In Alfa Finance Holding AD v Quarzwerke GmbH [2015] Alfa Finance Holding AD (Alfa) brought an action for specific performance in the High Court in order to enforce its contractual right of reasonable access to the books, records and documents of certain companies which it had sold to Quarzwerke GmbH (Quarzwerke).

Background

Alfa and Quarzwerke entered into an agreement in December 2012 for the purchase by Quarzwerke of a Bulgarian company and a 67.2% interest in another Bulgarian company (Kaolin AD) and its subsidiaries from Alfa. Clause 12.1.3 of the agreement conferred certain rights on Alfa, in respect of the companies which it formerly owned, as follows:

"The Purchaser [Quarzwerke] shall and shall procure that the relevant Group Companies [Kaolin AD and its subsidiaries] … shall retain for a period of ten (10) years from the Closing Date … the books, records and documents of the Group Companies to the extent they relate to the period prior to Closing and shall procure that the relevant Group Companies shall allow the Seller [Alfa] and its professional advisers reasonable access to such books, records and documents, including the right to take copies at the Seller's [Alfa’s] expense."

In June 2014 Alfa formally requested access to documents under the above provision. Quarzwerke did not comply with the request and Alfa brought an action for specific performance. Quarzwerke’s arguments included:

  • The obligation was insufficiently precise to form the subject matter of an order for specific performance.
  • Alfa had failed to demonstrate why it was reasonable for it to have access to the broad range of documents requested. In order to determine whether access is reasonable it is appropriate to look at Alfa’s reasons for seeking access.
  • Alfa was seeking access to the documents in order to circumvent the disclosure process in an ongoing arbitration between the two parties.

Decision

Judge Purle, sitting as a High Court judge, held that:

  • Damages would not be a suitable remedy because of the impossibility of quantification of damage and also because the information could relatively easily be provided. This was an appropriate case for specific performance.
  • The obligation in clause 12.1.3 of the contract is capable of being performed in a number of different ways. It is open to the court, in order to give its order specificity and effectiveness, to spell out what performance is required in the particular circumstances, just as, for example, the court will fix a completion date for the sale of land which may be different from the contractual completion date, which will often have passed by the time the case gets to court and an order for specific performance is made.
  • The reference to reasonable access in clause 12.1.3 of the contract extends only to the method and timing of access, so that access needs to be sought at a reasonable time and by a process which it is reasonable and practicable to meet. The reasons for Alfa seeking to exercise its contractual rights were ‘neither here nor there’, because that is exactly what it was doing, exercising its contractual rights.
  • Alfa had the right to see anything in relation to the period in question, including, if that be the case, for the purpose of what was described by Quarzwerke as a fishing expedition, to see if there was anything else for the arbitration between the parties that may not yet have been disclosed. Disclosure would not in any way hinder the arbitration or circumvent it. The arbitral process will either be enhanced or be unaffected by disclosure under the contract.

Comment

Without more specific wording, the use of the word 'reasonable' in such a context is likely to be interpreted by a court as not requiring the relevant party to provide reasons for exercising its contractual rights.