Christian Evans v Gennaro Pucci & Anor

HH Judge Klein:

1. This is my decision following the hearing of 2 applications; namely: i) an application by the defendants, Gennaro Pucci and PVE Capital Ltd (together “the defendants”), by notice dated 19 July 2024, for reverse summary judgment or for the striking out of the Particulars of Claim (“POC”) (“the defendants’ application”). Formally, the defendants’ application notice also sought the setting aside of the permission, given by order of Master Brightwell on 13 March 2024, to Christian Evans (“the claimant”) to serve the defendants out of the jurisdiction. That further application was not addressed at all at the hearing, and I assume that it has been abandoned, presumably because the defendants take the view that, having actively and substantively participated in the claim, they have submitted to jurisdiction; ii) an informal cross-application, permitted by Master Brightwell by his order made on 21 October 2024, by the claimant for permission to amend the POC in the form of draft Amended Particulars of Claim (“APOC”) that have since been circulated in accordance with the Master’s order.

2. The claimant was represented at the hearing by Ms Daria Gleyze of counsel and the defendants were represented by Mr Sebastian Kokelaar of counsel. I am grateful to counsel for their assistance.

3. The POC run to twenty four pages. The APOC run to thirty nine pages, comprising of one hundred and eight paragraphs (made up of multiple sub-paragraphs in many instances), apparently introduce, for the first time, claims against non-parties and seek to revive claims against former parties (see, e.g. para.72.5 of the APOC), and include a prayer which effectively extends over three sides of A4 paper. I am doubtful that either statement of case, the APOC in particular, fully complies with Ch.4 of the Chancery Guide (see paras.4.2-4.7 in particular). That alone calls into question whether the claim should be permitted to proceed on the basis of either statement of case, although that is not substantively the way the parties contested the applications. Nevertheless, the form of the statements of case (about which I comment further below) has meant that a critical eye has had to be cast over them and, more immediately for present purposes, a pragmatic solution has needed to be found to deal with the applications, otherwise they ran the risk of taking as long as a trial. The pragmatic approach counsel adopted has been to deal with the statements of case thematically, rather than objected-to paragraph after objected-to paragraph, without any particular focus, save to a limited extent, on the precise wording of the statements of case. That is the approach I therefore adopt in this judgment, setting out my decision on those thematic points and giving the reasons for those decisions. Although, I therefore do not address every submission made by counsel in this judgment, I considered all their submissions carefully before determining the applications.

4. Despite counsel’s approach to the applications, the hearing took more than three full court days.

5. The thematic approach is different to the approach taken in the statements of case, which largely (but not wholly) take a chronological course. Counsel’s adoption of the thematic approach has also meant that it has only belatedly become clear that, in fact, the precise wording of the statements of case has mattered in some instances (and has further meant that it has not always been easy to distinguish between matters already pleaded and proposed amendments). Indeed, on occasion during the hearing, when the precise wording of the APOC was being considered, Ms Gleyze acknowledged that further “clarification” of the claimant’s case is required.

6. Because of what I have said, because also the chronological course of the statements of case (the APOC in particular) is interspersed, in some instances, with pleas of causes of action which are, sometimes at least, disconnected from later pleas of the relief sought by the claimant, and because too there are many internal cross-references in the APOC in particular, I am doubtful that the claim, as formulated particularly in the APOC, can be efficiently managed (even recognising, as I do, that the APOC take the form they do not only because the claimant now wishes to advance a multiplicity of claims but also because the POC (not drafted by Ms Gleyze) have, understandably, where possible been used as the framework for the proposed amendments, even though the proposed amendments are substantial in length and substantive in nature). There is force in the submission which Mr Kokelaar made that all this alone might justify the striking out of the POC and the refusal of permission to amend – although I do not believe that a proportionate response would, on this ground, be to then dismiss the claim – but I prefer not to determine the applications on this basis. My approach to the determination of the applications

7. Before setting out the background to the applications and then turning substantively to the applications themselves, I need to set out what I regard to be the correct approach to their determination, in the circumstances of this case and as the applications have been presented.

8. In the case of each of the reverse summary judgment, strike out and amendment applications, ultimately the same question needs to be answered; namely, whether the claimant’s pleaded allegations have a real prospect of success. It is true that the burden of proving, or disproving, that may fluctuate and may be different depending on the particular application being considered, and it is true too that I may only give reverse summary judgment if I am satisfied that there is no compelling reason why the claim should proceed to trial (albeit that no-one has suggested that there is a compelling reason for the claim to proceed to trial if the claimant’s allegations do not have a real prospect of success). Nevertheless, as I have just said, the principal question I need to answer, on each application, is whether the claimant’s pleaded allegations have a real prospect of success.

9. In the context of an amendment application, Popplewell LJ explained what a “real prospect of success” amounts to in Kawasaki Kisen Kaisha Ltd. v. James Kemball Ltd [2021] 3 All ER 978 , at [16]-[18], thus: “It was common ground that on an application to serve a claim on a defendant out of the jurisdiction, a claimant needs to establish a serious issue to be tried, which means a case which has a real as opposed to fanciful prospect of success, the same test as applies to applications for summary judgment… The Court will apply the same test when considering an application to amend a statement of case, and will also refuse permission to amend to raise a case which does not have a real prospect of success. In both these contexts: (1) It is not enough that the claim is merely arguable; it must carry some degree of conviction… (2) The pleading must be coherent and properly particularised… (3) The pleading must be supported by evidence which establishes a factual basis which meets the merits test; it is not sufficient simply to plead allegations which if true would establish a claim; there must be evidential material which establishes a sufficiently arguable case that the allegations are correct…” Also on the question of necessary strength of the claimant’s case and the nature of their evidence in response to a reverse summary judgment application, Lewison J explained in Easyair Ltd v. Opal Telecom Ltd [2009] EWHC 339 Ch at [15], to similar effect: “(i) A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v. Patel [2003] EWCA Civ 472 at [8] … (v) …in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v. Hammond (No 5) [2001] EWCA Civ 550 … (vi) …the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63 …” (emphasis added).

