Alphier Capital Two LLP v Blyvoor Gold Capital: Court of Appeal upholds US$2.25m broker success fee

The Court of Appeal has dismissed an appeal by South African gold miner Blyvoor Gold Capital (Pty) Ltd against a High Court order requiring it to pay a US$2.25 million success fee to investment bank Alphier Capital Two LLP, referred to in the proceedings as Exotix. In a judgement handed down on 9 November 2026 ([2026] EWCA Civ 1432), Foxton LJ, with whom Miles LJ and Butcher LJ agreed, held that a contractual obligation to "help place the Investments" carried only a weakened causal requirement. That requirement was met where the broker's work had a real world effect on obtaining the finance.

Blyvoor bought a disused gold mine in 2016 and sought private funding alongside support from the Industrial Development Corporation of South Africa. In March 2018 it engaged Exotix on a non-exclusive basis for a 5% placement fee, payable only on investment by an investor Exotix introduced. It engaged a second broker, Legacy Hill, on similar terms.

Legacy Hill introduced Orion Resource Partners, leaving Exotix with no entitlement under its original terms. Valuing Exotix's modelling and back-office capability, Blyvoor entered a Tripartite Agreement with both brokers to pursue jointly around US$70 million from Orion. Exotix was to receive fees totalling 3.75% and Legacy Hill 2.5%. Funding agreements were signed in August 2018.

At first instance, Richards J ([2026] EWHC 244 (Ch)) held that the surviving causal requirement came from the obligation to "help place the Investments", now read as relating to Orion. He found that Exotix met that test.

Before the Court of Appeal, Richard Power KC for Blyvoor argued that the original effective cause requirement in the engagement letter survived and set a more demanding threshold. He also submitted that work affecting only Blyvoor's willingness to accept Orion's terms, rather than Orion's own conduct, could not qualify.

Foxton LJ rejected both arguments. Drawing on Nahum v Royal Holloway and Bedford New College [1999] EMLR 252, he observed that effective cause requirements normally decide between competing agents and protect a principal from paying twice. Neither purpose applied. Exotix could no longer introduce Orion, and the agreement contemplated both brokers being paid for the same financing.

A "but for" requirement would have encouraged the brokers to poach or duplicate each other's work. The ordinary meaning of "help" included helping Blyvoor assess and become comfortable with a funding proposal, and nothing in the wording or commercial context justified treating analysis that confirmed Orion's pricing differently from work that produced a counter-offer.

Blyvoor's reliance on the fee split, which suggested Exotix's contribution was expected to be worth 50% more than Legacy Hill's, also failed. Foxton LJ stressed that the expectation concerned Exotix's potential contribution, and that Blyvoor had not contracted on the basis that the fee depended on work commensurate with that estimate. He endorsed the trial judge's view that, since little work was needed to close the deal, little was needed for Exotix's work to help place the investment. Contingent fees, he observed, will sometimes reward a broker beyond the objective value of its work.

The second ground was dismissed without calling on the respondent. The third, an evaluative challenge, failed under the Henderson v Foxworth Investments Ltd [2014] UKSC 41 threshold. The findings on Exotix's analysis of the eight-day gold quotation period, its term sheet comments reflected in the mark-up sent to Orion, and its modelling of Orion's offer gave a sufficient basis for the conclusion.

Richard Power KC (instructed by Mishcon de Reya LLP) appeared for Blyvoor. Arnold Ayoo and Weishi Yang (instructed by Three Graces Legal) appeared for Exotix.