Julian Cohen v Stobart Holdings Ltd (2018)
A company failed to obtain summary judgment or to strike out a claim against it for commission for introducing a purchaser of two aircraft. Whilst the claim as formulated needed to be reviewed, potentially to join further defendants, it had a realistic prospect of success.
The defendant company (Holdings) applied for summary judgment or to strike out the claimant's claim for commission for introducing a purchaser of aircraft to Holdings.
Holdings was a wholly-owned subsidiary of Stobart Group. Holdings had a one-third share in a company (P) that in 2015 owned 10 aircraft which were leased to Stobart Air, an Irish company. P's articles made clear that its board could only act unanimously. The chief executive of Holdings and of Stobart Group had been a director of P in 2012 and 2013, but by 2015 was not. In 2013 the claimant had earned commission in a transaction involving an airplane owned and operated by Stobart Air. In 2015 he was approached by Stobart Air to see if he could find a new lessee or buyer for two aircraft. T became involved, although he was not an officer of Stobart Air or P. He took over the negotiations. The claimant had an interested buyer and had discussed the purchase price with it. At a meeting on 25 February 2015 he and T signed a non-disclosure agreement, with T's signature expressed to be "on behalf of Stobart Air", and after his name he was described as "CEO, Stobart Air and Stobart Group". The claimant's case was that T had also agreed to pay him commission of $125,000 on each aircraft if both were sold. After the non-disclosure agreement was signed, the claimant told T the identity of the prospective purchaser. After the meeting he sent T a commission agreement in the terms that he claimed had been agreed. T did not sign it or return it. In April 2015 the claimant emailed T with an invoice for his commission based on the purchase price as he believed it to be. His emails to T went unanswered. He wrote an email to another officer in the Stobart Group, who forwarded it to T and other Stobart companies. It was apparent from the claimant's email that he had knowledge of the progress of the deal. In the forwarded email, the officer wrote, "somebody's leaking". Inadvertently he had included the claimant as a recipient of that email, and within one minute he tried to recall it. In November 2015 the purchaser identified by the claimant bought the aircraft. The pleaded defence was that the claimant had not been the effective cause of the transaction as the purchaser had been known to the Stobart Group already and the deal finally struck was different from what the claimant had brokered.
There was an apparent change in T's enthusiasm to see the claimant before and after learning of the purchaser's identity. There was no obvious explanation of why the claimant was shunned so emphatically. The forwarded email carried the inference that the claimant knew things that those at Stobart thought he did not. The inference clearly to be drawn was that the clear strategy on the part of T and others was to keep the claimant away from information about the aircraft sale and to deny him the commission to which he thought he was entitled, and they were aware of the risk of his finding out. It was common ground that T had acted as agent for an undisclosed principal. There were competing factors as to which party was that principal. In the absence of disclosure, it could not be determined exactly what T was doing. He had been a director of P in the past, and he was chief executive of the group: he was not going to be dismissed as somebody acting without authority. The conflict of evidence on the point would have to be resolved at trial. There was a serious issue to be tried. In the absence of disclosure, the court could nonetheless infer that T was acting for P and Stobart Air. There was a realistic prospect of there being a contractual relationship between the claimant and Holdings, and T's engagement called for an explanation. It was far less likely that the claimant would be successful in his contention that Holdings had procured P's breach of contract or wrongfully interfered with it or wrongfully harmed him. It was difficult to see how Holdings as a minority shareholder in P could have had the power to induce it to be in breach of contract. Holdings had a power of veto on P's board, but that did not give it the power to cause the decision to reject the claimant's commission request. The claimant's case had been put in an odd way: when P was the aircraft owner, and Stobart Air was the company alleged to have entered the non-disclosure agreement, it was odd that only Holdings had been joined as a defendant, when it was only a minority shareholder of P. Stobart Group and Stobart Air had denied any responsibility but should have been considered to be defendants. The case as currently formulated needed to be reviewed, potentially to add parties, particularly Stobart Air. Nevertheless, it had a realistic prospect of success.
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05 Dec 2018
Queen's Bench Division (Comm)
Judge McCahill QC
LTL 5/12/2018 EXTEMPORE :  12 WLUK 32