10. Two further inter-related principles apply, in particular, to the determination of each of the applications. As Lewison J also summarised in Easyair Ltd at [15]: “(iii) In reaching its conclusion the court must not conduct a “mini-trial”… … (vii) …it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it…If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction…”

11. Similarly, in Okpabi v. Royal Dutch Shell plc [2021] 1 WLR 1294 , like Kawasaki a jurisdiction challenge, Lord Hamblen JSC emphasised, at [107], that the court’s focus must be “on the pleaded case and whether that discloses an arguable claim, [and that] the court [must not be] drawn into an evaluation of the weight of the evidence and the exercise of a judgment based on that evidence. That is not its task at this interlocutory stage” (and see, in relation to strike out applications, Hughes v. Colin Richards & Co [2004] EWCA Civ 266 and Bridgeman v. Mc-Alpine Brown , unreported, 19 January 2000). Background to the claim

12. This section of the judgment is derived in part from Ms Gleyze’s helpful skeleton argument.

13. PVE Capital LLP (formerly the second defendant) (“the LLP”), PVE Capital Ltd (“the Maltese company”) and PVE Capital Holdings Ltd (formerly the third defendant) (“Holdings”) were part of a hedge fund set up in or around 2009 by the first defendant with the claimant’s assistance. Both the claimant and the first defendant were then experienced financial traders.

14. The Maltese Company was at the top of the structure of the business, and wholly owning Holdings, which in turn was the managing member of the LLP.

15. The first defendant was the majority shareholder in the Maltese Company, and sole director of Holdings and a member of the LLP. He was also appointed by Holdings as the person to exercise the powers of the managing member in the LLP.

16. The claimant was also a member of the LLP and a 15% shareholder in the Maltese Company. The claimant resigned as a member of the LLP on 18 July 2012, his relations with the first defendant having apparently broken down, but he re-joined the LLP on 10 December 2015.

17. Relations between the claimant and the first defendant apparently broke down for a second time towards the end of 2016 and he was removed (or, on the claimant’s proposed amended case, purportedly, but unsuccessfully, removed) as a member of the LLP by a notice of termination (“the notice of termination”) on 1 December 2016.

18. The LLP was wound up in May 2018 and was dissolved on 10 October 2024, shortly before the October 2024 hearing before Master Brightwell, and Holdings has also been dissolved.

19. The business was successful during the period with which the claim is concerned. In particular, the business secured a collateralised debt obligation deal (“the CDO Deal”) during late 2009/early 2010 with Fondazione ENPAM, an Italian Pension Fund (“the pension fund”).

20. The claimant’s case is that he was instrumental in securing the CDO Deal and that without his professional connections the business and the CDO Deal would not have been viable.

21. By the CDO Deal, the business (to be precise, the LLP) received annual management fees and was due to be paid performance fees on the relevant maturity dates if the business exceeded the key performance indicators (“the performance fees”). The maturity dates were to be in December 2016 and December 2017, but it appears the monies were paid earlier. (The defendants say that they were received on 9 August 2017, although the claimant suggests that there was a part payment in July 2016)).

22. The claimant’s position is that the first defendant, either on his own behalf or on behalf of one or more of the companies he represented, repeatedly promised, notably before the date of a deed of adherence, 15% of the (LLP’s) performance fees (“the 15%”) to the claimant in any event, and that the claimant relied on this promise as a basis for his own conduct. The claimant claims, or seeks, by the APOC, to claim, a beneficial interest under a trust in the 15%, or in a proportionate (15%) share of the LLP’s right to receive the performance fees (effectively referred to by the claimant as “the CDO Money Commitment”). He claims alternatively that he ought to be entitled to that property by virtue of proprietary estoppel, or on the basis of a contractual right.

23. The claimant also makes, or seeks, by the APOC, to make, money claims in respect of what he alleges was the first defendant’s conduct in three distinct periods: i) the period described by the parties as “the first period”, that is, until 18 July 2012; ii) the period described by the parties as “the intervening period”, that is from 18 July 2012 until 10 December 2015; iii) the period described by the parties as “the second period”, which began on 10 December 2015 and may have ended on 1 December 2016 (or, perhaps more properly, on 1 January 2017), on 10 October 2024 (when the LLP was dissolved), or, on the claimant’s case, not at all.

24. For the purposes of the applications, there are two key documents: i) a limited liability partnership agreement relating to the LLP made on 29 September 2010, between Holdings, the first defendant, the claimant and the LLP (“the LLP agreement”); ii) a deed of adherence, dated 10 December 2015, between Holdings, the first defendant, the claimant and the LLP, by which the claimant rejoined the LLP (“the deed of adherence”).

25. The following are key provisions of the LLP agreement: i) recitals recorded that: “The [individual signatories to the LLP agreement] and the Managing Member [(that is, Holdings)] wish to enter into this Agreement to govern their mutual rights and duties and the operation of [the LLP]. [The LLP] has agreed with [those individuals] and the Managing Member that it will comply with and be bound by the provisions of this Agreement insofar as they relate to [the LLP]”; ii) by cl.5.2: “Each Member shall at all times: … (D) conduct himself in a proper and responsible manner and use his best skill and endeavour to promote the Business; (E) comply with all statutes, regulations, professional standards and other provisions as may from time to time govern the conduct of the Business, including the FSMA and the FSA Rules; and (F) show the utmost good faith to [the LLP]”; iii) by cl.7.2: “No Member shall have any interest in any property owned by [the LLP], whether real or personal, tangible or intangible. [The LLP] may hold any of its assets in its own name or in the name of its nominee, which nominee may be one or more individuals, corporations, partnerships, trusts or other entities” (“clause 7.2”); iv) by cl.12.1: “…the profits of [the LLP] shall and any excess amount shall be allocated to the Members in such amounts, at such times and in such manner as the Managing Member [(i.e. Holdings)] shall, at its sole discretion, determine from time to time. In the absence of an exercise of discretion, the profits of the Partnership shall be divided in accordance with the Members’ initial Capital Contributions” (“clause 12.1”). As I have alluded, there is no dispute that the performance fees were payable, by the pension fund, to the LLP and that they represented profits of the LLP; v) by cl.20.1: “The Managing Member shall have the absolute right to serve a Notice of Removal on any Member at any time, substantially in the form set out in Schedule 2 hereto, in the event that the Managing Member considers in its sole discretion the service of such notice to be in the best interests of [the LLP] (for any reason other than Cause), in which case the Managing Member shall give to the Member in question the period of notice stated in such Member’s…Deed of Adherence and such Member’s membership shall cease upon the expiry of such notice period”; vi) by cl.21.2: “[An] Outgoing Member (or his personal representatives) shall only be entitled to be allocated profits of the Partnership on the following basis: (A) if the Outgoing Member ceases to be a Member pursuant to Clauses 20.1 (Removal on Notice)…the Outgoing Member shall be entitled to be allocated profits for the period from the commencement of the financial year in which the Termination Date occurs to and including the last day of the calendar month in which the Termination Date occurs (as calculated in accordance with Clause 21.3) on the basis set out in Clause 12 and all other amounts standing to the credit of the Outgoing Member's Distribution Account which shall remain unpaid to the Outgoing Member as at the Termination Date…”; vii) by cl.31.1: “This Agreement sets forth the complete and entire understanding of the parties and supersedes all previous agreements, understandings and representations. Any liabilities for and any remedies in respect of such agreements, understandings and representations are excluded, save only in respect of such as are expressly made or repeated in this Agreement. No party has entered into this Agreement in reliance on any oral or written agreement, representation or warranty of any other party or any other person which is not made or repeated in this Agreement; provided that the foregoing shall not exclude liability for any fraudulent statement or act” (“the entire agreement clause”).

