Illiquidx Limited v Altana Wealth Limited

I am going to refuse permission to appeal on all of those grounds.

In respect of ground 1, this is a challenge to a matter which was a question of construction, which is ultimately a finding of mixed fact and law as to the meaning of the contract, but I am ultimately determining what the contract means.

There is no suggestion that the law or the legal principles were wrongly applied, it is just that the defendant disagrees which of the rival constructions of the contract I concluded was correct, and I have explained the reasoning for that. It is a question of what this contract means in the factual matrix, and I think I am better placed to do that than the Court of Appeal because it requires an assessment of the evidence and a feel for what the background is.

I think it is also fair to say that it is no longer the touchstone that I am better placed than the Court of Appeal to do it. These are matters for the first instance judge, and even if an appeal court would have reached a different conclusion, as I understand the position they do not interfere with the first instance judge's conclusions unless there has been an error of principle or law or it is a decision which no reasonable judge could have reached. That is often said in relation to findings of primary fact; see Volpi v Volpi, but the Court of Appeal applies it in cases where the original determination is done in a hearing in which the evidence is entirely on paper, where the Court of Appeal is in fact in as good a position as the trial judge to form a view. I am thinking of an appeal against one of my decisions called Purkiss v Kennedy where they declined for that reason to allow the appeal.

I ought to say I also do not think that Mr Moody-Stuart's argument has a real prospect of success, because, as I perhaps rudely put it in the judgment, I did not see any force in it.

Ground 2: whether the information which the defendant accepts was confidential information was in the public domain was ultimately a fact-sensitive question turning on the evidence I heard as to the practice in the industry, evidence about gentlemen's agreements as to confidentiality, the impracticability of using NDAs, the nature of the restricted circulation, the evidence I heard about who was chosen for the circulation. It seems to me that ground 2 is a challenge to findings of fact, and, for the reasons I have already given, it does not seem to me that it is a matter for the Appeal Court.

I should say I do not see, as Mr Moody-Stuart suggested, an inconsistency between the finding that the information as to what bonds were tradable was in the public domain and the finding that the opportunity to create a sanctions compliant fund was not in the public domain. They are completely different things. So I do not see any force or any real prospect of success in relation to ground 2.

Ground 3, Mr Moody-Stuart helpfully makes clear, is dependent on grounds 1 and 2, so I shall say nothing more about it.

Ground 4: appeals are against orders, not reasons, and I will not say any more about that.