GEO-MINERALS GT LIMITED & Anor v GEO-MINERALS (HOLDINGS) LIMITED & Ors

This is the adjourned CMC of a claim brought by Geo Minerals GT Ltd (“GT”), a company registered in Northern Ireland and Mr Tennyson a shareholder in that company and its “main director”, against GT’s professional advisers and against persons said to have conspired together to injure the interests of GT.

There are three applications to deal with:

Subject to the relevant claims continuing, the following aspects of the applications have been agreed:

The DRAPOC are 36 pages long. CPR PD 16 at paragraph 1.4 makes it plain that pleadings of more than 25 pages are the exception rather than the rule. Where the pleading is, exceptionally, over 25 pages an appropriate short summary is to be filed and served.

The Claimants summarise the claims in this way:

The factual background to the claim (as advanced by the Claimant) can be summarised as follows:

The claims set out in the draft re-amended Particulars of Claim (“DRAPOC”) are put in this way:

The CDs raised requests for further information in respect of the amended Particulars of Claim (“APOC”) on 3 May 2019. Satisfactory replies were received on 17 February 2020. Request number 4 sought details of the rights covered by the assignments. In response, the Claimants averred that as of 5 April 2011 GT had exclusive rights to “purchase the [Product and] market the [Product] in Northern Ireland.” (emphasis added).

A schedule of loss was also prepared on 17 February 2020. Request 19 of the Request for Further Information had asked the Claimants to “particularise the quantum of each and every head of loss”. The schedule was served in response to that request. At paragraph 11 of the schedule (under the heading “preamble”) the Claimants again noted that on 5 April 2011 GCL granted GT “exclusive rights to the quarry” and to market the [Product] in Northern Ireland.” (emphasis added).

The schedule of loss pleads losses under 6 heads:

The plaintiffs in that action (Holdings, CD and KD) claimed that a joint venture agreement (“JVA”) had been entered into in October 2011 and that it had resulted in further agreements about the transfer of land (including the quarry) in June 2012. GCL, CT and MG defended the proceedings. It appeared to the Defendants (at least to MG) that the plaintiffs were relying on the LOA. MG pleaded the full terms of the LOA, pointing out that it expired 90 days after it was signed. The option had not been exercised in that time and so any right to buy had lapsed.

The plaintiffs subsequently confirmed (in a reply to a Request for Further Information) that the JVA was an oral agreement, and that the June 2012 later agreement was reached partly orally and partly in writing.

The claim was called on for trial on 6 November 2014. It appears that “judgment” was entered against the plaintiffs in favour of MG and that GCL and CT agreed that the claim against them would be stayed with no order as to costs. The agreement entered into by GCL and CT with the plaintiffs was on the basis that the terms were “in full and final settlement of all claims of any nature whatsoever by the plaintiffs or any of them relating to any estate or other interest in the [quarry]” (emphasis added). In effect, the claim was dismissed without any adjudication on the merits. The terms of settlement agreed with CT and GCL clearly prohibited any further claims in respect of any interest in the quarry itself but left open the possibility of claims in respect of other matters.

For the sake of completeness, the position of the Defendants is as follows:

By way of overview, the claim was issued in April 2018 at the end of the limitation period and without any pre-action attempt to explain the case, narrow the issues or attempt settlement. The proceedings were served at the very last point and now, after more than 4 years there has not yet been a CCMC. As the Claimants acknowledged during the course of submission, that overview does not present an attractive picture.

The Claimants appear to have instructed solicitors in April 2018 shortly before proceedings were issued. The first contact with Rouse was on 26 July 2018. Although it is not clear from the documents, I proceed on the basis that there was similar contact with CDs at or about the same time.

Proceedings were served on all Defendants by post and email on 7 August 2018. On or about 13 September the parties agreed a 6 month stay of proceedings to allow the PAP process to be followed. The agreement was confirmed by order of DJ Moss on 27 September. The POC was to be treated as the letter of claim and the Defendants were to respond by 30 November. Time for filing defences was extended to 26 April 2019.