26. The following are key provisions of the deed of adherence: i) by cl.1.1: “…The provisions of Clauses 31 (Notices), 32.1 (Entire Agreement), 32.2 (Invalidity), 32.3 (Waiver), 32.4 (Counterparts) and 33 (Governing Law) of the [LLP] agreement shall apply to this Deed as if those provisions had been set out expressly in this Deed”; There has been no dispute that the reference, in this clause, to an Entire Agreement clause is a reference to the entire agreement clause even though the LLP agreement has been mis-dated in the deed of adherence and the entire agreement clause (as well as all the other clauses quoted) have been mis-numbered; ii) by cl.2.1: “[The claimant] has received a copy of the [LLP] Agreement, which sets out the basis on which [the LLP] is organised and the mutual rights and duties of [the LLP] and its Members, which he has read and understood, and has initialled and attached to this Deed for identification.” iii) by cl.2.2: “[The claimant] covenants with the Members [(including the first defendant)] for the time being to observe and perform the terms and conditions of the [LLP] agreement on terms that [the claimant] become (sic) a Further Member under the [LLP] agreement with effect from 18 th July 2012”; iv) by cl.2.8: “This Deed shall be supplemental to and read together with the [LLP] Agreement”. The claimant’s claims

27. In this section of the judgment, I try to summarise what I understand to be the claimant’s claims and proposed claims, adopting counsel’s thematic approach.

28. By the POC, the claimant claims that, in April or May 2012, a constructive trust of the CDO Money Commitment arose of which the LLP (not the first defendant) was a trustee.

29. By the APOC, in contrast, the claimant proposes to plead, as alternatives, as follows in relation to the CDO Money Commitment; namely, that: i) the first defendant “constituted himself as bare trustee on an express trust of C’s right to receive 15% of the CDO Monies and/or of 15% of the CDO Monies for the benefit of C” (i.e. of the claimant’s (alleged) pre-existing rights comprised in the CDO Money Commitment); ii) the first defendant voluntarily undertook fiduciary duties to the claimant (by promising the CDO Money Commitment to the claimant) and that, on any receipt by the first defendant of the performance fees (the CDO monies), a constructive trust arose of the CDO Money Commitment because it would be “unconscionable” to deny the claimant’s entitlement to the CDO Money Commitment; iii) a common intention constructive trust of the CDO Money Commitment has arisen to which the claimant and the first defendant are parties; iv) the claimant is entitled to the CDO Money Commitment under a Pallant v. Morgan equity; v) the first defendant is estopped, by way of proprietary estoppel, from contending that the claimant is not entitled to the CDO Money Commitment; vi) there has existed a contract between the claimant and the first defendant by which the first defendant committed to pay the claimant the 15% himself (not a sum equivalent to that amount) or to ensure that the claimant would be paid the 15%; vii) as Holding’s agent or the LLP’s sub-agent, the first defendant undertook a personal responsibility for the payment by the LLP of the 15%.

30. The claimant proposes to plead by the APOC that, by his conduct during the First Period and/or by thereby bringing about the claimant’s resignation as an LLP member on 18 July 2012, the first defendant caused the claimant: i) to receive a lower profit share under the LLP agreement than he would otherwise have done; ii) to lose the 15%, which, on his case, he would have got had he remained an LLP member until 2017; iii) “serious psychiatric injury in the form of stress, anxiety and emotional disturbance” such that he was unable to work for the following year; iv) a loss of income for that period.

31. The claimant claims that the first defendant’s conduct was a breach of cl.5.2 of the LLP agreement and (by a proposed amendment) that, on the proper construction of cl.5.2(F) of the LLP agreement or by implication, there has been “a duty on each [LLP] member…to every other member…of good faith and honesty”.

32. The claimant also proposes to plead by the APOC that: i) the first defendant promised him a bonus in 2011 of £200,000 but the claimant only received a bonus of £40,000; ii) this was a breach of an (alleged) implied term of the LLP agreement (pleaded as well in the POC) that Holding’s clause 12.1 discretion was not to be exercised irrationally or unreasonably or that this was otherwise wrongful as a result of the (alleged) conduct of the first defendant (part, but not all of which, is pleaded only in the APOC). It is not obvious, on the face of the APOC, that the claimant is actually making any money claim in relation to this allegation (and, if he does not, that is perhaps a reflection of the concern I have already expressed about the coherence of the APOC).

33. In relation to the intervening period, the claimant proposes to make the following new claim in the APOC.

34. Relying on the fact that, by the deed of adherence, the claimant covenanted to observe and perform the terms and conditions of the LLP agreement on terms that he became a member of the LLP with effect from 18 July 2012, he proposes to claim, by implication, to be entitled to a profit share under clause 12.1 for the period from 18 July 2012 to 10 December 2015, which he seeks to recover not on the basis of a breach of some obligation but on the ground that the clause 12.1 discretion has not been exercised yet.

35. Finally, the claimant claims, or proposes to claim, as follows in relation to the second period.

36. £10,000 (under para.105.3 of the APOC) by way of profit share which the claimant claims he was liable to be paid under clause 12.1 for the one month’s notice period (set in the deed of adherence), covered by the LLP agreement, following the service of a valid notice of termination under cl.20.1 of the LLP agreement. This claim is said to arise out of the first defendant’s conduct before the notice of termination. (This claim is made both in the POC and proposed to be made in the APOC).

37. A profit share, under clause 12.1, from January 2017 to date (or, at least, until the LLP’s dissolution) on the basis that the notice of termination has been invalid. The claim that the notice of termination has been invalid is made for the first time in the APOC (see para.105.2 of the APOC).

38. The 15% (or an equivalent sum) (under para.105.5 of the APOC) which the claimant claims he ought to have received on the basis that the notice of termination has been invalid. Ms Gleyze accepted at the hearing that this claim stands or falls with (or, perhaps more accurately is part and parcel of) the claim to a profit share from January 2017 to date which, in turn, is based on the assumption that the notice of termination has not been valid. (Strictly, on the language of the proposed plea, it may be that this claim is also made under the Re-Joining Contract (which pre-dates the deed of adherence and under which only in the APOC does the claimant claim the first defendant has a personal liability) whether or not the notice of termination has been invalid).

