High Court Dismisses Claim By Advisory Firm And Broker-dealer For USD 11.6m Success Fee For Provision Of M&A Services Outside Scope Of Agreement

The court found that the parties' written contract covered the M&A services provided, and even if the contract did not cover those services, it precluded the pursuit of an unjust enrichment claim

The High Court has dismissed a claim by a boutique advisory firm and a broker-dealer against a Belgian company (now CMB.TECH NV and formerly Euronav) seeking a success fee of USD 11.6 million for M&A advisory services provided during Euronav's merger with a US company: RMK Maritime (Europe) Ltd & Anor v CMB.TECH NV [2025] EWHC 2739 (Comm).

The court found that: (i) the parties' written agreement covered the services performed due to its catch-all provision for "other advisory related work" so the firm was not entitled to any compensation beyond the USD 2 million received; and (ii) even if the services performed fell outside the scope of the agreement, its terms precluded the firm from pursuing an unjust enrichment claim.

This is the latest decision in a line of cases considering the recoverability of success fees (see our previous blog posts). The decision will be of interest to financial institutions as it illustrates the limits of restitutionary claims for success fees where a contractual framework governs the relationship. It reaffirms, as per Rock Advertising Ltd v MWB Business Exchange Centres Ltd [2018] UKSC 24 (see our blog post), that parties are bound by the written terms they agree, especially where they contain provisions requiring variations or changes to be made in accordance with contract's mandated process. It also reflects the guidance in Barton v Morris [2023] UKSC 3 (see our blog post) that a subsisting contract between parties may leave no room for an unjust enrichment claim because contract law governs the allocation of benefits and losses.

The decision highlights that even when a party performs services outside the scope of a binding written agreement, the court may find that the agreement's terms may preclude, limit, or displace a claim in unjust enrichment. In the present case, the court emphasised two important features of the agreement that barred such a claim: (a) a 'no oral modification' or "NOM" clause, which required that any changes must be made in writing; and (b) express provisions which required the parties to document additional services in a written agreement – these notably provided that an email did not count as a written communication. These terms showed that the parties clearly intended to regulate scope and remuneration through formal variation, thereby allocating risk and preventing either party from relying on informal assurances or conduct. As a result, the firm could not rely on restitutionary principles to recover fees for services which had not been contractually agreed.

We examine the decision in more detail below.

Background

In 2016, the defendant Euronav engaged the claimant advisory firm (RMK) under a written advisory agreement to assist with strategic modelling and analysis for a potential merger with a US company (Gener8).

Under the agreement, Euronav assigned RMK to develop an acquisition model and provide general advisory support. The agreement also set out a fee structure, totalling USD 2 million, payable when RMK achieved certain milestones. Over the following two years, RMK actively participated in the potential Euronav/Gener8 merger. In addition to the development of an acquisition model, RMK provided Euronav with a broader range of M&A services (including deal structuring, valuation advice, negotiation support, and due diligence coordination). In June 2018, a successful merger took place between Euronav and Gener8. RMK received the USD 2 million fixed fee specified in the agreement, but claimed that Euronav informally promised or led it to expect a success-based or discretionary bonus. When Euronav offered an additional USD 1 million discretionary bonus at a meeting in late June 2018, RMK refused the offer on the basis that it did not consider it adequate compensation for the broader M&A services it had provided.

RMK subsequently brought proceedings against Euronav seeking USD 11.6 million in restitution on aquantum meruit basis (this applies when one party induces another to confer a benefit on him through a non-contractual promise and fails to fulfil that promise), arguing that Euronav unjustly enriched itself. RMK contended that it provided M&A services beyond the scope of the agreement based on a shared understanding that Euronav would pay a further fee, either by agreement or at a reasonable market rate. Accordingly, RMK alleged unjust enrichment, arguing that the basis for providing the additional services failed and/or Euronav freely accepted the benefit of those services, knowing that RMK expected payment.