There were initial problems with the PC. They were vented in correspondence. On 29 November, a first version of the DRAPOC were served. Each Defendant responded (by way of letter) on 11 December. The Claimants did not answer, neither was there any engagement in further negotiations. On 26 April 2019, Rouse served their Defence. On 3 May they served a Request for Further Information. A response was first served on 13 June 2019. It was described by Rouse as “woefully inadequate”. On 16 July, the Claimants invited full and complete responses within 14 days failing which an application would be made to court to compel a response. Rouse pointed out that the responses referred to a schedule of loss and invited the Claimants to produce the same. An initial schedule was provided.

In the meantime, CDs had applied to court for security for costs and required an extension of time to serve their defence. A hearing of the security for costs application was listed for 23 September 2019. The question of extending time for their defence was ordered to be determined at the same hearing. CDs filed their defence on 26 November. The Claimants paid £36,000 on 21 October 2019 as security for costs.

On 7 February 2020, Rouse noted that it was “prepared to wait until 14 February… for full responses to the RFI [and certain other outstanding questions]” noting that it had been “more than patient”. The responses were provided on 17 February together with an updated schedule of loss. On 17 February, the Claimants asked Rouse for details of its costs of the next stage of proceedings. It would appear that the purpose of the question was to gauge if the Claimants were prepared to provide additional security. In fact, an ATE policy was incepted which appears to have satisfied Rouse. On the same date, the 5 April agreement referred to in the schedule of loss and the response was provided.

In August, the Claimants instructed new, specialist counsel (Mr Peter Irvine of Brick Court).

On 26 November Rouse raised causation issues in particular noting that “no positive case has been advanced setting out how the losses alleged would have been avoided but for the breaches said to have been committed by Rouse”. The Claimants responded on 24 December noting (amongst other matters) that it was expressly pleaded that Rouse had “purported to transfer [the Claimants’] entire business and valuable [IP] to an unconnected third-party company. In doing so, [Rouse] caused substantial loss to [the Claimants] because they were unable to conclude contractual arrangements”.

Rouse responded on 22 March 2021. It remained of the view that causation was not properly pleaded and suggested that the issue should be addressed “by way of further amendment to the [APOC]”.

On 14 April, the Claimants informed Rouse that their counsel (Mr Irvine) had needed to withdraw from the case for health reasons.

Alternative Leading and junior counsel (Mr Burns QC and Miss Greenley) were instructed on or around 21 May. On 8 October Rouse wrote to the Claimants expressing “deep concern” at the Claimants’ delays. The Claimants were “a little surprised” by the accusation of delay and “dumbfounded” by the threat of an application to strike out by reason of delay. The DRAPOC were served on 19 November 2021.

In fact, newly instructed Leading and junior counsel had reviewed the APOC and made various amendments to it, going beyond the simple clarification of issues of causation. I return to the fruits of this endeavour below.

On 21 December Rouse explained that an application to strike out had been sent to court.

The proposed amendments fall into 4 categories:

In summary, Rouse resists the application to amend on the grounds that:

CDs support the arguments advanced by Rouse and resist the amendments as far as they concern CDs relying, in particular, on a failure adequately to plead causation.

CDs and Rouse seek summary judgment on the claims against them or an order striking out the claim or parts of it. Each relies on the Claimant’s delay to establish an abuse of process and suggests that the circumstances of the claim are such that the discretion to strike out should be exercised. Each suggests that the Claimants’ have failed to plead a sufficiently arguable case on causation.

Four main questions arise from the applications:

None of the claims pleaded against any Defendant is actionable in the absence of proof of damage. The burden of establishing that any proved wrong has caused damage lies with the Claimants and must be pleaded.

