Towergate Financial (Group) Ltd & Ors v Hopkinson & Ors

Towergate Financial (Group) Ltd & Ors v Hopkinson & Ors

Clause 6.7.3 of the SPA imposes a dual condition precedent requiring notice of indemnity claims to be given 'as soon as possible' and in any event before the seventh anniversary. The Claimants failed to comply with the 'as soon as possible' requirement, having knowledge of relevant matters well before the notice was given. The clause is clear and enforceable, and the claim for indemnity fails.

Parties
Claimant: Towergate Financial (Group) Limited; Claimant: Towergate Financial (East) Limited; Claimant: Towergate Financial (East) Holdings Limited; Claimant: Towergate Financial (East) Intermediate Limited; Defendant: Mr Mitchel Hopkinson; Defendant: Mrs Joanne Hopkinson; Defendant: Mr Mark Howard; Defendant: Mrs Tamasin Howard; Defendant: Mr Mitchel Hopkinson (as Trustee); Defendant: Mr Mark Howard (as Trustee)
Jurisdiction
England and Wales
Judgment Date
24 April 2020
Procedural Posture
Commercial Court Preliminary Issue Trial / Judgment on Preliminary Issue
Outcome
Claim for indemnity dismissed; preliminary issues determined against Claimants.
Legal Topics
Share Purchase Agreement, Indemnity Provisions, Condition Precedent, Notice Requirements, Professional Negligence, Limitation of Liability
Contract Law Commercial Law Share Purchase Agreement Indemnity Provisions Condition Precedent Notice Requirements Professional Negligence Limitation of Liability

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Parties

Towergate Financial (Group) Limited

Claimant

Towergate Financial (East) Limited

Claimant

Towergate Financial (East) Holdings Limited

Claimant

Towergate Financial (East) Intermediate Limited

Claimant

Mr Mitchel Hopkinson

Defendant

Mrs Joanne Hopkinson

Defendant

Mr Mark Howard

Defendant

Mrs Tamasin Howard

Defendant

Mr Mitchel Hopkinson (as Trustee)

Defendant

Mr Mark Howard (as Trustee)

Defendant

Procedural Posture

Commercial Court Preliminary Issue Trial / Judgment on Preliminary Issue

Legal Issues

  1. 1 Proper construction of Clause 6.7 of SPA regarding notice for indemnity claims under Clause 5.9
  2. 2 Whether 'as soon as possible' is a condition precedent for notice under Clause 6.7.3
  3. 3 Whether Claimants complied with notice requirements

Ratio Decidendi

Clause 6.7.3 of the SPA imposes a dual condition precedent requiring notice of indemnity claims to be given 'as soon as possible' and in any event before the seventh anniversary. The Claimants failed to comply with the 'as soon as possible' requirement, having knowledge of relevant matters well before the notice was given. The clause is clear and enforceable, and the claim for indemnity fails.

Court Disposition

Claim for indemnity dismissed; preliminary issues determined against Claimants.

Orders

  • Claimants' claim for indemnity against Defendants fails.
  • No liability under Clause 5.9 due to non-compliance with notice condition precedent.