DMA Resources Limited v Brazilian Nickel Limited

The issue in this case is whether the Claimant, DMA Resources Limited (“DMA”) has a valid claim to commission for re-introducing an investor, Resource Capital Funds (“RCF”) to the Defendant, Brazilian Nickel Limited (“BRN”). BRN, with its Brazilian subsidiary, operates a nickel mining project in Piaui, Brazil (“the Project”) in which RCF invested from August 2021. The re-introduction services are said to have taken place over a period from November 2020 to about March 2021. The claim is made alternatively in oral/implied contract and unjust enrichment.

The claim was issued on 21 March 2025 and has proceeded under the Business and Property Courts (“BPC”) Shorter Trials Scheme (“STS”) set out in Practice Direction 57AB. The trial took place over 4 days from 9 to 12 March 2026. DMA was represented by Mr Alexander Halban and BRN by Ms Eleanor Campbell, and I am grateful to both counsel for their clear written and oral submissions and efficient trial management, all of which has been of great assistance.

DMA is an investment introducer for energy and mining projects, especially in South America. It has two directors and shareholders, Mr Nigel Read and Mr James Nwankwo, and is essentially their trading vehicle. It is a UK company (number 11596823), although Mr Read and Mr Nwankwo previously operated a similar business through a Brazilian company, DMA Consultoria em Tecnologia Da Informação Ltda (“DMA Brazil”). DMA is not a “regulated” agent, so while it can effect introductions, it is not permitted to negotiate contracts on behalf of clients. Mr Read’s background is in commodities trading in the energy and resources sector, and he was based for an extended time in Brazil. Mr Nwankwo is an English-qualified solicitor, specialising in corporate finance.

BRN (then Brazilian Nickel Plc) (company number 08512513) is a London-based mining company. The Project is BRN’s main venture. It is a nickel and cobalt mine using heap leaching technology which BRN acquired in January 2014 from Vale S.A., when the Project was at a pilot stage. BRN’s founding director and CEO at all material times was Mr Michael Oxley. BRN was seeking investment for the Project in three stages: (a) a bankable feasibility study; (b) an initial working module, known as “PNP1000” which was planned to begin production and sale of nickel and cobalt, at a rate of about 1,000 tonnes of nickel a year, as proof of concept; and (c) full-scale production, of up to 33,000 tonnes per year. BRN had been seeking investment for several years from 2014 before the events with which we are concerned in 2020-21.

At trial, DMA relied upon the evidence of Mr Read and Mr Nwankwo, and BRN on the evidence of Mr Oxley. There were no other witnesses of fact.

Each party also relied on expert evidence concerning the market value of the intermediary services which DMA allegedly provided, and as to whether the grant of certain options constituted value on which commission should be payable. The expert evidence was given by written report and oral evidence.

The issues can be stated fairly shortly (albeit I am condensing the List of Issues in the trial bundle). They are:

Unless otherwise stated, the facts in this section are not in dispute. Most of the basic facts in this case are not disputed – the factual issues are mainly ones of interpretation and nuance.

BRN was seeking investment from a number of possible sources, including private equity, investment banks and government-backed funds, all of which were generally well-informed mining and minerals specialists. RCF was a specialist mining investment fund with experience in Brazil and as such an obvious potential investor.

BRN had engaged a number of different agents and brokers over the years to find investors for the different stages of the Project, and it normally did so under written contracts. An issue is whether and to what extent this was BRN’s invariable practice, as BRN says it was.

The standard approach to payment for broker services in this industry is, and was, for commission only to be paid to the introducer if there is an effective introduction which leads to investment, calculated as a percentage of the sum invested. Brokers are not normally paid for their services in any other way, and in particular are not generally paid a retainer or by hourly or daily rates. Brokers are normally engaged and paid by the company seeking investment, but the commission is effectively funded out of the sums invested. Even though the broker is engaged by that company, the agreement frequently provides that the commission may be paid directly by the investor to the broker, to avoid double taxation, although the liability remains the company’s. There were several examples of this in the agreements before the court.

Several previous approaches had been made to RCF, since as early as 2013, both by Mr Read and others, but they had always been rebuffed. In June 2013 BRN had engaged brokers SP Angel, who approached RCF even before BRN had acquired the Project, but RCF rejected the proposal, as it was too small a deal, with technology that was too new, saying it was already highly exposed to nickel. In April 2014, BRN formally engaged another broker, Mirabaud, jointly with SP Angel, and Mirabaud made another, unsuccessful, approach to RCF. Mirabaud’s engagement was terminated in September 2017, expressly without liability on either side.

Mr Read had various contacts in the mining and commodities industry in London and Brazil and first met Mr Oxley in 2013. They had discussions on and off about BRN’s need for investment, and Mr Read made an early, apparently informal approach to RCF in 2013 (unsuccessfully). Then on 27 September 2018 BRN entered into a 3-month consultancy services agreement with DMA Brazil (“the DMA Brazil Agreement”). This provided for DMA Brazil to approach a number of potential investors, by reference to an approved list. The commission rate was 5% on any new sources of capital brought in. RCF was discussed between Mr Read and Mr Paul Lush (Chairman of BRN) for inclusion on the approved list, but Mr Lush said there was no need to contact RCF because it had declined to invest.

On 14 February 2019 BRN entered into a new Intermediary Services Agreement with Mr Read and Mr Nwankwo’s new company, DMA (“ISA 1”). Again this provided for approaches to be made to a number of potential investors, to be listed in an annex, again not including RCF. ISA 1 was extended but eventually expired on 31 December 2019. By clause 3.1, it provided for commission at a rate of 5% of the value of any equity investment up to US$30M, 2% between US$30M and US$100M; 1% of the value of any debt financing up to US$100M and 0.5% of debt financing between US$100M and US$250M.

Negotiations to extend or replace ISA 1 continued between DMA and BRN in the first few months of 2020. However, on 8 May 2020 Mr Lush sent Mr Read a letter (dated 7 May 2020) saying BRN could not accept DMA’s counteroffer for a services agreement because BRN had received investment proposals on which it needed to focus from TechMet Limited (“TechMet”), a technology metals fund backed by the US International Development Finance Corporation (“US DFC”). Prior to that, in parallel with the contract negotiations between DMA and BRN, there had also been exchanges between them about potential investors who might be added to an “approved” list. In those emails Mr Read had said that his hands were tied without a formal extension.

Unconnected with DMA, in July and August 2020 there was further contact between RCF and BRN, facilitated by an Ed Jack at brokers Audley, but again RCF responded that it was not interested.

DMA did have good contacts with Mitsui, a Japanese natural resources investor with bank backing. Mitsui was interested in investing in BRN, but was mainly interested in marketing and communications (without investment) at the PNP1000 stage, and then investing at the full-scale stage. In July/August 2020 there was contact between Mr Oxley and Mr Naota Furihata of Mitsui, facilitated by Mr Read, with a view to Mitsui becoming involved in BRN.

On 7 September 2020, Mr Oxley told Mr Read and Mr Furihata by email that TechMet had secured a commitment of US$25M from the US DFC for equity investment in BRN. This was mainly for the full-scale stage of the Project, with US$15M still to be finalised for the PNP1000 stage. Mr Read asked whether an investor called Traxys had renewed its agreement to fund part of the PNP1000 stage. Shortly thereafter DMA became aware that Traxys had likely pulled out, so BRN had an urgent need to find replacement PNP1000 investment.

At the same time, in September 2020, Mr Read was asking BRN again about an extension of DMA’s services agreement.

In October 2020, BRN decided to redraft the agreement with DMA so it only focused on investment from Mitsui. Contemporaneous internal correspondence at BRN records an intention by Mr Lush to focus any agreement solely on Mitsui and sharply reduce the commission rates. It also records BRN’s CFO Mr Adrian Harvey expressing concerns about “…DMA’s performance and Nigel’s underhand way of operating…”, saying “… it is better to have DMA pinned down contractually than have them loosely circulating…”.