The decision of Coulson J (as he then was) in Pantelli Associates v Corporate City Developments Number two Limited [2010] EWHC 3189 (TCC) is often cited when arguments about the adequacy of a pleading are raised. In that case, Pantelli, a firm of quantity surveyors, sued for unpaid fees. The Defendant (“CCD”) defended and raised a counterclaim alleging that Pantelli had acted negligently. The adequacy of the plea in professional negligence came before the court in an application by CCD to amend. The main problem it faced was that the particulars of breach were generic and unparticularised. Counsel for CCD accepted during the course of submission that he had “simply taken each relevant contract term and then added the words “failing to” or “failing adequately or at all to” as a prefix to each obligation, thus turning the obligation into a [plea] of professional negligence” and that he had been hampered in pleading particulars of negligence “by the absence of any expert advice as to whether – and if so how – Pantelli had been negligent or otherwise acted in breach of contract.” Perhaps not surprisingly, Coulson J felt it was “plain” that the particulars of breach failed to set out “a concise statement of the facts on which the Claimant relies” as required by CPR 16.4(1)(a). He went on to say (as a separate reason to strike out the allegations of professional negligence): “even though the work that is now the subject of these purported allegations was carried out three years ago, there is no expert evidence of any kind to suggest that that work was carried out inadequately or was in some way below the standard to be expected of an ordinarily competent quantity surveyor. Not only is it simply not good enough to turn a positive contractual obligation into an allegation of professional negligence by adding the words “failing to” to the obligation, but it is also wholly inappropriate to do so in circumstances where there is no expert input to allow CCD to make such an allegation in the first place.”

The pleaded case on causation was simply put as follows: “as a result of the Claimant’s breaches ….[CCD] has suffered loss and damage”. Coulson J concluded that that was not a proper plea of causation and loss: “It is impossible to work out from that terse summary what facts CCD rely on in support of their contention that a particular breach or breaches has given rise to a particular head of loss. There is no answer to the question: but for the negligence, what would have happened and why? The damages claimed are wholly unparticularised. Again, therefore, paragraph 36 does not comply with r.16.4(1)(a).”

Rouse relies on paragraph 11 of the judgment:

“CPR 16.4(1)(a) requires that a particulars of claim must include “a concise statement of the facts on which the Claimant relies”. Thus, where the particulars of claim contain an allegation of breach of contract and/or negligence, it must be pleaded in such a way as to allow the Defendant to know the case that it has to meet. The pleading needs to set out clearly what it is that the Defendant failed to do that it should have done, and/or what the Defendant did that it should not have done, what would have happened but for those acts or omissions, and the loss that eventuated. Those are ‘the facts’ relied on in support of the allegation and are required in order that proper witness statements (and if necessary, an expert’s report) can be obtained by both sides which address the specific allegations made.”

Rouse also refer to Towler v Wills [2010] EWHC 1209 (Comm) at paragraph 18:

“The purpose of a pleading or statement of case is to inform the other party what the case is that is being brought against him. It is necessary that the other party understands the case which is being brought against him so that he may plead to it in response, disclose those of his documents which are relevant to that case and prepare witness statements which support his defence. If the case which is brought against him is vague or incoherent, he will not, or may not, be able to do any of those things. Time and costs will, or may, be wasted if the Defendant seeks to respond to a vague and incoherent case. It is also necessary for the Court to understand the case which is brought so that it may fairly and expeditiously decide the case and in a manner which saves unnecessary expense. For these reasons it is necessary that a party’s pleaded case is a concise and clear statement of the facts on which he relies”

There is no suggestion that the particulars of breach pleaded against Rouse (at paragraph 108 which include some re-amendments) or against the CDs (at paragraphs 95 to 99 which do not include re-amendments) are inadequate. The loss and damage suffered by the Claimants is pleaded at paragraph 111. No distinction is drawn between loss suffered as a result of Rouse’s breaches and loss suffered as a result of the wrongs of the CDs. Chief amongst the pleaded losses is that GT lost the entire business and (as set out at paragraph 111(a) by way of re-amendment) that included the exclusive rights to sell, market and distribute the Product. All of the pleaded losses are losses of GT. Now that it is agreed that paragraphs 111(h) and (i) are not to be included by way of re-amendment there is no plea that CT has suffered any loss.

