Alexander Isaac Hamilton v Mark Colin Barrow & Ors

This case concerns a failed unregulated investment scheme. The investors in the scheme understood that their money would be used in foreign exchange trading. When the scheme collapsed in 2017 many investors were unable to recover their investment.

These proceedings are a sequel to proceedings before Mrs Justice May. In those proceedings the present claimant claimed the amount of his individual investment from the present first, second and fifth defendants. May J gave judgment in his favour: [2023] EWHC 1743. The Court of Appeal gave the first and second defendants limited permission to appeal from that judgment, but dismissed the appeal: [2024] EWCA Civ 888. I understand May J’s judgment has been satisfied and the final costs order is required to be paid by 31^st December 2025.

The claimant now brings proceedings against a wider group of defendants. He does so under one hundred and one assignments from other investors. On 21^st October 2024, Master Thornett gave permission to serve the claim form on the eight defendants who were at that time resident out of the jurisdiction.

I am concerned with a series of eight applications which I heard on 1^st to 3^rd July 2025. I gave the first and second defendants 14 days to file additional submissions on one issue if they wished to do so. They availed themselves of that opportunity. The claimant replied to those submissions on 31^st July 2025. The third and fourth defendants filed further submissions on 15^th August 2025.

In order to understand the parties to the present proceedings, it is necessary to provide a bare outline of the investment scheme at this stage and to set out some of the findings of Mrs Justice May.

Schedule A to the Particulars of Claim sets out the names and addresses of each assignor and the amount each invested. The smallest amount is £ 2,930; the largest is £ 410, 969. Over half the sums are less than £ 50,000 and nearly one quarter between £ 50,000 and £ 100,000.

The majority of the addresses in Schedule A are in the United Kingdom. The next most common location of the assignors (with twenty two) is Cyprus. There are also assignors in Australia, Ireland, Singapore, Thailand, the United States of America, and the Turkish Republic of Northern Cyprus. I was told in the hearing that people from all over the world invested. The evidence before Mrs Justice May was that there were thousands of investors.

The basic outline of the scheme was that investors paid their money to a ‘currency club’. The funds were then to be traded in foreign currency by a third party, the twelfth defendant to the present proceedings, who was based in Malaysia. Although a series of bank accounts was used to receive investor funds over time, the most important accounts used by the club to receive investor funds were in the names of two Seychelles companies at the Bank of China in Macao: IIMM International Ltd (‘IIMM’) and Marela International Services Ltd (‘Marela’).

Mrs Justice May found that the currency club was a partnership between the first and second defendants and a series of section or ‘club’ leaders, of which the present fifth defendant was one. She found that the present fifth defendant had made a series of fraudulent misrepresentations to the claimant about how his money was to be dealt with, which misrepresentations had been relied on by the claimant when deciding to invest. She also found that there was a contract between the claimant and the partnership which included terms as to how investors’ money was to be handled and that the present fifth defendant would use reasonable skill and care in administering the invested funds and reporting to investors. May J expressed surprise at the paucity of written communications or records given the scale of the club operation. She found the three defendants before her jointly and severally liable for damages arising from misrepresentation and breach of contract.

Mrs Justice May did not find that the claimant’s case in the tort of conspiracy was made out in the evidence before her. She noted that the claimant had indicated in his closing that he was no longer pursuing his pleaded trust claim.

The single judge, Lord Justice Phillips, in refusing the present fifth defendant permission to appeal against Mrs Justice May’s findings of fact, said: “The case in fraud against the third defendant was overwhelming.”

The parties to the current proceedings are as follows:

As can be seen from the above summary, a number of the parties appeared in person. I found all their submissions to be clear and focused.

No defendant has filed a Defence. There were eight application Notices. Seven of these were by defendants. They sought to set aside permission to serve out of the jurisdiction or service or else to strike out or stay the claim on a number of overlapping bases. The application Notice by the claimant sought permission to amend the Particulars of Claim.

The issues that were argued before me, which were distilled from these various applications, were as follows:

The Particulars of Claim

Some of the submissions that were made at the hearing sought to argue that one or other of the allegations in the Particulars of Claim was weak. I cannot come to any conclusions as to the correctness of those submissions at this stage. The various applications must be determined on the Particulars of Claim as filed.

The allegations made in the Particulars of Claim may be summarised in the following way.

The business of the currency club was the promotion, management and administration of a fund or group of funds, for participation in the investment trading of a reported successful FX Trader, the twelfth defendant.

The investors were told that the club managed the fund on their behalf. At least a proportion of the investors was told that their funds would be placed in an account on an authorised and regulated FX trading platform under the control of at least one of the defendants. At least some investors are said to have been told that this account was held with Barclays Bank in Knightsbridge. Others are said to have been told that these accounts were held elsewhere.

At least a proportion of the investors was told that: the club would release funds to the twelfth defendant for the purposes of trading; that the percentage of investors money that would be risked in any trade would be limited; and that the twelfth defendant had no direct access to the fund. It is alleged that investors were told that the twelfth defendant was paid a commission on winning trades only. It is said that the expectation was that the twelfth defendant would send the details of the trades to the club and the club would then email the details on to investors. There are also said to have been representations about when requests could be made to withdraw funds, the detail of which changed over time.

The Particulars of Claim allege that a good deal of what investors were told was untrue. In fact, it is said, there was no account at a regulated FX trading platform whether under the control of the club or otherwise. The monies were in fact paid by the club to the bank accounts of the twelfth defendant at HSBC and other banks in Malaysia, under his sole control. In addition, it is alleged that the club managed the incoming funds by a process of ‘netting-off’. The club would use the funds under its control to pay out existing investors and to pay the partners what are alleged to be undisclosed commissions. It was then only the residue that was paid on to the twelfth defendant. It is said that in this respect, the club operated as a ‘Ponzi’ scheme. It is further alleged that once the twelfth defendant started refusing to send funds back to the club in early to mid 2016, the scheme became a full ‘Ponzi’ scheme.

As I have said, it is alleged that the twelfth defendant did not in fact conduct any trades. The details of trades that he passed to the club and which the club reported to investors are said to have been made up. It is said, the twelfth defendant simply stole the investors’ money, including by transferring it to an account in Nevis. There are additional allegations that the twelfth defendant paid monies back to the first and second defendants.

The club notified investors of the club’s collapse in March 2017. It is alleged that the club members attempted to conceal the problems with the scheme and full details of how it operated in practice, for as long as possible.

The following claims are pleaded: a claim based on fraudulent misrepresentations, against the first to eleventh defendants; a claim based on breach of contract terms said to be constituted by inter alia the representations made to investors, against the first to eleventh defendants; there are detailed particulars of fraud (including against the twelfth defendant who it is alleged: “removed and stole deposits which had been entrusted to the fund management of D 1-11”); a claim alleging breach of fiduciary duties said to arise by reason of the first to eleventh defendants’ position as “investment agents” for investors; breaches of “an express, resulting or constructive trust” by the first to twelfth defendants, the trust being said to have been constituted by the terms on which the monies were paid by the investors to the club and/or the subsequent dealings with the invested funds; and an unlawful means conspiracy involving the first to eleventh defendants, which spanned the period from the initial representations to investors, to the alleged misrepresentations made to investors after the club collapsed.

The relief sought includes damages, the amount of the “commission” or “profit” taken by the first to eleventh defendants, and:

“28.

In so far as the defendants and any of them have wrongfully received funds held on trust, the claimant seeks an account and an inquiry into what assets have been purchased by the defendants, using money held on trust and whether and to what extent any such assets are held on trust by the defendants for the claimant.”

The assignments

Although the Particulars of Claim are detailed, the relative simplicity of the assignors’ position can be seen from the terms of the assignments. I have not seen all one hundred and one assignments. I understand it to be accepted that they are in common form.

Each assignment contains an appendix which asks the assignor to set out the amount he or she lost and to identify the section leader(s) of the currency club they communicated with during the period 2016 to 2018, along with the email address of the section leader (s).

The recitals to the agreement are in the following terms:

“WHEREAS:

A.

The Assignor is party to a contract, appointing the Currency Club Partnership (“the CCP”) as Trustees/Managers and Custodians to act as Agents and Fiduciary Trustees for the Assignor and for the provision of foreign exchange investment fund fiduciary, management and custodial services (“the IFFMC Contract”), commencing in or around 2013 to 2016;

B.

The Assignor (s) has agreed to assign the IFFMC Contract and the benefit of all contractual rights entitlement to repayment to which the Assignor is entitled, including any rights for recovery of losses, to the Assignee in accordance with the terms of this Deed.”

The agreement continues:

“1.

ASSIGNMENT

1.1

In consideration of the payment of £ 10-00 (ten pounds) to be paid BY the Assignee to the Assignor on or before 31 December 2024, the Assignor hereby assigns:

(a)

All his/her/ rights, title, interest and benefit of in and to the Contract, to the Assignee;

(b)

All causes of action including claims for monies, if any, due to the Assignor, which may have arisen from any breach of the IFFMC Contract or failure of duty of the Agents/Trustees/Managers/Custodians.

1.2

In consideration of the Assignment, the Assignee agrees:

(a)

To use his best endeavours to perform all the obligations of the Assignor under the IFFMC Contract.

(b)

To pursue performance of the IFFMC Contract by the CCP or any associated party or seek to recover any losses arising from any breach of the IFFMC Contract by the CCP or, if so caused, losses occasioned by any breach of trust or fiduciary duty or, if so caused, any losses caused by any other person (s) or other entity.”