In an email of 19 October 2020, Mr Read said he recognised that following TechMet’s investment, this affected the risk profile for the full-scale stage, so he accepted that an intermediary agreement should have lower remuneration rates. Following this, BRN negotiated terms with DMA relating solely to Mitsui, leading to an Intermediary Services Agreement dated 4 January 2021 (“ISA 2”). ISA 2 stated expressly that “… BRN now wishes DMA to focus on a single potential investor, Mitsui Group or any subsidiary company…”. By clause 3.1 of ISA 2, BRN agreed to pay a success fee of (among other things) 2% of any equity investment up to US$30M and 0.375% of any debt financing up to US$100M.

On 10 November 2020 Mr Read emailed Mr Martin Valdes, head of private equity in Latin America at RCF, copying Mr Furihata and Mr Nwankwo, telling him about the TechMet investment in BRN, and saying BRN still needed US$15M for the PNP1000 stage. He noted Mitsui’s interest in the final stage, and said Mitsui was interested in a discussion with RCF on commercial collaboration at the earlier stage, with Mitsui obtaining marketing rights. On 16 November 2020 Mr Valdes, Mr Furihata and DMA met on Teams.

On 17 November 2020 Mr Nwankwo emailed Mr Read with a possible solution to BRN’s PNP1000 funding gap, involving RCF issuing US$15M of convertible loan notes to BRN, arranged by Mitsui, convertible at a discounted rate for a fixed period from issue, and also providing security over BRN’s assets. Income from product from the PNP1000 stage would cover the debt repayments. Mr Read then messaged Mr Oxley to arrange a call to discuss with him Mr Nwankwo’s suggestion. That call took place the same day.

On 19 November 2020 Mr Nwankwo emailed Mr Valdes and Mr Furihata, copied to Mr Read, saying they had given some further thought to structure and a joint proposal to BRN, setting out details of the US$15M convertible loan note concept. Mr Nwankwo also said that Mr Read had spoken to Mr Oxley the previous day about the US$15M needed, and how flexible BRN could be regarding structure, saying “Mike confirmed that there remains an ability to come in for the full 15 million and they are willing to look at creative structures in order to secure it.”

At about the same time, on 24 November 2020, Mr Read sent BRN the latest draft, with DMA’s comments, of what would become ISA 2.

On 25 November 2020 Mr Read emailed Mr Oxley saying:

He suggested Mr Oxley spoke to Mr Nwankwo.

Mr Oxley replied:

On 26 November 2020 a call took place between Mr Oxley and Mr Nwankwo during which Mr Nwankwo outlined his proposed convertible loan structure. DMA recorded that call and has disclosed a transcript. (While BRN has stated that Mr Oxley was not aware that this and certain other calls were being recorded, no point has been pursued by BRN about this, and it has proved useful for both parties to have the transcripts).

During that call Mr Oxley said he needed to speak internally and bring in TechMet on this proposal because the shareholder agreement had not yet been signed, saying “… by all means have your conversations tomorrow, but keep it conceptual…”. There was also some discussion around payment of fees to DMA, as to which there is a dispute as to the meaning, because the call included discussions of Mitsui as well as the convertible loan note idea. No reference to RCF is recorded in the transcript.

On 27 November 2020 Mr Oxley sent an email internally to Mr Lush, Mr Harvey and Anne Oxley, his wife (who was a technical director and shareholder). He said:

The potential significance of this email, because of its reference to RCF, was only recognised in the later stages of preparation for this trial.

Also on 27 November 2020 Mr Nwankwo reported back to Mr Furihata and Mr Read by email that he had had a good call with Mr Oxley who had confirmed that the proposed convertible loan structure could work.

On 30 November 2020 Mr Read sent a WhatsApp message to Mr Valdes asking for a call, saying they had spoken to BRN at length and wanted to update him about what the structure could look like, if this was still an opportunity RCF might consider. Mr Valdes replied:

Mr Valdes followed this up with an email to Mr Read, copied to David Halkyard, saying:

Mr Halkyard led a newly created credit fund for RCF and was based in London. As I understand it, he had not previously been involved in any discussions or approaches concerning BRN.

Mr Read followed up with a call to Mr Halkyard on 1 December 2020. On 10 December Mr Halkyard replied by email to Mr Read and Mr Nwankwo:

Mr Halkyard then sent over a proposed non-disclosure agreement (“NDA”).

On 11 December 2020 there was a key exchange of emails between Mr Read and Mr Oxley, on which BRN places particular weight:

On 15 January 2021, Mr Read emailed Mr Halkyard, copied to Mr Oxley (and Mr Antony Rowe at RCF), saying:

Mr Halkyard responded to this email agreeing to a call. On 18 January 2021 Mr Oxley exchanged a series of WhatsApp messages with Mr Read also agreeing to a call, saying “Yes ok. I have a call at 11 but I can duck out of that. I'd not plan any kind of presentation... just a chat at this stage.”

This Teams call took place on 19 January 2021, attended by Mr Oxley, Mr Halkyard, Mr Rowe, Mr Nwankwo and Mr Read. Mr Oxley followed it up by sending Mr Halkyard and Mr Rowe a summary of the PNP1000 economic model. On the same day Mr Oxley emailed Mr Read saying “… I have sent the model to them. If we get passed this hurdle then I think we have a good chance with them. As I said on the call, they need to be happy the PNP1000 can cover the debt…”

Mr Read replied on 20 January 2021:

Communications between Mr Oxley and Mr Halkyard continued, with Mr Halkyard confirming on 22 January 2021 that they thought it was something they could consider further, and sending an NDA. Mr Oxley brought in one of TechMet’s representatives.

On 29 January 2021 Mr Read sent a follow up email to Mr Halkyard and Mr Rowe. Mr Halkyard replied that they had reviewed the BRN model and thought there was an interesting potential opportunity for them.

On 12 February 2021 Mr Read and Mr Nwankwo had a call with Mr Halkyard (of which there is a transcript) during which the latter said he would be recommending that RCF proceed. After saying DMA had a close relationship with BRN and Mitsui, Mr Read said that DMA did not “have a mandate per se” for RCF and he asked “…if there's a way of pricing any potential fee for DMA into the offer that you make to BRN...”. He said he didn’t want that to be something which jumped out at the final minute of the deal. Mr Halkyard replied that he assumed that DMA had some agreement with Mr Oxley and that it was something Mr Read needed to take up with Mr Oxley.

On 23 February 2021 Mr Halkyard said in an email to Mr Oxley that he had had a good discussion “with the head of Fund VII (the PE Fund)”, which was Mr Valdes’ fund.

On 25 February 2021 Mr Oxley reported back internally to BRN, following a call with Mr Halkyard, that any funds (said to be US$45M) would now most likely be coming from Mr Valdes’ private equity fund and not the credit team. He said RCF were looking for exposure to the full scale project, as well as US$15M debt for the PNP1000.

On 1 March 2021 Mr Halkyard sent Mr Oxley an indicative proposal, now to be an equity investment within Mr Valdes’ Private Equity Fund VII, for US$15M debt financing for PNP1000, US$15M equity or warrants for nearer term and US$15M in warrants at a 30% premium on the last share price. An indicative term sheet was included.

On the same day a WhatsApp exchange took place between Mr Read and Mr Oxley. Mr Read asked if BRN had heard anything back from the RCF credit fund and Mr Oxley replied “Yes. Looking good.” Mr Read replied: “Ok, When we spoke to him last I raised fees, and he was of the view to take it up with BRN and I explained where we were at and fees would need to be possibly paid from them and to price that in to any offer” and “so its something we all need to think about and be clear on”. Mr Oxley replied: “Yes we will!” – this final reply has been interpreted by DMA as agreement, but by BRN as an ironic expression of scepticism.

