Martin v Posener & Anor

Martin v Posener & Anor

The operative clause of the contract (Clause 8) is ambiguous when read with the recitals, but extrinsic evidence shows the parties intended it to cover compensation awarded by the BADV. The contract is not void or unenforceable for breach of professional conduct rules, as no attorney-client relationship existed. The claimant's refusal to fund Mr. Chudson's Berlin trip was a repudiatory breach, but the defendants affirmed the contract by their subsequent conduct. The sums paid to Mr. Chudson are recoverable as expenses under the contract, and the claimant is entitled to 30% of the net BADV award and indemnity for enforcement costs, but not for his own time.

Parties
Claimant: Anthony D. Martin; First Defendant: Michael Posener; Second Defendant: Nicholas Posener
Jurisdiction
England and Wales
Judgment Date
13 September 2017
Procedural Posture
Civil (contract) / High Court Trial Judgment
Outcome
Claim allowed (liability established for claimant, quantum to be determined)
Legal Topics
Interpretation of Contract Terms, Repudiatory Breach, Attorney Client Relationship, Indemnity Clauses, Restitution for Nazi Confiscated Property
Contract Law Private International Law Interpretation of Contract Terms Repudiatory Breach Attorney Client Relationship Indemnity Clauses Restitution for Nazi Confiscated Property

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Parties

Anthony D. Martin

Claimant

Michael Posener

First Defendant

Nicholas Posener

Second Defendant

Procedural Posture

Civil (contract) / High Court Trial Judgment

Legal Issues

  1. 1 Whether the contract covers compensation awarded by the BADV
  2. 2 Whether the contract is void or unenforceable due to breach of Massachusetts Code of Professional Conduct Rule 1.18
  3. 3 Whether the claimant was in repudiatory breach of contract

Ratio Decidendi

The operative clause of the contract (Clause 8) is ambiguous when read with the recitals, but extrinsic evidence shows the parties intended it to cover compensation awarded by the BADV. The contract is not void or unenforceable for breach of professional conduct rules, as no attorney-client relationship existed. The claimant's refusal to fund Mr. Chudson's Berlin trip was a repudiatory breach, but the defendants affirmed the contract by their subsequent conduct. The sums paid to Mr. Chudson are recoverable as expenses under the contract, and the claimant is entitled to 30% of the net BADV award and indemnity for enforcement costs, but not for his own time.

Court Disposition

Claim allowed (liability established for claimant, quantum to be determined)

Orders

  • Defendants to reimburse claimant $61,666.45 paid to Mr. Chudson for research under the contract
  • Defendants to pay claimant 30% of the net sum received from Dr. Surner (after deduction of fees and expenses), amount to be fixed at further hearing