsaw was attracting investment and property prices there were rising strongly and had been for some time. The value of Port Praski was bound up with its potential as a site for development.
- The Warsaw city authorities had identified Port Praski as an area for development in their Development Strategy issued in November 2005. Operating aim 5.5 in the Development Strategy was "To revitalise run-down areas", which was to include as Program 5.5.3 "The use of Port Praski land for residential and office development". The Development Strategy stated:
"A renewed right bank of central Warsaw will come nearer to the Vistula river particularly in the area of Port Praski. The system of canals and locks in this area will be modernised. A new district of offices, apartments and shops will arise. The canals, proximity to the river and green areas will determine its unique attractiveness."
- Obviously, this had a strongly aspirational flavour. The Warsaw city authorities did not propose to dedicate resources to carrying out such development of Port Praski themselves. Nonetheless, as at 11 July 2006 it was clear that any developer who could present detailed proposals to develop the Port Praski site into a residential and office area would have a fair wind from the Warsaw planning authorities.
- On about 29 March 2006 the Warsaw city authorities put a draft "Study on the Limitations and Directions for the Spatial Development of the City of Warsaw" ("the Study") out for public consultation. The Study contained detailed zoning proposals for planning development in Warsaw, including in relation to Port Praski. The main areas within Port Praski were designated for permitted development of buildings up to 30m in height, with a permitted optimum development density of 3.5:1 (i.e. the building could have an overall floor area on all floors of 3.5 times the area of the plot on which it was built). Part of Port Praski was designated for more limited development of buildings up to 12m in height with an optimum density of 2:1.
- The Study was eventually adopted, with some modifications not relevant for present purposes, in October 2006 (i.e. after the CPDD). However, it is likely that anyone looking to assess the development potential of Port Praski as at the CPDD would have had regard to the Study, which was a detailed and considered document fully in line with the Development Strategy.
- The Trustee adduced expert evidence in relation to the issue of the fair market value of Port Praski from Mr Christopher Grzesik (a valuation surveyor and property consultant) and Mr Jonathan Steer (a chartered quantity surveyor). Mr Grzesik gave evidence about the property market in Warsaw, the development potential of Port Praski, the land prices and rental incomes which could be achieved from development of the Port Praski site and the overall fair market value of the site as at 11 July 2006. Mr Grzesik's evidence recognised that for a development of Port Praski to take place works would have to be carried out to ensure that the site was fit for building on. Mr Steer gave evidence about the cost of carrying out such works, including works to control water levels when the Vistula is in flood and to repair the docks which form part of the site. Mr Steer has had extensive experience of providing consultancy services for development projects in Poland and for development projects involving river side and flood protection works. Taking account of Mr Steer's evidence, Mr Grzesik gave PLN 770 million as the fair market value of Port Praski.
- The Trustee's case was that, in order to assess the fair market value of Elektrim's asset in the form of its interest in Port Praski, the notional investment banks would have had recourse to expert assessments from persons with the expertise represented by Mr Grzesik and Mr Steer. I agree with this. It is therefore appropriate to assess the fair market value of Port Praski by reference to expert evidence of this kind.
- Elektrim adduced expert evidence from Dr Ciepal on this aspect of the case. Dr Ciepal is an experienced court expert for the Warsaw Regional Court. He particularly contested the valuation placed on Port Praski by Mr Grzesik. Dr Ciepal gave PLN 102,505,280 and 149,223,685 as alternative fair market values for Port Praski.
- Dr Ciepal and Elektrim did not dispute in any substantial way the evidence of Mr Steer, estimating the sum required for unusual development works at the site as PLN 38,155,000. Dr Ciepal said he thought the figure should be higher, but had no expertise in such matters nor any properly reasoned explanation why. Mr Steer's reports were carefully reasoned. I accept his evidence.
- Mr Grzesik has had some 30 years experience as a chartered surveyor in the United Kingdom and Poland. He has had some 18 years experience in the property market in Warsaw. His knowledge of that market and command of the detail of rents and sale prices was impressive. He gave his evidence in a careful and measured way. In the event, on much of the detail of Mr Grzesik's evidence, when drawing comparisons with particular sites in Warsaw (and in particular in relation to the important Table of Comparison annexed to Mr Grzesik's first report), Dr Ciepal broadly agreed with Mr Grzesik. I consider that Mr Grzesik's evidence and assessment of the development potential of Port Praski, the likely rents and property values which could be achieved there and the overall market value of the site is entitled to great weight.