On 4 March 2021 Mr Read emailed Mr Oxley pushing for a meeting including Mitsui. He sent a similar email to Mr Halkyard and Mr Rowe at RCF. BRN perceived this as Mr Read trying to interfere. Mr Oxley responded to Mr Rowe, “Nigel has seriously overstepped his mark. I will talk to him” (although no such conversation in fact followed). Mr Lush interpreted it as a potential breach by DMA of ISA 2, and there was a discussion within BRN as to whether they could terminate for breach. Ultimately BRN decided simply to allow ISA 2 to expire, which it did on 30 May 2021.

On 29 March 2021 Mr Read emailed Mr Oxley, Mr Halkyard and Mr Rowe asking for an update on progress and whether they needed anything from DMA. Mr Oxley replied: “There are various initiatives underway, of which you are not aware. For the time being, please could he leave BRN and RCF to deal with matters on their own. I will talk to you in the coming days when I have clarity.”

On 31 March 2021 there was an internal email discussion within BRN as to who might claim commission on any RCF deal. Mr Lush said Mirabaud had first introduced BRN to RCF but that agreement had been terminated. Mrs Oxley said: “We will still have to deal Nigel Reed [sic] – he is going think he’s owed something!” The response from Mr Lush and Mr Harvey was that RCF was not on any agreed DMA contacts list, and past lists should have been terminated under ISA 2. Mrs Oxley replied: “Indeed and he might think he re-introed us to David H but we’re not going with him and the debt package. Mike and I just discussed this and we think we should be fine, he will whinge but so be it!”

On 15 April 2021 there was a call between Mr Read and Mr Oxley (also transcribed, as far as relevant) at the end of which Mr Read asked if RCF was advancing, and again pushed Mitsui. Mr Oxley replied that the situation had changed and they were probably going to do a full equity deal for PNP1000 with RCF, with no debt. The tone of the call extract is in my view of Mr Oxley trying to hold Mr Read off.

DMA continued to contact RCF, despite Mr Oxley’s request that they leave BRN and RCF to deal with matters on their own. On 16 April 2021 Mr Read and Mr Nwankwo had a call with Mr Halkyard. On 20 April they had a call with Mr Valdes in which Mr Read again brought up the question of a fee for DMA. Mr Read and Mr Nwankwo were quite clearly getting concerned whether DMA would receive any fee, especially as it was looking increasing unlikely that Mitsui would be part of the final deal. On the call with Mr Valdes, in describing the fee position as he saw it Mr Read explained:

Mr Valdes replied only that he would revisit this with Mr Oxley, although he did say “I have been in your shoes, I mean I was an M&A banker for 15 years…”. He made it clear that RCF would not be responsible for any fee. The overall tone of this call in my view is that Mr Read and Mr Nwankwo felt embarrassed raising with Mr Valdes the question of a fee for DMA.

After it became clear that the RCF investment was proceeding, on 8 June 2021 Mr Read emailed Mr Valdes again. He said everyone was pleased to learn of the term sheet being put in place, referred again to the potential for Mitsui becoming involved, and what he described as DMA bringing this back to RCF. He raised the question of DMA’s fees, saying this had been left while RCF better understood the technical side, but now the term sheet was pending it seemed “…the right time to have another call and [align] with RCF DMAs fees so [as] to close this all off at the same time.”

It is very clear to me from this correspondence that Mr Read was pushing Mr Oxley and Mr Valdes throughout this period from March 2021, to discuss and agree to a fee for DMA at the same time as the deal was finalised, so that a fee for DMA would be priced in. It is equally clear to me that there was resistance from BRN, who had internally decided that they would not be paying a fee to DMA on any RCF investment, and that both Mr Valdes and Mr Halkyard were of the view that any fee to DMA was BRN’s problem, not RCF’s. Insofar as these are not conclusions which the parties were willing to accept at trial (as to which I am not clear), I find that this was the case.

On 29 June 2021 a call took place between Mr Oxley and Mr Read. DMA relies on this call as having resulted in what is said to be either an oral or an implied contract between DMA and BRN to pay DMA a reasonable fee. There is only a transcript of Mr Read’s half of that call, presumably because of the way it was recorded. DMA has also disclosed handwritten notes about it from Mr Read (although it is not clear to what extent these were preparation for the call or notes taken during it, or both).

Conclusions as to what Mr Oxley said and what if anything he agreed to must therefore be drawn by the court from Mr Read’s half of the conversation, the other contemporaneous material including his notes, and the inherent likelihood of events, as well as the evidence of the two protagonists. It is a key event with which I will deal in more detail later in this judgment. DMA say that during this call Mr Oxley agreed to a three way call with DMA and RCF in which DMA’s fees would be discussed and agreed, and he agreed that BRN would be reasonable in relation to those fees. This is all denied by BRN. It is clear from the transcript that Mr Read proposed such a three way call: the issue is what if anything was agreed by Mr Oxley.

No such three-way call in fact took place. On 16 July 2021 Mr Read emailed Mr Valdes saying DMA had deliberately stood back at BRN’s request “… after we reconnected and the parties and got them both interested, so you could get into the details and we are only now raising this point again on fees given a transaction looks highly likely.” After referring again to pricing in fees for DMA he continued:

Mr Nwankwo sent a chasing email to Mr Valdes on 27 July 2021, saying:

This was followed on 2 August 2021 by an email from Mr Read to both Mr Oxley and Mr Valdes, copied to Mr Nwankwo, saying:

In response to this email, Mr Oxley emailed Mr Valdes (only) in the following terms:

Mr Valdes replied to Mr Oxley, also on 2 August 2021:

On 17 August 2021 both RCF and TechMet entered into a formal agreement to invest in BRN. Details of RCF’s investments are set out in the next section of this judgment. Ultimately, in September 2023, RCF sold all of its interests in BRN to TechMet.

On 31 August 2021, BRN issued a press release saying that RCF was investing US$17.5M in BRN.

It appears Mr Oxley and others at BRN avoided further contact with DMA. On 8 September 2021 Mr Read sent a WhatsApp to Mr Oxley, saying “How are you? When are you coming to Brasil be good to meet in person if possible.” Mr Oxley did not reply.

BRN has disclosed a further email exchange between itself and RCF on 24 September 2021, in which potential claims for broker fees were discussed. This includes an email from Mr Halkyard to Mr Lush, forwarded to Mr and Mrs Oxley and Mr Harvey, in which Mr Halkyard rejected a claim a broker called “Julian” was making, but continued:

On 4 November 2021, DMA sent an invoice to BRN for US$875,000, calculated as 5% of US$17.5M (the sum stated in the press release). The accompanying email, which was copied to Mr Valdes, set out DMA’s case as to why it said it was entitled to an introduction fee, sought a meeting, but said that otherwise a claim would be pursued. The email said that DMA would pursue fair remuneration on a “quantum meruit” basis.

BRN did not respond substantively to that email. In due course solicitors instructed on behalf of DMA sent a letter to BRN on 30 March 2022 seeking payment of the invoice. BRN’s solicitors responded, rejecting any liability, on 1 April 2022.

On 17 August 2021, RCF (Resource Capital Fund VII L.P.), TechMet and others entered into a subscription deed with BRN (“the Subscription Deed”). Under the Subscription Deed, RCF agreed to subscribe to the issue of 20,758,701 ordinary shares in BRN (at what is said to be a price of £0.61 per share), for a total consideration of US$17.5M. This is said to equate to £12,662,808 at the exchange rate specified in the Subscription Deed (which was 1.382 – clause 1.1) and in BRN’s financial statements, which it is agreed is the correct exchange rate.

On 26 August 2021:

A year later, by a letter dated 20 July 2022 signed by all parties, the Subscription Deed was amended, reducing the total number of shares to which RCF agreed to subscribe from 20,758,701 to 14,334,985. RCF then subscribed for the balance of the reduced total (i.e. 1,779,318 shares) on 20 July 2022 and 9 August 2022 (according to the dates in the letter). The additional consideration paid was US$1,500,000 or £1,085,384.

Accordingly, the total consideration paid by RCF on the share subscriptions in August 2021 and July/August 2022 was US$12,084,678 or £8,744,341.

