ING Bank N.V. v Ros Roca S.A.

ING Bank N.V. v Ros Roca S.A.

The court found that the language of the fee clause was ambiguous and that, applying the principles of contractual interpretation, a reasonable person would have understood the parties to have intended the denominator to be the EBITDA current at the time of the transaction, not fixed to 2006. The use of '2006' was an oversight, and the commercial purpose of the clause was to reward ING for achieving a high entry multiple based on current values. ING's construction was commercially nonsensical and not supported by the background or market practice. Accordingly, ING's claim for a higher fee failed.

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 / Judgment After Trial
Outcome
Claim dismissed
Legal Topics
Contract Interpretation, Success Fee Calculation, Estoppel by Convention
Contract Law Commercial Law Contract Interpretation Success Fee Calculation Estoppel by Convention

Case Brief

Summary, issues, holding and outcome

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Parties

ING Bank N. V.

Claimant

Ros Roca S. A.

Defendant

Procedural Posture

Commercial Contract Dispute / Judgment After Trial

Legal Issues

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

Ratio Decidendi

The court found that the language of the fee clause was ambiguous and that, applying the principles of contractual interpretation, a reasonable person would have understood the parties to have intended the denominator to be the EBITDA current at the time of the transaction, not fixed to 2006. The use of '2006' was an oversight, and the commercial purpose of the clause was to reward ING for achieving a high entry multiple based on current values. ING's construction was commercially nonsensical and not supported by the background or market practice. Accordingly, ING's claim for a higher fee failed.

Court Disposition

Claim dismissed

Orders

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