39. £18,000 (under para.105.1 of the APOC) by way of profit share for the period before the notice of termination which the claimant claims (even in the POC) he has not been paid: i) in breach of the (alleged) implied term of the LLP agreement (pleaded as well in the POC) that Holding’s clause 12.1 discretion was not to be exercised irrationally or unreasonably (for which the claimant proposes to claim, by the APOC, the first defendant accepted a personal liability); ii) in breach of a promise (referred to as “the Re-Joining Contract”) said to have been (i) made by the first defendant to persuade the claimant to return to the business and (ii) collateral to the deed of adherence (see para.78 of the APOC) which, in the POC, the claimant claims was made by the first defendant as Holdings’ agent and in respect of which the claimant proposes to claim, alternatively, in the APOC the first defendant accepted a personal liability.

40. Damages for loss of income (under para.105.4 of the APOC) arising from what is said to have been: i) a breach of a term implied into Holding’s discretion to serve a notice of termination under cl.20.1 of the LLP agreement, that such a notice would not be served unreasonably or irrationally (in respect of which implied term, for the first time in the APOC, the claimant contends the first defendant accepted a personal liability); ii) a breach of the Re-Joining Contract, in respect of which, as I have explained, for the first time in the APOC the claimant claims that the first defendant accepted a personal liability.

41. An important distinction between the POC and the APOC is as follows.

42. In the former, where the claimant claims that there has been a breach by the first defendant of the LLP agreement and/or of what he claims the first defendant bound Holdings, as managing member, to do under the LLP agreement, he claims that the first defendant so conducted himself as agent (or sub-agent), or delegate, for Holdings and, in turn, on behalf of the LLP. So, for example, in para.17.3 of the POC, the claimant pleads: “D1’s conduct in his capacity as the delegate of the Managing Member’s powers are binding on both the Holding Company and the LLP as an agent of the Holding Company.” Similarly, for example, the claimant pleads: i) in para.19.3: “D1’s…conduct in his capacity as the delegate of the Managing Member’s powers and obligations are attributable to the Holding Company”; ii) in para.37: “The CDO Monies Commitment by D1 was in exercise of [his] discretion on behalf of the Managing Member, on behalf of the LLP, under the Profit Allocation Clause of the LLP agreement”; (see also para.60 of the POC). Consistently with this is the claimant’s claim that, as I have set out, the LLP was the trustee of CDO Money Commitment.

43. Generally, an agent is not personally liable under a contract between his principal and a third party. As Bowstead & Reynolds on Agency (23 rd ed) explains: “9-001 In the absence of other indications, when an agent makes a contract, purporting to act solely on behalf of a disclosed principal, whether identified or unidentified, the agent is not liable to the third party on it. Nor can the agent sue the third party on it. 9-002 …the reason why the agent is not liable or entitled, when this is so, is that the objective interpretation of the dealings between the between the parties indicate a contract between principal and third party only…”

44. There is no express plea in the POC of the facts which are said to give rise to an acceptance, by the first defendant, of a personal liability as agent (or sub-agent), as I believe there would need to be in order for the claimant to pursue a claim that the first defendant has been personally liable as an agent (or sub-agent) (see CPR 16.4(1)(a)).

45. In the APOC, the claimant does propose to claim expressly that the first defendant accepted a personal liability for his conduct as agent or sub-agent (as I have indicated). Para.13.3.3 of the APOC says: “At all material times, D1 exercised the functions, powers and discretion of the Managing Member himself, and he took personal responsibility for the manner in which he exercised these…” (see also, e.g., para.17.3 of the APOC).

46. The claimant gives only limited particulars of this claim in para.13.3.3 of the APOC itself. He pleads there: “Far from purporting to act as an agent of the Holding Company and/or on behalf of the Holding Company, D1 frequently and expressly stated, both to C and to his colleagues, that he was himself personally in control, personally taking all relevant decisions and at all material times exercising his personal discretion; b. To the extent to which D1 exercised functions, powers and discretion which nominally belonged to the Managing Member in matters which concerned C, D1 would always refer to himself in his private capacity and deal with C as a private individual who called the shots and took responsibility for his own decisions, as opposed to acting as an agent for the Managing Member or for anyone else; c. In particular, in respect of decisions on the allocation of profits, D1 had always given the impression to C, both by express words and by conduct, that D1 was exercising his discretion/powers personally (as member and founder of the Business) and that D1 took personal responsibility for the decisions so made.”

47. To similar effect, the claimant said as follows in the witness statements filed in relation to the applications: “I am claiming that Mr Pucci is personally liable to me, otherwise he would not be a party to this claim. He did make all the promises, commitments and representations set out in the Particulars of Claim both personally and on behalf of the various companies involved. I very clearly understood him to be taking personal responsibility for paying me the 15% and holding those monies for me when he received them.” “…I am seeking to amend…to set out, beyond any doubt, the basis on which Mr Pucci is personally liable to me, namely for breaches under the LLP Agreement and under the collateral contracts he has made with me. In short, it is because Mr Pucci has undertaken a personal liability, both expressly and by conduct…”

48. In relation to the claims relating to the CDO Monies Commitment, the claimant may give further particulars, of his claim that the first defendant accepted a personal liability, in the APOC; e.g. in para.36.6, where he proposes to plead: “At various times…, D1 reiterated to C that C “would be allocated 15% of the performance fees”, that D1 would give and/or pay C the money (“I’ll give you the CDO money”; “I am going to pay you the CDO money”) and that C had an absolute entitlement to 15% of the CDO Monies.”

49. It is also convenient to make the following further point here.

50. It has been important to keep in mind what the claimant alleges about the receipt of the performance fees, about which he pleads as follows: “The CDO Monies [(i.e. the performance fees)] of €9,889,976.80 came into the LLP’s possession on 9 August 2017… … On 6 September 2017,…the NatWest Account owned by the LLP had a balance of £7,003,306.04. That same day a transfer of £7,000,016.79 (the “Transfer”) was debited from the NatWest Account… It is averred that the Transfer from the NatWest Account amounted to a misappropriation…to the Holding Company. … The Holding Company is owned wholly by the Maltese Company, which recorded a dividend income of €7,113,699 for the 2017 financial year in its Annual Report and Financial Statements dated 31 December 2018. In 2017, the Maltese Company declared a dividend of €6,000,000 at €28.33 per share. At that time Forteq were listed as owning 211,799 ordinary shares and D1 was listed as owning 1 ordinary share. D1 waved his right to a dividend, leaving €6,000,000 to be paid to Forteq.”