As part of the amendments to the Subscription Deed made by the letter of 20 July 2022, BRN also granted RCF a further option, to purchase 8,203,034 shares at a price of 75p per share, exercisable for 12 months (“the 75p Option”), trading its obligation to subscribe for the remaining 6,423,716 shares for this call option. By a further amendment in a letter dated 15 August 2022, the number of shares to which the 75p Option applied was reduced back to 6,423,716. It is common ground that RCF did not exercise that option itself, but instead assigned it to TechMet on 11 September 2023, and that TechMet exercised it on the same day, paying BRN US$6,049,492.79.

On 29 March 2023 RCF made a convertible loan to BRN of US$398,582.85.

The Option Agreement was not exercised by RCF. By an agreement dated 19 September 2023, RCF assigned it to TechMet, at the same time as RCF sold all its shares in BRN to TechMet. This option has never been exercised at all, by TechMet or anyone. Its value to TechMet lay in the fact that RCF could not then exercise it and nullify TechMet’s majority shareholding.

There is no dispute that if DMA has any claim at all, it is entitled to commission on the US$12,084,678 paid for the share subscriptions in August 2021 and July/ August 2022.

DMA also claims commission on (a) the Option Agreement; (b) the 75p Option and (c) the convertible loan made on 29 March 2023. BRN disputes that DMA would be entitled to any commission on any of these.

A more detailed letter of claim was sent by DMA’s current solicitors, Withers, on 16 February 2024, to which BRN’s solicitors, Norton Rose Fulbright (“NRF”), responded on 4 July 2024. Following further exchanges of correspondence, proceedings were issued by DMA on 21 March 2025, with Particulars of Claim (“PoC”) pleading a claim in contract and/or unjust enrichment, and served on the same day. BRN served a Defence dated 22 April 2025 disputing any liability. DMA served a Reply dated 6 May 2025.

On 16 July 2025 a case management conference (“CMC”) took place before me, as the designated trial judge.

Under the STS, the PoC are to be accompanied by a bundle of core documents (PD57AB para 2.23). This is generally interpreted as meaning the key documents on which the parties rely. By PD57AB para. 2.32, the Defence is to be accompanied by any further documents on which the defendant intends to rely. I understand both parties served a bundle of key documents on which they relied, with their statements of case.

The usual rules on disclosure in the BPC, in PD57AD, do not apply within the STS – see para. 1.4(5) of PD57AD. Among other things, this means that the obligation to disclose known adverse documents, in para. 2.7 of PD57AD, does not apply. By para. 2.39 of PD57AB, the CPR rules as to disclosure in Part 31.5(2) and 31.7 do not apply either.

Instead, provisions on disclosure in the STS are set out in paras. 2.39 – 2.43 of PD57AB. Para. 2.40 provides that each party shall send the other a request for any document or class of documents of which disclosure is sought, at least 14 days before the CMC. Any disputes as to those requests are to be resolved at the CMC. Unless the court orders otherwise, the parties are to give disclosure by list of (a) the documents on which that party relies as supporting their case and (b) any documents requested or ordered to be disclosed.

In the present case, both parties served document requests and I resolved some issues on them at the CMC. As to requests for internal documents within BRN referencing DMA or its services, the request was agreed by the parties to be limited to documents dated between 11 December 2020 and 30 November 2021. Disclosure was provided in accordance with those requests.

I also gave permission at the CMC for each party to rely on expert evidence (with permission for oral evidence at trial), addressing:

In contrast to disclosure, the provisions as to the preparation of trial witness statements in PD57AC do apply under the STS, since these are BPC proceedings and are not excluded under para. 1.3 of PD57AC. Paragraph 7 of the order made at the CMC expressly acknowledged this.

Witness statements were exchanged by the parties on 13 November 2025. DMA served statements from Mr Read and Mr Nwankwo, and BRN served a statement from Mr Oxley. In accordance with paragraph 3.2 of PD57AC, each statement was accompanied by a list of all the documents to which the witness had referred or been referred to for the purpose of providing their evidence.

Perhaps unsurprisingly, given the quite limited scope of disclosure under the STS, those lists included significant numbers of documents which had not previously been disclosed. Both sides then wrote to the other stating that there were additional documents in the lists from their own witnesses on which they also wished to rely. For DMA, this included the recording of the call between Mr Nwankwo and Mr Oxley on 26 November 2020.

This was all agreed, and copies of all such documents were provided. However, in a letter of 20 November 2025, Withers also requested disclosure of copies of a number of documents which Mr Oxley had listed, which BRN had not previously disclosed. It was said that if Mr Oxley considered them relevant to his witness statement, they might also be relevant for cross examination. Those documents were disclosed by NRF on 3 December 2025. Notably, many of those documents pre-dated 11 December 2020, which the parties had previously used as the start date for many of their disclosure requests.

Having reviewed that further disclosure, on 21 January 2026 Withers wrote to NRF asserting that the internal BRN email of 27 November 2020, which I have quoted above, demonstrated that Mr Oxley’s witness evidence was false when he stated that he was “certain that DMA did not mention any approach to RCF to me before [DMA’s email of 11 December 2020]”. More generally, in this letter Withers now claimed that Mr Oxley had approved an approach to RCF during the call with Mr Nwankwo on 26 November 2020 or otherwise prior to 11 December 2020.

By a letter in response of 30 January 2026, NRF rejected this interpretation but agreed to provide further requested documents by reference to a start date of 24 November 2020.

Although a pre-trial review (“PTR”) had been listed for 12 February 2026, this was vacated by consent, at the request of the parties. These issues and their consequences were not therefore explored at a PTR.

On Wednesday 4 March 2026, both counsel filed and exchanged their skeleton arguments for the trial due to start on Monday 9 March. In his skeleton argument, Mr Halban made the argument that BRN had known and approved of DMA approaching RCF in November 2020, that DMA had introduced Mr Halkyard, including steps starting in November 2020, and that this was the effective cause of RCF’s investment in BRN, for the purposes of its unjust enrichment claim.

In a supplementary note filed and served on 6 March 2026, Ms Campbell objected on behalf of BRN to DMA running such a case, which she said diverged from DMA’s PoC. In particular she argued that in the PoC, the services provided by DMA, by which BRN was said to have been unjustly enriched, were limited to a period from January to March 2021. In a note in reply, Mr Halban argued that the approaches in November 2020 had been pleaded in the PoC and in any event BRN was not prejudiced because this issue had been well ventilated in correspondence between Withers and NRF in January/February 2026. Letters were also exchanged shortly before trial as to whether DMA intended to apply to amend its PoC, which DMA said was unnecessary.

Consequently at the start of the trial I was asked to resolve the issues of (a) whether DMA had already sufficiently pleaded matters which took place in November 2020 as amounting to services on which it could rely for the purposes of its unjust enrichment claim (only); and (b) if not, whether DMA should be given permission for a late amendment to plead the same.

In a ruling given on the first day of trial, I decided that:

As I noted in my ruling, this issue had particularly come to light because of the disclosure of the internal BRN email of 27 November 2020. However that did not happen until December 2025, after and indeed as a consequence of the service of witness statements. This was because of the way the disclosure obligations under the STS and the rules about trial witness statements within PD57AC fitted together.

In my view the email of 27 November 2020 was arguably an adverse document. However, because of how disclosure in the STS works, there was no obligation to disclose it as a known adverse document, and DMA did not know to request it. More generally, a significant number of documents dating from November 2020 (including the recording of the call of 26 November 2020) were only disclosed after witness statements had been served, and only because of the requirement in PD57AC to list documents reviewed during preparation of witness statements.

I must say that I regard the absence of any obligation to disclose known adverse documents as being a weakness of the STS. As I observed during the trial, because of the limited disclosure requirements in the STS, I was disinclined to criticise any party for late disclosure where so many documents had only been disclosed at all because they had been listed as reviewed during witness statement preparation. I also considered it necessary in those circumstances to be pragmatic in allowing very late amendments to the parties’ statements of case, where these did not cause prejudice. Fortunately in this trial the parties and their representatives were alert in raising the disclosure and amendment issues and cooperative in resolving them, but this still unhelpfully compressed the time available for the trial itself.