(underlining in the original)

Clause 2 obliges the assignor to assist “…in the conduct of performance of the contract or anylitigation…” and enumerates a number of specific litigation related forms of assistance.

The final version of clause 3 provides that the assignor is entitled to sixty per cent of “any net profits/compensation/damages which…has been received by the assignee, arising from any net income arising from the contract or from any claim for losses or other litigation, arising from any breaches of the IFFMC Contract, or other associated losses”. This amount is expressed to be calculated after excluding (in summary): any amount received as a result of an adverse costs order; the reimbursement of costs and expenses not recovered by such an order; a sum of £ 140,000 to represent work done already by the assignor between 30 January 2017 and 30 January 2024; and any premium or share of damages paid to a litigation funder.

Each assignment contains an English jurisdiction and proper law clause.

The relevant background and history of the proceedings

Investors in the fund were told of its collapse by email in March 2017. Following the collapse, the claimant and other investors began to try and find out what had gone wrong. They also began to consider ways in which they might take action in relation to what had happened, including by reporting to the authorities in Malaysia and elsewhere. It appears that a number of informal groups of investors were formed who kept in contact with each other by email and on Facebook. The claimant was in contact with at least one of these groups by email.

It appears from the correspondence that the claimant was considering litigation in 2017. He was referring to a “class action” from at least May 2018, although it is the claimant’s evidence that he was not using that term to mean any particular form of proceedings. In July 2018 the claimant was considering a “class action” in Malaysia. In September 2018, the claimant and others met in the Avanti Hotel in Paphos and formed the “Avanti Litigation Committee”. In January 2019 it circulated a formal proposal for litigation, which involved interested investors making an initial contribution with a view to approaching law firms (one in each of London, Kuala Lumpur and Limassol is listed) and litigation funders. However, it appears as though there were “less than thirty” direct respondents, which was too few to make the proposal financially viable. The committee therefore disbanded in April 2019. It is the claimant’s evidence that no other victim wanted to take on the risk of litigation without outside litigation support.

The claimant says that in April 2020 he decided to go it alone after selling a small investment property to help fund the litigation. However, it appears from the correspondence that he still hoped either to obtain litigation funding or to find a lawyer who was prepared to take the case under a conditional fee agreement. In correspondence with other investors, he made clear that he would be the “sole claimant” and was taking all the risk. In June 2020, in correspondence with Mishcon de Reya (who he had approached to represent him) the claimant said “there will be no class action”. Although the original claim form is not in the bundles, I understand that proceedings were commenced (using another firm) in July 2020. A freezing order was made against the first and second defendants (the final order was by consent) in August 2020.

The claimant says that he has always wished to help other victims and that that “general predisposition” has never altered from the notice of the collapse of the club until now. His evidence as to his attitude to this at the time of commencing the first claim is that prior to issuing the claim he was considering “all and any avenue to assist other victims including a class action and/or assignment of causes of action”. However, he says that after commencing his claim and obtaining the freezing order, he was not prepared to have a class action or assignment which would conflict with his personal claim. The claimant says he was following the advice of his then solicitor (in a letter he has attached to his witness statement) in requiring his own claim to recover his own losses as having priority.

In May and early June 2021, the claimant sent emails to other investors, seeking help with evidence for his claim. In an email of 20^th May 2021, he began by saying “…please do not alert Barrows as to pending class action, although they know it is coming, if they lose to me.”. In the text he refers to a “planned class action” involving thirty members, the success of which “depends entirely on the precedent setting success of my claim”. The “class action” is referred to in two further emails in the chain.

In around June 2021, the English law firm Giambrone proposed assisting the investors to bring a claim. It had participated in a BBC documentary and ran a webinar for interested individuals to attend. It appears that this proposal also required contributions from investors and envisaged litigation funding. By the autumn of 2021, it also appears to have run into the ground for lack of interest.

In late June 2021, the claimant discussed the Giambrone proposal in emails with some of his group of investors. He said that as far as he was concerned, Giambrone were legitimate. However, he referred to the fact that he had a conflict of interest by reason of his own “limited number of victims” class action. He said that for the last three years he had been assembling evidence to launch a class action dependent on the success of his personal claim. He said “…I am endeavouring to fund 99 % of the class action myself in return for 45% share of any recovery.” In his witness statement, the claimant explained this part of the email by saying that at that time, his intention was that he would act as a commercial litigation funder for other victims if his claim were to be successful. The contemporaneous understanding of at least the assignor Paul Martin in an undated Facebook post, was that the claimant may be willing to act on a “no win, no fee” basis in exchange for 45 % of the recovery. In June 2021, the claimant also said that he was awaiting the “big advice” on his personal claim by the end of the month.

The advice the claimant was expecting was from his new solicitors Stephenson Harwood. On 31^st May 2021, the claimant had emailed Stephenson Harwood, copying a group of investors. In that email he referred to his “duty” and “objective” to pursue early progress in obtaining compensation for “fellow victims” who had proactively assisted him with research and evidence for his claim. He said that the other victims required him to take nearly all costs and litigation risk in exchange for 45 % of their compensation. He asked Stephenson Harwood whether he could add other victims to his own claim. He said this might require assignments but with his claim paying out in full in priority. The claimant also asked about the possibility of extending the freezing order to other defendants.

Stephenson Harwood’s advice came by letter dated 2^nd July 2021, part of which has been disclosed. It said that it was inadvisable to continue with the litigation unless the claimant could secure litigation funds. It said that the case based on misrepresentations was “finely balanced” and advised seeking a second opinion from counsel. It said that the allegations of fraud as then pleaded could be the subject of a successful strike out application. It said that “we do not recommend initiating a class action by adding further claimants to the claim”.

The claimant says that after this advice he ceased fresh attempts to assemble a group claim and that he steered his group towards Giambrone. However, as Mr Page KC points out, the claimant was still referring to a group claim in email correspondence on 20^th August 2021. Although in the same email the claimant acknowledged that the “lawyers are panicking” about a class action joining in his claim and that the “possibilities are limited”.

A conference with counsel was held on 7^th September 2021. The claimant has disclosed the resulting email correspondence with Stephenson Harwood. It records that both counsel and solicitors were of the view that the claimant had no viable fraudulent misrepresentation, breach of trust or conspiracy claim against the first two defendants. It described any claim against the third defendant as “very risky” because they did not know if he had any assets to enforce against. Stephenson Harwood advised that it was not in the claimant’s best interests to continue the claim.

The claimant initially replied to say that he had decided to discontinue his claim subject to not paying costs (although he raised the prospect of an alternative claim for breach of contract or in negligence). However, in the early evening the claimant emailed again to say that he needed more time to think. The following day he changed his mind. He referred to the possibility of a contract or negligence claim and to the Partnership Act. He said that he would prefer to spend his money on investigating those claims rather than on paying the defendants’ costs.

Following the Case Management Conference on 30^th September 2021 and on considering the costs budget, the claimant decided to terminate his instructions to Stephenson Harwood as he could no longer afford to pay their fees. From that time, he conducted his claim alone with the assistance I refer to below. The particulars of claim were amended to include a claim in contract in late 2022.

The claimant’s firm and repeated evidence is that from the date of the combined advice of Stephenson Harwood and counsel, he abandoned any intention to commence any kind of group claim in association with his own. He points to the considerable additional risks he would have had to take on to include other victims in such a claim against express advice on the merits. He says that from the date that he terminated Stephenson Harwood’s instructions, his sole focus was on investigating and managing his own claim with the resources then available to him.

In January 2022, the claimant met Mr Stanway. Mr Stanway is a semi-retired English litigation solicitor who lives in Cyprus. Mr Stanway had begun to assemble his own group of investors with a view to group litigation. His proposal involved working with a firm of solicitors called Fosters. It also involved obtaining initial contributions from interested investors and obtaining leading counsel’s advice in order to approach litigation funders. It is clear from what Mr Stanway says in his emails, the subject line of most of his emails and the terms in which he approached Fosters, that any group claim he managed to organise would be against Bank of China and/or the other banks. Mr Stanway’s proposal does not appear to have obtained sufficient support from investors either. However, in late 2022 the claimant forwarded this opportunity to his group of investors. In correspondence referring to this proposal, the claimant referred to this as a joint plan between him and Mr Stanway.

Mr Stanway also gave considerable assistance to the claimant in preparing for and conducting the litigation of his personal claim. The claimant sets out the details of this assistance and the modest remuneration that Mr Stanway received. His assistance included attending the trial as the claimant’s McKenzie Friend.

The first trial was held from 24^th to 31^st January 2023. After May J had reserved her judgment, the claimant wrote to Mr Stanway complaining about a lack of communication in relation to Mr Stanway’s planned claim. He said that unless he heard from Fosters by 24^th February 2023, he would proceed unilaterally and “in so far as I may be managing a group claim, this will be under my sole management.”. The claimant’s evidence is that at this time he was considering a group claim against the twelfth defendant and HSBC in Malaysia, based on evidence that had been disclosed in his personal action. On 10^th May 2023 he sent an email to forty-five investors proposing such a claim. He asked for a contribution of 1 % of the amount the individual investor had invested. On 26^th May 2023, the claimant emailed again to say that he had only received six expressions of interest and that: “this is now the end of any group claimant road from my desk unless miracles turn up…”

May J circulated her draft judgment on 13^th June 2023. It appears that within 24 hours Giambrone put a message on its website seeking to reignite interest in a group action. Giambrone has confirmed that there was no contact with the claimant at this time. How Giambrone may have become aware of the draft judgment has never been discovered. At the hearing to hand down the judgment on 11^th July 2023, Mr Page KC accused the claimant of contempt of court, which he denied.

