31.
Following the signing of the contract, it is common ground that there was no claim
that could be made by the JCC route.
32.
Subsequently, the Defendants refused to honour the contract and the Claimant has
received nothing for Mr. Chudson’s expenses and the 30% of the net award which he
says he is entitled to.
33.
In July 2015, it is alleged by the Defendants that the Claimant repudiated the contract.
The relevant communications are all contained in emails and I will examine these, and
the alleged acceptance of the breach when I come to deal with this issue.
34.
In July 2015, it became necessary for someone to go to the BADV office in Berlin to
inspect some documents, namely claim forms. Dr. Surner had requested some
documents which Mr. Chudson had advised he needed to obtain. The BADV refused
to send them to Dr. Surner but said that someone could come to Berlin and look at
them. On 10th July 2015 Dr. Surner informed Mr. Chudson of this and asked when he
could go. Mr. Chudson did not react well to this, stating that he had agreed a schedule
with everybody 3 months earlier and would be on vacation in Rome during the week
when he was required in Berlin. He asked about payment for the trip. The emails
suggest that everyone was annoyed that a trip to Berlin was required, since Dr. Surner
had been given a Vollmacht to see documents. As before, Mr. Chudson reacted
“colourfully”. At one point the Defendants suggested that they might go, but Mr.
Chudson pointed out that this would achieve nothing because they did not have the
relevant authority to inspect the documents. Mr. Chudson’s email of 17 th July 2015
says: “I think we are at the end of our rope so far as the Posener claims are
concerned. If the Bundesamt doesn’t release the 1990 form to Surner or me, there is
nothing to talk about. No 1990 form, no open claim documentation. PERIOD FULL
STOP".
35.
In the end Mr. Chudson did go to Berlin, on 22 nd July 2015, and inspected various
documents at the Bundesamt. The Defendant’s case is that the Claimant refused to
fund this trip and flatly refused to pay $500 dollars towards Mr. Chudson’s expenses.
He threatened to cancel the meeting at the Bundesamt and in the end the Defendants
sent the money to Mr. Chudson.
The issues
36.
The Defendants resist the claim on the following grounds:
i)
The construction of the contract. It had been argued that the contract did not
cover compensation paid under claims to the BADV, but in his final
submissions Mr. Darton, rightly in my judgment, conceded that he could not
argue this point.
ii)
The contract was “barred under the doctrine of clean hands. The Agreement
the Claimant seeks to enforce is contrary to Rule 1.8 of the RPC
[Massechusetts Code of Professional Conduct] and unenforceable” (paragraph
37 if the Defence) (“the Code 1.18 issue”).