The three main protagonists were the only witnesses of fact. This is a case where it has been necessary to piece together the evidence from lots of emails, messages, records of telephone calls and other contracts as well as the parties’ oral evidence. DMA’s case is not based on any key contract document, and indeed that is part of how BRN attacks it.

Much guidance has been given in authorities about the fallibility of memory and the value to the judge especially in commercial cases of contemporaneous documents, when weighed against witnesses’ recollections, which degrade with time and are often coloured by subsequent events and the emotions of litigation. However this does not mean witness evidence has no value in a commercial case. In the recent case of Mohammed v Daji [2024] EWCA Civ 1247 Newey LJ (giving the lead judgment in the Court of Appeal) summarised the guidance as follows, at [45]:

I have accordingly given careful consideration to the documentary evidence, and also to the inherent probability of events, in testing the accounts of the witnesses. I also bear in mind that the events with which I am concerned took place several years ago, which inevitably affects the reliability of recollections, and indeed whether much can be recalled at all, as Mr Oxley in particular freely acknowledged in his evidence. I consider that the perceptions of all three main protagonists have also been coloured at least to some degree by the position their side has taken in this litigation. I have tried to take account of each witness’s evidence as a whole when assessing them, and even where I have rejected the evidence of a witness on one point, this does not mean I have rejected everything they say.

Furthermore, my assessment is that both sides were anticipating even when the events were still unfolding in 2021 that there could well be a dispute over whether DMA should receive a fee for an introduction of RCF. Even in contemporaneous emails and conversations, the witnesses and others were sometimes in my view trying intentionally to strengthen their position, support an argument or leave a paper trail, and I have borne this in mind when assessing those documents and records. As was openly acknowledged during the trial, both the investor and the company, here RCF and BRN, have an economic incentive to exclude a payment to an introducer if they can, because any such fee comes out of the investment and so reduces the value of the investment to both the investor and the company. Both DMA’s fear of being cut out and BRN’s desire to delineate any obligation to pay a fee in a written agreement and resist paying any other fee, are understandable, predictable and typical of the industry.

What follows is my general observations about each of the witnesses, but these should be read together with my later fact-findings on particular issues.

Mr Read clearly had a good recollection of the relevant events and was familiar with the documents. He was confident and made few concessions in cross examination, and it was apparent that he felt strongly that DMA had been wrongly denied a fee to which it was entitled. He was wary of making any concession which might undermine his case, which led him to resist admitting some points which were clearly right, such as that in March 2021, when it had become apparent RCF was likely to invest, he was trying to bring Mitsui in on the deal as well.

Throughout the contemporaneous correspondence it is apparent that he felt he needed to present the case that DMA had been instrumental in bringing RCF to the table. This can be seen as early as his email of 20 January 2021 to Mr Oxley in which he emphasised DMA’s experience, and that it was their convertible note idea which had attracted Mr Halkyard’s interest. In my assessment he was laying a paper trail from the beginning which would support DMA’s claim to a fee, probably as a result of past experience.

Mr Read is a salesman at heart: making connections and persuading unwilling people to take an interest is his lifeblood, and while this is a very useful asset in a broker, it can also rub people up the wrong way. He certainly seems to have annoyed Mr Harvey and Mr Lush at BRN, as can be seen from their internal emails both from October 2020 and later in 2021. It seems to me that Mr Read was fully aware that even while he was using emollient language with Mr Oxley, it was going to be difficult to pin him down into agreeing a fee: for example, when counsel pressed him on the fact that the call of 15 April 2021 included no discussion of DMA’s fees, his response was that that was because Mr Oxley couldn’t get off the phone fast enough.

This need to make his case made its way into Mr Read’s evidence. He was projecting a narrative and resisted questions which undermined it. At the same time, his account was consistent with the documents in a number of key respects, for example that it was DMA’s approach to Mr Halkyard which led to RCF’s engagement with BRN, and Mr Halkyard had acknowledged this.

Overall my assessment is that Mr Read was a persuasive witness with a good recollection of events, but that his strong identification with his cause meant that his evidence was not always reliable. Where there is a conflict, I prefer the documentary record, but his evidence is frequently supported on the points in dispute by the documents which do exist.

Mr Nwankwo was a more measured witness who was willing to make appropriate concessions, but held firm when he considered that what was put to him was wrong. He accepted for example that his original convertible note idea involved Mitsui as an intrinsic part of the concept. He gave convincing evidence about the events in November 2020, when he conceived this idea as a solution to raising funds for PNP1000 because Traxys looked to be pulling out. His evidence that Mr Oxley had given DMA permission to have discreet conversations with funds including RCF was clear, and is consistent with the limited available documents and inherent probability of events. There was no reason to hide the contact with RCF, even though much of the focus was on IFU, who appeared at that point to be the better prospect. Mr Nwankwo was also clear in his evidence that DMA’s expectation throughout was that any fee for RCF’s introduction would be separate from any fee they might earn in relation to Mitsui, that these were two lines of investment, one intended for PNP1000 and one for full-scale.

In some respects his evidence also illustrated the fallibility of human recollection. Mr Nwankwo referred in his witness statement to “our subsequent conversations with Mike about fees”. Ms Campbell asserted in submissions that none of what he said in his witness statement about discussions with Mr Oxley after 11 December 2020 had happened, and that this was astonishing. In my judgment this is unfair to Mr Nwankwo. She had put to him that he had not been on any such calls with Mr Oxley (calls which nevertheless did happen). Mr Nwankwo said he had been on the 29 June 2021 call, but when he was taken to the transcript, he accepted that he had not been, saying he had been mistaken. He then acknowledged that all the calls with Mr Oxley about fees after December 2020 had been with Mr Read alone. It is clear to me that his familiarity with DMA’s case as to the 29 June 2021 call had caused him mistakenly to believe he had been on it, but when it was demonstrated to him that he had not been, he readily accepted the true position.

Overall my assessment is that Mr Nwankwo was an impressive witness on the issues about which he had clear knowledge, and I accept his evidence on those issues. I am however cautious about some of the more generalised descriptions of events in his witness statement. It is apparent to me that his direct knowledge centres on the events in the earlier stages, between November 2020 and March 2021, together with the specific calls about fees with Mr Valdes or Mr Halkyard in April 2021 which he joined.

Mr Oxley was a witness who acknowledged that he had little independent recollection of the material events, and was to a great extent reconstructing them from his review of documents. As Mr Halban submitted, this makes his evidence rather unreliable. There were a number of points where he was forced to concede that what he had said in his witness statement was probably wrong, because it was inconsistent with the contemporaneous documents. Sometimes I think he also simply found it easier to say that he could not remember.

Most strikingly, having said in his witness statement at [27] that he was “certain that DMA did not mention any approach to RCF to me before [Mr Read’s email of 11 December 2020]”, Mr Oxley acknowledged in cross examination, “No, having seen the new email and transcript of the 26th, I've now got some doubts as to whether RCF was mentioned or not.”. He had also said explicitly in his statement at [24] that he did not authorise DMA to approach RCF at all and at [25] that Mr Read “certainly did not speak” to him about Mr Read’s discussions with RCF at that time. However in his oral evidence he acknowledged that he had no independent recollection at all of the call with Mr Nwankwo on 26 November 2020, or a call on 18 November 2020 between himself and Mr Read which Mr Nwankwo’s email to RCF and Mitsui the next day explicitly says took place. I do not therefore accept the evidence in his witness statement on these points.

Mr Oxley was also rather reluctant in evidence to accept that the true position was reflected in the documents, despite his admission that his own recollection was poor or non-existent. For example, although he eventually accepted that it was the introduction of Mr Halkyard that led to Mr Halkyard proposing that Mr Valdes’ fund should invest, he refused to accept that Mr Halkyard was correct in saying in September 2021 that his introduction came from DMA.

