2016. Item 2 ($9,700) relates to work done before the Contract was signed, but on a
true construction of the Contract does not fall within the definition of Expenses in
Clause 5, which looks to the future and not the past. This item must therefore be
deducted from the overall figure for expenses. Item 9 relates to payment, not to work
done, and this is not therefore a good point.
114.
The Claimant was reliant upon Mr. Chudson to provide his bill of expenditure and
fees. Although no hourly rate was agreed, it is not pleaded that the fees and expenses
were unreasonable. The Defence is that the fees are not genuine. The defence puts the
Claimant to proof that the sums were expended or incurred, and also that the efforts of
Mr. Chudson were of benefit to the Defendants. For reasons explained earlier, it was
not necessary for the work to be proved to be of benefit. Inevitably, where research is
carried out, some may be of direct benefit and some not. Under the Contract that was
not the determining factor.
115.
My decision is that the Claimant has satisfied me that he has now paid the sums
claimed to Mr. Chudson, that these sums were paid by the Claimant in respect of
research carried out by Mr. Chudson under the agreement and that the Claimant was
entitled to rely on Mr. Chudson to apportion the bill to remove expenses and fees
relating to work done for the Claimant and not covered by the Contract. I completely
reject the case that there was collusion between Mr. Chudson and the Claimant and
that the fees and expenses are therefore a fiction. As with the suggestion that the
Defendants were tricked into signing the Contract and cheated, this was, at best, a
completely unsubstantiated supposition with no evidential basis.
Conclusion
116.
In summary, my conclusions are as follows:
i)
The Contract is to be construed as covering the BADV claim and Clause 8 is
triggered;
ii)
The contract is not void or unenforceable by reason of the alleged breach of
Code 1.18;
iii)
The contract is not repudiated and remains on foot;
iv)
The Claimant is therefore entitled to the following:
v)
a)
Reimbursement of the sum of $61,666.45 which I find he has paid to
Mr. Chudson for his researches under the Contract;
b)
Payment of the 30% of the net sum to be computed on the sum
received by the Defendants from Dr. Surner whose fees had already
been deducted, (385,175 euros) less the amount to be reimbursed
under (i). The precise amount is to be fixed at a further disposal
hearing.
An indemnity for sums actually paid or incurred by the Claimant to third
parties (including legal fees paid or incurred to third parties) following the
refusal of the Defendants to honour the Contract and in order to enforce the