ING BANK NV V ROS ROCA SA

[2011] EWCA Civ 353, Lord Justice Rix, Lord Justice Carnwath, Lord Justice Stanley Burnton, 31 March 2011

Contract- Construction - Whether "something had gone wrong with the language" of the contractual provision - Estoppel by convention

The defendant was a waste management company to which the claimant had provided financial advice under an agreement in connection with the search for a third party investor in Ros Roca. The issue of the litigation was how to calculate the remuneration of ING. The first issue turned on the proper construction of the formula "the Enterprise Value/EBITDA 2006 (‘EV/EBITDA 06') entry multiple implicit in the Transaction", used to calculate the remuneration of ING. The judge had held that EBITDA 2006 was not implicit in the transaction and that therefore ING's construction made no commercial sense, preferring Ros Roca's construction. ING appealed, and Ros Roca cross-appealed arguing that there was an estoppel.