The claimant’s evidence as to how he came to change his mind and take the current assignments is as follows.

He says that following the hearing on 11^th July 2023 he was exhausted and worried about how to manage his response to the foreshadowed appeal. He said that he received telephone and Whatsapp calls from other investors congratulating him on his win and asking whether he could help them to recover their losses. They also asked him whether he intended to report the judgment to the UK police. The claimant’s evidence was that he responded saying that he would review the prospects of a group claim. The claimant sent an email to other investors on 12^th July 2023 thanking individuals for their assistance in his claim. He received a complaint from the husband of one of his witnesses complaining that he had not given his wife sufficient credit. The claimant rectified this in a follow up email of 19^th July 2023. In the July correspondence, the claimant acknowledged that he had obligations to other investors that he would endeavour to discharge and asked for evidence for further enquiries and investigations. His evidence was that at this stage he envisaged that this would be for a complaint to the UK police.

The claimant’s evidence is that this contact with other investors and a slow reading of the judgment of May J engendered in him a growing realisation of the debt of gratitude that he owed those who had assisted him to achieve the result he had. He gives detailed particulars of the assistance that those who went on to become assignors had given him. Four were witnesses at the first trial (three of whom travelled from overseas to be there). He identifies evidence or other assistance that twenty eight other specific assignees provided.

The claimant says that he only gradually came to the view that a subsequent claim would have merit. He says that he initially thought that the principal causes of action for any such claim would be statute barred. He says that it was only in late September 2023 that he read the judgment of the Court of Appeal Seedo v. El Gamal [2023] EWCA Civ 330 which he said changed his view on the limitation issue. He says that reading the judgment in Commission Recovery Ltd v. Marks & Clerk LLP [2023] 2 All ER (Comm) 949 made him consider that assignments might be viable. His evidence is that he instructed direct access to counsel to advise in October 2023.

This evidence is consistent with the contemporaneous evidence. The first defendant filed a witness statement in support of his application for permission to appeal May J’s judgment. In it he said that the Court of Appeal should take into account that it was likely to be a test case. One of the reasons he gave for that position was the Giambrone website entry. The first defendant again made the allegation that the claimant had breached the embargo in the draft judgment.

In his witness statement in response, the claimant said that follow up claims did not appear to him or Mr Stanway to be a realistic prospect because the relevant limitation periods had expired. However, a month later, on 28^th September 2023, he sent a letter to the Court of Appeal which he said was prompt notification of a change of outlook. He said that he had now come across the decision of the Court of Appeal in Seedo v. El Gamal, which he said had opened the door for him to assist other victims. He said that he had always wished to help other victims if there was a viable claim.

The claimant’s evidence is that once he had decided to proceed he also extended the invitation to make assignments to Mr Stanway’s group of victims. However, he had to put a time limit on that invitation given that he had underestimated the likely number. The claimant’s evidence is that his primary motivation for taking the assignments was the obligation to other victims a number of whom had assisted him with his claim (and who were not able to bring an action themselves) and out of gratitude to Mr Stanway for his help. He says that a subsidiary motivation was the continued allegations of contempt of court by the first and second defendant. Although this latter motivation appears from his evidence to have been mixed with a competitive feeling that Giambrone should not benefit from his hard work on the first action.

Mr Page KC and Mr Bell ask me to disbelieve the claimant when he says that he did not have the potential assignments in mind between receiving the negative advice in September 2021 and his reconsideration in the summer and autumn of 2023. They point to the pre-September 2021 correspondence and an email dated 15^th June 2022 which refers to a pending group claim, which appears to include some of the current defendants. Mr Page KC relies on the attachment to this email of the March 2017 email about the collapse of the fund as evidence that this email was not concerned with a claim against the banks. The claimant explains the 15^th June 2022 email by saying that it had a dual purpose: the Stanway claim against the banks and doing his best to get more evidence to support his personal claim (a purpose that the subsequent correspondence indicates succeeded).

This invitation to disbelieve the claimant comes as part of the defendants’ abuse of process argument. They bear the burden of proof on that issue. I am not prepared to disbelieve the claimant on this issue. I accept that the email (and one or two others) do refer to the present defendants. However, I must read it in the context of the correspondence as a whole and in light of the inherent probabilities. It seems to me that there would need to be very clear contemporaneous evidence that the claimant was being untruthful in this respect given the claimant’s position from October 2021. At that time, he was proceeding without representation and in the face of contrary advice from both solicitors and counsel. In those circumstances it would be surprising if he was realistically contemplating claims on behalf of others at the same time. In fact, not only is there no such clear evidence, the claimant’s evidence as to his state of mind as to any future claims on behalf of others is corroborated by what he says in his email of 26^th May 2023 and in his initial witness statement in the Court of Appeal in August 2023. The email of 15^th June 2022 was at a time when the only group claim being discussed in other correspondence was Mr Stanway’s against the banks. The attachment of the March 2017 email is not inconsistent with this. It concerned the collapse of the fund and sets out the problems with the twelfth defendant. It would not have been irrelevant to a claim against the banks.

Mr Page KC and Mr Bell also ask me to disbelieve the claimant when he says that his primary motivation in taking the assignments was the moral obligation he felt to other victims, many of whom had assisted him with his claim. Mr Page KC says that the terms of the assignments and his decision to prioritise his own recovery undermine this contention. In oral submissions he said that the claimant’s primary motivation is a grudge against his clients. Mr Bell describes the claimant’s evidence in this regard as “fanciful” and says that the claimant is primarily motivated by financial gain.

I do not accept these submissions either. The whole course of the correspondence shows that the claimant was concerned to ensure that other investors obtained a remedy in addition to himself if there was an avenue by which that could occur, at least without jeopardising his own claim. His email to Stephenson Harwood on 31^st May 2021, some three years before the assignments, refers in terms, both to his sense of duty to other victims and to the consideration that they had assisted him in obtaining material for his personal claim. The claimant is open about the fact that the repeated allegation of contempt of court was a factor in his decision making process, but that does not support the conclusion that he is primarily motivated by a grudge. Mr Bell does not point to any specific correspondence to support his assertion that the claimant is primarily motivated by financial gain. I have not seen any. There appears to have been some confusion as to the terms of the assignments, but I do not think that their current terms read in the light of the whole of the correspondence leads to that conclusion either.

None of the three defendants took this point before Mrs Justice May. Mr Page KC for the first and second defendants did not take the point before me.

All of the other defendants who filed material addressed the issue in their witness statements and/or skeleton arguments. However, in the hearing, those defendants who made oral submissions largely relied on Mr Bell’s submissions under this heading. Mr Bell argued that the proper forum for resolving this dispute is the courts of Malaysia.

The law

In this case, there are some defendants who have been served in England and Wales and some who have been served out of the jurisdiction. In these circumstances, the relevant principles are to be taken from the following passages from the judgment of Lord Briggs JSC in Lungowe and ors v. Vedanta Resources plc and anor [2020] AC 1045 at paragraphs 66 and 68:

“66…The best known fleshed-out description of the concept is to be found in Lord Goff of Chieveley's famous speech in the Spiliada case [1987] AC 460, 475-484, summarised much more recently by Lord Collins JSC in the Altimo case [2012] 1 WLR 1804, para 88 as follows: "The task of the court is to identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice …" That concept generally requires a summary examination of connecting factors between the case and one or more jurisdictions in which it could be litigated. Those include matters of practical convenience such as accessibility to courts for parties and witnesses and the availability of a common language so as to minimise the expense and potential for distortion involved in translation of evidence. Although they are important, they are not necessarily conclusive. Connecting factors also include matters such as the system of law which will be applied to decide the issues, the place where the wrongful act or omission occurred and the place where the harm occurred.

…

68…Although the persuasive burden was reversed, as between permission to serve out against the foreign defendant and the stay of proceedings against the anchor defendant, the court was addressing a single piece of multi-defendant litigation and seeking to decide where it should, as a whole, be tried. The concept behind the phrases "the forum" and "the proper place" is that the court is looking for a single jurisdiction in which the claims against all the defendants may most suitably be tried.”

(see also Vauxhall Motors Ltd v. Denso Automotive UK Ltd [2025] EWHC 213 (Ch) at paragraph 49)

Submissions

Mr Bell accepts that the currency club was a worldwide operation, with transactions taking place in, and participants based in, various countries other than Malaysia.

However, he submits that the relevant connecting factors to Malaysia are:

In support of these submissions, Mr Bell points to the fact that the West Mercia police have refused to investigate, on the basis that any criminal investigation is a matter for the Malaysian authorities. He also relies on the fact that the claimant initially made enquiries about commencing proceedings in Malaysia. Mr Bell dismissed one of the claimant’s explanations for not commencing the claim in Malaysia (that he could not get litigation funding there) on the grounds that he is bringing the claims in person in England and Wales. As regards the fact that the first action occurred in England, Mr Bell submits that as his clients were not a party to those proceedings, it would be unfair to rely on that fact to defeat his argument. He points to what he says was Mrs Justice May’s “scepticism” or “ambivalence” on the issue as evidenced by her statement that:

“5…Although, on the evidence, most of the activity in relation to Mr Hamilton’s investments took place in Cyprus or the Far East, all parties appear to have consented to submit to the law and jurisdiction of England and Wales…or at least no one has sought to argue differently before me.”.

