In the Supreme Court of the United Kingdom

UKSC 2023/0031
Aura Finance Pte Ltd (Appellant) v. Radiant Development Ltd (Respondent)1

Parties

1. Aura Finance Pte Ltd (“Aura”) is a private limited company incorporated under
Singaporean law sometime in January 2000. It provides financial consultancy services
to various stakeholders in the Singaporean banking and financial sector. Angie Tan
(“Angie”) has always been Aura’s majority shareholder and managing director from
day one.

2. Radiant Development Ltd (“Radiant”) is a private limited company incorporated under

English law sometime in August 1970. It is a prominent property developer specialising
in developing Grade-A office towers across Central London, and leasing them to
tenants under long-term leases. Robert Davies (“Robert”) has been working with
Radiant since the early 90s, and was eventually appointed as its CEO since sometime in
December 2014 2012.

3. Angie and Robert have been acquainted with one another since the late 80s when they
were both pursuing their MBA at the London School of Economics (LSE). In fact, at
some point in time, they became good friends and that friendship blossomed into a
romantic relationship.

4. However, towards the end of their studies, they mutually decided to not pursue the
romantic aspect of their relationship any further, as Angie was due to return to
Singapore after her MBA. Be that as it may, their relationship remained cordial and
they do meet up for coffee whenever Angie travels to London for holidays. They each
also have loving families of their own since.

Aura’s Intended Expansion into the EU

5. Sometime in the 4th quarter of 2010, after several years of conducting in-depth market
researches, Aura’s board of directors resolved to expand Aura’s business into the EU –
subject to Aura obtaining the formal approval of its shareholders and the necessary
approvals from the authorities and regulators in Singapore and the countries in the EU.

6. At the same time, Angie was also authorised by Aura’s board of directors to handle
everything that was needed to secure the necessary approvals, and also to source for
prospective office space in London to house Aura’s headquarters in the EU, if and when
those approvals have been obtained.

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7. The reason why London was chosen to be Aura’s headquarters in the EU was because
of a peculiar law in Singapore. In essence, this law requires any Singapore-incorporated
company intending to expand into the EU to be headquartered in an island nation
member of the EU which is no less than 70,373 square kilometres in size2 (“SG Law”).

8. Angie did not mind this at all. She was in fact excited by the prospect of her husband
and her living in London for some time so that they can be closer to their children who
are pursuing their studies in different parts of the UK.

9. By early February 2013, Aura managed to obtain all the necessary approvals and its
expansion plan was in motion.

Events Leading to the Lease Agreement

10. After that, the first person that came to Angie’s mind was Robert. She thought that
even if a deal cannot be made with the company Robert was working for, he can at
least point her in the right direction given his years of experience in the London
property market.

11. So, Angie called Robert up sometime in mid-February 2013 to speak to him about this,
including why London was chosen. Robert said this to her:

“The timing of all these is just bonkers, Angie! I just got appointed as Radiant’s
CEO in December. ‘Twas the best Christmas gift ever! And don’t look any further.
We just got a brilliant deal on this strategic piece of land, yeah. Right smack in
Paddington. It’s ace! The lads will love it if I can lock this deal down with your
company.”

12. Angie was excited to hear this. She made travel arrangements to London for a site visit
on the following week itself. Angie immediately fell in love with the area.

13. The only issue was that the construction of the office tower itself will take 2 years. This
meant that Aura will only be available to carry out its expansion plan in 2 years. Robert,
however, promised Angie that Radiant can customise the eventual office tower to suit
Aura’s taste and business needs. Robert also said that the parties can just sign a non-
binding memorandum of understanding in the meantime, and the binding lease
agreement can be signed off later on once the office tower is ready.

14. This proposal was enticing to Angie. After all, Aura was looking towards a long-term
presence in EU. So, once she came back to Singapore in late February 2013, she

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 brought this up with Aura’s board of directors. To her surprise, she didn’t need to do
much to convince the other directors that this was a good deal for Aura in the long-
term.

15. After 2 months or so, Aura’s architect came up with the proposed design and
customisation for a 20-storey office tower, and Radiant confirmed the feasibility of the
same. By then, the parties had also agreed on all the material commercial terms for the
eventual lease of the office tower. These terms were then reduced into a non-binding
memorandum of understanding which the parties executed in late April 2013.

16. Radiant then swiftly obtained all the necessary planning and building approvals from
the relevant local authorities, and commenced the construction works for the office
tower by mid-May 2013.

17. The construction works proceeded very smoothly throughout without any hiccups. So,
the office tower was completed and ready by late May 2015.

18. Following that, Aura and Radiant entered into a lease agreement on 1.6.2015 (“Lease
Agreement”), by which Aura agreed to lease the office tower from Radiant for a period
of 35 years commencing from 1.7.2015 with a 1-month rent-free fit out period in June
2015. Some of the other pertinent terms of the Lease Agreement are reproduced in
Annexure ‘A’ to this Moot Problem.

Brexit & Its Aftermath

19. In the meantime, the Conservative Party led by David Cameron emerged victorious in
the 2015 UK General Election. Several political analysts attributed this victory to the
Conservative Party’s widely-publicised manifesto for this General Election.