51. Ms Gleyze confirmed to me that there is no express plea in either statement of case that the defendants themselves actually received any part of the performance fees. Contractual estoppel

52. Mr Kokelaar referred me to Wilken & Ghaly: The Law of Waiver, Variation, Estoppel, where the authors explain as follows (in a lengthy section, a significant part of which can be helpfully set out here): “13.16 It is common for parties to insert into contracts clauses which purport to restrict the parties’ liabilities for extra-contractual statements. The most common of these are entire agreement clauses (which state that the agreement between the parties is solely as set out in the contract) and no reliance clauses (which provide (and usually warrant) that no reliance has been placed on any representations made by the other party to the contract and/or that a particular state of affairs or facts exists). The former raise questions as to whether such a clause may prevent any estoppel arising. The latter, since the Court of Appeal decision in Peekay Intermark Ltd v. Australia and New Zealand Banking Group Ltd , raise the question of whether a party can be precluded by the operation of a new and anomalous doctrine of contractual estoppel from ever contradicting the scope and content of such a clause or warranty. 13.17 In Peekay Intermark Ltd v. Australia and New Zealand Banking Group Ltd , Lord Justice Moore-Bick stated as follows: “There is no reason in principle why parties to a contract should not agree that a certain state of affairs should form the basis for the transaction, whether it be the case or not. For example, it may be desirable to settle a disagreement as to an existing state of affairs in order to establish a clear basis for the contract itself and its subsequent performance. Where parties express an agreement of that kind in a contractual document neither can subsequently deny the existence of the facts and matters upon which they have agreed, at least so far as concerns those aspects of their relationship to which the agreement was directed. The contract itself gives rise to an estoppel: see Colchester Borough Council v. Smith [1991] Ch. 448 , affirmed on appeal [1992] Ch 421 . … 13.18 Thus relying on Colchester Borough Council v. Smith and the long-standing commercial practice of inserting non-reliance clauses into contracts, Lord Justice Moore-Bick (with whom the rest of the Court of Appeal agreed and which formed part of the ratio of the case) created a new form of estoppel. If the parties had declared X to be the case in the contract then they would be estopped from denying that X was the case. This, as has been recognised, undoubtedly made commercial sense. 13.19 Peekay has been relied on numerous times at first instance in all cases save one without difficulty as if it were a recognised form of estoppel. Peekay has also been reconsidered by the Court of Appeal in Springwell Navigation Corporation v. JP Morgan Chase Bank . There Lord Justice Aikens held: “143. …I will try and analyse the matter from principle. If A and B enter into a contract then, unless there is some principle of law or statute to the contrary, they are entitled to agree what they like . . . there is no legal principle that states that parties cannot agree to assume that a certain state of affairs is the case at the time the contract is concluded or has been so in the past, even if that is not the case, so that the contract is made upon the basis that the present or past facts are as stated and agreed by the parties…

144. …Apart from the remarks of Diplock J in Lowe v. Lombank , Mr Brindle did not show us any case that might support the proposition that parties cannot agree that X is the case even if both know that is not so. I am unaware of any legal principle to that effect. The only possible exception might be if the particular agreement between A and B on the certain state of affairs concerned contradicts some other specific or more general rule of English public policy. Like Moore-Bick LJ in Peekay I see commercial utility in such clauses being enforceable, so that parties know precisely the basis on which they are entering into their contractual relationship.

169. …In my view the statements of Moore-Bick LJ are consistent with principle and authority. I respectfully regard the principles stated in Peekay as good law. That case has now been followed in a large number of first instance cases which need not be analysed in any detail. …

177. …To my mind, once it is accepted that there is a separate doctrine of “contractual estoppel” then there is no room for a requirement that the party which wishes to rely on that estoppel must demonstrate that it would be unconscionable for the other party to resile from the conventional state of affairs that the parties have assumed…” 13.21 As authority, Springwell could not be more clear. The contractual “estoppel” (a) is new; (b) is not linked to any established category of estoppel; (c) does not depend on unconscionability and (d) merely arises from the parties’ recitation of particular facts in the contract. Further, there is obvious commercial benefit to having such a doctrine and there is no reason (given the protection offered by consideration, economic duress and the unfair contract terms legislation) why commercial parties should not be able to agree, by their contract, a state of affairs. 13.22 The difficulty, however, is that the contractual “estoppel” is not an estoppel. As indicated throughout this text, estoppels at root require detriment. Albeit the forms detriment may take and the results that flow may vary, detriment is a theme common to all estoppels - all save for this contractual estoppel. Further, if the contractual estoppel were an estoppel, there would be no need for estoppel by deed. This contractual estoppel would replace the more narrowly formulated estoppel by deed completely. Yet, at no stage did the Court of Appeal state that it was abolishing or replacing the long-established doctrine of estoppel by deed or overruling (if it could) the numerous authorities that support it or, the third logical possibility, contending that estoppel by deed should now be treated as nothing more than a contractual estoppe1. The above, it is submitted, must mean that on the law as it currently stands the Peekay doctrine is not an estoppel.”

53. Counsel did not take me to the authorities themselves to which the authors refer. Nor did they take me to any other authorities which might call into question the text I have just quoted.

54. On the basis of that text, I have concluded that contractual estoppel significantly affects the outcome of the applications.

55. Ms Gleyze suggested that the entire agreement clause and clause 7.2 should not be given their plain meaning, at least arguably.

56. It is right that, by clause 16.4 of the LLP agreement, Holdings, as managing member, was entitled to borrow money from the members of the LLP and charge to the lender(s) the LLP’s property as security for their loan. If it is correct to view the granting of such a charge as the giving of a proprietary interest in the LLP’s property to a member, to that extent, on the proper construction of clause 7.2, some departure from its plain meaning can be said to be justified. However, as a matter of fact, there is no question, in this case, of the claimant having lent any money to the LLP or of being a chargee of its property, and, other than to the extent I have just mentioned, there is no basis for departing from the plain meaning of the provisions in question (or, for that matter, for departing from the plain meaning of clause 12.1). Although Ms Gleyze suggested that, if this case proceeded to trial, there might be further factual background evidence which might inform the proper construction of the provisions, particularly in relation to the entire agreement clause, she did not point to any material which would support the conclusion that such evidence could reasonably be expected to be available at trial. Put another way, the submission that the provisions in question should not be given their plain meaning (subject, in the case of clause 7.2, to the point I have just made) does not carry a sufficient degree of conviction for me to give it any weight.

