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Intention to create legal relations Jeffrey Ross Blue v Michael James Wallace Ashley  EWHC 1553 (Comm) 26 June 2017
In July 2017 Leggatt J had to decide whether a ‘gentleman’s agreement’ made at the Horse & Groom public house between Newcastle United owner and Sports Direct boss, Mr. Mike Ashley, and former Investment Banker, Mr. Jeffrey Blue, had formed a legally enforceable contract. Mr. Blue claimed that during conversations on an evening of drinking Mr. Ashley had agreed to pay him a bonus of £15 million if, within three years, he helped to raise Sports Direct shares from £4 to £8. Mr. Blue agreed to provide his consultancy services.
“where parties intend to create a contractual obligation, the court will try to give it legal effect. The court will only hold that the contract, or some part of it, is void for uncertainty if it is legally or practically impossible to give the agreement…any sensible content”.
Mindful of the unreliability of evidence based on recollection, Leggatt J was unable to find, on balance, that an agreement was reached between Mr. Ashley and Mr. Blue. There was no intention to create legal relations. He reached that conclusion for eight main reasons:
(a) the public house setting;
(b) the purpose of the occasion being to secure enthusiastic support from ESIB rather than to discuss an incentive for Mr. Blue;
(c) the nature and tone of the conversation was not serious but more akin to “banter”;
(d) the lack of commercial sense in throwing so much money at Mr. Blue when far less would have sufficed;
(e) the incongruity with Mr. Blue’s role in that it would have been an “inherently absurd” and “fanciful” idea that Mr. Blue alone could just “get” the share price to double;
(f) the vagueness of the offer;
(g) the perceptions of the ESIB witnesses was that the offer was not serious and;
(h) Mr. Blue probably did not perceive the agreement as serious as he did not think it necessary to make any written record and waited nearly a year before mentioning the agreement to Mr. Ashley.
The Late Payment of Commercial Debts (Amendment) Regulations 2018 came into force on 26 February 2018. They introduce a new regulation that substitutes regulation 3 of the Late Payment of Commercial Debts Regulations 2002. The new provision clarifies that representative bodies are able to challenge the use of certain grossly unfair contractual terms and practices to address the imbalance of power between SMEs and larger firms. See also The Reporting on Payment Practices and Performance Regulations 2017 and The Limited Liability Partnerships (Reporting on Payment Practices and Performance) Regulations 2017 applying to large companies and LLPs, with two or all of the following thresholds: (i) annual turnover of £36 million or more (ii) balance sheet total of £18 million or more; (iii) over 250 employees, who are now required to publish on a government web service (https://beis-ppr-live.herokuapp.com/) details of their payment policies and practices and report on performance against their policies twice a year.