The schedule of loss (detailed above) particularises GT’s loss of profit arising out of sales it would have made were it not for the Defendants’ breaches in a sum in excess of £23 million. Even if GT had simply sold the Product that it had stockpiled, it would have made a profit (according to the schedule) of at least £2.425 million.

In my judgment, on a fair reading of the DRAPOC the pleaded case on causation is clear. In my view the Defendants should each understand what the Claimants say they should have done but failed to do or did but should not have done. They should also understand what losses have arisen as a result. At its heart, GT’s case is that it was ideally placed to enjoy very substantial profits from its sole and exclusive rights to sell a valuable, highly sought-after, product. If Rouse and the CDs had not acted in the way they did, effectively depriving the Claimants of its rights, those substantial profits would have been realised. I accept, as it seems to me the Claimants accept, that the pleading could be simplified.

I am satisfied that the DRAPOC pleads a proper case on causation as far as GT is concerned. In reaching that conclusion I take into account at least those parts of the schedule of loss (part B) I have referred to. There is no doubt in my view that the schedule of loss is intended to be read with the DRAPOC and it would, in my judgment, be wrong to consider the DRAPOC without it. Even if I am wrong about that, the DRAPOC at paragraph 111 make plain that GT has lost the opportunity the make profit from the exclusive right to sell the Product (see paragraphs 111 (a) and (e)).

For those reasons, this ground for resisting the amendments and for disposing of the claim has nothing in it. CDs go further and say that loss is not properly pleaded. I do not accept that submission. Neither do I accept that the requisite intention to cause harm (a point advanced by CDs) is not sufficiently pleaded.

There is no plea that CT (rather than GT) suffered any loss as a result of any wrong on the part of Rouse or CDs. The schedule of loss makes occasional reference to the “Claimants” (plural) but does not explain how CT has suffered loss in his own right. In reality, any loss is in my view GT’s loss. In the absence of any pleaded basis for concluding that CT suffered any loss, I accept that any damages claim by him should be struck out.

Limitation is raised against the proposed amendments to paragraphs 108(a), 108(j) (k) and (l). Each deals with instances of breach. The substance of those paragraphs is set out at paragraph 29 (c) and (d) above. The matters pleaded in summary concern:

The APOC deal with Rouse’s breach and duties at paragraphs 78 to 87. In summary it is pleaded that:

Particulars of loss are presently set out in the schedule of loss (which at the request of Rouse provides better particulars of the loss suffered). I have dealt with the plea of loss in the DRAPOC above.

The parties are agreed on the law as it applies to the grant of permission to amend proceedings to include a claim which is outside a statutory limitation period. I need not set out the relevant provisions of the CPR or of the Limitation Act. All agree that the Court of Appeal’s decision in Mulalley & Co v Martlet Homes [2002] EWCA Civ 32 sets out the appropriate four stage test:

I am invited to proceed on the basis that it is reasonably arguable that the opposed amendments are outside the applicable limitation period.

The next question is do the proposed (re) amendments seek to add a new cause of action? The Claimants submit, without reference to authority, that they do not. Rouse on the other hand invite a careful consideration of this point. I accept that the correct approach is set out in Diamandis v Willis [2015] EWHC 312 (Ch), a decision of Mr Stephen Morris QC (as he then was) sitting as a Deputy Judge of the Chancery Division. At paragraph 48, summarising the conclusions reached by the Court of Appeal in Berezovsky v Abramovich [2011] 1 WLR 2290 he said this:

It is important to approach the question of whether there is a new cause of action with this guidance firmly in mind. At the heart of the exercise is a relatively high-level comparison of the “causes of action” pleaded in the APOC and the DRAPOC. In my view, that comparison shows that no materially new duty is raised in the DRAPOC, that the pleaded breaches raised in the DRAPOC, whilst new, are not substantially different from the breaches pleaded in the APOC and that the particulars of loss raised do not change the nature and extent of the loss suffered. I now turn to deal with each of those points in turn.