- By contrast, I was not impressed by the qualifications or reasoning of Dr Ciepal in relation to the valuation of Port Praski:
i) Dr Ciepal has not been involved advising participants in the commercial property market in Warsaw as Mr Grzesik has. Moreover, Dr Ciepal's right to appear as a valuer of real estate before the Warsaw Regional Court lapsed in 2003. He did not have an active, personal knowledge of the Warsaw commercial property market in 2006;
ii) Parts of the reasoning in Dr Ciepal's expert reports on Port Praski were ill thought through and unsustainable. For his valuation calculation, in paragraph 134 of his first report he introduced a reduction of 55% in the figure to be used for the developable land area suitable to be multiplied by the development value per square metre to allow for paths and open areas around buildings; but this indicated a misunderstanding on Dr Ciepal's part of the way in which the density limitations in the Study would operate and how a site would be valued. No reduction in the developable land area is appropriate, because the density of development permitted under the Study would allow tall buildings with a smaller footprint to be built on any given plot (i.e. allowing space for paths and open areas on the plot) while still achieving densities of 3.5:1 and hence still being able to extract the maximum development value from that plot. The development value per square metre for any given plot would take account of the permitted density of development on the plot, and no additional reduction of the area within the plot appropriate to be multiplied by that development value per square metre is justified. In the end, in his third report, Dr Ciepal admitted he had made a mistake in this regard. In addition, in paragraphs 81 to 83 of his second report Dr Ciepal criticised the reasoning of Mr Grzesik on the density of development possible in Port Praski, but his criticism was misplaced; in fact, it demonstrated that Dr Ciepal had conflated the distinct concepts of the height of the buildings which could be constructed at Port Praski and the density of the development which was permitted there (they are distinct concepts: a tall, narrow building may have the same development density as a wide, low building);
iii) The main thrust of Dr Ciepal's evidence on the value of Port Praski, particularly in his first report, was to apply a valuation method, referred to as the adjusted average method, according to which a valuation is arrived at by averaging out the prices for a range of sites. This methodology is peculiar to Polish valuation practice under relevant Polish law and would, in my judgment, clearly not have been regarded by the notional investment banks as a methodology appropriate for identifying the fair market value of Port Praski as between participants in a commercial market for development sites. In cross-examination Dr Ciepal accepted that the method only works well if there is a close similarity between the properties in the compared group (as one would expect in an average based methodology applied in respect of something as distinctive as individual plots of land). Yet his own proposed comparables varied very widely in size and price;
iv) Although at paragraph 142 in his first expert report Dr Ciepal stated that he made his assessment of the value of Port Praski on the basis that the parties to a notional sale of the site act at arm's length, are to be taken as being under no compulsion and are to be taken as having sufficient time to present the property to the market and negotiate terms, under cross-examination he volunteered that he had in fact valued the site on the basis that it was to be sold in a forced sale, in a bankruptcy situation. This would not be an appropriate method of assessing the fair market value of Port Praski. In closing, Mr Millett submitted that taken overall Dr Ciepal's evidence about the value of Port Praski was properly to be understood as based on the principles he had set out in his first report. Dr Ciepal gave his evidence in Polish, through a translator. In light of that, I have given particularly careful consideration to whether there might have been any scope for misunderstanding of the questions or statements made or answers given by Dr Ciepal under cross-examination on this point. I have concluded that there is not. Dr Ciepal himself made the statement in his oral evidence that he had valued Port Praski on the basis of a forced sale price. Mr Miles pressed him on this to make sure of the point, and Dr Ciepal confirmed it. I do not think that there was room for error or misunderstanding on his part. Even if it had stood alone, this revelation about his approach to the valuation of Port Praski would have undermined his evidence on the issue in a major way. In fact, it did not stand alone;
v) Dr Ciepal fell short of certain basic standards of care in the preparation and presentation of expert evidence on a matter of property valuation. At the time he put forward his first expert report he had not in fact visited all the comparator sites to which he made reference in the report, to check what they were like and that his treatment of them in the report was accurate and properly justified. In a later report he adduced a photograph purporting to be of what he said was an important comparable site (No. 13 ul Grochowska), but which was not of that site at all. Mr Grzesik's researches into comparables put forward by Dr Ciepal disclosed a number of errors in the information about them put forward by Dr Ciepal. Moreover, in Dr Ciepal's first report, he appears to have copied the figure for developable area and the text at paragraph 134 from another report without revealing that that was how he had compiled this part of his report. He could not explain or justify the figure he had incorporated in his report. There was also an unexplained inconsistency between paragraphs 134 and 150 of Dr Ciepal's first report regarding the area within Port Praski which he regarded as available for development (and his evidence on that later changed fundamentally: see (ii) above).