20. In line with the manifesto, the UK EU membership referendum was eventually held on
23.6.2016. As it turned out, 51.9% of the electorates who turned up voted for the UK to
leave the EU.

21. As Angie’s children were on their summer break, her entire family was in Singapore
during the referendum. When she found out about the results of the referendum the
following morning, she was left shell-shocked.

22. She was particularly troubled by what this could mean for Aura’s business in the EU. So,
she immediately called Robert up to discuss this. Robert said this to her:

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 “Angie, this is all a load of Tory tosh! There is no bloody way the UK will actually
leave the EU, you’ll see.”

23. Angie therefore decided to leave it at that for the time being. However, she knew that
Aura had to consult solicitors in the UK to prepare for the worst case scenario.

24. Unfortunately, the solicitor engaged by Aura previously in respect of the preparation of
the Lease Agreement had retired. So, she recommended another solicitor to Angie
instead, and even helped to arrange a meeting between Angie and that other solicitor.

25. At the meeting, Aura’s new solicitor found out more from Angie about the background
events leading to the Lease Agreement. He also reviewed the Lease Agreement and the
impact of the SG Law on the Lease Agreement. Having done all that, he told Angie that
he is of the view that the Lease Agreement will be frustrated under English law in the
event the UK does end up leaving the EU.

26. Aura’s board of directors was relieved to hear about this from Angie. Whilst the
cessation of Aura’s business in the EU will merely reduce the overall profitably of the
company, the continued lease of the office tower in addition to that will certainly mean
that Aura will become insolvent. With that, Aura’s board of directors decided to just
focus on Aura’s business in the EU in the meantime until there was a little more clarity
about the Brexit situation.

27. Eventually, the UK government triggered Article 50 of the Treaty on European Union in
late March 2017. This was following the passing of the European Union (Notification of
Withdrawal) Act 2017.

28. Following that, Aura issued a letter to Radiant on 3.4.2017 stating that Aura has been
advised that as a matter of English law, the Lease Agreement will be frustrated upon
the UK formally completing the EU withdrawal process.

29. Robert was surprised to see this letter. He tried to call Angie up several times to speak
to her about it, but Angie did not return any of those calls.

30. Soon after, Robert consulted Radiant’s solicitor about the contents of that letter. After
reviewing the Lease Agreement, Radiant’s solicitor told Robert that she is of the view
that Brexit does not constitute a frustrating event, and even if it does, it cannot operate
to frustrate the Lease Agreement.

31. Robert then caused Radiant to issue a letter to Aura on 10.4.2017 stating that Radiant
has received contrary advice from its solicitor, and will be guided by this advice instead.

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32. Whilst the personal relationship between Angie and Robert broke down completely,
both Aura and Radiant continued their landlord-tenant relationship under the Lease
Agreement without any hiccups. This was because everyone knew that the real trigger
event will only happen once the Brexit transition period ends.

33. Eventually, after several extensions, the trigger event did arrive. On 31.12.2020, the UK
formally completed its separation from the EU.

Dispute

34. So, on the first working of January 2021, Aura issued a letter to Radiant stating that
Aura is treating the Lease Agreement as having been frustrated effective 31.12.2020,
and will be vacating the office tower by end of the month as they pull out of the EU
market. Aura also added that it is prepared to compensate Radiant for the “ad hoc
occupancy of the office tower during this transitional month”, and proposed a sum
“equivalent to what [Aura] used to pay [Radiant] as monthly rental under the Lease
Agreement”.

35. Radiant responded to Aura with a letter of its own on the very next day. Amongst
others, Radiant reiterated that the Lease Agreement was not frustrated and was still
capable of being performed. It also added that Aura’s conduct in “prematurely
abandoning [its] obligations under the Lease Agreement amounts to a breach of
contract, and [Radiant] will sue [Aura] for damages in the form of full rentals for the
unexpired term of the lease”.

36. Aura ignored that letter and proceeded with vacating the office tower. By the last week
of January 2021, the office tower was completely deserted. Radiant did however
receive a cheque from Aura to the tune of £4,000,000 for the “ad hoc occupancy of the
office tower during this transitional month”. With that, Aura ceased all its business
operations in the EU in light of the SG Law.

37. Radiant then commenced legal proceedings against Aura at the High Court sometime
in mid-February 2021. After obtaining the necessary order to effect service out of
jurisdiction, Radiant duly caused the notice of legal proceedings to be served on Aura
in Singapore on 15.3.2021.

38. In these proceedings, Radiant alleged that Aura had breached the Lease Agreement by
wrongfully terminating it, and claimed for a whopping sum of £1,412,000,000 as
damages to account for the rent for the unexpired term of the Lease Agreement.

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39. Aura rightfully did not raise any jurisdictional challenges. However, Aura alleged that
the Lease Agreement had been frustrated as a result of Brexit, and that it has been
discharged from further obligations under the Lease Agreement.

Proceedings at the High Court

40. After a full trial, James Jackson J ruled in favour of Radiant on 16.8.2021. In doing so, he
read out the following brief grounds ex tempore:

“Whilst do not discount the fact that Brexit is capable of being a frustrating event
to attract the doctrine of frustration, I find that it is not one for the purpose of the
Lease Agreement.

