This case report is now 0 months old and may not represent current law.
Can two brokers both earn a success fee on the same deal? Yes, if you’ve agreed that they will both work on it and both be paid, and the Court of Appeal has now held that a broker in that position only had to show its work had some real effect on getting the deal done, even though the other broker found the investor and did most of the talking. The broker that did less was also on the bigger fee, so its client ended up paying US$2.25 million for what it saw as a modest amount of help.
The case is Alphier Capital Two LLP v Blyvoor Gold Capital (Pty) Ltd [2026] EWCA Civ 1432, decided by the Court of Appeal on 9 November 2026. Lord Justice Foxton gave the only reasoned judgment and the other two judges agreed, upholding the decision of Mr Justice Richards in the High Court earlier this year. I wrote recently about Moelis v Emirates, where an adviser that had been told to stop work still won its success fee, and this case looks at a different question, which is how much a broker has to do to earn its fee when it is sharing the deal with someone else.
What happened
Blyvoor is a small mining company which bought a disused gold mine in South Africa in 2016 and needed private finance to bring it back into production. In March 2018 it appointed Exotix, an investment bank, as a non-exclusive finance broker, and a fortnight later it appointed Legacy Hill, a two-person firm, on similar terms. Under both engagement letters the success fee was only payable on money from an investor the broker had introduced.
Legacy Hill introduced Orion, a very large mining investor, which quickly became the only investor that mattered, so on the original terms Exotix would have earned nothing. Blyvoor wanted Exotix’s modelling and back-office capacity as well, though, so the three of them signed a tripartite agreement to “jointly pursue” about US$70 million from Orion. It replaced the fee terms for the Orion money with an initial fee of 3% for Exotix and 2% for Legacy Hill, plus smaller deferred fees, so Exotix was on a higher fee than the broker that had brought Orion in.
The deal turned out to be easy, as a term sheet was signed within weeks, Legacy Hill handled most of the contact with Orion, and the funding agreements were signed in August 2018 (Exotix didn’t find out until January 2019). Exotix’s contribution was to explain how a gold pricing mechanism in Orion’s offer worked, to comment on the term sheet (its comments went into the mark-up sent back to Orion) and to model Orion’s offer against future gold prices.
What Exotix had to do to earn its fee
Nobody argued that Exotix got paid just for signing the tripartite agreement; the trial judge had rejected that, and Exotix didn’t pursue it on appeal. The question was what the old engagement letter’s wording, that Exotix would “help place the Investments”, required now that the investor was Orion.
Blyvoor said Exotix had to be an effective cause of the funding, in the sense that it had to make a difference to whether Orion invested or on what terms, and that helping Blyvoor understand and get comfortable with Orion’s offer wasn’t enough. The Court of Appeal disagreed, pointing out that the effective cause rule, which comes mainly from estate agency cases, usually turns on who introduced the buyer, and it exists largely so that the client doesn’t end up paying two agents for the same sale. Here Exotix couldn’t introduce Orion, as it was already at the table, and the agreement expressly contemplated both brokers being paid, so the usual reasons for the rule didn’t apply.
The court gave “help” its ordinary meaning, so Exotix’s work had to have a real world effect on obtaining the finance, but that could be by getting Blyvoor to the point where it was willing to accept Orion’s offer just as much as by changing Orion’s mind. A “but for” test would also have been commercially odd, as it would have encouraged the two brokers to poach each other’s work or duplicate it.
The fee didn’t have to match the work
Blyvoor’s strongest point was that the result was commercially unreal, as it was paying Exotix more than Legacy Hill for doing much less. The court’s answer was that the pricing reflected what Exotix might have had to do if the deal had been difficult, and the deal happened to be easy. As the trial judge had said, not much work was needed from either broker, so not much was needed from Exotix to help. Lord Justice Foxton added that with contingent fees a broker will sometimes earn far more than the work was worth, just as it will often do valuable work and get nothing.
The same is true of most success fee arrangements, in that you’re paying for a result, and the broker carries the risk of working for nothing on deals that don’t happen, so you can’t easily complain afterwards that the fee was large for the effort involved unless the contract ties the fee to the effort.
How much weight it carries
This is a Court of Appeal decision, so it binds lower courts, but it turned on the particular wording of two engagement letters and a short tripartite agreement, and on findings of fact by the trial judge which the Court of Appeal was always going to be reluctant to disturb. It doesn’t mean every broker gets paid for any contribution at all. Exotix still had to show its own work had a real effect on getting the funding, and the trial judge found that its dealings with the state investor in the same project didn’t meet that test.
If you’re using more than one broker or adviser
Business owners don’t often appoint two brokers to sell the same business, but it does happen, particularly where one has found the buyer and another is brought in for the financial or technical side, and the same thing can happen with fundraising. If you bring a second adviser into a deal that is already under way, the agreement should say exactly what each of them has to do to earn a fee and what happens if the deal turns out to need very little from one of them. If you want a fee to depend on a particular result, such as introducing the buyer or negotiating the price, say so, as a word like “help” or “assist” sets a low bar. You might also cap the combined fees, or make part of a fee depend on the second adviser doing a defined piece of work, rather than agreeing percentages based on what you hope each will contribute.
Keep a note of who actually did what as the deal goes along. Exotix’s case rested on three fairly specific pieces of work which the judge could identify from the documents, and it’s that kind of record that decides these disputes years later.
I review engagement letters from brokers and corporate finance advisers as part of my contract review work, and I act for owners selling their business from heads of terms through to completion. Get in touch if you need some help.
Written by Steven Mather, a business solicitor acting on company sales and purchases. This is general information about the law, not legal advice on your situation. Law correct as at .
