Peter Knox KC (instructed by RHF Solicitors LLP) for the Defendant.
Ashley Greenbank (sitting as a judge of the High Court):
INTRODUCTION
1. This case concerns claims arising from agreements relating to the sale of shares in companies holding real estate in Andalucia, Spain, which included the world-famous Valderrama golf course, and certain related trade marks, in October 2012.
2. Those agreements were made between the late Mr Jaime Ortiz-Patino (“JOP”) and the Defendant, MGI Golf and Leisure Opportunities Fund Limited (“MGI”), in October 2012. Under those agreements, JOP sold shares in two Swiss companies, Soto Properties SA (“Soto”) and Campo Alto SA (“Campo”), to MGI. Soto and Campo were holding companies and held shares in certain Spanish companies that directly or indirectly owned interests in the relevant real estate assets and trade marks. The consideration for the sale of the shares in Soto and Campo included rights to payments calculated by reference to the proceeds of a future sale of the real estate assets or trade marks. Those rights are enshrined in an agreement dated 18 October 2012, made between JOP and MGI, and referred to as the “Profit Sharing Agreement” (or “PSA”).
3. The Claimant is Mr Carlos Ortiz-Patino (“COP”). He is one of JOP’s two sons, the other being Mr Felipe Ortiz-Patino (“FOP”). The PSA provided for JOP’s rights to be transferable on JOP’s death to COP or any of COP’s children. On JOP’s death in 2013, his rights under the PSA were transferred to COP.
4. MGI sold the shares in Soto and Campo to a third-party purchaser, Zagaleta International United Kingdom Inc (“Zagaleta”), in November 2015. COP now claims that he is entitled to payment under the relevant terms of the PSA as a result of that sale and/or for damages for various breaches of the PSA. MGI disputes those claims.
THE EVIDENCE AND THE WITNESSES
The evidence
5. The trial bundles contained copies of witness statements served on behalf of the Claimant given by:
i) COP;
ii) FOP, COP’s brother, who was president of the Valderrama golf club, now known as Real Club Valderrama (“RCV”) [1] between 2006 and 2011, as well as a director of Soto and Campo and certain of their subsidiary companies for various periods before 2010;
iii) Mr Rafael Collantes, a Spanish tax consultant and adviser to JOP on tax, finance and accounting matters in relation to the sale of shares in Soto and Campo in 2012;
iv) Mr Ramon Davila, a Spanish lawyer, who was the Chief Executive Officer of two of the Spanish companies (Valderrama SA and Valderrama Estates SA) between 1999 and 2002 and an adviser to JOP from 2004 to late 2012;
v) Mr Jaime Morey, a Spanish commercial lawyer, who advised JOP in relation to the sale of shares in Soto and Campo in 2012; and
vi) Mr Guy Vermeuil, a partner in Lenz & Staehelin, a Swiss law firm, that advised JOP the sale of shares in Soto and Campo in 2012.
6. All the Claimant’s witnesses, with the exception of COP, gave evidence and were cross-examined on their statements. Mr Collantes, Mr Davila, Mr Morey and Mr Vermeuil gave evidence via video link. FOP gave evidence in person and via video link. COP was not cross-examined on his statement, which was subject to a hearsay notice.
7. The Claimant also relied on expert valuation evidence:
i) a report of Mr James Allwood of Gesvalt Sociedad de Tasacion, SA (“Gesvalt”) on the valuation of the real estate assets of Soto and its subsidiaries as at 30 November 2015 (i.e. at the time of the sale to Zagaleta); and
ii) a report of Mr Robert Sharp of Valuation Consultants Limited on the valuation of the trade mark assets of Soto, Campo and their subsidiaries as at 30 November 2015.
Mr Allwood and Mr Sharp gave evidence in person and were cross-examined on their reports.
8. The trial bundles also contained copies of four witness statements served on behalf of the Defendant given by Mr Richard Moxon, a director of the Defendant. Mr Richard Moxon gave evidence in person and was cross-examined on his statements.
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