Trinty Term [2013] UKSC 50 On appeal from: [2010] EWCA Civ 1427
JUDGMENT
Benedetti (Appellant) v Sawiris and others (Respondents)
Sawiris and others (Appellants) v Benedetti (Respondent)
before
Lord Neuberger, President Lord Kerr Lord Clarke Lord Wilson Lord Reed
JUDGMENT GIVEN ON
17 July 2013
Heard on 26, 27 and 28 February 2013
Appellant Mark Howard QC Andrew Twigger QC Jennifer Seaman (Instructed by Herbert Smith Freehills LLP)
Respondent Laurence Rabinowitz QC Richard Hill QC Gregory Denton-Cox (Instructed by Kirkland & Ellis International LLP)
LORD CLARKE (with whom Lord Kerr and Lord Wilson agree)
Introduction
This is an unusual case. It involves a claim for unjust enrichment and, in the course of the argument, has led to a wide ranging discussion of the principles relevant to an aspect of unjust enrichment which has been the subject of lively debate among academics. It will be necessary to give consideration to at least some of the principles but, as is so often the case, the appeal can be determined on the facts without the necessity for the Court to express a final view on all the legal issues which have been the subject of argument.
The parties
Mr Benedetti is an Italian citizen resident in Switzerland. Mr Sawiris is an Egyptian and American national and was at all material times the Chairman and CEO of Orascom Telecom Holding SAE ("Orascom"), an Egyptian company quoted on the Egyptian Stock Exchange and (through Global Depositary Receipts) on the London Stock Exchange, which operates a telecommunications business concentrated in the Middle East, Africa and South East Asia. Cylo Investments Ltd ("Cylo") is Mr Sawiris' BVI registered company. April Holding ("April") and OS Holding ("OS") ("the Holding Companies") are Cayman Island companies set up by Mr Sawiris' brother and father respectively (who had held the shares in Orascom before the two companies were created), and held under discretionary trusts for the benefit of the wider Sawiris family. Immediately before the relevant events, Cylo had a holding of 4.1% in Orascom, April had a holding of 34.6% in Orascom and OS had a holding of 17.7% in Orascom; so that, between them, they held about 56.4% of Orascom's shares, with the remaining 43.6% of the shares being publicly held.
The claims, the judgment and the appeals
Mr Benedetti issued these proceedings in August 2007. In them he made a very large claim against all the respondents. At its most extravagant it amounted to €3.7 billion. He put his claim in a number of ways. His primary claim was made in contract under an agreement dated 31 January 2004 ("the Acquisition Agreement"). His alternative claims were variously based on an alleged oral understanding (which he said was enforceable in equity by reason of the principle in Pallant v Morgan [1953] Ch 43), collateral contract, breach of fiduciary duty, unconscionable receipt, estoppel and quantum meruit. All the claims were in the same amount. The trial came before Patten J as he then was ("the judge") and lasted for…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.