Cohen & Ors v RiverRock European Capital Partners LLP & Anor [2025] EWHC 845 (Comm)

Richard Samuel & James Gale (instructed by Bonelli Erede Lombardi Pappalardo LLP) for the Defendants.

Mr Stephen Houseman KC                                                                              Friday, 4 April 2025

 (11.00 a.m.)

Judgment by THE DEPUTY JUDGE 

1. 1. By an application notice dated 8 November 2024 the claimants seek to strike out the Amended Defence or enter summary judgment on their claim pleaded in debt. That debt claim is for the sum of €3 million plus contractual interest at 10 per cent per annum.
   2. The basis of the claim is a document entitled “MEMORANDUM OF UNDERSTANDING REGARDING RIVERROCK EUROPEAN CAPITAL PARTNERS LLP” dated 25 May 2022. This document runs to six pages of printed text under five headings (A to E) arranged in demarcated blocks or boxes, plus an annex and two separate pages of scanned signatures. I refer to it as the “MOU”. A copy is attached to this judgment.
   3. By Section D of the MOU, the parties expressly chose English law to govern such agreement and the financing/equity investment transaction it provided for in the future. English law therefore governs the question of whether the MOU created legally binding rights and obligations as well as their content, meaning and effect.
   4. The purpose of the MOU was to facilitate an immediate cash injection into D1 at a time when it was significantly indebted to an entity I will refer to as “CFE”. In broad terms, CFE held an option to convert some or all of such debt into equity in D1. D1 was negotiating with CFE over the fate of that indebtedness and equity option.
   5. The parties to the MOU, according to its own terms, are: C1(JDC), C2(SA), C3(HC), D1(RiverRock) and D2(MP). They all signed it on or within a week of 25 May 2022, albeit C3’s agreement was given by a signature of his father with, it is said, his son’s authority.
   6. Pursuant to the MOU a total of €3 million was paid to D1 in five instalments between around 26 April and around 18 July 2022. This money was paid by two companies associated with two of the three claimants – namely, and for ease of reference, H (on behalf of C1) and B (on behalf of C3).
   7. The MOU contemplated that further, fuller and final documentation would be agreed and executed by the contracting parties in respect of the contemplated transaction. This never happened. A promissory note was drafted and signed by D1 in favour of H for the sum of €500,000 repayable by 10 August 2022. It provided for Luxembourg law. It was not signed by H and so remained unexecuted. I refer to it as the “Draft PN”.
   8. The negotiations with CFE did not bear fruit in time. C1 to C3 accordingly demanded repayment of the principal sum.
   9. D1 and D2 deny liability to repay any of it. They contend as follows:

1. First, the repayment terms in the MOU are not legally binding, either because there was no intention to make them so or because they are too uncertain or materially inchoate or contingent in the sense of being ‘subject to contract’ in the classic sense. The defendants say this whilst accepting and averring that the logically prior payment terms are legally binding.
2. Second, any such repayment obligation as may have been imposed by the MOU was one in favour of the actual payers of the €3 million, namely H and B. The defendants say there is no pleaded claim for specific performance in favour of such non-parties. They raise the spectre of double jeopardy being exposed to more than one set of lenders in respect of the same sum of money.
3. Finally, it is denied that C3 is entitled to claim on the MOU because his father signed the document in place of C3 and in his, i.e. the father’s, own capacity or without requisite authority.

1. As regards the last two points, the parties have contingently agreed a pragmatic solution to any ‘non-party’ problem in the form of undertakings that can be given so far as necessary to ensure that those others are bound by the outcome of this litigation and otherwise won’t seek to claim the same amounts. This is on the assumption that summary judgment is entered on the debt claim which is the focus of the dispute before me.

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