57. By the deed of adherence, the claimant covenanted with the first defendant, amongst others, to be bound by the terms of the LLP agreement with effect from 18 July 2012. In the circumstances, whether indirectly, by the deed of adherence (to which the LLP was also a party), or as a party to the LLP agreement (to which the first defendant and the LLP were also parties), the claimant agreed that he would have no proprietary interest in the LLP’s property (see clause 7.2) (which, as I have alluded to, includes the performance fees and the right to receive them) and that Holdings had a discretion exercisable from time to time about what profit share would be payable to an LLP member (see clause 12.1) and, by executing the deed of adherence on 10 December 2015, the claimant agreed that that state of affairs continued to exist then. Put another way, the claimant agreed, as of 10 December 2015, that Holdings had a discretion as to proportion of the performance fees (the LLP’s property), if any, the claimant might receive as a profit share.

58. It must follow from this that the claimant cannot claim that he has had any proprietary interest in or entitlement under the CDO Monies Commitment, because all the representations he alleges the first defendant made in that respect were made before 10 December 2015.

59. In consequence, the claims in relation to the CDO Monies Commitment (see paras.28-29 above) do not have a real prospect of success against the first defendant (and there is no compelling reason for them to go to trial nevertheless). To the extent that a claim has been pleaded in the POC, it must be struck out (and the claim then dismissed), and to the extent that amendments are proposed in this context in the APOC, permission to amend cannot be given.

60. This conclusion is reinforced, at least in relation to the proposed claim that a contract arose between the claimant and the first defendant which was collateral to the claimant’s execution of the deed of adherence and by which the first defendant (allegedly) promised to pay the claimant the 15%. Such a collateral contract clearly falls within the ambit of the entire agreement clause and would fall foul of the contractual estoppel arising in relation to that clause.

61. The claims in relation to the CDO Monies Commitment are not sustainable against the Maltese company because the claimant does not plead that the Maltese company has (knowingly) received any of the performance fees or has received and retained their traceable proceeds.

62. Even if the conclusions I have reached so far are wrong, there are further reasons why the claims I have summarised in paras.28-29 above are unsustainable (although, in relation to some of them their unsustainability might have been cured by further pleading if the underlying facts supported such further pleas).

63. I briefly set out some of those further reasons now.

64. A claim in relation to the constructive trust pleaded in the POC (see para.28 above) cannot be sustained against the defendants on the current state of the statements of case, because it is not alleged that they have (knowingly) received any of the performance fees or received and retained them or their traceable proceeds.

65. The claim of an express trust of “C’s right to receive 15% of the CDO Monies and/or of 15% of the CDO Monies for the benefit of C” (i.e., of the claimant’s (alleged) pre-existing rights comprised in the CDO Money Commitment) (see para.29(i) above) cannot succeed. It is a claim which alleges that the first defendant “constituted himself” as trustee of that property (i.e. he was the settlor), but there is no foundation for claiming, as the claimant does by this proposed plea, that the first defendant ever received (beneficially or otherwise) these supposed pre-existing rights of the claimant, the basis for which is wholly unpleaded.

66. The claim of a constructive trust arising because the first defendant (allegedly) voluntarily undertook fiduciary duties (see para.29(ii) above) is unsustainable. The fiduciary duties which the first defendant is alleged to have undertaken are not particularised and, in any event, as I have said there is no claim that any relevant property which may be impressed with such a trust came into the first defendant’s hands.

67. The claim of a common intention constructive trust (see para.29(iii) above) is unsustainable. The claimant pleads that the parties to that trust were the claimant (and not the LLP for example) and the first defendant. Such a trust can only have arisen in respect of property coming into the first defendant’s hands, but, as I have said, there is no claim that any relevant property has come into the first defendant’s hands.

68. The claim of a Pallant v. Morgan equity (see para.29 (iv) above) cannot succeed. As Chadwick LJ explained in Banner Homes Holdings Ltd v. Luff Developments Ltd [2000] Ch 372 (see also per Lewison LJ in Generator Developments v. Lidl UK GmbH [2018] P& CR 7, at [43]): “(1) A Pallant v. Morgan equity may arise where the arrangement or understanding on which it is based precedes the acquisition of the relevant property by one party to that arrangement… … (3) It is necessary that the pre-acquisition arrangement or understanding should contemplate that one party (“the acquiring party”) will take steps to acquire the relevant property; and that, if he does so, the other party (“the non-acquiring party”) will obtain some interest in that property… (4) It is necessary that, in reliance on the arrangement or understanding, the non-acquiring party should do (or omit to do) something which confers an advantage on the acquiring party in relation to the acquisition of the property; or is detrimental to the ability of the non-acquiring party to acquire the property on equal terms…” The claimant does not claim that he conducted himself in a way which has conferred an advantage on the first defendant; in particular, that he gave up the right to obtain the CDO Monies Commitment directly from the LLP.

69. I understand the claims in relation to the CDO Monies Commitment I have summarised in paras.29(vi), (vii) to be contractual claims subject to a 6 year limitation period, under s.5 of the Limitation Act 1980 , which has expired. They are also new claims. Under CPR 17.4(2) the court may allow amendments whose effect will be to add new claims, but only if the new claims arise out of the same facts or substantially the same facts as are already in issue in a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.

70. The correct application of CPR 17.4(2) was summarised as follows by Charles Hollander KC (sitting as a Deputy High Court Judge) in Amtrust Europe Ltd v. MD Insurance Services Ltd [2025] EWHC 1468 (Comm) at [44]-[49]. In particular, he recorded at [48]-[49]: As to what constitutes “the same or substantially the same” set of facts, a summary of the principles was set out in Niprose Investments Ltd v. Vincents Solicitors Ltd [2025] EWHC 14 (Ch) , at [31] : “(1) Whether a new claim arises out of the same, or substantially the same, facts as an existing claim is not a matter of discretion or case management but is a substantive question of law, which depends on analysis and evaluation to arrive at the correct answer. (2) It is of critical importance to carry out a careful, comparative evaluation of the scope and nature of the facts in issue in the existing claim and the facts alleged in the new claim. (3) If, on evaluation, the new facts are of an entirely different character from the existing facts in issue, the threshold for permission will not be met. Broadly similar facts, implicitly raised or understood, will not do. (4) “Same or substantially the same” is not synonymous with “similar”. (5) Whilst, in borderline cases, the answer to this question may be substantially a “matter of impression”, in others it must be a question of analysis. (6) The purpose of the requirement at stage 3 is to avoid placing the defendant in a position where he will be obliged, after the expiry of the limitation period, to investigate facts, and obtain evidence of matters, completely outside the ambit of, and unrelated to, the facts which he could reasonably be assumed to have investigated for the purpose of defending the unamended claim. (7) It is thus necessary to consider the extent to which the defendants would be required to embark upon an investigation of facts which they would not previously have been concerned to investigate. At stage 3 the court is concerned at a much less abstract, more granular, level than at stage 2; it is a matter of considering the whole range of facts which are likely to be adduced at trial….” In Ballinger v. Mercer [2014] EWCA Civ 996 (at [34]), the Court of Appeal endorsed guidance given by Colman J in BP plc v. Aon Ltd [2006] 1 Lloyd’s Rep 549 , 558 where he said at [53]: “In Lloyds Bank plc v. Rogers [1997] TLR 154 Hobhouse LJ said of section 35: “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.””

