On 12 March 2025, Simon Gleeson (sitting as a deputy High Court judge) handed down judgment in H&P Advisory Limited v Barrick Gold (Holdings) Limited [2025] EWHC 562 (Ch); an US$18 million claim by a boutique investment bank for commission on the merger of Randgold Resources Limited and Barrick Gold Corporation, which created what was, at the time, the world’s largest goldminer.
The claim was brought on the basis of: (i) an alleged oral agreement; alternatively, (ii) a quantum meruit for restitution of unjust enrichment. His Lordship rejected the alleged oral agreement ([170], [173] & [345]) but, in awarding the claimant US$2 million plus expenses (such expenses to be addressed at a consequentials hearing), considered a number of important points of unjust enrichment and illegality. In rejecting the claims for higher sums, the Judge awarded the sum of US$2 million by reference to the very figure offered by Barrick to H&P in 2018.
George Spalton KC, leading Joshua Folkard of 20 Essex, appeared in the trial of the claim.
Legal implications
The judgment raises four particular points of legal interest:
- First, the Court concluded that ‘free acceptance’ is not an ‘unjust factor’ in restitution. In Barton v Morris [2023] UKSC 3, Lord Burrows had stated obiter that “free acceptance is not an unjust factor in English law”. Following this, Simon Gleeson considered what his Lordship described as “a more than usually bounteous cornucopia of decided cases” [219] and concluded that “none of them are clear authority for the recognition of a purely receipt-based form of free acceptance” [244].
- However, the unjust factor of failure of basis was applied to found restitutionary liability in circumstances where the claimant had communicated a fee expectation to the defendant in a meeting but the defendant remained silent [262]. This may be significant in a number of industries where contractual terms are frequently not signed at the outset of an engagement or ‘deal’.
- Third, the role of ‘risk-taking’ in restitution of unjust enrichment was discussed. The court concluded that the principles relating to disappointed risk-takers do not apply to risk-takers who subsequently become “gratified” by the establishment of a basis: [258] & [273]. This meant that the restitutionary claim was not limited to the value of the services provided after the basis had been established [351].
- Finally, the Judge held that the defence of illegality/public policy did not apply to alleged breaches of regulatory banking obligations because the statutory scheme of the Financial Services and Markets Act 2000 excluded the possibility of relying on such breaches as a defence, as well as to found claim(s): [293]–[296] & [355]. Breaches of such regulatory obligations were held to be no defence to private law rights of action because “there is only one concept of illegality, and the question as to whether a particular claim should be defeated by a plea of illegality should be decided the same way regardless of the context in which the argument from illegality arises” [295].
The case attracted media attention, including in the Financial Times of 6, 9 and 10 December 2024, and 12 March 2025.
George was instructed by Amy Armitage, Sarah Gosling and Madeline Hallwright of Norton Rose Fulbright LLP.
