Can a Pre-Completion Downward Revision to the Target’s Forecasted Performance Constitute a MAC in an English Law SPA?

There has historically been very little reasoned consideration by the UK Courts of MAC conditions in English law SPAs. In contrast, there have however been a number of cases in the US Courts (particularly in Delaware) which have considered MAC conditions. The Delaware Courts have interpreted MAC conditions narrowly and in a seller friendly manner.

The developing UK jurisprudence, although in its relative infancy, suggests that UK Courts will approach MAC conditions in a similar way to the US Courts and in particular in a narrow and seller friendly manner. One of the recent cases in that developing jurisprudence is Ipsos v Aegis , in which the High Court of the England and Wales considered an application to strike out a claim made by the buyer that certain MAC related provisions in an SPA had been triggered. The High Court held that a pre-completion downwards revision to target forecasts is unlikely, of itself, to trigger a MAC clause.