I accept that a new duty is pleaded at paragraphs 104 to 107 of the DRAPOC. The proposed re-amendment corrects the assertion that the Rouse partner dealing with matters (MF) was not a solicitor but a trademark attorney. At paragraphs 105 to 107 new duties are set out, taken from the Trademark Attorney code of conduct. In summary those duties are to carry out work with due skill, care and diligence and with integrity whilst avoiding conflicts and acting in a timely fashion. At paragraph 45 above I have set out how the APOC deals with breach and duty. There is in my view no difference in the substance of the duties pleaded in the APOC and in the DRAPOC. In practice it makes little difference that MF was a trademark attorney rather than a solicitor.

The particulars of breach set out at paragraph 108(a) do not in my view differ substantially from particulars of breach already pleaded (see paragraph 32 of the APOC). These are examples of how Rouse is said to have provided misleading information to Prettys. Paragraph 32 is pleaded to at paragraph 62 of the Rouse defence. The allegation is “not admitted”. It follows that the allegation is in issue.

The particulars of breach at 108(j) are new but are in my view not materially different from the already pleaded allegation that Rouse acted “beyond the scope of its instruction” by transferring its intellectual property and business to a third party. There is no clearer instance of a conflict.

The instances of breach set out at paragraphs 108(k)(1) are not new. Those pleaded at 108(k)(5) and (6) are further examples of Rouse writing to third parties requiring the relevant website to be taken down. The instances there pleaded were raised in any event in response to a Request for Further Information raised by Rouse. In my view the same point applies to paragraph 108(l). That paragraph sets out a single allegation against Rouse, namely that it wrongly legitimised CDs claims (some of which are set out) to own the business and have exclusive rights over the Product. This is simply another example of Rouse acting “beyond the scope of its retainer”. The allegations at 108(2), (3) and (4) set out further examples of steps taken by Rouse to promote the interests of Holdings over those of GT. In my judgment all of the breaches added by way of proposed re-amendment are simply the “addition of further instances” of the same breach.

The proposed re-amendments simply set out further instances of allegations which are already in issue. The relevant matters concern:

For those reasons, in my view no “new cause of action” is pleaded. That is sufficient to deal with the limitation objection. In case I am wrong in that conclusion, and the proposed amendments do add “new causes of action” I will go on to consider the next stages.

The next question is: do the new causes of action arise out of the same or substantially the same facts as are already in issue in the claim? Guidance on the proper approach to this question is to be found in the Diamandis at paragraph 49:

Having concluded that there is no new cause of action for the reasons I have given (principally because no materially new duty is raised in the DRAPOC, that the pleaded breaches raised in the DRAPOC whilst on occasion new are not substantially different from the breaches pleaded in the APOC and that the particulars of loss raised do not change the nature and extent of the loss suffered) it follows that the freshly pleaded matters do arise out of the same or substantially the same facts as are pleaded in the RAPOC.

Nonetheless, it is perhaps helpful to ask myself to what extent “the Defendants would be required to embark upon an investigation of facts which they would not previously have been concerned to investigate?” Whilst this question should not be used as short cut to the application of the relevant test, it provides a common sense check.

If I grant permission for the claim to be pleaded in the manner set out in the DRAPOC, Rouse will not in my judgment need to embark on any new investigation. I note the policy which justifies the refusal of permitting an amendment to add in a time expired claim as explained in Lloyds Bank v Rodgers [1997] TLR 154: “the policy of the section was that if factual issues were in any event going to be litigated between the parties, the parties should be able to rely on any cause of action which substantially arises from those facts.” In my judgment the factual issues at the heart of the DRAPOC are going to be litigated even if I refuse permission.

