PROVING THINGS 12: THAT "ORAL CONTRACT" IS IT WORTH THE PAPER ITS WRITTEN ON?
The issue of when, where and how a contract is formed is always of interest to academic lawyers. However, for the most part, the court has to determine issues of fact. The judgment of Mr Justice Knowles in JAS Financial Products LLP -v- ICAP  EWHC 591 (Comm) provides an example of the analysis of witness evidence where there was a dispute as to whether a contract existed.
“Of course the passage of time can blur or erode recollection. In addition however, in a case such as the present, where there is a considerable and opposing strength of feeling on the part of individuals on each side, the passage of time can cause the recollection that an individual believes he or she has to be affected by the individual’s sense of where the ultimate merits lie”
The claimant’s case was that in a meeting the defendants had agreed that he should provide services. The defendants agreed that terms were discussed at a meeting but denied that any contract existed. The case, ultimately, rested on the evidence of the witnesses as to precisely what was said in a meeting which was not minuted.
THE JUDGE’S ASSESSMENT OF THE EVIDENCE
Evidence and findings at trial
Although witness statements had been made by each of Mr Bray, Mr Shah, Mr Miell and Mr Smith, at my request their evidence-in-chief in relation to the meeting on 13 May 2008 was taken orally at the trial. It was then tested in oral cross examination in the normal way. I have still had regard to the witness statements.
Of course the passage of time can blur or erode recollection. In addition however, in a case such as the present, where there is a considerable and opposing strength of feeling on the part of individuals on each side, the passage of time can cause the recollection that an individual believes he or she has to be affected by the individual’s sense of where the ultimate merits lie.
WAS A DEAL “DONE”?
Mr Miell characterised the meeting they had just had as “just a high level meeting”, with an email “with some ideas on”, and a meeting at which “we were chewing the fat”. I did not regard this evidence as reliable. It was clear to me that Mr Miell had never had any enthusiasm for the engagement of Mr Bray, or perhaps anyone else, to provide Middle Office Support and that was colouring his evidence. Mr Smith recalled that it did not go down well with Mr Miell when Mr Bray said he wanted to sit with Mr Miell on the desk itself.
Mr Bray, Mr Smith and Mr Shah recall Mr Bray saying on 13 May 2008 that the parties were “done” or words along those lines. Understandably given the area of business they were each in, each regarded the word “done” as significant, and as bearing on the subject of whether a binding agreement had been reached. There was a considerable difference between them as to what happened once the word was used.
Mr Bray’s evidence is that this word was accepted. Mr Shah’s evidence is that the handshakes followed the use of the word, but generally I was not persuaded his recollection of events that day is reliable. Mr Smith’s evidence is that he was not happy to hear the word and he challenged it. He said things had next to go to “Duncan” (Mr Duncan Wales, then General Counsel EMEA and Asia Pacific at ICAP) or to lawyers.
Generally, and specifically on this crucial point, I found Mr Smith’s evidence the more reliable. Like all witnesses in this case his memory was affected by the severe lapse of time, but I accept his evidence in preference to that of Mr Bray and Mr Shah. I am quite sure that he did not allow the word “done” to pass unchallenged.
I am also quite sure that his challenge made it clear to all, and would make it clear to an objective observer, that although all points had now been agreed in the sense that no issues remained outstanding, the stage of a legally binding agreement had not been reached and until that point the parties were not bound to each other for the next 24 months. Another way of putting things is that agreed non-binding heads of terms had been achieved, but the parties had not yet entered into a binding legal agreement.
As the group headed back from Corney & Barrow to ICAP’s offices Mr Bray recalls that he volunteered that Mr Shah would make a record, and this was thought a good idea. I accept that evidence but I do not accept that Mr Bray’s recollection is accurate where he suggests that the record to be made by Mr Shah would be of “the fact that we had reached agreement”. In the event Mr Shah did not make a record, and instead Mr Bray sent the email of 16 May 2008.
Mr Adkin QC referred back to 30 April 2008 to emphasise that Mr Smith had then said there was “one last thing” to be done (i.e. Mr Miell) not two (i.e. Mr Miell and Mr Wales). That is correct, but these two things are of a different nature. Mr Miell was the final hurdle to the possibility of an agreement, but then there was the question of how a binding legal agreement would be framed and entered into.
At no stage in my view did the parties contemplate, or appear to contemplate, that a legally binding agreement would be entered into orally. Reference was made at trial to trades in ICAP’s area of business being concluded orally. This was not such a trade. It was a proposed 24 month hiring of services to enhance oversight and control risk.
And at no point did the parties enter into an agreement in writing. Even if the terms of the 3 March 2008 and the 16 May 2008 emails were capable of acceptance, by, for example, an email in response or by signatures applied on 13 May 2008 to the 3 March 2008, so as to create a legally binding contract, they were not so accepted. The parties might not have contemplated elaborate documentation, but in the email of 3 March 2008 a confirmatory reply was the minimum contemplated by Mr Bray.
Mr Bray acknowledged by witness statement that Mr Smith had said there should be some “paper”. In the email of 16 May 2008 Mr Bray contemplated additional documents being signed. He then used the term “to record this agreement” but that does not persuade me that there was already a binding agreement and it simply needed a written record. In an email of 23 May 2008 he used the term “for this agreement”. In a telling exchange in cross examination by Mr Guy Morpuss QC for ICAP Mr Bray was asked why he later had spoken of trying to “market” to Mr Wales if there was already a binding legal agreement: Mr Bray did not have a convincing answer.
A suggestion of celebratory drinks was raised on 13 May 2008 and, on Mr Bray’s evidence, all agreed that these should be set up some time later. I do not consider this evidence, which I accept, takes matters further. There was something to be celebrated – an agreement in principle would be a fair description – but that did not mean that the stage of a legally binding agreement had been reached.
I have some sympathy for Mr Bray’s position. His ability to do this work is not in question: Mr Yallop’s evidence showed that Mr Bray had a lot to offer. Shortly after 13 May 2008 ICAP changed its mind about this area of business, and ICAP chose not to proceed to conclude a legally binding contract with JAS. Mr Bray’s time and goodwill were consumed and ultimately wasted by ICAP. But that is the chance he took, and the business stakes were high.
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