In his oral submissions, the eighth defendant pointed to the fact that the claimant’s case that there were in fact no trades conducted by the twelfth defendant will be a contested issue at trial. He relied on a number of exhibits that showed other relevant enquiries being made in Malaysia connected to the twelfth defendant. He pointed to the number of Malaysian bank accounts whose statements may be required and the existence of the earlier strategy to bring the matter to the attention of the Malaysian authorities.

Decision

As set out above, the question is, as between Malaysia and England and Wales, which is the forum in which the claims against the defendants may most suitably be tried.

In my view that forum is England and Wales, largely for the reasons advanced by the claimant:

As regards Mr Bell’s submissions about the place of formation of the club, its proper law and the importance of the twelfth defendant, the claimant made the following submissions.

He said that I should focus on his case against the club partnership (i.e. the defendants who took part in the proceedings). He said that he does not allege that the twelfth defendant was a member of that partnership.

The claimant does not accept that the club was founded in Malaysia nor that paragraph 10 of May J’s judgment supports that contention. He says that the evidence of a number of the defendants supports the fact that the club was established in Cyprus and then the UK. He says that in an international arrangement such as this, conducted in the way it was, the place where its business took place is where the principal protagonists were at any time. He identified the principal protagonists as the first to fourth defendants and the assignors. He says that as a matter of reality, the first and second defendants spent a considerable amount of their time in Cyprus at the relevant times. He says that the business of the club in promoting, managing and administering the currency club was carried out in Cyprus, the United Kingdom and Thailand. The claimant accepts that a substantial amount of activity occurred in Cyprus and that there are strong connections to that jurisdiction. However, at the hearing the defendants did not assert that that is the appropriate alternative forum. It is of course also true that there are other jurisdictions with important connections to the case. A significant proportion of the relevant funds appears to have passed through the Bank of China in Macao.

The claimant’s position on the proper law of the partnership was not entirely clear at the hearing. The Particulars of Claim assert that the partnership was governed by English law and the proceedings before Mrs Justice May were conducted on the same basis. In oral submissions, the claimant suggested it might be Cyprus, but whether or not that reflected his considered view, he does not accept that the law of Malaysia applies.

I do not need to resolve the conflicts between Mr Bell and the claimant on these issues at this stage. The nature of the material and the submissions means that that can only be done at a trial. For the purposes of this application, there is sufficient merit in the claimant’s submissions to mean that the place of formation and operation of the club and its proper law are not factors which are of sufficient weight to override the factors that I set out at paragraph 70 (a) to (e), above. Whatever the true position, the differences between the parties on these issues are quite capable of being explored fully and resolved fairly in a trial in England and Wales.

This issue was raised in writing by all the defendants who participated in the hearing. However, only Mr Page KC and Mr Bell made oral submissions on it.

The law

Champerty is a rule of public policy. As it applies to the facts of this case it is an aggravated form of maintenance (c.f. Sibthorpe v. Southwark London Borough Council [2011] 1 WLR 2111 at paragraph 55). The aggravating feature is the agreement for a share of the proceeds of the litigation. The history of the rule is described by Steyn LJ in Giles v. Thompson [1993] 3 All ER 321 at pages 328 to 332 (see Lord Mustill (with whom the other members of the House of Lords agreed) in the same case: [1994] 1 AC 142 at 163G). It has its origins in medieval England when the courts were institutionally weak and judicial impartiality not fully developed. The purpose of the head of public policy is “to protect the purity of justice and the interests of vulnerable litigants” (Lord Mustill at page 164 B – C – see also Massai Aviation Services and anor v. Attorney General and anor [2007] UKPC 12 at paragraph 13). In Giles,Steyn LJ (at page 331 G to J) identified the “specific fears underlying the doctrine” as those described by Lord Denning MR in Re Trepca Mines Ltd [1963] Ch 199 at 219-220:

“…The common law fears that the champertous maintainer might be tempted for his own personal gain, to enflame the damages, to suppress evidence, or even to suborn witnesses…”

There are many statements in the authorities to the effect that what public policy requires in this area must change over time in response to developing needs. See, for example: Lord Mustill in Giles v. Thompson at page 164 A to D; and Danckwerts J in Martell v. Consett Iron Co Ltd [1955] Ch 363 at 382.

Criminal and civil liability for maintenance and champerty were abolished by the Criminal Law Act 1967. In Giles v. Thompson, at page 153 F- G, Lord Mustill said that maintenance and champerty have maintained a living presence in only two respects. The second of these was as a ground for denying recognition to the assignment of a “bare right of action”. He said that this was “best treated as having achieved an independent life of its own”. At page 161 B -C, Lord Mustill adopted the following description of what was meant by maintenance from the judgment of Fletcher Moulton LJ in British Cash and Parcel Conveyors Ltd v. Lamson Store Service Co Ltd [1908] 1 KB 1006, 1014:

“It is directed against wanton and officious intermeddling with the disputes of others in which the [maintainer]has no interest whatever, and where the assistance he renders to the one or the other party is without justification or excuse.”

In order to qualify as a relevant interest, the interest must be one that exists independently of the assignment. If the assignee has a genuine commercial interest in the outcome of the litigation, the assignment will be upheld: Trendtex Trading Corpn v. Credit Suisse [1982] AC 679 at 703 G and Massai Aviation at paragraph 17. However, the law of maintenance recognises other legitimate interests: Guest on the Law of Assignment 5^th edition (2024) at paragraph 4-43 (Mr Page KC accepts in his skeleton argument that paragraphs 4-32 to 4-43 of Guest accurately state the relevant principles of law for the purposes of the issues I have to decide) and Tactus Holdings Ltd v Jordan [2025] 1 WLR 1602 at paragraph 69.

This aspect of the law of maintenance was considered by Danckwerts J in Martell (a judgment which Lord Roskill in Trendtex referred to as “the classic judgment” (page 702 D) and Lord Mustill in Giles referred to as an “important judgment” (page 164 B)). Martell concerned assistance given by an association for the protection of the rights of owners and occupiers of fisheries and for the prevention of pollution of rivers, to a number of its members (a riparian owner and the trustees of an angling club) in litigation against the defendant for pollution. Danckwerts J considered the cases that dealt with interests which were sufficient to defeat an assertion of maintenance (see for example, pages 377 and 386 to 387) and dismissed the defendant’s argument. He concluded that the following did not constitute maintenance:

“…support of legal proceedings based on a bone fide community of pecuniary interest or religion or principles or problems”

Paragraph 4-43 of Guest summarises the position as follows:

“…So, for example, an assignment of a bare right of action to a trade union, trade association, interest group, charity or another family member, or an assignment to a special purpose vehicle set up by the assignors to pursue claims against another party, might, depending on the circumstances, be upheld. What is sufficient interest may vary as perceptions of the public interest change.”

The cases that Guest relies on for the last sentence are Giles, Massai Aviation and the decision of the Court of Final Appeal of Hong Kong in Unruh v Seeberger [2007] HKCFA 9 at paragraph 94. The court in Unruh identified as an “excluded category” from the law of maintenance and champerty, a category that (paragraph 95): “involves what might today be referred to as cases involving “access to justice” considerations”. One of the cases that the same footnote in Guest says should be contrasted is Simpson v. Norfolk and Norwich University Hospital Trust [2012] QB 640. However, the Court of Appeal in Simpson appeared to accept that access to justice may be a relevant consideration in an appropriate case: see paragraph 22. As the claimant points out in his submissions (see below) there are a number of statements in the cases to the effect that “access to justice” is a relevant consideration in this context (see also Danckwerts J in Martell at pages 375, 386 and 387 to 8).

The approach now to be taken by a court faced with an allegation that a particular agreement is champertous is as follows:

“19…In order to decide whether a particular transaction is permissible, it is essential to look at the transaction as a whole and to ask whether there is anything in it which is contrary to public policy”

(Massai Aviation at paragraph 19)

Guest (at paragraph 4-41)treats the judgment of Cockerill J in Recovery Partners GB Ltd v. Rukhadze [2019] Bus LR 1166 at 459 to 463 as summarising the modern approach. That case involved an assertion of a commercial interest. Cockerill J said:

“459.

…That there has been a considerable relaxation of the approach to questions of assignment and champerty is beyond doubt. That is reflected in the authorities which do not encourage a narrowly focussed view of the commercial aspects but are clear that it is necessary to look at the transaction as a whole. See for example Massai at [19] Giles v Thompson at 164B and Brownton [Brownton Ltd v. Edward Moore Inbucon Ltd [1985] 3 All ER 499] at 509(iv).

460.

It appears that the court should not be looking to find the absence of commercial interest, but be more focussed on ensuring that transactions which are genuinely contrary to public policy are weeded out: Massai at [19] and Brownton at 510.

461.

What is being sought to be excluded is what is sometimes called "wanton and officious intermeddling"….

463.

It seems to me that the approach adopted by the Defendants does not really grapple with this essential aspect, but is instead geared to the kind of narrow focus on commercial interest which is disapproved in the authorities.”

