Latham Advises On Kier Group’s GBP 241 Million Capital Raise

A capital raise is when a company approaches existing and potential investors to ask for additional capital (money) in the form of either equity or debt. Equity. Equity raising is when a company raises funds by issuing new shares.

Latham & Watkins is advising Rothschild as sponsor and Numis and Peel Hunt as joint bookrunners to Kier Group plc (Kier) on Kier’s underwritten firm placing, placing, open offer, and separate directors’ subscription, raising gross proceeds of approximately £241 million.

The capital raise, together with the recent sale of Kier Living Limited, will raise approximately £352.4 million of gross proceeds for Kier.

The proceeds will provide Kier, a leading infrastructure services and construction group, with the financial and operational flexibility to continue to deliver on its strategic objectives.

The Latham team was led by London corporate partner Chris Horton, with associates Sean Meehan and Frederick Gardner. United States securities advice was provided by partner Ryan Benedict and capital markets lawyer Irene Pistotnik.

Latham & Watkins Overview

Latham & Watkins LLP is an American multinational law firm. Founded in 1934 in Los Angeles, California, Latham is the second-largest law firm in the world by revenue. As of 2021, Latham is also one of the most profitable law firms in the world, with profits per partner exceeding US$4.5 million.

Construction Legal Disputes in Hungary

Legal Disputes mean any action, suit or proceeding between or among the Parties arising in connection with any disagreement, dispute, controversy or claim arising out of or relating to this Agreement or any related document.

One of the most important fields of law in the practice of our Legal Partnership is Construction Law. According to our experience, one of the most relevant questions in the legal disputes of Construction Law is legal proof, and forensic experts play a very important role in the proving procedure.

The expert is nominated by the judge from the list of forensic experts in the legal procedure. However, even before submitting the statement of claim there is a possibility to ask for the nomination of the forensic expert from the notary public who will also appoint him from the list of forensic experts.

This kind of delegation is usually asked if for some reason the building contractor cannot continue the construction, finish it or another building contractor continues it, in these cases the notary public appoints a forensic expert to determine the responsibility of the building contractor or their defective performance.

The expert report of the forensic expert appointed by the notary public should be taken into consideration as if the forensic expert’s appointed by the court. Of course, the parties can delegate private experts but primarily their expert report is taken into consideration as the certain party’s declaration, so the power of proof of these private experts is weaker than the experts’ appointed by courts and notary publics.

However, the new Code of Civil procedure came into force on 01 January 2018 in Hungary attributes more power to the so called private expert report, as long as during the preparation of the report, the party hiring the private expert and the expert kept the warranty rules which respect the interests of the other party.

These rules ensure the right to inform the other party and also ensure the other party to make comments.

With regard to the fact that very short time has passed since the entry into force and there is no judicial practice regarding the private experts, but presumably the experts appointed by courts and notary publics will keep their primacy regarding their force of proof.

Contracts which became impossible in Hungarian construction

In construction industry contracts cannot be performed according to the intentions of the parties in each case. It means that the parties cannot fulfil their duties. In the practice of our Legal Partnership we usually meet cases in which the performance of the contracts became impossible or one of the parties referred to it. We can talk about the impossibility of the performance if the reason of the impossibility has been originated after the conclusion of the contract. According to Hungarian law and Hungarian judicial practice, the impossibility of performance can be physical impossibility, legal impossibility or impossibility of the interests. The latter type of impossibility of performance is accepted only in very special cases by Hungarian courts.

If performance has become impossible for a reason attributable to one of the parties, the other party shall be relieved from the obligation of contractual performance and may demand damages for the loss caused by non-performance of an obligation. If performance has become impossible for a reason attributable to both parties, the contract shall be terminated and the parties may demand damages from each other in the proportion of their interaction. According to the general rule of the Hungarian Civil Code, if performance has become impossible for a reason that cannot be attributed to either of the parties, the monetary value of the services provided before the time when the contract was terminated shall be compensated. It is important to know that the last general rules cannot be applied in case of contracts for professional services.

In case of contracts for professional services special rules shall be applied and in this case also other circumstances shall be respected in connection with the application of the legal consequences of impossibility of contractual performance. According to these special rules, if performance has become impossible for a reason that cannot be attributed to either party and the cause of impossibility has occurred within the control of the contractor, he shall not be entitled to demand remuneration. If the cause of impossibility has occurred within the control of customer, the contractor shall be entitled to remuneration, but the customer shall be entitled to deduct the amount that the contractor had saved or could, without great difficulty, have earned elsewhere in the time gained. If the cause of impossibility has occurred within or beyond the control of both parties, the contractor shall be entitled to a proportionate amount of the remuneration for the work done and for his expenses.

According to our experience, if we meet an impossibility of performance in a construction contract which cannot be attributed to either of the parties, we have to consider circumspectly within which party’s control the impossibility of performance has occurred. Finally, I would like to remark that the category “within the control of the party” and legal consequences of the impossibility of performance were known and applied also by Roman Law.

Dr. Tamás BALÁZS
Attorney at law
Managing Partner