- The primary method used by Mr Grzesik to produce a valuation of Port Praski was referred to as the pairs comparison method. Mr Grzesik assessed the market value of Port Praski if sold as a single large site to a large development company or consortium, which would carry out the works set out and costed by Mr Steer and then proceed to build mixed office and residential units on the site in accordance with the Development Strategy and the Study. Mr Grzesik compared the type of building which could be built on the site with similar types of buildings constructed at certain other sites in Warsaw which provided suitable comparables, and compared what had been paid by developers to purchase and develop those comparable sites in late 2005 and 2006 to arrive at an estimate of the amount that a developer would have paid for the development site at Port Praski.
- In my judgment, the pairs comparison method of valuation adopted by Mr Grzesik as the primary basis for valuing Port Praski is clearly the most appropriate method for valuing the site. The notional investment banks would have required such a method to be adopted for the purposes of the "Fair Market Value" calculation in condition 6(k), since it would provide the best indication of the fair market value of Port Praski. Any commercial developer who might be a prospective purchaser of the site would be bound to assess the price which should be offered by comparing what was actually being paid in the market at the time for appropriate comparable development sites.
- In selecting the sites which he regarded as suitable comparators, Mr Grzesik carried out a survey of transactions in Warsaw to identify those involving development sites of 1 hectare or more. This was on the basis that it was only transactions of this size and above which would be likely to attract interest from the sort of large developer who would be interested in developing the large Port Praski site as a unit. In my view, this was an appropriate first stage to adopt in the selection of relevant comparable sites.
- The reasons for selecting comparable sites according to this criterion supply a sound basis for rejecting another building (Kepna 2B) put forward as a relevant comparator site late in the day by Dr Ciepal in his third report. The site at Kepna 2B has an area of 3895 square metres, far less than the hectare size which would be likely to attract interest from large scale developers. Further, the building at Kepna 2B was developed on its own as a small scale development squeezed between the currently dilapidated area of Port Praski (which, moreover, is an area which may well be developed in accordance with the Study in a manner which eventually shuts Kepna 2B off from any view of greenery and water) and the run-down area of Praga North. It is not on a scale which could transform the area and set apart its location from Praga North, by contrast with the much bigger development scheme contemplated for Port Praski by Mr Grzesik. I accept Mr Grzesik's evidence that Kepna 2B does not provide a good comparator for the purposes of valuation of Port Praski.
- Having selected a range of potential comparator transactions by reference to the one hectare criterion, Mr Grzesik then made an evaluative assessment of which transactions involved sites which were appropriate comparables for the development which could take place on the Port Praski site. He came up with five relevant comparator development sites: Grzybowska 4 (site purchased on 21 December 2005), Inflancka 3 (site purchased on 29 December 2005), Elektryczna 2a (site purchased on 4 January 2006), Grzybowska 58 (site purchased on 4 November 2005) and Grzybowska 77 (site purchased on 5 July 2006). He established the sale price in PLN per square metre, and then adjusted that price to take account of the nature of the interest acquired (freehold or some lesser tenure), the location of the comparator site (the closer to the centre of the business district, the greater the discount applied to arrive at a suitable adjusted comparative price for Port Praski), the superior environmental quality of the development in Port Praski (which to a considerable extent would be located in the midst of greenery and water, with potential for views across the river), the difference in size between the comparator plot and Port Praski and the difference in development density between the comparator plot and Port Praski. He also adjusted the price to take account of the strong increase in property values in Warsaw between the dates of the comparator transactions and 11 July 2006. By this method Mr Grzesik arrived at an average adjusted price of PLN 4,129 per square metre, which he applied to the developable area within Port Praski to arrive at his assessment of its fair market value. It is worth noting that the adjusted price in respect of Elektryczna 2a was PLN 4,205 per square metre.