In Sibthorpe (see paragraphs 35 and 36), Lord Neuberger identified the public policy question as being whether the transaction would: “…undermine the purity of justice, or would corrupt public justice, a question to be decided on a case by case basis.” .

Some of the argument before me concerned the question as to the scope of the concept of a “bare cause of action”. Mr Page KC and Mr Bell both conceded that if the thing assigned was in reality property, to which any litigation was ancillary, the assignment fell outside the law of champerty. Mr Page KC also submitted that the acquisition of a property right or interest with a related right of action is likely to give the assignee a sufficient interest in the claim. He conceded that an equitable property interest arising, for example, from a breach of trust fell into this category.

The operation of these principles can be seen in the judgment of Robin Knowles J in Commission Recovery Ltd v. Marks & Clerk LLP [2023] 2 All ER (Comm) 949.

The underlying claim in Commission Recovery arose from the relationship between a firm of patent and trademark attorneys and its clients. In brief summary, the firm did not itself provide registration renewal services. Instead, it passed the clients’ details to a particular renewal service provider. That provider contacted the client. If the client retained the provider, the provider paid a commission based on the fees it received from the client, to a company associated with the firm. It was alleged that these commissions were not disclosed to the clients concerned. One of those clients assigned its claims against both the firm and its associated company arising from these allegedly secret commissions, to the claimant company.

The written agreement contained the following provisions:

“BACKGROUND

…

(G)

[Bambach Europe] has therefore agreed to assign to [the Claimant] any and all legal claims and property rights it may have in, and in connection with, the Undisclosed Commission on the terms of this Agreement with effect from its date (the "Effective Date")."

Clause 1.1 defined "Claims" in these terms:

"Claims means each and every claim or right arising out of or in any way connected to the Undisclosed Commission that [Bambach Europe], either directly or indirectly, may have or seek to assert against [the First Defendant], CPA, and/or any other person, including any and all statutory, legal or equitable cause or causes of action whether in England and Wales or any other jurisdiction that are, or may be, vested in [Bambach Europe], including but not limited to any claims that [Bambach Europe] has or may have against CPA in relation to charges levied by CPA to [Bambach Europe]."

Clause 2.1 provided for assignment in these terms:

"With effect from the Effective Date, [Bambach Europe] unconditionally, irrevocably and absolutely assigns all of its rights, title, interest, and benefit in and to the Claims, and all interest due thereunder and to become due thereon, and costs which may be or become payable to [the Claimant] in respect of the recovery thereof and the right to commence, prosecute and settle proceedings in respect of the Claims in the name and sole discretion of [the Claimant]."

The defendants sought to strike out the claim on the basis that it was a champertous assignment of a bare right to litigate. Robin Knowles J declined to do so. He said:

“34.

In my view there is a short answer to the application order and the contention that the assignment from Bambach Europe to the Claimant is unlawful and invalid. The answer lies in recognising the nature of undisclosed or secret commissions, rather than dwelling on the several ways in which a claim may be framed to recover a commission or advanced as a result of its payment.

35.

Undisclosed or secret commissions are, in the hands of the agent (here, the First Defendant) and as between the agent and the client, property. The client is entitled to say to the agent, and (where another is used to receive the commissions, to that other (here, the Second Defendant) 'that commission is mine not yours'. The assignment in the present case therefore includes (if the Claimant is right) an assignment of property. As we have seen from Wood (above) we are concerned with the common law and not simply with equity, but in equity, and consistently, the undisclosed or secret commission received by an agent is held by the agent on trust and the principal is not confined to a claim for equitable compensation: see FHR European Ventures LLP and others v Cedar Capital Partners LLC [2014] UKSC 45 .

36.

It was not in issue on the application before me that an assignment of property is not champertous (and thus is not unlawful and invalid for that reason). The assignment of a debt may be taken as an often encountered example. The authorities also show that the fact that there is a dispute as to whether the Claimant (acting bona fide) is correct (i.e. if there is a dispute that the client does have the property that is being assigned) does not affect the validity of the assignment in this context.

37.

Ancillary or incidental rights of action may validly accompany an assignment of property. These include a claim for money had and received and for restitution, and may be used to recover the commission. These rights of action are not being assigned alone, so as to make the assignment an assignment of "bare rights to litigate". It would only be if they were, that the further requirement (identified in Trendtex Trading Corpn v Credit Suisse [1982] AC 679 at 703 per Lord Roskill) for the assignee to possess a "genuine commercial interest in the enforcement of the claim of another" would engage.

38.

In these circumstances I am not prepared to strike out the claim as one based on an unlawful champertous assignment of a bare right to litigate.”

The submissions

I begin with the claimant’s submissions on this issue. I have set out my conclusions as to his motivation at paragraphs 60 and 61, above.

The claimant argues that this is in reality a claim in debt. He argues, that if that is wrong, he can rely on Casehub Ltd v. Wolf Cola Ltd [2017] Costs LR 835at paragraph 25, and the decision of the High Court of Australia relied on in that case: Equuscorp Pty Ltd v. Haxton [2012] HCA 7 at paragraph 53 to bring his claim for breach of contract into the principles that would apply to a claim in debt. The claimant also points out that he has pleaded proprietary claims for breach of fiduciary duty and breach of trust and has a claim for an account, seeking to discover the extent to which the defendants’ assets have been purchased with trust monies. He also points to the fact that he makes both personal and proprietary claims based on the receipt of secret commissions.

The claimant accepts, however, that if they stood alone, a number of the rights of action he pleads would potentially fall within the law of champerty.

As regards the law of champerty, the claimant relies on the statements by Lord Mustill in Giles v. Thompson to the effect that the overall test is to be found in the statement by Fletcher-Moulton LJ set out above. The claimant submits that this is what champerty is all about. He says that he is not acting ‘wantonly and officiously’ but properly in accordance with the public policy in favour of access to justice. He says that the authorities support the proposition that an assignment which allows a claim to be pursued which the potential claimants would not otherwise be able to fund would rarely be champertous. He also points out that on the present facts, the overall burden on each assignor is reduced by combining their cases and that access to justice is thereby also enhanced. The claimant points to the moral obligation that he sets out in his witness statement and says that he is not a ‘stranger’ to the situation but a fellow victim who has acquired, though his own litigation, the ability and experience to help other victims bring their cases. He says that by the assignments, he is requiring to be compensated for his time, trouble and risk, but is not looking commercially to exploit the situation for his exclusive gain.

The claimant relies on the statements in the authorities that emphasise the importance of the consideration of access to justice in this context, in particular: Sibthorpe at paragraphs 43 to 52; Casehub at paragraph 28; Farrar v. Millar [2021] EWHC 1950 (Ch) at paragraph 54 and Akhmedova v. Akhmedova [2020] Costs LR 901 at paragraph 37. He relies on paragraph 69 of the decision in Tactus as authority for what he says is the changing nature of what is meant by legitimate interest.

Mr Page KC’s submissions focused on the contention that each of the pleaded causes of action were bare causes of action. Mr Page KC said that therefore the claimant needed to show a commercial interest and he had none. He had succeeded on his claim and the judgment in his favour had been satisfied.

Mr Page KC acknowledged what is said in paragraph 4-43 of Guest (see above), about the relevant interest not needing to be a commercial interest, but said that there is no case in which a feeling of sympathy for the assignor has been regarded as sufficient. He argued that if the desire to assist impecunious individuals was sufficient to constitute a legitimate interest, the law of champerty would not survive. Any stranger would be able to seek an assignment of a claim on this basis. He said that this was precisely the type of “officious intermeddling” that the law was designed to prevent. Both Mr Page KC and Mr Bell pointed to the statement in Farrar v. Miller [2021] EWHC 1950 (Ch) at 54 (1)(a) that the assignee’s’ familiarity with the claim is not a sufficient interest.

Mr Page KC distinguished the case of Casehub Ltd v. Wolf Cola Ltd [2017] EWHC 1169 (Ch) on the basis that the claims in that case were for a liquidated sum in restitution, not a bare right of action; that the individual claims in that case were of extremely low value (£ 196); and that the case was decided partly on the basis of equality of arms as between the assignors and the defendant. Mr Page KC said that there was no inequality of arms in the present case. He pointed to the fact that most of the defendants had insufficient resources to instruct lawyers. He said that he and Ms Dixon were acting on these applications only, and on a discounted CFA basis.

As regards the claims for breach of fiduciary duty, Mr Page KC says that as pleaded they are personal claims. As to the claims for breach of trust, Mr Page KC, says that any claim for receipt of trust funds that had been misapplied would be assignable in principle but subject to the law of champerty. Mr Page KC refers in any event to his argument (that I deal with in the next section of this judgment, below) that both the breach of fiduciary duty and breach of trust claims are an abuse of process because of the way they were dealt with in the case before Mrs Justice May.

Mr Bell argues that the observations in Sibthorpe and Casehub about access to justice in this context, should be treated with caution. He said that there is no suggestion in any decision that access to justice considerations mean that the test in Trendtex has changed or become more relaxed. He acknowledges that there is dicta to the effect that “the law of champerty, rooted as it is in public policy, can move with the times”. Mr Bell insisted that the kind of interest that is required is a commercial one and did not really engage with paragraph 4-43 of Guest.

Mr Bell accepts that a claim for secret commission and/or monies held on constructive trust is a claim to enforce a property right that is in principle capable of assignment. He also accepts, for the purposes of this application, that such a claim would fall within the terms of the assignments.