I do not consider that Mr Oxley was knowingly giving inaccurate evidence on these or other matters. My assessment is that DMA’s involvement was simply not a priority for Mr Oxley in 2020-21 – his focus was on getting investment from RCF and TechMet – and that is probably why his recollection is much poorer than Mr Read’s or Mr Nwankwo’s. However, the certainty with which he expressed himself in his witness statement about events which he could not really recall was unfortunate. The evidence indicates that even in 2021, BRN’s directors were determined to resist any suggestion that DMA and Mr Read were entitled to a fee, and in my view this has led to Mr Oxley overstating his evidence, including as to what he can truly remember.

It was also apparent both from the documents and his evidence that Mr Oxley is conflict-avoidant. When asked why he had not followed up with Mr Read about having “overstepped” in contacting RCF on 4 March 2021, as he told BRN’s directors in March 2021 he would, Mr Oxley replied that this was “cowardice”. It is also striking that throughout the calls and emails from March to July 2021, Mr Oxley never actually says to Mr Read that BRN will not pay DMA a fee, even though it has reached that decision internally. While it is understandable that Mr Oxley did not want to “rock the boat” with RCF, I think this is an over-used excuse when it was obvious that Mr Valdes and Mr Halkyard were well aware at the time that there was an issue with DMA about whether they should be paid a fee, which needed to be addressed head-on. This tendency has in my view led to Mr Oxley saying inconsistent things to different people, and a lack of clarity in his evidence. Even giving evidence he seemed to find it hard simply to disagree with a proposition put to him in cross examination when he did not accept it.

In my assessment, this is key to what happened in November 2020. My conclusion is that when Traxys threatened to pull out of PNP1000, Mr Oxley was faced with an urgent need to find a replacement. Mr Nwankwo’s concept was a possible solution, and so Mr Oxley was more encouraging than he might otherwise have been with DMA, given his fellow directors’ doubts about Mr Read. When it became clear Mr Halkyard was serious, Mr Oxley back-pedalled with DMA, because others at BRN wanted DMA tied down into ISA 2. My assessment is that his 11 December 2020 email was part of his back-pedalling, but even then he did not follow through consistently, working with DMA to set up the introductory call with Mr Halkyard in January 2021.

Overall, my assessment is that Mr Oxley was a problematic witness, both because his recollection was limited and therefore unreliable, and because his desire to avoid conflict has caused him to behave and respond inconsistently. I have therefore treated much of his evidence with scepticism. However, this does not mean that I reject all his evidence, especially where what he says is inherently probable or is supported by the documents.

I had the benefit of expert evidence relating to quantum from Mr Bernardo Danesi on behalf of DMA and Dr Peter Bird on behalf of BRN. Mr Danesi’s report was dated 17 December 2025 and Dr Bird’s was dated 15 December 2025. The experts met for a joint meeting and produced a joint statement of their areas of agreement and disagreement dated 12 January 2026. Both gave oral evidence and were cross examined.

Mr Danesi is a transfer pricing and energy economist who works as a consultant in London, advising firms, investors and regulatory bodies on among other things valuation and pricing of assets. Ms Campbell challenged his expertise quite heavily in cross examination, but her main point on this seemed to be that Dr Bird had more practical experience, because Mr Danesi had not worked with intermediaries whereas Dr Bird had worked as an investment banker.

Mr Danesi had carried out a benchmarking exercise reviewing commission rates (1) in fundraising agreements entered into by DMA and/or BRN (i.e. including with others) and (2) in a large number of intermediary agreements across a wide range of industries. His conclusion from the first set was that 5% commission was both the most common and median rate (with a range of 4.2% to 8%). He actually ignored ISA 2 as irrelevant. His wider sample gave a broader range, of 3.8% to 8%. He also opined on the question of whether share options amounted to provision of value to BRN.

Dr Bird concluded that the amounts paid to intermediaries varied extremely widely, so that he could not identify any single “market rate”. In his view the only relevant source of information was the rate of 2% for equity investment in ISA 2, because the date of that agreement coincided with the period when DMA’s services were said to have been provided. I will also consider below his opinion on the share option issue.

When it was put to Dr Bird that the period for the provision of relevant services had been extended back to November 2020, i.e. pre-dating ISA 2 by 2 months, Dr Bird said that this meant he would have to reanalyse his findings and could not express a view on commission rates. Mr Halban submitted that Dr Bird had therefore retreated from his evidence.

My assessment is that both experts had relevant expertise and both had approached their tasks in an independent fashion. I found Mr Danesi’s analysis of the parties’ contracts significantly more relevant than his analysis of the market more generally. I have concerns that he excluded ISA 2 from his consideration, but I accept it would not have affected his conclusions overall. His conclusion that the commonest commission rate was 5% is clearly supported by the evidence to which he referred.

Although Dr Bird clearly had expertise, I found him somewhat underwhelming as a witness. My conclusion is that he was overly rigid in his approach to what was relevant evidence, in a market where there were plenty of examples of contracts entered into by either or both of the parties, and where commission rates appeared to have been very stable over time. His rejection of any evidence other than ISA 2 was rather convenient for BRN, especially since the pre-contract correspondence showed that the parties explicitly considered that the risk profile of that contract was lower, justifying a lower commission rate. His unwillingness to consider either the effect of this correspondence or what the relevant commission rate might be if the services had been provided slightly earlier than January 2021 was also unimpressive.

Overall therefore I found Mr Danesi’s evidence more useful on the question of the relevant commission rate. I will return below to the question of the options.

The scope of the alleged contract is notably limited. DMA does not allege that it entered into any contract with BRN when it provided any introductory services, let alone before doing so.

In section F of the Amended PoC, DMA alleges that on or around 29 June 2021 it was agreed expressly or impliedly and/or that there was a shared understanding, that if RCF invested in BRN, DMA would receive remuneration for that reintroduction and BRN would be reasonable in discussing and agreeing the amount of that remuneration.

There are a number of difficulties with that formulation, as Ms Campbell pointed out. She objected that a contract cannot be implied from a conversation: either an oral contract was created or it was not. In addition it sounds like an agreement to agree, and also one where any consideration was past. Mr Halban submitted that these difficulties could be overcome.

There is no dispute that where there is a contract for work to be done, but no sum is fixed for remuneration, an implied term arises to pay a reasonable sum, unless the parties expressly agree otherwise: s. 15 of the Supply of Goods and Services Act 1982 (“the 1982 Act”) and Barton v Morris [2023] UKSC 3, [2023] AC 684 (“Barton”) at [138].

There is also authority that where there is no express written or oral contract, the court can infer a contract from conduct, with an implied term that reasonable remuneration would be paid. The focus in such a situation is on determining the intention of the parties, objectively ascertained (Energy Venture Partners Ltd v Malabu Oil & Gas Ltd [2013] EWHC 2118 (Comm) at [265], [277]).

Ms Campbell submitted that, at its highest, DMA’s case concerning the agreement allegedly reached during the call on 29 June 2021, was an agreement to agree. She said this was comparable to the alleged agreement in Willis Management (Isle of Man) Ltd v Cable and Wireless Plc [2005] EWCA Civ 806; [2005] 2 Lloyd's Rep. 597 (“Willis”). There the Court of Appeal concluded that an agreement to meet to discuss how one party’s share of the other’s loss was to be determined, was a mere agreement to agree and as such not enforceable. It would have been different if they had agreed that one party would bear a reasonable share of the other’s loss, but this was not what they had agreed (see Tucker LJ at [24] and Rix LJ at [33]).

