Negotiations for the Purchase of the Higgs Charity Share in ACL
37. It quickly became clear that SISU had unrealistic expectations for the terms on which they could purchase the Higgs Charity share in ACL; and that the Higgs Charity and they would not agree terms for the sale and purchase of that share, with negotiations between them to that end ceasing by mutual consent before the end of August 2012.
38. As I have indicated, from the outset SISU had been interested in obtaining an interest in the Arena, as a way (and, in reality, probably the only way) of obtaining a return on their investment in the Football Club. As the fortunes of the Football Club declined, from October 2011, particular discussions began. SISU needed to deal with both the Higgs Charity, and with the Council whose approval was needed for any transfer.
39. On 18 June 2012, SISU made an offer to the Higgs Charity for its share in ACL, set out in an Indicative Term Sheet, for £5.5m, in the form of £1.5m immediate cash and an additional £4m in future payments. However, there were a number of express conditions precedent, namely that completion would only take place after:
i) approval of the transaction’s commercial terms, structure and legal framework
by the Charity’s trustees, on advice from its advisors;
ii) agreement between the Bank and SISU, as to the buy out of the ACL loan;
iii) approval of the Council, under the 2003 agreements; and iv) approval of the Charity Commissioners.
40. In the event, these negotiations with the Higgs Charity were unsuccessful: and the Charity brought a claim in relation to the costs of the negotiations, heard by Leggatt J sitting in the Birmingham Mercantile Court. In his judgment (Marilyn Freda Knatchbull-Hugessen and Others as Trustees of the Alan Edward Higgs Charity v SISU Capital Limited [2014] EWHC 1195 (Comm) at [30]), he found that, before the end of August 2012:
“The negotiations between SISU and the Higgs Charity had ceased by mutual consent or acquiescence as a result of a number of irreconcilable differences”.
41. Leggatt J found (at [31]) that the Trustees did not wish to pursue the negotiations further, because they knew the Council was not prepared to consent to the sale of the shares to SISU, and was pursuing an alternative strategy which they (the Trustees) supported (a matter to which I shall return). However, he also found that the irreconcilable differences between the SISU and the Higgs Charity included:
) Following due diligence, SISU did not wish to offer the price set out in the Indicative Term Sheet, being willing to offer only closer to £2m than £5.5m. This difference between the price SISU were prepared to offer and the price the Trustees were prepared to accept was (a) irreconcilable and (b) in itself, a showstopper.