- Mr Grzesik's evidence in explaining how he arrived at the relevant comparative figures via this table to work out the fair market value of Port Praski was careful, thorough and persuasive. Under cross-examination, Dr Ciepal for the most part agreed with the adjustments made by Mr Grzesik in the Table of Comparison compiled by him. In particular, Dr Ciepal agreed subject to two main caveats - that the site at Elektryczna 2a (which is located close to the Vistula, on the west bank opposite Port Praski) provided a good comparator with the Port Praski site (if the development contemplated by Mr Grzesik took place there), and agreed that the adjustments made by Mr Grzesik in respect of that site were appropriate. Therefore, subject to consideration of Dr Ciepal's caveats, I accept Mr Grzesik's evidence as to the appropriate comparator sites, as to the adjusted price of PLN per square metre to be derived from consideration of those comparator sites and as to the overall fair market value of Port Praski.
- The first main caveat by Dr Ciepal, taking his evidence as a whole, was that Port Praski was outside the central business district of Warsaw and that property values in Port Praski should be assessed by comparison with the much lower values in the run down area of Praga North. He put in issue a central part of Mr Grzesik's evidence, which was to the effect that by coherent and up-market development of the Port Praski site it could be made into an extension of the central business district of Warsaw, so that property prices and rents could be compared with those achievable within the central business district.
- I found Mr Grzesik's evidence on this issue persuasive. The Port Praski site is physically close to the central business district, to which there is ready access across two bridges. Unified and coherent development of the site with high grade buildings would be likely to result in a practical extension of the central business district into what would be a pleasant environment in Port Praski amidst greenery and water, physically distinct from the run down areas in Praga North. The converse contemplated by Dr Ciepal, that the development of Port Praski would be regarded more as an extension of Praga North than of the central business district, would be much less likely if the development of Port Praski were undertaken with care. Indeed, there would be a good chance that a good quality development of Port Praski would tend to lead to improvements in neighbouring Praga North, rather than that Praga North would drag down Port Praski.
- The second principal caveat by Dr Ciepal was to doubt whether such an extensive and high grade development of Port Praski as was contemplated by Mr Grzesik would happen at all. He suggested that inertia on the part of the Warsaw city authorities would slow the process of development down very considerably, and reduce the attractiveness of the site to developers. Mr Grzesik, on the other hand, said in his evidence that he had no doubt at all that the development of Port Praski mapped out by him could and would take place.
- Notwithstanding the attractiveness of the case for development of Port Praski as set out by Mr Grzesik, the cogency of and weight generally to be attached to his evidence and the planning indication in favour of development given in the Warsaw Strategic Plan and the Study, I think that Mr Grzesik somewhat overstated the strength of the assessment that a willing seller and willing purchaser of Port Praski would be likely to make that a development of the kind contemplated by him would in fact take place within a reasonable period and would in fact achieve the full integration of Port Praski into the central business district of Warsaw of which he was so confident. In my view, Dr Ciepal's caveats cannot be completely brushed aside. There were significant risks in relation to these matters, which were magnified by the size of the investment required on the part of a single developer or consortium. I think the notional investment banks and any property consultant advising them would have been bound to assess that a willing seller and willing buyer of Port Praski would make some discount to the price to take account of the risks attendant upon development of such a large site, located next to Praga North and on the other side of the Vistula from the established central business district. There would be other risks too: e.g. the structural works required to protect against flooding and to repair the docks might prove to be more expensive than what had been estimated and the construction of so many new offices and apartments in Port Praski, increasing the general supply on top of other developments taking place in Warsaw, might tend to drive property prices and rents down to some degree below what Mr Grzesik thought could be achieved.
- In my judgment, an appropriate discount from the fair market value estimated by Mr Grzesik to take account of these not inconsiderable risk factors would be 20%. Accordingly, I assess the fair market value of Port Praski to be 80% of PLN 770 million, i.e. PLN 616 million.
- Before leaving the subject of the value of Port Praski, there is one final matter which I have to deal with. In his closing submissions, Mr Millett sought to rely on a valuation report dated 16 January 2009 prepared by Malgorzata Skapska and Grazyna Wojciechowska in respect of the value of Port Praski as at 31 December 2008 ("the 2009 valuation report"). This valued Port Praski at PLN 163,260,000. Mr Miles objected to this attempt by Mr Millett to rely on the 2009 valuation report as expert evidence in the case.