The Lease Agreement was simply for the leasing of the office tower in
Paddington. This was not made impossible by Brexit. Brexit also did not radically
change the purpose for which the Lease Agreement was entered into.

As for the [SG Law], I don’t see how this piece of foreign legislation can have any
impact on the Lease Agreement. The parties had already expressly agreed that
English law will be the applicable law for the Lease Agreement.

In the upshot, I’m allowing Radiant’s claim. However, I’m only granting damages
to Radiant in the sum of £1,059,000,000. This is after deducting the costs and
expenses which Radiant would have had to incur to maintain the office tower
throughout the term of the Lease Agreement. Parties may discuss and agree on
the issue of costs, but if there is no agreement, they must deliver their skeletal
submissions to me by this Thursday noon.”

Proceedings at the Court of Appeal

41. Dissatisfied with the High Court’s decision, Aura appealed against that decision to the
Court of Appeal. On 14.2.2022, the Court of Appeal dismissed Aura’s appeal, and
affirmed the High Court’s decision.

42. Aura did, however, obtain permission from the Court of Appeal to appeal to the
Supreme Court.

Proceedings at the Supreme Court

43. Following that, Aura now appeals to the Supreme Court on the basis that:

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 43.1. the entire purpose of the Lease Agreement was to facilitate Aura’s expansion
into the EU in light of the SG Law – which was frustrated by Brexit;

43.2. further or alternatively, the doctrine of comity requires the English courts to
take into account the SG Law (which is still in force to date, despite repeated
calls by the Singaporean business community to the Singapore government to
repeal or amend it) and its impact in considering the law governing the Lease
Agreement following the English rule on conflict of laws.

44. After much anticipation, Aura’s appeal has been set down for hearing before the
Supreme Court on 18.2.2023 and 19.2.2023.

© Aravind 2023

1
The names of persons and/or entities appearing in this Moot Problem are purely fictional, and any
similarities to actual persons and/or entities are unintended and purely coincidental.

2
This is a purely fictional law. Its validity, legality, and/or constitutionality shall not be questioned or
challenged by the Mooters for the purpose of the Competition.

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 Annexure ‘A’
(Excerpt from the Lease Agreement)

“1.0 Definitions

1.1 In this Lease Agreement, the following words and expressions shall have the
corresponding meanings assigned to them, unless the context otherwise requires:

“Demised Premises” means the entire Grade-A office tower with an

address at 4201, Kingdom Street, Paddington Central,
London W2 6BD, United Kingdom

“Landlord” means Radiant Development Ltd

“Rent” means the monthly rent payable by the Tenant in the

sum of £4,000,000

“Tenant” means Aura Finance Pte Ltd

45.0 Termination by Tenant

45.1 The Tenant shall be permitted to terminate this Lease Agreement by giving a written
notice to that effect to the Landlord only upon the occurrence of the following
series of events:

45.1.1 the Landlord defaults on any of its obligations under this Lease
Agreement;

45.1.2 the Tenant issues a written notice of default to the Landlord demanding
the Landlord to remedy the default within 21 days;

45.1.3 the Landlord fails to remedy the default within 21 days from receipt of the
Tenant’s written notice of default.

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45.2 Save as provided in Clause 45.1 above, the Tenant is prohibited from terminating
this Lease Agreement before the expiry of its term on 30.6.2050. In the case of a
wrongful termination by the Tenant, the Tenant shall be liable for the full Rent for
the entire duration of the unexpired term of this Lease Agreement.

77.0 Governing Law & Dispute Resolution

77.1 This Lease Agreement shall be governed and construed in accordance with the laws
of England & Wales.

77.2 Any dispute or difference arising out of or in connection with this Lease Agreement,
including any issue as to its existence, validity, or termination, shall be resolved
before a court of competent jurisdiction in England & Wales, which shall have
exclusive jurisdiction over the same.

78.0 Assignment

78.1 The Tenant is absolutely prohibited from:

78.1.1 assigning this Lease Agreement or any of its rights and obligations under
this Lease Agreement; and

78.1.2 underletting or sub-letting the Demised Premises or any part thereof to

any other party.

78.2 The Landlord is not entitled to assign this Lease Agreement or any of its rights and
obligations under this Lease Agreement without the prior written consent of the
Tenant.

78.3 This Lease Agreement shall be binding upon and inure for the benefit of the parties
to this Lease Agreement as well as their respective successors (and permitted
assigns, in the case of the Landlord).”

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 “Practise in front of the mirror.

Practise in front of friends.

Practise to and from work in the quiet of your mind on the train.

Don’t be shy to talk out loud, to yourself, honing your skill – it is not madness, if in private – I guess just don’t
do it in the supermarket or pubs.

Always be looking for ways of

phrasing questions,
turning phrases,
encapsulating arguments,
controlling witnesses,
and more – don’t ever stop wondering.

Think new ideas – work on them, and have the courage to try them.”

- Iain Morley QC (2015) “Learning Advocacy” in The Devil's Advocate. 3rd edn. Sweet & Maxwell.