71. A key element of the proposed new claims is that the first defendant undertook a personal liability to the claimant. That assertion is, as I have explained, not made in the POC. The proposed new claims do not therefore arise out of substantially the same facts, at least as are already in issue. I would therefore not be able to give permission to amend to permit the proposed new contractual claims to be brought. The First Period – claims relating the first defendant’s alleged conduct (see paras.30-31 above)

72. In relation to these claims, by the APOC, the claimant proposes to plead, for the first time, that: i) the first defendant has been in breach of his obligations arising mainly out of the LLP agreement (see para.31 above); ii) that conduct caused the claimant serious psychiatric injury; iii) that conduct resulted in losses to the claimant.

73. In the POC, those First Period conduct matters which the claimant pleads are no more than background to the circumstances of his resignation which, in the POC, are relevant to the claimant’s claim in relation to the CDO Monies Commitment.

74. Because the claimant proposes to claim for psychiatric injury arising out of a breach of duty, the three year limitation period in s.11 of the Limitation Act 1980 applies to all the proposed claims I am now considering. As McGee: Limitation Periods (9 th ed) explains, at para.8-006: “The three-year period applies where the damages include any claim for personal injuries. Thus the inclusion of a personal injuries element, however slight, means that the three-year period applies to the whole action. Where the personal injuries claim is a small part of the claimant’s total loss it may therefore be thought more prudent to forego it. This is not problematic where the original claim omits the personal injuries. Where the original claim does include personal injuries, the claimant may subsequently seek to amend the particulars of the claim by removing the personal injuries element if it becomes clear that there is a limitation problem with that part of the claim…” If the claimant foregoes his claim of psychiatric injury, the 12 year limitation period applying to actions on deeds (the LLP agreement) would apply. Amendments to the POC were not proposed until October 2024, more than 12 years after the claimant’s 18 July 2012 resignation as a member of the LLP. The claimant therefore seeks to bring the claims outside an applicable limitation period.

75. The claims are, as I have explained, new claims, and they do not arise out of the same facts or substantially the same facts as are already in issue in respect of which the claimant has already claimed a remedy in the proceedings. There is, presently, no personal injuries claim. Nor is there already in issue the losses for which the claimant now proposes to claim. Most importantly, the POC do not allege that the first defendant has been in breach of the obligations the claimant now relies on.

76. It follows therefore that I cannot give permission for the proposed amendments to be made. If I gave permission the defendants would be placed in a position where they “will be obliged, after the expiry of the limitation period, to investigate facts, and obtain evidence of matters, completely outside the ambit of, and unrelated to, the facts which [they] could reasonably be assumed to have investigated for the purpose of defending the unamended claim”.

77. Principally in relation to the claimant’s proposed personal injury claim, relying on what she referred to as the “Mastercard” exception (see WM Morrison Supermarkets plc v. Mastercard Incorporated [2013] EWHC 3271 (Comm) ), Ms Gleyze argued, as I have understood her submission, that I should not determine whether any limitation period for the proposed new claims has passed (or whether or not it is reasonably arguable that any has passed). Instead, I understood her to argue, I should permit the proposed amendments, but limit any recovery by the claimant to a period equivalent to the relevant limitation period measured back from the date of the claimant’s informal amendment application and that I should leave it to a trial judge to determine whether or not the claims are in fact statute-barred once the defendants had pleaded a limitation defence. There are a number of fundamental difficulties with this submission.

78. First, it is inconsistent with s.35(3) of the Limitation Act 1980 , which provides: “Except as provided by section 33 of this Act or by [CPR 17.4], neither the High Court nor the county court shall allow a new claim…to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim.”

79. Secondly, if I have decided that the claims can be brought, despite the defendants taking a limitation point on the present applications (and despite, I have understood, the claimant having accepted that the claims are statute-barred under the relevant primary limitation periods), it may be that a trial judge could not find that such claims are in fact statute-barred (which would be significant if a twelve year, rather than a three year, limitation period applies to the new claims).

80. Thirdly, a claim for personal injury losses in the three years preceding the claimant’s amendment application would not benefit him because he has not suffered any such loss in that period. If I adopted Ms Gleyze’s approach, what would be possible (because the whole of the claim would not have been summarily disposed of), would be for the claimant then to make a further amendment application coupled with an application under s.33 of the Limitation Act 1980 (“a s.33 application”) for an order extending the limitation period to effectively allow him to claim personal injury losses for the period when he says he suffered them. Indeed, I had the sense, during the hearing, that Ms Gleyze’s argument was really a valiant attempt to ensure that the claim has some continuing vitality so that the claimant could make a s.33 application which has not yet made.

81. Fourthly, it is inconsistent with the overriding objective to not determine an issue before me (i.e., whether or not the proposed claims I am now considering satisfy the requirements of CPR 17.4), with the effect that claims which the CPR mandates should not proceed to trial could be allowed to do so; particularly where, had a s.33 application already been made, Ms Gleyze’s submission might have been wholly redundant.

82. Fifthly, in any event, I am doubtful that the Mastercard exception is a basis for Ms Gleyze’s submission. Because her submission was not foreshadowed in her skeleton argument, both she and Mr Kokelaar could only provide me with limited assistance on the question of what was actually decided in Mastercard (and the cases which have referred to it). As I understand Mastercard , the judge (Field J) decided no more than that, when a claimant wishes to make a new claim for a continuing wrong (see [13] of the judgment), to the extent that the wrong has been committed within an existing limitation period permission to amend can be given under CPR 17.1, because, to that extent, there is no question of the limitation period having expired, s.35(3) of the Limitation Act 1980 being engaged, or CPR 17.4 applying. A typical example may be a trespass which is said to be continuing. It would be conventional for a court to permit an amendment to allow such a claim to be brought limited to losses sustained within the then existing limitation period, there being no question of the claim being statute-barred to that extent. That circumstance is not this case. There was no continuing wrong in the twelve years before the claimant’s amendment application.