Euronav denied the claim, asserting that all RMK's services fell within the scope of the agreement and that RMK was not due any additional payment. Alternatively, Euronav argued that even if RMK performed some services outside the scope of the agreement, RMK's claim failed as a matter of law. The agreement included a "no oral modification" clause and required the parties to agree in writing to any variation in scope. Euronav maintained that any suggestion of further payment was understood to be discretionary and that allowing a restitutionary claim for extra-contractual services would circumvent the contractual framework.

Decision

The High Court found in favour of Euronav and dismissed RMK's claim. The court held that: (i) RMK's services fell within the scope of the agreement due to its catch-all provision for "other advisory related work"; and (ii) even if RMK's services fell outside the scope of the agreement, the agreement's terms precluded RMK from pursuing an unjust enrichment claim.

The key aspects of the decision which will be of interest to financial institutions are set out below.

Interpretation of the agreement

The court considered and rejected RMK's suggestion that the parties' pre-contractual communications were relevant and admissible. RMK argued that they showed that the agreement's purpose was to appoint RMK to a limited role rather than as a full time M&A advisor.

Referring to Merthyr (South Wales) Ltd (FKA Blackstone (South Wales) Ltd) v Merthyr Tydfil County Borough Council [2019] EWCA Civ 526 (see our blog post), the court acknowledged that the parties may examine previous documents to show the surrounding circumstances and to explain the commercial or business object of a contract. However, the court emphasised that parties may not rely on evidence from pre-contractual negotiations to draw inferences about the contract's meaning.

In the present case, the court stated that the parties had not established the exact scope of RMK's role as part of the Euronav/Genr8 transaction's aim. Rather, it was one of the terms under discussion during the negotiations which led up to the agreement on the scope of contractual services clause of the agreement. In substance, the court considered that RMK sought to use statements and positions from the negotiations to determine that clause's meaning.

Accordingly, the court disregarded the parties' pre-contractual communications and focused on interpreting the agreement's terms.

Scope of contractual services

The court considered and rejected RMK's suggestion to interpret narrowly the clause setting out the scope of its services. RMK argued that the first subclause established its primary obligation: to develop the acquisition model and that all other subclauses should be read in that light, applying an ejusdem generis (of the same kind) construction.

Applying the well-known principles of contractual interpretation from Arnold v Britton [2015] UKSC 56(see our blog post), the court stated that it did not find it justifiable to adopt a restrictive reading of the relevant clause and subclauses, which set out the scope of RMK's contractual services. The court highlighted that one particular sub-clause, the catch-all provision for "other advisory related work", reflected the interlinked nature of M&A buy-side advisory services. In principle, the catch-all sub-clause could easily cover advice or discussions about the deal's capital structure, advice or discussions about asset values for the model, due diligence to obtain information modelling, relaying information to the client from the model, and discussions with third parties (i.e. services which RMK was claiming were additional, were outside the scope of the agreement and which should result in an additional payment). Conversely, the court found that RMK's approach made it difficult to assign any real content to that subclause.

Taking the above into account, the court considered whether RMK's tasks – including modelling, valuation input, negotiation support, and due diligence coordination – fell within or outside the clause setting out the scope of RMK's contractual services. The court concluded that RMK's services fell within the scope of the agreement, either through the sub-clauses setting out RMK's primary/other obligations or its catch-all provision for "other advisory related work".

Unjust enrichment

While the court's finding that RMK's services fell within the scope of the agreement could have disposed of RMK's claim, the court considered whether a quantum meruit claim could succeed if RMK performed some services outside the agreement, despite a valid contract governing the parties' relationship.

Citing Rock, where contractual provisions denying validity to variations or changes that had not been agreed in accordance with a contractually mandated process were upheld, the court acknowledged the importance as a matter of English law, of enforcing and giving effect to the parties' autonomy to bind themselves.

