Matthew Hardwick KC and Ryan Ferro succeed in M&A unjust enrichment claim

On 12 March 2025, judgment was handed down following trial in H&P Advisory Limited v Barrick Gold (Holdings) Limited [2025] EWHC 562 (Ch).

Matthew Hardwick KC and Ryan Ferro acted for the successful claimant, H&P, instructed by Christopher Swart, Lucy Webster, Gabriella Martin and Thulasy Packianathan of Squire Patton Boggs.

The claims concerned H&P’s involvement in the transformational combination of Barrick Gold Corporation and the Defendant (formerly known as Randgold Resources) in 2019, which resulted in the (then-) largest gold mining company in the world. H&P claimed against the Defendant under an oral agreement and, alternatively, in unjust enrichment for financial advisory services rendered to the Defendant in the context of the merger.

The Judge held (inter alia) that H&P was entitled to US$2 million as a restitutionary quantum meruit, finding that the Defendant had been unjustly enriched at H&P’s expense.

The judgment contains a detailed exposition of ‘free acceptance’ as an unjust factor ([200]-[245]), ultimately aligning with the predominant view in the academic literature and Lord Burrows’ obiter view in Barton v Morris [2023] UKSC 3 that free acceptance is not an unjust factor in English law.

The Court accepted H&P’s argument that there had been a failure of basis ([246]-[264]) and recognised that, in the context of investment banking services in M&A transactions, an unjust enrichment claim may encompass services rendered before a client had indicated that the investment bank was ‘on the ticket’. In this regard, the Judge noted that “it is the common expectation of all parties in this market that, where a basis is established, it will be to the effect that the investment bank’s remuneration will embrace work done prior to the establishment of the basis as well as thereafter”: [255].

The judgment also addresses (and dismisses) arguments that the Defendant was not enriched ([176] ff.), that the enrichment was not at H&P’s expense ([197] ff), that H&P was a disappointed risk-taker ([265]-[274]) and that H&P’s claims were precluded by the illegality doctrine (including in reliance on putative breaches of various regulatory obligations under FSMA) ([275]-[296]), as well as discussing principles of valuation ([297] ff).

The decision can be found here.