83. In the circumstances, it is not appropriate for me to depart from the approach mandated by CPR 17.4 or, as I have said, to permit the proposed amendments. The First Period – the 2011 bonus claim (see para.32 above)

84. Assuming that the claimant does wish to make a claim in relation to his 2011 bonus, this claim too is made (as the previous claim is) outside an applicable limitation period. It requires the claimant to plead (and establish) that the first defendant accepted (and then breached) a personal responsibility for the exercise, by Holdings, of its clause 12.1 discretion to allocate profit shares, which is not alleged in the POC. For the same reasons that I cannot give permission for the previous claim to be brought, so I cannot give permission for this claim to be brought. The Intervening Period (see para.33 above)

85. As I have summarised, by his proposed claim relating to the Intervening Period the claimant seeks to compel the retrospective payment to him of a profit share for the period, from 2012-2015, when he was not in fact an LLP member. The claimant does not allege that his non-receipt of a profit share was as a result of some default on the part of the defendants. Rather his case appears simply to be that he was not allocated a profit share when, by reason of the retrospectivity of the deed of adherence, he was entitled to it. Neither the LLP (from which any profit share was to come), nor Holdings, which managed the profit share payments on a day to day basis, is any longer a party to the claim (by agreement with the claimant) and they have been dissolved in any event. This claim therefore has no prospect of success. I cannot give permission for the proposed amendments in respect of it. (As it happens, I am very doubtful that there is an implied term, in the deed of adherence in particular, which can be the basis for such a retrospective payment. However, in the light of TTE , in the circumstances of this case it is not appropriate for me to summarily determine this further question). The Second Period claims

86. I consider, first, the claimant’s claim to a one month profit share under cl.20.1 of the LLP agreement to which he claims to be entitled following the service of a valid notice of termination (see para.36 above).

87. I am afraid I do not see how any (pleaded) prior conduct of the first defendant caused the claimant’s failure to receive a profit share payment for the month following the notice of his termination. This claim would therefore have no prospect of success and ought to be dismissed. However, although not articulated in this way in the statements of case, it may be that the claimant seeks to make a claim in respect of this profit share on the same basis as he claims a profit share for the period before the notice of termination (see para.39 above). If that is so, the outcome of the applications in respect of both claims might (arguably) be the same. More importantly, Mr Kokelaar’s submissions proceeded on the basis that both the claim for the whole of the “post-termination” one month profit share (see para.36 above) and the claim for a profit share for the period before the notice of termination (see para.39 above) should be determined in the same way. I will therefore adopt that approach (i.e. I will determine the applications in relation to the “post-termination” one month profit share in the same way as I determine the applications so far as they relate to the claim for the earlier period (as to which, see further below)).

88. I consider now the claimant’s claim to a profit share, under clause 12.1, for the period from January 2017 to date (or, at least, until the LLP’s dissolution) (see para.37 above). This claim cannot succeed. The claimant does not allege in the APOC, as far as I can see, that a decision not to allocate him a profit share for this period has been attributable to the first defendant. Rather, his complaint seems to be that Holdings simply did not allocate him a profit share when he was a member (on the hypothesis that the notice of termination has been invalid). Holdings had a discretion to allocate a profit share under clause 12.1 as I have said. The claimant does not plead that there has been some default in the exercise of that discretion by Holdings. His proposed plea is no more than simply, he was in fact an LLP member after December 2016 and he has not been allocated a profit share.

89. I turn next to the claimant’s proposed claim to the 15% (or an equivalent sum) (see para.38 above) which the claimant claims he ought to have received on the basis that the notice of termination has been invalid. As Ms Gleyze accepted at the hearing that this claim stands or falls with (or, perhaps more accurately is part and parcel of) the claim which I have just been considering and which I have found cannot succeed, this claim cannot be permitted either. In any event, the proposed claim is wholly unclear. If, as the claimant proposes to plead, this claim arises only if he is not otherwise entitled to the CDO Monies Commitment, there is no explicable basis on the face of the APOC for the claimant being entitled to the 15% or an equivalent sum. This claim appears to be no more than a claim that, if the claimant remained an LLP member for the relevant period, Holdings would have been “obliged” to exercise its clause 12.1 discretion to allocate to him the 15% or an equivalent sum. However, Holdings has not been “obliged” to allocate any particular profit share to the claimant (contrary to the proposed pleading) because it had a discretion.

90. On the language of the proposed plea, it may be that this claim is also made under the Re-Joining Contract whether or not the notice of termination has been invalid. Such a claim cannot succeed because it is caught by the contractual estoppel relating to the entire agreement clause which I have already discussed.

91. I turn finally to consider the claims to an £18,000 profit share (see para.39 above) and the claimant’s claim for damages for loss of income (see para.40 above).

92. As I have set out, both claims depend, in one alternative, on the Re-Joining Contract and, in both alternatives, on a plea, only proposed in the APOC, that the first defendant has accepted a personal responsibility for the exercise of Holding’s discretions.

93. To the extent that the claims are based on the Re-Joining Contract, they cannot succeed, because the Re-Joining Contract is caught by the contractual estoppel relating to the entire agreement clause which I have already discussed, the Re-Joining Contract being said to be a contract collateral to the deed of adherence (see, in this context, per Lord Sumption in MWB Business Exchange Centres Ltd v. Rock Advertising Ltd [2019] AC 119 at [14]).

94. Nor can either claim succeed to the extent that they are based on the first defendant’s (alleged) acceptance of a personal liability unless I permit amendments to allow such an assertion to be made, because, on my reading of the POC, no such allegation (of the first defendant’s acceptance of personal liability) is already pleaded as it should have been, as I have said.

95. As I have already noted, to permit such amendments I must be satisfied that they “carry some degree of conviction…and [are] properly particularised”. Neither of these requirements is met by the claimant at the moment. The claimant’s allegation that the first defendant accepted a personal liability is made in circumstances where (i) in his 2017 letter of claim (eight years ago), no such allegation was apparently made and (ii) where his witness statements made in the applications contains no more than bare assertions to that effect. Further, para.13.3.3 of the APOC, the principal source of the claimant’s proposed plea, is insufficiently particularised. It is not appropriate therefore for me to permit the proposed amendments. (In any event, it would not be consistent with the overriding objective or otherwise appropriate to permit the proposed amendments in their current form, in the light of the conclusions I have already reached about the rest of the claim, because what would be left of the permitted APOC would be incoherent).

96. As I have said, the claims I am now considering cannot succeed, at least on the basis of the pleas in the POC. However, I have not been persuaded, so far, that it would be proportionate to summarily dispose of them (at least so far as they are not based on the Re-Joining Contract), because the claimant has demonstrated that, in relation to the CDO Monies Commitment at least, he is able to give further particulars to support his claim that the first defendant accepted a personal liability. In relation to these two claims (and the claim for a post-termination one month profit share, as I have said), I wish to hear further from counsel about the consequences which should flow from this. Result

97. Save to the extent I have just explained, as to which, as I have also just explained, I wish to hear further from the counsel, the claim as pleaded in the POC, and the proposed amendments in the APOC, cannot proceed.