The court also highlighted that, as per Barton, a subsisting contract between the parties may leave no room for an unjust enrichment claim. This is because: (i) a party cannot claim unjust enrichment against another party for the other party receiving a benefit to which they are legally entitled; and (ii) redistributing the allocation of benefits and losses set by contract law by applying other legal principles would undercut the contractual regime. The court acknowledged that different considerations may apply when a party performs work outside the scope of the contract, particularly if the contract is discharged or never binding, or if the work is performed under an anticipated contract that never materialises. In such cases, the law of unjust enrichment may apply.

However, the court rejected the suggestion that the parties may always bring an unjust enrichment claim if the contract does not expressly exclude it and additional services are provided. In its view, the court stated that parties must always consider whether the claim is consistent with the contractual regime to which they have committed themselves. The question is whether the parties have expressly excluded or limited remedies in unjust enrichment, or whether the contract's terms indicate that a remedy in unjust enrichment has been displaced.

Failure of basis

Applying Rock and Barton, the court rejected RMK's suggestion that the parties' discussions between 2017 and 2018 about fees and services demonstrated a joint basis for RMK to provide additional services in return for additional payment.

In the court's view, the agreement's terms left no room for a restitutionary claim, even for extra-contractual services. The agreement contained a 'no oral modification' clause and two provisions specifically addressing the possibility of expanding the scope of services. Those provisions reflected the parties' clear consensus that they would require a written document for any additional services. That approach would provide both parties with clarity about the scope of additional services and the terms for providing them. Among other things, these provisions were designed to prevent either party from arguing, based on oral conversations (minuted or otherwise), emails, or text messages, that extra services had been requested or provided or that additional payments were due. The provisions allocated risk by preventing RMK from claiming to have provided additional services and to be entitled to payment for such additional services unless the parties agreed in writing. They precluded the possibility of an unjust enrichment claim based on the alleged provision of such services.

The court also highlighted that the provisions strongly indicated that the parties were not operating on a joint basis as RMK alleged. The contractual provisions were intended to prevent uncertainty about such matters. Given the contractual provisions, a party in Euronav's position would view the services as falling within the scope of the agreement unless RMK sought a written change/revision. Given those provisions, the court said it would be inappropriate to find a joint basis or understanding as RMK alleged, unless supported by particularly clear and compelling evidence. No such evidence existed in the present case.

The court also said that even if the evidence was assessed without any presumption that the parties were not operating on a joint basis, it still did not establish the alleged joint basis. The court disagreed with RMK that the bonus offer was inconsistent with Euronav's position that RMK had no further entitlement to payment, finding that the offer was instead consistent with there being agreement that the parties envisaged paying a discretionary bonus at the end of the transaction, subject to discussion between the parties. In its view, there was no occasion on which Euronav accepted that RMK was working beyond the scope of the agreement, or that RMK would have an entitlement to additional payment, or any pattern of contacts from which it could reasonably be assumed that Euronav accepted either of those points. To the contrary, Euronav indicated that any additional payment would be a discretionary bonus for work done well within the auspices of the agreement.

Finally, the court said it was unable to accept RMK's suggestion that there was also a failure of basis even if Euronav indicated that it would pay a discretionary bonus then failed to do so, with the result that RMK was entitled to claim a reasonable sum. In its opinion, this failed to take account of the fact that Euronav did, at the end of the transaction, offer a discretionary bonus of USD 1 million. There could not have been a failure of basis merely because RMK chose not to accept that offer.

The court concluded that there was no joint basis or understanding that could support an unjust enrichment claim for restitution.

Free acceptance

Applying Rock and Barton, the court added that allowing RMK an unjust enrichment claim based on a 'free acceptance' basis would not be just.

In its opinion, Euronav's communications with RMK showed that Euronav considered the agreement to govern all the services being provided and only envisaged a discretionary bonus at the end of the transaction. By providing any additional services without negotiating a written alteration to the list of services (and consequent revised remuneration provisions), RMK took the risk that those services would be unremunerated except for any discretionary bonus as Euronav might agree to pay.

Accordingly, the court found in favour of Euronav and dismissed RMK's claim.

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