On the requirements for an implied contract, Ms Campbell relied on Modahl v British Athletic Federation (No 2) [2002] 1 WLR 1192 in which Mance LJ explained at [102] that it must be necessary to imply a contract from the parties’ conduct:

With particular reference to contracts for payment of a fee for a successful introduction, Mr Halban relied on the decision in Premia Marketing Ltd v Regius Mutual Management Ltd [2021] EWHC 2329 (QB) (“Premia”), where Roger Ter Haar QC, sitting as a Deputy High Court Judge, concluded at [69] that, on the basis of the parties’ conduct:

On the question of past consideration, Mr Halban relied on the Privy Council case of Pao On v. Lau Yiu Long [1980] AC 614 (“Pao On”) at 629G where Lord Scarman stated that:

On behalf of DMA, Mr Halban submitted that on the facts, I should prefer the evidence of Mr Read, to the effect that Mr Oxley agreed with him during the call on 29 June 2021 that BRN would pay DMA a reasonable fee for the services which DMA had provided in reintroducing RCF to BRN, and that they should have a three way call with Mr Valdes at RCF to discuss the amount of the fee. He said that Mr Oxley’s “certainty” that he did not agree to such a three-way call cannot be relied upon, and that I should also place weight on Mr Read’s handwritten note of the call, in which he recorded “Call all three? To discuss. Reasonable.”

He also submitted that the “loose understanding” between them was sufficient from which to imply a contract, comparable to that found in the Premia case.

Ms Campbell submitted that there were four issues: (1) whether there was an agreement at all; (2) whether the consideration was past; (3) whether this was an invalid agreement to agree; and (4) whether implied terms can be relied on to save the contract. Her submission was that the claim failed on all four heads, but that the first was the most fundamental: she said there was simply no agreement at all. She submitted that neither Mr Read’s written notes nor the transcript recorded Mr Read saying he expected BRN to pay a fee. She said he was just asking to have a call because RCF had refused to pay a fee.

As to consideration and the test in Pao On, she said that the acts concerned were not done at BRN’s request and the parties did not understand at the time they were performed that the act would be remunerated.

As to (3), she submitted that at its highest, DMA’s case was indistinguishable from Willis.

In my judgment no agreement was reached at all between Mr Read and Mr Oxley during the call on 29 June 2021. Neither the transcript, nor Mr Read’s handwritten notes, nor the surrounding documents lead to the conclusion that there was any meeting of minds at all.

On the facts, based especially on statements in and inferences from the contemporaneous documents quoted above, my findings are as follows:

My conclusion is that the contract claim does not get off the ground, because there was never any agreement at all between the parties.

However, even taking DMA’s pleaded case at its highest, if Mr Oxley had agreed to a three way call and to be reasonable about agreeing a fee, this would in my view have been no more than an invalid agreement to agree. Contrary to Mr Halban’s submission, I do not consider that an agreement to be reasonable in having a discussion about a fee is the same as agreeing to pay a reasonable fee. Rather it is directly analogous to the Willis case, as Ms Campbell submitted.

The issue as to whether the Pao On requirements for past consideration are satisfied does not therefore arise, and would raise some rather complex questions given my later findings under unjust enrichment, so I do not consider it any further here.

I am also not persuaded that any implied contract arose. DMA’s contract case is based on the conversation which took place during the phone call on 29 June 2021. If I cannot conclude that an oral contract was reached during that conversation, which I cannot, it seems to me that it would be impossible to conclude that it was “necessary” to imply a contract from that same conversation. This is not a case where it is alleged that there was a combination of that conversation with other conduct. I therefore accept Ms Campbell’s submission that if that conversation did not result in an express oral contract, there can be no scope for a contract to be implied from that same conversation.

In contrast, the period over which the services were said to have been provided by DMA which form the basis of its unjust enrichment claim are from November 2020 to March 2021 (by reference to the Amended PoC). I bear in mind that the reasons for which DMA contends that the receipt of a benefit or enrichment by BRN was unjust remain as set out in paragraph 57 of the PoC as originally drafted (but subject to the amended definition of “DMA Services”). I note that those particulars of unjustness are pleaded as alternatives.

The parties are agreed that where there is no contract, the correct approach to determining whether an introducer has any quantum meruit claim to payment is by reference to principles of unjust enrichment, as summarised by Lord Clarke in the Supreme Court in Benedetti v. Sawiris [2013] UKSC 50; [2014] AC 938 (“Benedetti”), at [10] as follows:

In the present case, the first three questions are all in dispute. It is agreed that the fourth does not arise, no relevant defences being raised.

The parties referred me to a number of authorities on unjust enrichment in the context of claimants claiming commission for introducing an opportunity to the defendant. Many of these concerned work done in anticipation of an agency contract which was never finalised. I have not found those cases especially useful, because particular principles tend to apply where a formal contract was anticipated. There is no question in this case of any introductory work re RCF being done in anticipation of a contract. While BRN argues that any liability for introducing RCF is excluded by the fact ISA 2 was negotiated and signed simultaneously re Mitsui, it is not suggested by either party that it was envisaged that ISA 2 would actually extend to RCF.

In AMP Advisory & Management Partners v. Force India Formula One Team Limited [2019] EWHC 2426 (Comm), the claimant claimed a fee for introducing a sponsorship opportunity and also for providing assistance to facilitate the deal. Moulder J concluded that the claimant was not responsible for introducing the opportunity, so could not claim a fee on that basis. However, as to the other intermediary services, the defendant had received a benefit at the expense of the claimant; those services were not of a kind which would normally be given for free; the services were requested and accepted in the knowledge they were not gratuitous, and the claimant had been given the impression it would be paid, so it had not accepted the risk of no compensation. The judge held it would therefore be unjust if there was no payment. She therefore made an award of the objective value of the other intermediary services (only), a relatively small sum.

In Premia, the judge held at [82] that the claimant would have succeeded in unjust enrichment if he had not succeeded in contract. The claimant had had the idea, made the introduction of the relevant business and contributed to the finalisation of an agreement which was valuable to the defendant. Since both parties had anticipated from the outset that the claimant would be rewarded, it would have been unjust to deny such a reward.

In Fenchurch Advisory Partners LLP v AA Ltd [2023] EWHC 108 (Comm), an implied contract claim failed but an alternative claim in unjust enrichment succeeded. There a broker had assisted the defendant with the sale of a business, although the defendant did not ultimately pursue a sale. Sean O’Sullivan KC, sitting as a Deputy High Court Judge, held that services of value had nevertheless been provided, because they had enabled the defendant to decide whether to pursue the sale. The claimant had provided those services with the knowledge and at the request of the defendant. The claimant was awarded a basic fee for the value of its services but with no “success” element, because the sale did not proceed and such additional fees were contingent on success in that industry.

Ms Campbell submitted that in the industry in the present case, where there was a contract, an agent was only paid if they were the “effective cause” of the investment. No fee was payable for any services in the absence of success. Therefore, Ms Campbell submitted, the same principle had to apply to any unjust enrichment claim. BRN would only have been enriched by DMA’s services if they were the effective cause of RCF’s investment; and only in that scenario would any enrichment be at DMA’s expense. In addition, any enrichment had to be unjust if not paid for.

Mr Halban agreed that given the nature of this industry, whether DMA was the “effective cause” of RCF’s investment, with BRN’s knowledge and approval, was the relevant approach to be taken to the unjust enrichment claim (skeleton argument section E).

Ms Campbell relied for the “effective cause” point on Gray v. Smith [2022] EWHC 1153 (Ch), in which Richard Smith, sitting then as a Deputy High Court Judge, held at [451] that an introducer had knowingly taken the risk he would not be paid for his work unless he was successful, this being consistent with market practice, and that enrichment could not therefore lie simply in the services provided. The judge there continued: “… I would have found that such enrichment lay in their end-product in the form of committed investor capital and that the appropriate measure of the value of that enrichment (if any) would have been a fee, commission or percentage share based on the level of capital raised, not the time spent (or expenses incurred) to that end.” Since the broker had failed to raise any capital, the judge found there could not have been any enrichment.

Similarly, in Matrix Receivables Ltd v Musst Holdings Ltd [2025] EWHC 2487 (Ch), Mr Justice Freedman held at [80] - [86] that in an unjust enrichment claim for services provided, one had to determine whether enrichment was to be defined by reference to the services or the end-product. Since in that industry the provider of the services normally took the risk of no fee if there was no investment, enrichment lay in the end-product of committed investor capital (for limitation purposes). The appropriate measure of value was a percentage based on the level of capital raised, not the time spent or expense incurred.

