For anyone involved in the drafting, negotiation and implementation of contracts, it is vitally important that all parties involved are aware of what the words used mean and that the drafting is accurate, clear and not open to differing interpretations between the parties.
The importance of this was highlighted in the recent case of Cantor Fitzgerald & Co v Yes Bank Ltd [2024] EWCA Civ 695.
The fundamental question brought before the Court of Appeal in this case was whether an adjective at the start of a contractual list qualified all of the items listed. In this case the recovery of millions of dollars turned on the use of a single adjective in an engagement letter.
The case revolved around an agreement between Cantor Fitzgerald & Co (“Cantor”), a US broker-dealer, investment bank and financial adviser based in New York, and YES Bank Limited (“YES Bank”), an Indian commercial bank based in Mumbai.
The appeal concerned the placement of a single word in an agreement. To be specific, the appeal concerned whether the word “private” in the phrase “private placement, offering or other sale of equity instruments” only qualifies “placement” or does it alternatively also qualify “offering or other sale” (i.e. so that the proper interpretation is “private placement, private offering or private other sale” rather than just “private placement”).
For context, in 2019, upon experiencing financial difficulties YES Bank was in urgent need of additional capital. Cantor was engaged to assist YES Bank. An agreement was reached by an engagement letter (the “Engagement Letter”).
In return for a retainer of US$500,000 and 2% of the funds raised from the investors (which had been listed in a schedule to the letter) Cantor had agreed to act in connection with the Financing, which was defined in the Engagement Letter as follows:
“We have been advised by the Company that it contemplates one or more financing(s) through the private placement, offering or other sale of equity instruments in any form, including, without limitation, preferred or common equity, or instruments convertible into preferred or common equity or other related forms of interests or capital of the Company in one or a series of transactions (a “Financing”)”.
Following this agreement, YES Bank raised capital in India through a Further Public Offering (“FPO”) which completed in July 2020. Three of the investors which had been listed in the schedule of the Engagement Letter (Tilden Park, Hinduja Group and Amansa) had participated in the FPO. The subscriptions totalled INR27.93 billion (circa US$373.4 million).
Cantor argued that the definition of Financing in the Engagement Letter included a public offering. Cantor claimed that they were entitled to 2% of the amounts subscribed by the abovementioned investors in addition to the US$500,000 retainer. However, YES Bank maintained that the FPO didn’t fall within the definition of “Financing” because the use word “private” also qualified “offering or other sale”. Therefore, claiming that the FPO carried out in July 2020 did not fall within the scope of that definition and Cantor’s entitlement was limited to the retainer.
In 2023, the Commercial Court had agreed with YES Bank’s interpretation of Financing and Cantor’s claim for the additional 2% of the funds raised in the FPO was dismissed.
The Court of Appeal considered the principles that apply. They underlined that they are required to consider the ordinary meaning of the words used in the context of the contract as a whole, as well as the relevant factual and commercial background (excluding prior negotiations) in order to identify the intention of the parties. More specifically, the objective is to identify “what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean”.
Additionally, the Court had referred to the principle to not invoke reliance on common commercial sense and surrounding circumstances if it meant undervaluing the importance of the language of the provision which is being construed.
Upon application of the abovementioned principles and close consideration of the contractual context and factual matrix, the Court supported YES Bank’s interpretation of the Engagement Letter (i.e. the word “private” also applied to qualify the word “offering”, therefore the FPO didn’t fall under the definition of Financing and Cantor wasn’t entitled to the additional circa $7.5 million fee).
The Court of Appeal therefore upheld the lower court’s decision and Cantor’s appeal was dismissed.
Conclusion
The judgment critiqued the use of generic boilerplate drafting and placed a great deal of emphasis on the need to exercise caution when drafting contracts to resolve any potential costly ambiguities.
If the parties had more clearly drafted the underlying contract to capture what they both had intended, then there would have been less scope for the ambiguity to arise and they may have avoided these very costly court proceedings.
The case re-emphasises the importance of careful contract drafting to ensure there is no scope for ambiguity (as well as providing an indication of how the courts will approach the interpretation of contractual drafting using lists qualified by an adjective at the start).
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