Easyair Ltd (t/a Openair) v Opal Telecom Ltd

Easyair Ltd (t/a Openair) v Opal Telecom Ltd

Clause 7.1 of the SPA is construed as an indemnity and not as a positive obligation to preserve subscriber contracts or take action against O2. Openair ceased to have any proprietary interest in the subscriber base after the sale, and the contractual framework did not create a fiduciary duty. Claims for damages and breach of fiduciary duty have no real prospect of success. However, claims for an account and inquiry into the security deposit and commission payments are arguable and should proceed to trial.

Parties
Claimant: EASYAIR LIMITED (Trading As OPENAIR); Defendant: OPAL TELECOM LIMITED
Jurisdiction
England and Wales
Judgment Date
02 March 2009
Procedural Posture
Civil Commercial / Summary Judgment/strike Out Application
Outcome
Summary judgment granted in part; strike out of damages and fiduciary duty claims; claims for deposit and commission to proceed to trial; amendments to pleadings allowed in part.
Legal Topics
Interpretation of Sale and Purchase Agreements, Fiduciary Duties in Commercial Relationships, Indemnity Clauses, Security Deposits, Commission Payments
Contract Law Equity Commercial Law Interpretation of Sale and Purchase Agreements Fiduciary Duties in Commercial Relationships Indemnity Clauses Security Deposits Commission Payments

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Parties

EASYAIR LIMITED (Trading As OPENAIR)

Claimant

OPAL TELECOM LIMITED

Defendant

Procedural Posture

Civil Commercial / Summary Judgment/strike Out Application

Legal Issues

  1. 1 Whether clause 7.1 of the SPA imposed a positive obligation or was an indemnity
  2. 2 Whether Opal owed Openair a fiduciary duty in respect of the subscriber base
  3. 3 Whether Openair's claims for damages, commission, and return of deposit had real prospects of success

Ratio Decidendi

Clause 7.1 of the SPA is construed as an indemnity and not as a positive obligation to preserve subscriber contracts or take action against O2. Openair ceased to have any proprietary interest in the subscriber base after the sale, and the contractual framework did not create a fiduciary duty. Claims for damages and breach of fiduciary duty have no real prospect of success. However, claims for an account and inquiry into the security deposit and commission payments are arguable and should proceed to trial.

Court Disposition

Summary judgment granted in part; strike out of damages and fiduciary duty claims; claims for deposit and commission to proceed to trial; amendments to pleadings allowed in part.

Orders

  • Judgment for Opal on the claim for damages and fiduciary duty.
  • Claims for payment of the deposit, account and inquiry into the deposit, and commission to go to trial.