More generally, on the issue of what amounts to an effective cause, Ms Campbell relied on the decision of the Court of Appeal in Nightingale v Parsons [1914] 2 K.B. 621 (“Nightingale”). In that case, the plaintiff, a house agent, was engaged by the defendant to find either a tenant or a purchaser of a house, for commission. The plaintiff found a tenant and the defendant paid commission by reference to the letting. After 3 years, the defendant agreed to sell the house to the tenant’s wife. The plaintiff had no involvement in the sale, but claimed commission on it. Affirming the decision of the judge, the Court of Appeal held that the plaintiff was not the effective cause of the sale but only of the letting, and was not entitled to a further commission. It was not enough that the introduction was a causa sine qua non (a “but-for” cause); it was necessary to show that the introduction was an “efficient cause” in bringing about the sale. There the plaintiff did effect the original letting but the sale had not been brought about by him in any effective way.

In MSM Consulting Ltd v United Republic of Tanzania [2009] EWHC 121 (QB) (“MSM”), Mr Justice Christopher Clarke set out at [171] principles for determining whether unjust enrichment had taken place in particular in the context of an anticipated contract. Of potentially broader relevance, he listed as one of his principles: “(e) The court may well regard it as just to impose such an obligation if the defendant who has received the benefit has behaved unconscionably in declining to pay for it.”

On the issue of whether the existence of ISA 2 excludes the possibility of any claim in unjust enrichment in respect of any introduction of RCF, since that contract provided only for introduction services in relation to Mitsui, the leading authority on whether a contract necessarily excludes a claim in unjust enrichment is Barton. In that case the claimant was engaged under a contract which provided expressly that he would be paid a fee if the defendant’s property was sold to a buyer whom the claimant had introduced for £6.5M. The price paid on completion was only £6M. The claimant claimed a fee in any event, on the basis of either an implied term or unjust enrichment. The claim failed in the Supreme Court. On the unjust enrichment claim, Lady Rose JSC (in the majority) said at [96] and [107]:

Mr Halban submitted that DMA had been the effective cause of RCF investing in BRN for the following reasons:

In addition, Mr Halban submitted that BRN, through Mr Oxley, had known and approved of DMA’s approach to RCF in November/December 2020, through the telephone calls he had had with Mr Read and Mr Nwankwo in November 2020. The reference to RCF as a potential fund in the internal email of 27 November 2020 supported this conclusion. Further he said BRN had never thought DMA was working for free. He said the reference to payment of fees in the transcript of the call of 26 November 2020 also supported this conclusion. The Mitsui approach was a separate work stream which would have been separately remunerated if it had been successful; ISA 2 did not relate to RCF and did not exclude a claim in respect of that introduction. The email of 11 December 2020 was too late for BRN to rely on because Mr Oxley had already authorised an approach to RCF, and the refusal to pay a fee was not repeated by Mr Oxley and was forgotten at the time.

Furthermore, he submitted that Mr Oxley agreed or recognised that DMA should receive payment in his reply “Yes we will!” in the WhatsApp of 1 March 2021; in the call between him and DMA on 15 April 2021 and during the call on 29 June 2021, as to which he said I should prefer the evidence of Mr Read as to what was said.

BRN had been benefitted and enriched by RCF’s investment, which was caused by DMA’s work in introducing RCF and pitching the Project, including suggesting the new investment structure. This was at the expense of DMA. It would be unjust for DMA not to be paid where the investment had proceeded, Mr Oxley had approved the approach and BRN knew DMA was not working for free. It would be unconscionable for DMA not to be paid, which was a free-standing reason for a finding of unjustness according to principle (e) in MSM.

On the question of whether ISA 2 excluded any liability for an introduction of RCF, Mr Halban submitted that (a) the introduction of RCF had already happened before ISA 2 was finalised and (b) it was not intended to apply to an introduction of another investor other than Mitsui, especially since RCF was interested in PNP1000 and Mitsui was interested in the full scale stage.

Ms Campbell submitted of behalf of BRN that DMA had not been the effective cause of RCF’s investment in BRN, which, given that payment for any services in this industry was contingent on making a successful introduction, meant there was no unjust enrichment claim. She submitted this for the following reasons:

In addition, Ms Campbell submitted that any enrichment would not be unjust in the absence of a joint understanding that DMA would be paid. She said there was a mismatch in timing in that the alleged services were performed before the alleged basis for those services had been reached between the parties. None of the occasions on which Mr Halban relied for agreement (1 March 2021, 15 April 2021 and 29 June 2021) were ones where there was actually any agreement, and anyway they were all too late since any services had been provided by then. The warning in Mr Oxley’s email of 11 December 2020 told DMA that any involvement was at their own risk. This was a case of a disappointed risk-taker. Furthermore, the main reason DMA wanted RCF to be involved was to facilitate an investment by Mitsui, where they would receive a fee. Therefore, she submitted, since any work was ultimately with the aim of bringing in Mitsui, it would not be unjust for DMA not to receive a fee if only RCF invested and not Mitsui: the relevant contingency had not arisen.

More generally, she submitted that Mr Read knew that if DMA were to make an approach to a potential investor, this had to be formally agreed – hence his comments during early 2020 about his hands being tied in the absence of such approval. Similarly, when he said in conversations with RCF that DMA had “no mandate per se”, this was a recognition that DMA had had no authority. “Keep it conceptual” (from the call on 26 November 2020) was not enough. DMA did not ask for a contract re an approach to RCF, and it could have done, especially since it was in negotiations for a contract re Mitsui at the time. DMA could have asked for ISA 2 to be expanded to cover RCF. Also, after 7 May 2020, BRN had expressly told DMA that it was not getting a contract extension because BRN did not need them. BRN had worked with DMA for a number of years by this time, and BRN knew they wanted to control what DMA did through contracts. However Mr Read would continue to make approaches anyway even if he was asked not to, as happened in relation to RCF later in 2021.

In any event, she submitted that the terms of ISA 2 precluded any claim in unjust enrichment. Applying Barton, she said the terms of the express contract ISA 2 between the parties, which were that DMA was solely engaged to seek investment from Mitsui, necessarily excluded any obligation on the part of BRN (whether in contract or unjust enrichment) to pay any fee in other circumstances, and in particular in respect of any introduction of any other investor.

In my judgment, DMA’s claim in unjust enrichment succeeds, because it made a reintroduction of RCF to BRN which was the effective cause of RCF investing in August 2021, and it would be unjust for DMA not to be paid a fee, in particular because Mr Oxley knew of and approved the approach in November 2020, and BRN knew that any such services were not intended to be gratuitous. My reasons are as follows:

Accordingly, I consider that all of the three heads of the test in Benedetti are satisfied, and DMA has established its unjust enrichment claim to payment calculated on a commission basis.

It is agreed in those circumstances that commission is payable on the equity investment of US$12,084,678 or £8,744,341 paid for the share subscriptions in August 2021 and July/ August 2022.

This leaves three other categories of options or loans on which DMA also seeks a commission payment:

The basis on which DMA claims that commission should be payable on each of these loans and options is as follows:

On behalf of BRN, Ms Campbell submitted that:

My conclusions on these issues are as follows:

My conclusion therefore is that the only investment on which commission is payable is the equity investment of US$12,084,678 or £8,744,341 made in August 2021 and July/ August 2022.

I am therefore only concerned with the appropriate rate of commission to apply to the equity investment.

On this issue, the parties’ submissions were as follows:

On this issue, I have concluded that 5% would clearly be the appropriate commission rate, essentially for the reasons given by Mr Halban. In summary:

Accordingly, I conclude that DMA is entitled to commission at 5% on the equity investment of US$12,084,678. It is agreed that this commission amounts to US$604,233.90.

There will therefore be judgment for the Claimant in the sum of US$604,233.90 or the sterling equivalent, plus interest.

I invite submissions from counsel on consequential matters, including if disputed the appropriate exchange rate, and the appropriate rate and period of interest under s.35A of the Senior Courts Act 1981, if these cannot be agreed.