In the case of Kowalishin v Roberts & Tech21 UK Ltd [2015] LTL 19/05/15, the claimant was the managing director of Banque AIG who had given £50,000 to the company with the intention of investing in return for shares. He contended there was a binding agreement that he should be issued a fair and reasonable number of shares, or if he was only entitled to restitution, then in addition to the return of his money, the award should represent the “time value” of the money which should be measured by looking at the subjective value to the company of having the use of the money, which was greater than its objective value.
Simon represented the defendants in a 5-day trial before Halpern QC in the Chancery Division. He argued that the claimant had paid £50,000 in advance of reaching a binding agreement and in anticipation of doing so, and that the court could not find that the defendants had agreed to give any shares in return for £50,000 without it having to fill in the gaps in an incomplete bargain. The court agreed, finding that the parties had not intended to be contractually bound at least until heads of terms had been agreed, and they had not agreed all the terms which they regarded as important.
The court also rejected the notion that the award for unjust enrichment should be measured on the basis that the time value of the money should reflect the subjective value put on the money by the company, even though it was in a parlous state. Instead, the court made an award equal to £50,000 plus compound interest since the date of payment.