law permits the court to look at extrinsic evidence to establish what property the
parties intended.
61.
Bearing in mind that the court cannot take into account subjective intention, I now
turn to see if there is any extrinsic evidence that can assist in interpreting Clause 8. In
the first place, if the letter JCC were removed from the definition of Posener Property
in the recital then the difficulty would disappear and there would be no tension
between the recital and Clause 8. One way of dealing with the problem might be to
ignore the reference to JCC on the basis that it is inconsistent with Clause 8 and
undermines it.
62.
The other way is to look at the factual matrix at the time the contract was executed.
This means examination of the emails immediately before the new wording was
inserted. I explained earlier how the negotiations had broken down following the
drafting of the first version of the contract. What got the negotiations going again was
Mr. Chudson’s email of 20th November 2014, which referred to open claims shown in
letters from the JCC and the Bundesamt and that the Bundesamt thought that there
may be other open claims. There is an express reference to Dr. Surner filing an
application with the Bundesamt in respect of WSF&P real estate claims. Later that
morning the Claimant emails the Defendants informing them that Mr. Chudson’s
latest information is enough to enable the parties to go forward with “an agreement
that will assist you in obtaining compensation from the JCC or any other
agency/court as a result of Lee’s production of documents and Dr. Surner’s services”.
The contract is attached to the email and contains Clause 8 with the added reference
to Bundesamt awards.
63.
In my judgment, there can be no doubt that by the time that the Defendants signed the
contract, they intended that Posener Property would include all property in respect of
which claims would be made (whether to the JCC, BADV or any other agency of
German court) and that Clause 8 includes the Award which was made by the BADV
which is the subject of these proceedings. The Defendants’ argument against this is an
opportunistic attempt to avoid the obligations which they agreed with the Claimant,
having taken advantage if Mr. Chudson and Dr. Surner’s services.
64.
Subject to the remaining issues raised in the Defence and to the quantum issue, I hold
that Clause 8 has been triggered and that the consequences set out in Clause 8 follow.
The Code 1.18 issue
65.
This issue can be dealt with relatively shortly. It is pleaded in the Defence that the
Claimant is in breach of the Code with the result that the contract is unenforceable.
The Defendants contend that the Claimant was acting for them in an attorney/client
relationship and that the Code therefore applies. The breaches of the Code are then
pleaded as follows:
i)
the terms of the contract giving rise to liability on the part of the Defendants to
pay him a percentage of any award were not disclosed to them in a manner that
could reasonably be understood by them;
ii)
the Claimant failed to advise them in writing or orally, that they should seek
independent advice before entering into the contract;