The recent Court of Appeal judgement in the case of Morris v Swanton Care & Community Ltd  EWCA Civ 2763 found that an earn-out provision in a share purchase agreement contained an unenforceable clause that rendered the agreement as nothing more than just an “agreement to agree”.
Mr Morris (the claimant) and his business partner sold shares in a residential care business to Swanton Care & Community Ltd. Part of the purchase price was deferred through an earn-out provision as set out in the share purchase agreement. The earn-out schedule provided a formula for assessing the amount of such earn-out consideration in return for Mr Morris providing ongoing consultancy services. The clause that was subject to dispute stated “Mr Morris shall have the option for a period of 4 years from Completion and following such period such further period as shall reasonably be agreed between Mr Morris and the Buyer to provide the following services….”. The remainder of the clause set out the services that Mr Morris would provide.
Mr Morris provided consultancy services for the specified four year period and was paid under the earn-out provisions. At the end of the four year period, Mr Morris requested a “reasonable extension” but this was denied by Swanton Care. Mr Morris issued legal proceedings, arguing (amongst other factors) that:
Swanton Care rejected Mr Morris’ claims citing that:
The Court ruled in favour of Swanton Care stating that the phrase “as shall reasonable be agreed between Mr Morris and the Buyer” meant that both parties had to agree for there to be any further period of consultancy services. The court held that there was no doubt, on its construction, the above mentioned clause that was at the heart of the dispute amounted to an agreement to agree and therefore unenforceable.
Fasil Hussain, Company Commercial Solicitor at Neves comments that “the judgement in Morris v Swanton Care reaffirms the boundaries between the courts powers to interpose within agreements where both parties have failed to clearly define what has been agreed. It also determines further the importance of ensuring that a key term of a contract is void of any uncertainty and no room is left for ambiguity.”
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