- In my judgment, Mr Miles' objection was soundly based. Well before trial, the court had given directions including permission to serve expert reports to be relied on in the case. Elektrim at no stage sought to serve the 2009 valuation report in accordance with those directions as expert evidence on which it proposed to rely. The 2009 valuation report was referred to in passing by Mr Bezant in one of his expert reports, but it was clear that he did not purport to rely on it. He did not adopt it as part of the expert evidence set out in his report. Mr Millett put parts of the 2009 valuation report to Mr Grzesik in cross-examination, as he was entitled to do. But Mr Grzesik made it clear that he disagreed with the report. The report did not, by virtue of this use of it by Mr Millett, become admissible expert evidence in the case on which Elektrim was entitled to rely.
- The procedure governing the introduction of expert evidence in a case is set out in CPR Part 35. Part 35.4(1) provides: "No party may call an expert or put in evidence an expert's report without the court's permission".
- The court has not given permission to Elektrim to rely on the 2009 valuation report as an expert's report in the case. Therefore Elektrim is not entitled to seek to rely upon it as expert evidence, as Mr Millett sought to do.
- Further, unsurprisingly - since it was not prepared for the purpose of providing expert evidence in these proceedings - the January 2009 valuation report does not purport to comply with the requirements of the Practice Direction under CPR Part 35 nor with the further requirements in CPR Part 35.10. The valuation in the report is as at a date (31 December 2008) which is not relevant in the context of the present proceedings. The authors of the report did not attend court. Mr Miles had no opportunity to cross-examine them and I had no opportunity to hear their evidence or to ask them questions.
- For all these reasons, Elektrim was not entitled to seek to rely upon the January 2009 valuation report as expert evidence in these proceedings.
Other items
(i) Long Term Assets
- There were disputes about two items under this heading: (a) the fair market value of a receivable of PLN 133 million owed to Elektrim by PAK ("the PAK receivable") and (b) whether to include a sum in respect of a receivable of PLN 34 million owed to Elektrim by one of its subsidiaries called Energia Nova ("the Energia Nova receivable").
- As to the PAK receivable, I accept the evidence of Mr Bezant that it should be included in the calculation of "Fair Market Value" under condition 6(k) at its face value. The reasons given by Dr Ciepal for writing it down in that calculation by 95% are unsustainable. He said it should be written down because of PAK's troubled financial history and because it was deferred until 2020 and was subordinated to bank loans. However, even Mr Zielinski for Elektrim assessed the shares in PAK to have considerable value for their owners, who (as Mr Bezant explained) could only take the benefit of such value on the assumption that PAK would first meet its obligations to its creditors. Therefore, it was implicit in the approach adopted by Elektrim to the valuation of the shares in PAK (still more so on the findings I have made about the value of shares in PAK) that the PAK receivable would be paid by PAK. Interest was payable in respect of the PAK loan, and that would compensate for its deferred repayment.
- In addition, in relation to Mr Bezant's valuation of the shares in PAK owned by Elektrim, he calculated the net debt for PAK, including in that calculation the full value of the PAK receivable (which had the effect of reducing the value of those shares). Elektrim eventually agreed Mr Bezant's figure for PAK's net debt for that purpose. It is inconsistent for Elektrim now to seek to exclude the full value of the PAK loan as a distinct asset in its hands.
- The evidential position in relation to the Energia Nova receivable is murky. It had been included in Elektrim's balance sheet as at 31 December 2005. It was not identified as a specific item in Elektrim's balance sheet as at 30 June 2006, but in that balance sheet there was another item for loans to unspecified subsidiaries which was large enough to include the Energia Nova receivable. On that basis, Mr Bezant included the Energia Nova receivable in the calculation of "Fair Market Value" for the purposes of condition 6(k).
- In his expert reports, Dr Ciepal said that he thought it was fair to assume that the Energia Nova receivable had been sold before 30 June 2006, since he had seen no evidence that it was included in the loans to subsidiaries item at that date (he did not explain what was included in that item); he also said that no third party would pay the face value of the Energia Nova receivable. Under cross-examination, Dr Ciepal gave the remarkable evidence (not previously adverted to by him) that he had in fact been told by the finance department at Elektrim that the Energia Nova receivable had been sold before 30 June 2006. He still did not explain what was included in the loans to subsidiaries item at that date.
