the benefit of the evidence of Massachusetts law as to how that should be done, and
the plain meaning of Clause 11 does not, in my judgment, prevent reliance on
extrinsic evidence of the matrix of facts against which the agreement was drafted. For
example, if the subject matter of the contract is defined as “property” but there is
nothing in the contract to identify the property, the court would have to hold that the
contract was void for uncertainty unless extrinsic evidence was admitted to identify
the property. I cannot believe that Massachusetts law would hold a contract to be void
for uncertainty because of an integration clause drafted in the terms of Clause 11 if
there was evidence that all the negotiations were about the sale of a property
identified in all the correspondence. Evidence might well not be admissible of an
agreement (say subject to contract) but if the matrix of facts is that a property sale of a
particular property is being discussed and negotiated, then that ought to be sufficient
to resolve the ambiguity created by the failure to specify the property in the contract.
51.
In his final submissions, Mr. Darton submitted that the award by the BADV did not
trigger the consequences set out in Clause 8 because the award was not “for Claims
for Posener Property”. He also argued that the consequences did not apply because
the Award “was not supported by Claim Documents”.
52.
I can deal with the second point very quickly. The trigger clause is not dependent on
the Award being supported by Claim Documents as it is sufficient if the Award is for
a Claim prosecuted by Dr. Surner. It was common ground that the BADV claim
which led to the award was prosecuted by Dr. Surner and therefore irrelevant whether
it was supported by documents obtained by Mr. Chudson. It was submitted that Mr.
Chudson had not provided any documents leading to the successful BADV claim.
There was no detailed analysis by either side of what documentation led to the award.
Although Mr. Chudson’s evidence does not carry as much weight as it would if he
had attended to be cross-examined, it is improbable that he is lying about providing
some documentation to the BADV and his attendance in Berlin was regarded as
crucial by the Defendants. There were several emails from the First Defendant which
suggest that Mr. Chudson’s involvement was important and supportive. On 29 th
January 2015, the First Defendant sent an email saying that Dr. Plagemann “went
after what we can call the low hanging fruit in the way of claims, the claims that were
for his time investment the easiest to resolve. Where more in-depth research was
much needed he stopped trying to hard”.
53.
The First Defendant was cross-examined about his contention that Mr. Chudson had
not discovered any relevant documents. He said that the documents which led to the
successful claim had been obtained “partly from Dr. Plagemann’s file, partly from the
BADV and partly from Dr. Surner”. He would provide no detail and it is not
inconsistent with the Claimant’s case that Mr. Chudson sent documents to Dr. Surner.
He was asked about his email dated 2nd February 2015, where he said that they were at
the point where Dr. Plagemann stopped, and whether he accepted that any documents
found after this date would be new. His reply was very evasive, but he eventually
agreed. He tried to suggest that he had meant newly created documents. This was
disingenuous (to put it kindly) in the context.
54.
On 9th February 2015, the First Defendant emailed Mr. Chudson to say that he was
treading new ground and joining the dots, “you are getting there piece by piece”. In
the light of these documents and Mr. Chudson’s evidence, I am satisfied that he did
provide supportive documents. It is not necessary for the Claimant to establish that