He submits, however, that the assignments go far beyond the assignment of property rights and “their concomitant associated causes of action” as he submits is the test to be taken from Re: Oasis Merchandising Services Ltd [1995] BCC 911 at 915A-C, for reasons that included the following. He says that the assignments include every conceivable cause of action that the assignor has or may possess, including claims for damages in tort and contract that exist independently of any property rights that may be assigned. He says that the assignments do not restrict the causes of action assigned solely to individuals believed to possess the property rights of the particular assignor in question. Mr Bell repeats Mr Page KC’s argument that the property right would be against a particular defendant but the wider causes of action are personal actions against the partners jointly and severally. He says that on the evidence filed for the application, his clients only had direct dealings with five of the assignors.

Mr Bell rejects the claimant’s argument that the assignor’s claims are at least partly for the repayment of a debt. He says that a debt is a liquidated or ascertained sum which the debtor has contractually agreed to pay. He says that a claim for damages or under the law of unjust enrichment does not fall within that definition.

In oral argument, and repeated in writing after the hearing, Mr Bell argued that if the assignments, properly construed, cover causes of action that are not prohibited by the law of champerty and also causes of action that are, the assignments would fail in any event because the assignable causes of action cannot be severed. He relied on Zuberi v. Lexlaw Ltd and Anor [2021] Costs LR 13 for that proposition. He also relies on paragraph 4-36 of Guest.

Mr Bell finishes on this point by arguing that in any event, the claimant’s purpose was not to acquire property rights but to bring what he called this multifaceted claim.

Decision

I start with the assignments themselves. As with the Particulars of Claim, I am not concerned at this stage with factual or legal merits of the assertions they make as to the relationship between the assignors and the defendants. The question as to whether the assignments are champertous must be decided on the basis that those assertions are capable of being established at trial.

The recitals to the assignments set out the transaction with which they are concerned. They assert that by contract the assignor appointed the currency club partnership as “trustees/managers and custodians” to act as “agents and fiduciary trustees” for the assignor and “for the provision of foreign exchange investment fund fiduciary, management and custodial services”. The recitals continue by saying that the assignor has agreed to assign the contract and the benefit of “all contractual rights” and “entitlement to repayment” to which the assignor is entitled.

The assignments themselves assign “all…rights, title, interest and benefit of in and to the contract” and “all causes of action including claims for monies, if any, due to the assignor, which may have arisen from any breach” of the contract “or failure of duty of the agents/trustees/managers/custodians”.

The essence of the asserted transaction between the assignors and the currency club as appearing from the assignments, and of the complaint by the assignors as set out in the Particulars of Claim is therefore as follows. It is that the assignors paid their money to the currency club on the understanding that the club would use it to invest in foreign exchange trading on their behalf, in the manner the club represented to them it would. It is further asserted that rather than doing this, the currency club misapplied and/or misappropriated those funds causing the assignors to lose their investment.

I accept as Mr Bell submits, that this is not properly characterised as a claim in debt. As to the claimant’s reliance on the case of Equuscorp, the claimant fairly conceded that some caution is required when reading cases from other common law jurisdictions in this field. It seems to me that the situation that was being considered in that case (a loan agreement that had been assigned) is sufficiently different from the present case, that I am not prepared to accept it as authority for the proposition for which the claimant contended.

Turning to the asserted proprietary claims. At least Mr Bell appeared to accept that a valid claim for breach of trust would be available to at least some extent, in principle. None of the parties cited any authorities on the position in equity of an investor who pays money to a third party for investment purposes and where that party misapplies or misappropriates the money. That makes it very difficult for me to deal fairly with this aspect of the argument. However, it seems to me that the apparent concession that a case such as the one I have summarised in paragraph 110 is capable in principle of giving rise to propriety claims in equity is clearly correct. I accept the claimant’s submission that it is not possible at this stage to make any finding on the merits of the defendants’ assertion that on the evidence a significant proportion of the liability of individual defendants would be personal in nature. As Mrs Justice May pointed out, the club appears to have been run with some informality. Its precise internal operation and the consequences for that for the pleaded case is a matter which will need to be explored at trial.

As I have said, both Mr Page KC and Mr Bell also concede that equitable proprietary claims are in principle capable of being assigned without contravening the law of champerty. Given that that is correct, it would be surprising if on these assignments, the other claims that might arise out of the same relatively straightforward investment transactions were not to be assignable along with the proprietary ones, by reason of the law of champerty. That would defeat rather than enhance the public policies behind the rule. It would simply mean that the whole case could not be put before the court.

I do not accept that the fact that the assignment was made in contemplation of litigation is important. That was not regarded as significant by Robin Knowles J in Commission Recovery. I also do not accept that what is said in paragraph 4-36 of Guest assists Mr Bell’s argument. The case that is cited in that paragraph was concerned with an assignment of the whole of the assignor’s property of which the relevant right of action formed one part. This case is concerned with specific property and rights of action that are associated with the transaction that gave rise to the property right (s). As to Mr Bell’s severance argument, he accepted in oral argument that the logic of his position was that once any potentially pleaded right of action fell foul of the law of champerty, the whole assignment must fail no matter how many other rights of action could perfectly properly be assigned by it. As regards the application of that argument to this stage of the analysis it is inconsistent with the way that the courts have dealt with the question. As set out above, in Commission Recovery for example, once the central claim was seen to be proprietary, the other claims that were sought to be transferred came with it.

I accept that there are some statements in the cases cited by Mr Bell as to the need to examine the overall importance of the proprietary rights by contrast to the other claims. I also accept Mr Page KC’s argument that the case was not argued on this proprietary basis before Mrs Justice May (although the consequences of that fact for this case are dealt with in the next section of this judgment, below).

In the end, I do not need to resolve those issues or decide the application on this basis. I am satisfied that whatever the answer to them, this assignment can be upheld by applying the modern tests for whether an agreement is champertous, that I set out above.

I start with the claimant’s interest in the assigned claims. Mr Bell’s submission that the relevant interest must be a commercial interest is not correct. As Mr Page KC acknowledges, the law of champerty recognises other interests.

It seems to me that the common interest of a group of potential victims of an investment fraud in recovering their investments, is an interest that would fall within the quotation from Danckwerts J in Martell and the passage from paragraph 4-43 of Guest, that I set out above. As Danckwerts J’s reasoning in Martell makes clear, one of the reasons that the law of maintenance recognises such common interests is because otherwise it would be very difficult practically to bring the litigation and vindicate the relevant legal claim. Of course, in a case involving a common interest of the kind that I have identified, each investor will also have an interest in the court hearing the evidence of other investors to bolster or otherwise strengthen their own claim.

In addition, it would seem on the authorities that if a group of such investors were to assign their claims to a special purpose vehicle, those assignments would be upheld: see Guest at paragraph 4-43 and Recovery Partners at paragraph 464 (ii). Indeed, as I understood Mr Page KC’s submissions in reply, he argued that the reason why the claimant’s argument that the assignors had no other avenue to pursue their claims should be rejected, was that the assignors could set up an association to bring their claims.

In these circumstances, it would be surprising if the fact that the claimant has already succeeded in his claim and all that is left of the common interest as far as he is concerned is the moral obligation to the other investors who assisted him to reach that result, meant that he is disqualified by the law of champerty from receiving the assignment. That is particularly so, where the access to justice factors remain relevant and it would have made no sense for him to take any assignment before he had succeeded, at a time when he had been told clearly that he had no claim. The claimant only took the assignments once that advice had been shown to be incorrect by a judgment of the High Court. It does not seem to me that the claimant’s position can accurately be described as “wanton and officious intermeddling” in the assignors’ disputes.

The real difficulty for the defendants is that their submissions on champerty do not address an essential aspect of the modern test. As set out at paragraphs 84 to 86, above, the question as to whether an assignment is champertous should not be answered by looking narrowly to find an absence of interest. The transaction must be looked at as a whole and it is necessary to ask whether there is anything in it which is contrary to the relevant public policies.

Neither Mr Page KC’s nor Mr Bell’s submissions on champerty (I deal with their abuse of process arguments in the next section) identified any aspect of this case as currently framed pursuant to the assignments that tended to: “…undermine the purity of justice, or would corrupt public justice..” (Sibthorpe at paragraphs 35 and 36) or which tended to undermine the need “to protect the purity of justice and the interests of vulnerable litigants” Giles (at paragraph 164 B-D). It does not seem to me that there is anything in the assignments that tends to do so. As regards the fear identified by Steyn LJ as justifying the retention of the rule, it seems to me that the incentives of the relevant witnesses (the assignors) and their attitudes to their evidence is likely to be the same whether that evidence was given in proceedings they brought themselves or in proceedings brought under the assignments and also the same whether those assignments had been made before the claimant had succeeded in his claim or afterwards. As to the risk of “enflaming damages”, each assignment identifies the precise amount each assignor invested.

Ultimately I accept on the whole of the evidence, including the size of the individual investments, that the only effect on the administration of justice of setting these assignments aside on the ground that they are champertous, would be that at least a substantial proportion of the assignors would be denied an opportunity to ventilate their cases in court, in circumstances where there is at least prima facie evidence that they have been defrauded. In those circumstances, to do so would run counter to the public policies that are recognised by the rule.

I reject the argument that these assignments are void as being champertous agreements.