- After completion of the evidence, on 29 May 2009 Elektrim provided a document which purports to record the sale of the Energia Nova receivable to an entity called "Sky Service" (a vehicle for the chairman of Elektrim, Mr Solorz-Zak) for some PLN 14.5 million in May 2006. Elektrim has not provided any surrounding material (such as accounting entries in Elektrim's books to record the sale), nor any witness evidence to explain the transaction and (if it was completed) what happened to the proceeds of sale (which, if received, might themselves have constituted an asset of Elektrim as at 11 July 2006 to be brought into account in the calculation under condition 6(k)), nor any evidence to explain what was included in the loans to subsidiaries item at 30 June 2006.
- Elektrim was on clear notice of the approach being adopted by Mr Bezant and the Trustee in relation to the Energia Nova receivable. Mr Bezant gave what were, on the face of it, good reasons for including the Energia Nova receivable in the condition 6(k) calculation. Dr Ciepal did not give good reasons in his expert reports to displace the inference that Mr Bezant was correct to do this. Moreover, if Elektrim wished to dispute what Mr Bezant said as a matter of fact it was incumbent on it to bring forward full evidence to explain clearly what had happened. It had ample opportunity to do this, but failed to do so, even by the assertions by Dr Ciepal under cross-examination or by the late disclosure of the "Sky Service" document without further explanation. This is most unsatisfactory. It is by Elektrim's default in relation to its disclosure obligations and by its failure to explain matters within its own knowledge that the court has been left to deal with this obscure situation.
- In my judgment, in these circumstances, out of fairness to the Trustee and by application of the principles set out in paras. [164]-[165] and [176]-[179] above, the proper course is to draw the inference that Mr Bezant's inclusion of the Energia Nova receivable in the condition 6(k) calculation as at 11 July 2006 is correct.
- I also consider that Mr Bezant was right to include the receivable in that calculation at its full value. Dr Ciepal's suggestion that it should be written down because it was not certain it would be repaid is unsustainable, for reasons similar to those in para. [253] above. The parties are agreed that as at 11 July 2006 the share capital of Energia Nova had a value of PLN 4.253 million; it is implicit in this that it would have been capable of repaying the Energia Nova receivable in full.
(ii) Short Term Receivables
- There was a dispute under this heading as to the inclusion of two receivables in the condition 6(k) calculation: (a) a receivable of PLN 6.854 million from Carcom and (b) a receivable of PLN 32,000 from a company called IDM Warsaw. Mr Bezant said they should be included. Dr Ciepal originally suggested they should not. Dr Ciepal did not give good reasons for his approach, and the weakness of the reasons he did offer was exposed in cross-examination. In my view, there is no reason to exclude these items. Neither Carcom nor IDM Warsaw were insolvent.
(iii) Short Term Investments
- Mr Bezant placed a value of PLN 49.1 million on Elektrim's Short Term Investments. Dr Ciepal gave them a nil value. The dispute here relates to the treatment of a receivable of PLN 119.4 million owed to Elektrim by another of its subsidiaries, called Enelka ("the Enelka receivable"). It was common ground that the Enelka receivable should not be included in the calculation under condition 6(k), on its proper construction. Unfortunately, the figures pleaded by the Trustee in Schedule 1 to the Amended Particulars of Claim mistakenly deducted the Enelka receivable twice, as was explained by Mr Bezant in his first expert report. He therefore added a sum of PLN 119.4 million back into the figure for Short Term Investments, to correct that mistake and ensure that the Enelka receivable was only deducted once. I accept the Trustee's explanation that this was a legitimate addition by Mr Bezant to correct an error in the calculation. Accordingly, I accept the value of PLN 49.1 million for Short Term Investments given by Mr Bezant.
Conclusion
- On the basis of this judgment, the Trustee is entitled to be paid substantial damages by Elektrim in respect of the Trustee's loss of the chance to receive a significant Contingent Payment under condition 6(k). The parties were agreed that, after judgment was handed down, they should revisit the figures to be included in the "Fair Market Value" calculation under condition 6(k) as at 11 July 2006 to see if those figures and that calculation can now be agreed. If agreement proves not to be possible, any outstanding dispute between the parties can be referred back to the court for resolution. Once the calculation is settled, the amount of damages payable can be finally determined.