I now deal with the exercise of discretion.

I am persuaded that permission to amend should be granted. I bear in mind that the application is made before the first case management conference. There is ample opportunity for all Defendants to plead to the claims. There is no reason to believe that the passage of time will hamper the investigation of the issues that arise in this case and neither Rouse nor CDs assert that they will be specifically prejudiced by the amendments (the Claimant’s assertion in its first skeleton argument that “the only prejudice to the Rouse Defendants is the potential need for amendments to their Defence” was not disputed). This is not a family dispute where the only relevant evidence comes from fading memories of interested parties, rather this is a commercial dispute where the issues are likely to be resolved by reference to professionally prepared documentation which has been preserved. I bear in mind that the overriding objective is that the court deal with cases in a just fashion. In my judgment the interests of justice in the present case require the permission for the amendments be granted.

The parties are agreed that delay on its own is not enough (see Icebird Ltd v Winegardner [2009] UKPC 24). There must be more. Here, CDs and Rouse both submit that GT has “warehoused” the claim. In other words, GT has unilaterally at least one point in the history of the claim lacked the desire to proceed to trial.

Rouse and CDs rely on the principles set out in Grovit v Doctor [1997] 1 WLR 640 and Arbuthnot Latham Bank v Trafalgar Holdings [1998] 1 WLR 1426 as applied recently in Asturion Foundation v Alibrahim [2020] 1 WLR 1627 and Alfozan v Quastel Midgen [2022] EWHC (Comm) 66. I accept, as did the parties, that the relevant principles are set out at paragraph 12 of Alfozan. In summary:

In my judgment it is clear from the procedural chronology that the Claimants have at no time (and certainly not over a substantial period of time) decided not to pursue the claim. In my judgment the Claimants have shown themselves at all times willing to pursue the matter. The process of getting the claim to this stage has been slow. That is regrettable but does not reflect badly on the Claimants.

There is no basis on which I could properly conclude that the Claimants had decided (however temporarily) not to pursue the claim. CDs’ Defence was not filed until 26 November 2019 (after the court had granted an extension of time, and after CDs had successfully applied for security for costs against GT). Responses to Rouse’s Request for Further Information were provided on 17 February 2020. The claim made little outward progress in 2020. It is however clear that between June and August 2020 (see paragraph 37 of Mr Harrison’s first witness statement) there was correspondence with Rouse in respect of funding arrangements, disclosure and security for costs. Rouse (as Mr Harrison explains) responded to those points on 26 November 2020 raising (amongst other issues) issues in respect of how causation had been pleaded. Rouse suggested in March 2021 that the Claimants’ case on causation would need to be re-pleaded. Thereafter there were delays (which I do not think were unreasonable) in instructing new counsel and allowing time to draft the DRAPOC. I accept that these amendments took time because Leading and junior counsel were not starting with a clean slate.

I have no doubt at all that there is nothing in this point. I am satisfied that there is no evidence of any decision to “warehouse” the claim.

Are the present proceedings, even in their unamended form an abuse as against CDs because of the Northern Irish proceedings? In my view they are not.

CDs rely on the principles set out in Johnson v Gore Wood [2002] 2 AC 1 and recently applied by Pepperall J in Mansing Moorjani v Durban Estates [2019] EWHC 1299 (TCC). No res judicata, cause of action estoppel, or arguments in respect of merger arise.

In Johnson Lord Bingham described the underlying public interest in the abuse of process argument in this way: “there should be finality in litigation and …. a party should not be twice vexed in the same matter.” If the claim in the present action “should have been” raised in the Northern Ireland proceedings the present proceedings may be an abuse of process. As Pepperall J notes in his summary: “The court will rarely find abuse unless the second action involves "unjust harassment" of the Defendant.”

In Tinkler v Ferguson [2021] 4 WLR 27, Jackson LJ noted that “it [would] be a rare cases where the re-litigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse”.

