ING Bank N.V. v Ros Roca S.A. [2010] EWHC 50 (Comm) (21 January 2010)

ING Bank N.V. v Ros Roca S.A. [2010] EWHC 50 (Comm) (21 January 2010)

The court held that the language of the Hawk Retainer was ambiguous and that a reasonable person would have understood the parties to intend the Entry Ratio to be calculated using the EBITDA current at the time of the Transaction, not fixed to 2006. The use of '2006' was an oversight, and ING's construction was commercially nonsensical. Therefore, ING's claim for a higher fee based on EBITDA 2006 failed.

Citation
[2010] EWHC 50 (Comm)
Parties
Claimant: ING Bank N. V.; Defendant: Ros Roca S. A.
Jurisdiction
England and Wales
Judgment Date
21 January 2010
Procedural Posture
Commercial Contract Dispute / First Instance Judgment
Outcome
Claim dismissed
Legal Topics
Contract Interpretation, Success Fee Calculation, Estoppel by Convention, Financial Advisory Agreements
Contract Law Commercial Law Contract Interpretation Success Fee Calculation Estoppel by Convention Financial Advisory Agreements

Case Brief

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Parties

ING Bank N. V.

Claimant

Ros Roca S. A.

Defendant

Procedural Posture

Commercial Contract Dispute / First Instance Judgment

Legal Issues

  1. 1 Proper construction of the 'Entry Ratio' clause in the Hawk Retainer agreement for success fee calculation
  2. 2 Whether ING is estopped from claiming a higher fee based on its construction

Ratio Decidendi

The court held that the language of the Hawk Retainer was ambiguous and that a reasonable person would have understood the parties to intend the Entry Ratio to be calculated using the EBITDA current at the time of the Transaction, not fixed to 2006. The use of '2006' was an oversight, and ING's construction was commercially nonsensical. Therefore, ING's claim for a higher fee based on EBITDA 2006 failed.

Court Disposition

Claim dismissed

Orders

  • ING's claim for a declaration and additional fee is dismissed.