Openwork Ltd v Forte [2018] EWCA Civ 783 (18 April 2018)

Openwork Ltd v Forte [2018] EWCA Civ 783 (18 April 2018)

The clawback provision, though lacking an explicit formula, was sufficiently certain as the parties' intention and criteria were clear; a straight-line calculation based on time elapsed and amount withdrawn gave effect to the clause. Openwork proved on the balance of probabilities that it had repaid the commission to Sterling. The application to admit fresh evidence was refused as the evidence could and should have been obtained for trial.

Citation
[2018] EWCA Civ 783
Parties
Respondent Claimant: Openwork Limited; Appellant Defendant: Alessandro Forte
Jurisdiction
England and Wales
Judgment Date
18 April 2018
Procedural Posture
Civil Appeal / Court of Appeal Judgment on Appeal From High Court
Outcome
Appeal dismissed
Legal Topics
Certainty of Contractual Terms, Enforceability of Clawback Provisions, Admission of Fresh Evidence on Appeal
Contract Law Commercial Law Certainty of Contractual Terms Enforceability of Clawback Provisions Admission of Fresh Evidence on Appeal

Case Brief

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Parties

Openwork Limited

Respondent Claimant

Alessandro Forte

Appellant Defendant

Procedural Posture

Civil Appeal / Court of Appeal Judgment on Appeal From High Court

Legal Issues

  1. 1 Whether the clawback provision in the contract was sufficiently certain to be enforceable
  2. 2 Whether Openwork had repaid its share of the commission to Sterling and was therefore entitled to clawback from Mr Forte
  3. 3 Whether fresh evidence should be admitted on appeal

Ratio Decidendi

The clawback provision, though lacking an explicit formula, was sufficiently certain as the parties' intention and criteria were clear; a straight-line calculation based on time elapsed and amount withdrawn gave effect to the clause. Openwork proved on the balance of probabilities that it had repaid the commission to Sterling. The application to admit fresh evidence was refused as the evidence could and should have been obtained for trial.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed; judgment of the High Court affirmed
  • Application to admit fresh evidence refused