The parties to the present case are not the same as the parties to the Northern Ireland action. GT in particular was not a party to the first action. The overarching question is whether the CDs are being unjustly harassed (or, to use the language of Johnson “twice vexed”) by the present claim. In my view, they are not.

In the first claim, the plaintiffs sought various declarations and other relief based on an apparent breach of the JVA the terms of which (see paragraph 6 of the “statement of claim”) required the Defendants to transfer the quarry to the plaintiffs. The Defendants to the claim defended it on straightforward terms (the defence is only 11 paragraphs long), denying there any JVA. There was no counterclaim and issues concerning the conduct of the CDs were not raised. Even if a counterclaim had been raised, it would have required the addition of a new party (GT). Further, the claim was not pursued to judgment.

I accept that there are no hard and fast rules that apply in considering whether a second claim should be struck out as an abuse. The power to strike out for abuse of process is “a flexible power unconfined by narrow rules” (see Tinkler). As the burden lies on CDs to show that there has been an abuse, a good starting point is to ask what the abuse is said to be. In my judgment here, it is no more than the assertion that CT might have raised the present claim within the Northern Ireland proceedings. In my judgment that is not enough to approach, let alone cross, the line between proper practice and abuse.

I remind myself that the test for summary judgment is set out in CPR 24. The court may grant summary judgment if it is satisfied that the Claimant has no real prospect of success and there is no other compelling reason why the claim should be disposed of at trial. Here, “real” means more than fanciful. Evidence is admissible on an application for summary judgment.

I remind myself that the test for strike out is set out at CPR 3.4. Examples of the circumstances in which a claim might be struck out at set out in CPR PD 3A. When considering an application for strike out I should not consider extrinsic evidence but should take the pleaded case at its highest.

I have dealt above with the bases on which CDs and Rouse seek to strike out the claim or be awarded summary judgment. I have concluded that none of the grounds advanced is sufficient.

There are 2 pieces of evidence which are of assistance, and which may be taken into account when considering the question of summary judgment:

I regard both of these pieces of evidence as important indicators that I cannot conclude that the Claimants have no real prospects of success on the claim. The 5 April 2011 agreement confirms the plea that GT lost the “exclusive sales, marketing and distribution rights” (pleaded at paragraph 111). The Tattum evidence helpfully shows the mindset of an investor. On its face it is evidence that Gulf failed to invest in a potentially lucrative business as a direct result of the assignments.

In my view the claim against RJB must proceed. He is said to have been a party to the conspiracy. The basis of the application that the claim against him be struck out or otherwise disposed of because he is not directly accused of any unlawful act is, in my judgment, based on a misapprehension. The claim against him (as Mr Burns QC points out at paragraphs 20 to 22 of the Claimants’ second skeleton argument) includes the following (at paragraphs in the DRAPOC):

I accept the submission of Mr Burns QC that if the existence of a conspiracy is accepted by the court, the conspirators are likely to be responsible for the totality of the acts carried out in furtherance of the conspiracy. McGrath in “commercial fraud in practice” cites Derby v Weldon (no.5) [1989] 1 WLR 1244 at 1254 as authority for the proposition that “in a case founded on conspiracy, acts and admissions by one in pursuance of the conspiracy are admissible against the other” (see paragraph 14.05 of the text). It is therefore not necessary to plead that RJB was involved in every wrong.

For those reasons I decline to strike out the claim against RJB.

It appears to be common ground (see paragraph 40 above) that the DRAPOC might be simplified. In my view, the process of pleading to the DRAPOC will be rendered far more efficient by a further re-drafting of the claim. I think it likely that such a re-draft is likely to result in a shorter more focussed pleading, a similarly more succinct defence, more efficient disclosure and shorter witness statements. In the long run the trial (if the matter gets that far) may be shorter and the whole process less expensive.

The parties should endeavour to agree directions to bring the claims to a stage where a case management conference can be heard well before the end of the year.

I am grateful to all counsel involved for their assistance.