For completeness, I do not accept Mr Page KC’s argument that my conclusion on the facts of this case means that any stranger would be able to take an assignment without falling foul of the rule against champerty. The current claimant is not “any stranger” to this case. Again, as the authorities make clear, the issue of champerty must be decided on a “case by case basis”.

The content of the arguments on this issue depended on whether the relevant defendant was or was not a party to the earlier proceedings. At the hearing, Mr Page KC and Mr Bell made submissions on it.

The law

The parties were agreed as to the over-arching legal principles. They are to be taken from the following cases: Johnson v. Gore-Wood [2002] 2 AC 1; Dexter Ltd v. Vlieland-Boddy [2003] Civ 14 and Aldi Stores Ltd v. WSP Group plc [2007] EWCA Civ 1260. In Dexter Clarke LJ summarised the principles in the following way:

“49.

The principles to be derived from the authorities, of which by far the most important is Johnson v Gore Wood & Co [2002] 2 AC 1, can be summarised as follows:

i)

Where A has brought an action against B, a later action against B or C may be struck out where the second action is an abuse of process.

ii)

A later action against B is much more likely to be held to be an abuse of process than a later action against C.

iii)

The burden of establishing abuse of process is on B or C or as the case may be.

iv)

It is wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive.

v)

The question in every case is whether, applying a broad merits based approach, A's conduct is in all the circumstances an abuse of process.

vi)

The court will rarely find that the later action is an abuse of process unless the later action involves unjust harassment or oppression of B or C.

50.

Proposition ii) above seems to me to be of importance because it is one thing to say that A should bring all his claims against B in one action, whereas it is quite another thing to say that he should bring all his claims against B and C (let alone against B, C, D, E, F and G) in one action. There may be many entirely legitimate reasons for a claimant deciding to bring an action against B first and, only later (and if necessary) against others.

51.

Those reasons include, for example, the cost of proceeding against more than one defendant…

52.

It seems to me that the courts should be astute to ensure that it is only in a case where C can establish oppression or an abuse of process that a later action against C should be struck out. I could not help wondering whether the defendants in this case would have given their lawyers the same instructions on the question whether they should have been sued in the first action if they had been asked before that action began as they have given now that a later action has been begun.

53.

It is clear from the speeches of both Lord Bingham and Lord Millett that all depends upon the circumstances of the particular case and that the court should adopt a broad merits based approach, but it is likely that the most important question in any case will be whether C, D, E or any other new defendant in a later action can persuade the court that the action against him is oppressive. It seems to me to be likely to be a rare case in which he will succeed in doing so.

In Aldi, Thomas LJ said that in complex commercial multi-party litigation where there was a possibility of further proceedings, that fact should be raised with the court in the first proceedings so that appropriate case management directions can be made. If there is a failure to do so, the claimant runs the risk that the second claim will be held to be an abuse of process. However, such a failure does not lead automatically to the striking out of subsequent proceedings. The test is still a broad merits based one and the defendant must still satisfy the court that there has been vexation, harassment or oppression: Outotec (USA) Inc v. MW High Tech Projects UK Ltd [2024] 4 WLR 85.

The submissions

In their written submissions both Mr Page KC and Mr Bell accept that their arguments are directed to the claimant’s involvement in the litigation. Mr Page KC says that the individual investors were free to bring their own claims at any time and that would not have amounted to an abuse. Mr Bell says in terms that the abuse lies in the fact that it is the claimant who seeks to bring the assignors’ claims, not in the nature of the claims themselves.

In his oral submissions, Mr Page KC’s primary submission was that the assignors had freely chosen the claimant and they have therefore taken the risk that the claim will be held to be an abuse by reason of his earlier claim. He made three points.

First, he says that the claimant always intended to bring this claim if his succeeded and that he should have brought that intention to the attention of the court in accordance with the Aldi guidelines, so that appropriate case management directions could have been given. The case management directions Mr Page KC says would have been given would have been a stay to decide whether to seek assignments or for others to decide whether to join the litigation. He argued that by not doing so, the claimant has subjected the first and second defendants to multiplication of time, costs and stress.

Secondly, he argues that the claimant makes allegations in this claim which he could and should have pleaded in the first claim. In his substantive submissions on this issue, he focusses on the allegation that is now being made that there were in fact no trades. Mr Page KC says that this could and should have been pleaded in the first claim. He points out that the claimant tried to make the point at the first trial but was not permitted to do so because he had not pleaded it. In his submissions dealing with the claimant’s application to amend the Particulars of Claim, Mr Page KC extends this argument to the claim based on secret commissions. He says that these were revealed by the July 2022 specific disclosure in the last action and the claimant could have, but didn’t, apply to amend his Particulars of Claim in that action to include the secret commissions claim.

Thirdly, Mr Page KC argues that the claimant seeks to re-litigate matters in relation to which he was unsuccessful in his first claim. He focusses on the claimant’s breach of trust claim, in relation to which the first judgment reads: “133 Mr Hamilton pleaded a trust claim which, again, was never very clearly elucidated. However, in closing he indicated that he was no longer pursuing this claim, accordingly I need say no more about it”; and the conspiracy claim in relation to which the first judgment reads: “131…I would not conclusively rule out such an agreement, since there was certainly evidence which was to my mind consistent with it, for instance the email to which I have already referred. But I find myself unable to conclude that the evidence as a whole has established a conspiracy to mislead investors in general, or Mr Hamilton particularly, to the necessary standard.”. Mr Page KC said that the former was an abuse. The latter was a collateral attack on the findings of Mrs Justice May.

In his oral submissions, Mr Page KC made a subsidiary argument. He said that because the assignors knew of the claimant’s earlier claim, they should have brought their claims at the earlier stage.

Mr Bell accepted that the test he needed to meet was that set out in paragraph 49 (vi) of Dexter:that this action involved unjust harassment or oppression of his clients. He also relied on the submission that this claim was very much in the claimant’s mind during the first action. However, Mr Bell said that he did not need to rely on the Aldi guidelines. He said that the fact that the claimant was alleging a partnership meant that he should have brought all the alleged partners into the first action. Mr Bell identifies the factor that makes this action oppressive as the fact that the findings between the claimant and the first, second and fifth defendants will be binding between them in this action. He did not take me to any authorities on res judicata or issue estoppel where the claimant in one action was the assignee of the claims of others in the second action but he said that even if he was wrong in this respect, in reality those findings would be very difficult to disturb. He accepted that his clients would not be bound by those findings, but he pointed to the fact that he wished to argue that as far as his clients were concerned there was no partnership or alternatively that the law of the partnership was Malaysian rather than English law.

The claimant did not take me to any cases on res judicata or issue estoppel in this context either but accepted the possibility that the findings as between the claimant and the first, second and fifth defendants might be binding between them in these proceedings. However, he says that the present claims are in reality completely different. They are not the claimant’s claims at all; his claims have all been satisfied. These are claims of other people against the defendants which will be determined on their own merits. The claimant accepts that the previous judgment is of very significant benefit in these proceedings but says that that fact does not make these proceedings abusive. He says that it is relevant that he was and is a litigant in person and there is no obligation on a claimant to bring a claim which would in fact have been beyond his resources. He says that these proceedings are not complex commercial proceedings of the kind envisaged by the Aldi guidelines.

As regards the argument that he could and should have added the additional matters he now pleads pursuant to the assignments to his own claim, the claimant points out that the evidence that there were no trades only emerged during disclosure during the last proceedings. He points to the first defendant’s oral evidence in the first claim that he believed that there were trades. He says that the strength of this argument only became apparent after the trial when he obtained disclosure of the twelfth defendant’s Malaysian bank accounts from HSBC. He relied on Walbrook Trustees (Jersey) Ltd and ors v. Fattal and ors [2009] EWCA Civ 297 and Playboy Club London Ltd v. Banca Nazionale Del Lavoro SpA [2018] EWCA Civ 2025 for the proposition that there is no abuse if at the time of the earlier proceedings, the claimant did not have all the information necessary to bring the claim. In relation to the secret commissions claim, the claimant says that he made the allegations that he made in the first claim that he thought he needed to make to succeed in that claim. He said that his success in the first action demonstrates the correctness of that approach.

Decision

Applying the broad merits based test, the defendants have not established that these proceedings constitute unjust harassment or oppression or are otherwise an abuse of the process of the court. My reasons for that conclusion are as follows:

The eighth, ninth, tenth and eleventh defendants filed a witness statement each for the hearing. The eighth and tenth defendants filed an additional joint statement. There was a skeleton argument from the eighth and tenth defendant, one from the ninth and one from the eleventh defendant. As I have said, at the hearing, the tenth defendant made the principal submissions on behalf of all four. He handed up a very helpful speaking note which he followed when making his submissions.

The tenth defendant summarised the eighth to eleventh defendants’ involvement in the currency club as follows. He said that in April 2015, the first defendant had asked if the eighth and tenth defendants would look after the communications and record keeping for their family and friends’ section. He said that they agreed but that they had no involvement in any decisions concerning the club operations. They had no access to the club’s bank accounts, they simply: relayed trading messages from the twelfth defendant to their members; relayed top -up or withdrawal requests from members to the first or seventh defendants; and updated their section’s online portal with the trading results provided by the twelfth defendant. The tenth defendant says that this was a voluntary arrangement which continued until late 2016 when the club collapsed. He said that at this point, he and the eighth defendant became much more involved along with advisors to assist in recovering monies from the twelfth defendant. They did this because the collapse had badly affected several members of their family and friends.

The tenth defendant says that the eleventh defendant did not play any role in the currency club. He had put her name on the footer of some club emails because he was communicating with family and friends who had known them as a couple for many years. He said that the ninth defendant voluntarily assisted the eighth defendant with typing, IT and clerical support.

The essence of the tenth defendant’s submissions was that the eighth to eleventh defendants were not partners and never received any commission. He said that the claimant had not produced evidence to back up the allegations in the Particulars of Claim. The tenth defendant took me to some material which he said undermined the allegations against them. He said that he had had no contact whatsoever with 115 out of the 116 assignors (some of the assignments are in joint names). He took me to material that showed the effect on his own family of investment in and collapse of the club and which showed that he was informing others of the informal nature of the club.

The application is to strike out the claim on its merits. However, the submissions that were made were evidential ones that can only be determined at a trial. The claimant is not required to prove his case on the evidence at this stage whether as to partnership, commissions or any of the other issues. The merits or otherwise of the claimant’s allegations or the tenth defendant’s submissions can only fairly be decided after the filing of defences, disclosure and the filing of evidence for a hearing. Of course, the claimant has now heard the submissions that were made and can form his own view as to whether they have any impact on his view as to the merits of the case against the eighth to eleventh defendants and whether he wishes to re-consider his case against them. However, that is a matter for him. I refuse the application to strike out the claim at this stage.

The submissions on this issue were made by the claimant and Mr Page KC. At the hearing, Mr Page KC said that he only opposed the amendments set out in paragraphs 30 and 31 of the proposed amended Particulars of Claim.

Mr Page KC opposes the application on the bases that: (i) the relevant limitation period has expired and the requirements of section 35 of the Limitation Act 1980 and CPR r 17.4 are not satisfied; and (ii) the proposed amendments do not have sufficient prospects of success.

Mr Page KC relies on the summary of the relevant principles by Bryan J in Invest Bank PSC v. El-Husseini [2024] EWHC 1235 (Comm) at paragraphs 56 to 65. At paragraph 58, Bryan J sets out the four stage test from Geo-Minerals GT Ltd v. Downing [2023] EWCA Civ 648. At paragraph 17.4.2 of the Whitebook the proper application of the four stage test is explained as follows:

“(1)

Is it reasonably arguable that the opposed amendments are outside the applicable limitation period? If so, proceed to the next question; if not, then r.17.4 does not apply and the amendment may be allowed under r.17.1(2).

(2)

Do the proposed amendments seek to add or substitute a new cause of action? If so, proceed to the next question; if not r.17.4 does not apply and the amendment may be allowed under r.17.1(2).

(3)

Does the new cause of action arise out of the same or substantially the same facts as are already in issue in the existing claim? If so, then proceed to the last question; if not then the court has no power to grant permission for the proposed amendment, save by way of the “Mastercard” approach discussed in Advanced Control Systems Inc v Efacec Engenharia e Sistemas S.A. [2021] EWHC 914 (TCC).

(4)

Should the court exercise its discretion to allow the amendment?”

At paragraph 59 and 61, Bryan J further explained stages 2 and 3. At paragraph 59, he said:

“59.

As was stated in Diamandis v Wills [2015] EWHC 312 at [48]-[49] (approved in Geo-Minerals , with citations removed):

"48.

As regards Stage 2 (new cause of action) from the recent analysis of the authorities by Longmore LJ in Berezovsky v Abramovich §§59 to 69, the following principles arise:

(1)

The "cause of action" is that combination of facts which gives rise to a legal right; (it is the "factual situation" rather than a form of action used as a convenient description of a particular category of factual situation…

…

(4)

In identifying a new cause of action the bare minimum of essential facts abstracted from the original pleading is to be compared with the minimum as it would be constituted under the amended pleading…

(5)

The addition or substitution of a new loss is by no means necessarily the addition of a new cause of action: Berezovsky §64 and Aldi §26. Nor is the addition of a new remedy, particularly where the amendment does not add to the "factual situation" already pleaded."…

As regards Stage 2, see also David Richards J in Revenue and Customs Commissioners v. Begum [2010] EWHC 1799 (Ch) at paragraphs 27 to 32.

Mr Page KC relies on the judgment of Nicklin J in Amersi v. Leslie [2023] EWHC 1368 (KB) at paragraph 140 for the proposition that the threshold test for permission to amend is the same as that applied in summary judgment applications. The court has a broad discretionary power to grant permission to amend taking into account the particular facts of the case: Whitebook paragraph 17.3.5.

The proposed paragraphs 30 and 31 of the Particulars of Claim are headed “Secret Commissions”. They seek to plead a claim for money had and received.

In oral argument, the claimant argued that there was no limitation defence on the basis that section 32 of the Limitation Act applied. Mr Page KC argued that the claimant had not discharged the burden on him of establishing that Mr Page KC’s argument that section 32 does not apply was not reasonably arguable.

Given that the claimant’s skeleton argument supports the amendments on the straightforward basis that paragraphs 30 and 31 simply plead an alternative form of relief based on facts already pleaded, I will deal with that question first. If the claimant is correct about that, it will be unnecessary for me to resolve the dispute about section 32 of the Limitation Act.

Mr Page KC rejects the claimant’s argument. He says that the unamended Particulars of Claim refer to secret commissions taken by the first to eleventh defendants. However, he says that the proposed paragraphs 30 and 31 go further in that they allege commissions paid by the twelfth defendant to the first and second defendants.

I start with the unamended Particulars of Claim. They deal with the topic of secret commissions in the following way:

Turning to the proposed amendments, paragraph 31 is in the following terms:

“31.

Both D 1-11 and D12 are jointly and severally liable to the Assignors for the amounts of the secret commissions which are owed as money had and received to the use of the respective Assignor.

The amount of secret “commissions” removed by D 1-11 was as follows:

(a)

D 1 / 2 – per paragraph 13 (n) - £ 1, 657, 191;

(b)

D 3/4 -unknown at this stage but not less than £ 800,000;

(c)

D 5/6 – at least $ 830,000, according to D 5 at Trial of KB-2020-003693;

(d)

D 7 – unknown at this stage, but not less than £ 800,000;

(e)

D 8/9 – unknown at this stage;

(f)

D 10/11 – unknown at this stage.”

Were this paragraph to be the only amendment, I would accept the claimant’s submissions. The unamended Particulars of Claim plead secret commissions taken by the first to eleventh defendants, commissions received by the twelfth defendant and payments from the twelfth defendant to the first and second defendants. The particulars in paragraph 31 make clear that as regards the first to eleventh defendants it is referring to the payments they removed. That allegation has been extensively pleaded in the unamended Particulars of Claim. As regards the first and second defendants, the amount set out at paragraph 31 (a) corresponds to the total amount of the commissions said to have been taken by the first and second defendants plus the pleaded payments from the twelfth to the first and second defendants (and cross-refers to paragraph 13 (n) of the Particulars of Claim).

On one reading of paragraph 30 it goes further. Paragraph 30 (a) pleads a 2012 agreement between the first and second defendants on the one hand and the twelfth defendant on the other pursuant to which the twelfth defendant would pay the first and second defendants a 5 % secret commission on profitable trades. It is not clear from the pleading or the claimant’s submissions whether this is just another way of expressing the commission arrangement which is described elsewhere in the pleading or whether this is a completely separate agreement. If it is the latter, this is the first time that it appears to have been alleged.

As I have said, above, the claimant’s skeleton argument states that the proposed amendments are simply designed to plead a new remedy based on facts that have already been pleaded. Given the ambiguity in the proposed paragraph 30 and the fact that paragraph 31 read with the introductory and other sections of the pleading would seem to me to achieve the objective that the claimant says that he wishes to achieve, I propose to grant the claimant’s application in relation to paragraph 31 of the proposed amendments only.

Mr Page KC argues that the pleaded claim for money had and received is unmeritorious for the following reasons. First, he says that in so far as it is based on the pleaded fiduciary relationship it depends on alleging that his clients had control of the funds. He says that that allegation must fail because May J held at paragraphs 17 and 97 of her judgment that the second defendant did not have control of the funds in the IIMM account and that it is not alleged that the first defendant had such control. Secondly, he says that even if the claim were to be arguable in principle, the tracing exercise would be an “impossible task”. Thirdly, he says that the claimant needs to elect as to whether to claim the assignors loss on the investment or the alleged secret commission (for which he refers to Bowstead on Agency, 23^rd edition at paragraph 6-087).

I reject those arguments. As to the first, I am not prepared to take the narrow approach to the allegations suggested by Mr Page KC at this stage of the case. The precise control that each defendant had over any specific funds will be a matter for evidence at the trial. The paragraphs of May J’s judgment relied on by Mr Page KC in fact say that the second defendant was not a joint signatory on the IIMM bank account. However, it is accepted that the second defendant was a director of IIMM and it is alleged that the first defendant was a shadow director of that company. Indeed, at paragraph 97, May J records the first defendant’s evidence that one of the reasons that the second defendant became a director of IIMM was precisely so that they would be able to convince Bank of China that they had a claim to the funds in the account if anything happened to the seventh defendant.

As to the second argument, it is not appropriate to decide that the tracing exercise would be impossible at this stage of the proceedings. As to the argument based on election, the claimant is not required to make an election now.

My conclusions on the five issues that I identified at the start of this judgment are therefore: