Titan Wealth Services Limited & Anor v Tavistock Investments PLC & Ors [2026] EWCA Civ 500

[2026] EWCA Civ 500Case No CA-2025-003233
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2025] EWHC 3381 (Comm)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
KING’S BENCH DIVISION
COMMERCIAL COURT
Mr Justice Bryan
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/04/2026
Before
LADY JUSTICE ASPLINLORD JUSTICE MALESLORD JUSTICE MILES
Between
TITAN WEALTH SERVICES LIMITEDClaimantTAVISTOCK INVESTMENTS PLCRespondent1) TITAN WEALTH SERVICES LIMITED 2) TITAN ASSET MANAGEMENT LIMITED Claimant Appellant/Claimant- and -1) TAVISTOCK INVESTMENTS PLC 2) TAVISTOCK ASSET MANAGEMENT LTD 3) BENJAMIN SCOTT RAVEN 4) STEVEN MALCOLM MCGREGOR 5) BRIAN KENNETH RAVEN-and-TITAN WEALTH HOLDINGS LTD Respondents/Defendants/Part 20 Claimants Defendants Third Party
Iain Purvis KC, Katherine Moggridge and Paul Bonner Hughes (instructed by Quinn Emanuel Urquhart & Sullivan UK LLP) for AppellantsAnneliese Day KC, Philip Ahlquist and Mark Wilden (instructed by DAC Beachcroft LLP) for RespondentsHearing Hearing date: 15 April 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on Friday 24 th April 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]The issue on this appeal is whether the judge, Mr Justice Bryan, was wrong to allow the respondents to amend their Defence and Counterclaim to bring a counterclaim for breach of confidence against the appellants. That is an issue on which this court will not usually interfere with the decision of the court below, but I have concluded that the amendment is neither coherent nor sufficiently particularised to enable the appellants to understand the case against them, and that it should not have been allowed.

The parties

[2]The first claimant (‘Titan Wealth’) is a private limited company incorporated in Jersey which provides wealth management and administration services. The second claimant and the appellant (‘Titan AM’) is a private limited company incorporated in the UK which provides investment management services. It is now wholly owned by Titan Wealth, but was formerly part of the respondents’ group and known as Tavistock Wealth Limited (‘Tavistock Wealth’). It owns and manages (among other things) a series of investment funds known as the ‘Acumen Funds’.[3]The first respondent (‘Tavistock Plc’) is a public limited company incorporated and registered in the UK and is the holding company of a financial services group, the Tavistock group. The second respondent (‘Tavistock AM’) is a private limited company incorporated in the UK. The individual defendants are directors of companies within the Tavistock group.

The Share Purchase Agreement

[4]On 12th June 2021 Titan Wealth and Tavistock Plc entered into a Share Purchase Agreement by which Titan Wealth acquired the share capital of what was then Tavistock Wealth. Tavistock Wealth’s business included the operation of a discretionary fund management business and the provision of a Model Portfolio Service (or ‘MPS’). The funds managed by Tavistock Wealth were or included the Acumen Funds which, henceforth, were to be owned and managed by Titan AM within the Titan group. The agreement included, in clause 11, a restriction on the Tavistock group’s right to compete with what would become Titan AM’s fund management business.[5]The Model Portfolio Service involved the management of a range of Model Portfolios, with varying investment strategies, asset classes and risk levels. These were made available to financial advisers for investment without those advisers needing to conduct their own due diligence on each individual product within the portfolio or to construct an investment portfolio themselves.[6]The sale of Tavistock Wealth did not include the Model Portfolio Service which was retained by Tavistock Plc and housed in Tavistock AM. However, the individuals who had managed the Model Portfolio Service remained with Tavistock Wealth, now renamed as Titan AM. As a result, Tavistock AM and Titan AM entered into what was described as an Outsourced Management Agreement dated September 2021 (the ‘OMA’) under which Titan AM would provide investment management services to Tavistock AM in respect of the Model Portfolio Service.

The Outsourced Management Agreement

[7]The investment management services which Titan AM was to provide were not fully defined in the OMA, but included research into the funds which would be candidates for inclusion in the various Model Portfolios, the ‘onboarding’ of those funds so that they were available for investment ‘Onboarding’ is an essentially administrative process whereby a potential investment product is made available for purchase by a fund manager as and when it wants to do so. The fact that a product has been onboarded does not represent any decision by the fund manager that it should be purchased. , and the making of investment recommendations to Tavistock AM, although it was Tavistock AM which would make the final investment decisions. Titan AM’s payment for these services was to be 50% of the of the management fees charged by Tavistock AM to investors in the portfolios.[8]The OMA recorded that ‘Each of the Parties has undertaken to act in good faith at all times in its dealings with the other’ and contained obligations of confidence in the following terms: ‘5. Confidentiality5.1 Each Party shall keep the other Party’s Confidential Information confidential and shall not:5.1.1 use any Confidential Information for any purpose other than complying with its obligations under this agreement; or5.1.2 disclose any Confidential Information to any third party except as permitted by this clause.5.2 A Party may disclose Confidential Information to the minimum extent required by law, by any governmental or other regulatory authority, or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other Party as much notice of the disclosure as possible.5.3 The provisions of this clause 5 shall continue to apply after termination of this agreement.’ 5.1.1 use any Confidential Information for any purpose other than complying with its obligations under this agreement; or 5.1.2 disclose any Confidential Information to any third party except as permitted by this clause.[9]‘Confidential Information’ was defined as:
‘all information (however recorded or preserved) disclosed by either Party or by its employees, officers, representatives, advisers or subcontractors (Representatives) to the other Party or to that Party’s Representatives in connection with this agreement, which is either labelled as confidential or which should reasonably be considered confidential because of either its nature or the manner of its disclosure.’
[10]Pausing here, it seems to me to be reasonably clear from this definition that Tavistock’s Confidential Information is limited to information disclosed by Tavistock to Titan, and that Titan’s express obligation of confidence applies only to such information.

The dispute

[11]From about June 2022 onwards, the performance of the Acumen Funds declined, resulting in a large exodus by investors. As the judge observed, the causes and consequences of this are at the heart of this case.[12]Titan’s case, in outline and at the risk of over-simplification, is that this occurred because, in breach of clause 11 of the Share Purchase Agreement, Tavistock established a new company, Asset Lab Limited (‘Asset Lab’), in competition with Titan AM, essentially poaching investors who had hitherto invested in the Acumen Funds, orchestrating a series of high value redemptions from the funds (the ‘Redemptions’) and diverting the investors into alternative investments managed by third parties with which Tavistock had made arrangements to the detriment of Titan AM. Titan says that Tavistock’s conduct amounted to a repudiatory breach of the Share Purchase Agreement, which it accepted, bringing the agreement to an end, on 9th April 2024, and a conspiracy by the Tavistock defendants to injure Titan. As a result these proceedings were commenced by the issue of a claim form on 17th September 2024.[13]Tavistock denies these claims. It says that it did not orchestrate or otherwise cause the Redemptions, but rather that they were a product of the poor performance of the Acumen Funds under Titan AM’s management which led to investors deciding for themselves to redeem funds. It acknowledges that some of the Redemptions which took place between 8th February and 12th April 2024 were the result of Tavistock AM removing the Acumen Funds from its Model Portfolios and re-investing the proceeds in alternative funds which met the published requirements for each Model Portfolio, but says that it was entitled to do this in the light of the sustained under-performance of the Acumen Funds. It says that Asset Lab was set up as a mitigation measure to the benefit of both parties in circumstances where Redemptions were being made by investors in any event, the idea being that if or when the performance of the Acumen Funds improved, funds which had been invested through Asset Lab could be more readily reinvested in the Acumen Funds than if a third-party product had been used. In any event, Tavistock says that Asset Lab conducted almost no business and received a total of only £71.94 in licence fees before it was shut down. Tavistock says that the performance of the Acumen Funds, together with other conduct by Titan relating to the acquisition of a company called LEBC Holdings Ltd, amounted to repudiatory breaches of the Share Purchase Agreement by Titan Wealth and that it was entitled to and did terminate the agreement on 4th December 2023.[14]Thus each party accuses the other of being in repudiation of the Share Purchase Agreement and it is common ground that, one way or the other, the agreement has come to an end. Each party claims damages from the other. The various claims and counter claims are due to come to trial in mid 2027.

The Titan MPS counterclaims

[15]The amendment with which we are concerned arises out of the discovery by Tavistock that Titan AM had established its own Model Portfolio Service which was to compete with the Tavistock service. Tavistock maintains that this was the result of Titan misusing its Confidential Information, in breach of the OMA and/or an equitable duty of confidence, and that the factsheets produced by Titan AM for its service infringe Tavistock’s copyright in the factsheets produced for its own Model Portfolio Service.[16]Tavistock’s application to amend its Defence and Counterclaim to introduce these claims for breach of confidence and copyright infringement came before the judge on 11th December 2025, together with a large number of other applications. Even with an abbreviated midday break, the hearing only concluded shortly before 6 pm. The judge gave a lengthy extempore judgment addressing all of the various applications.[17]The judge allowed the amendment, concluding as follows after describing the contractual relationship between the parties:
‘141. All of that involves a relationship with the two parties whereby it was contemplated that confidential information would be transmitted, with provisions in the relevant OMA that such confidential information should not be used in the terms that are set out in the OMA, and an allegation that a rival product to the Tavistock MPS was set up using that information by the Claimants. Standing back, it is clear enough what the allegations are that are made, and that those, and that pleaded case is not only coherent but gives rise to a cause of action that has a real (as opposed to fanciful) prospect of success.’
[18]The judge regarded this conclusion as supported by the evidence of Tavistock Plc’s Managing Director of Wealth Management, Mr Benjamin Raven.

Legal principles

[19]One necessary condition for any amendment is that the claim as amended should have a real prospect of success, which is the same test as applies on a summary judgment application. If a claim does have such a real prospect, and leaving aside ‘late’ or ‘very late’ amendments, it is generally not appropriate to consider its strength or weakness (CNM Estates (Tolworth Tower) Ltd v Carvill-Biggs [2023] EWCA Civ 480, [2023] 1 WLR 4335). However, a court is entitled to refuse an amendment if the facts asserted are implausible, self-contradictory or not supported by the contemporaneous documents and it is appropriate to consider whether the proposed pleading is coherent and properly particularised (Elite Property Holdings Ltd v Barclays Bank Plc [2019] EWCA Civ 204; Kawasaki Kisen Kaisha Ltd v James Kemball Ltd [2021] EWCA Civ 33, [2021] 3 All ER 978).[20]It is the proposed pleading itself, however, on which it is necessary to focus. The pleading must be a coherent and self-contained statement of the case which it is proposed to advance.[21]The importance of proper particularisation in a breach of confidence case has long been recognised, as Lord Justice Arnold explained in Celgard LLC v Shenzhen Senior Technology Material Co Ltd [2020] EWCA Civ 1293, [2021] FSR 1, approving what Mr Justice Laddie had said in Ocular Sciences Ltd v Aspect Vision Care Ltd [1997] RPC 289:
‘32. It is well established that, in a claim for misuse of trade secrets, it is important for the claimant properly to particularise the information which is alleged to be a trade secret and to have been misused. The reasons for this were clearly and forcefully articulated by Laddie J, who had considerable experience in this field, in two judgments. First, in Ocular Sciences Ltd v Aspect Vision Care Ltd [1997] RPC 289 he said at 359-360: “The rules relating to the particularity of pleadings apply to breach of confidence actions as they apply to all other proceedings. But it is well recognised that breach of confidence actions can be used to oppress and harass competitors and ex-employees. The courts are therefore careful to ensure that the plaintiff gives full and proper particulars of all the confidential information on which he intends to rely in the proceedings. If the plaintiff fails to do this the court may infer that the purpose of the litigation is harassment rather than the protection of the plaintiff's rights and may strike out the action as an abuse of process. Such a case was John Zink Co. Ltd. v. Wilkinson [1973] RPC 717 in which the Court of Appeal ordered particulars before defence. The case returned to the High Court on a successful application to strike out. This is reported under the name John Zink Co. Ltd. v. Lloyds Bank Ltd [1975] RPC 385. … The normal approach of the court is that if a plaintiff wishes to seek relief against a defendant for misuse of confidential information it is his duty to ensure that the defendant knows what information is in issue. This is not only for the reasons set out by Edmund Davies LJ in John Zink [namely, that an allegation of misuse of trade secrets is a serious allegation] but for at least two other reasons. First, the plaintiff usually seeks an injunction to restrain the defendant from using its confidential information. Unless the confidential information is properly identified, an injunction in such terms is of uncertain scope and may be difficult to enforce: … Secondly, the defendant must know what he has to meet. He may wish to show that the items of information relied on by the plaintiff are matters of public knowledge. His ability to defend himself will be compromised if the plaintiff can rely on matters of which no proper warning was given. It is for all these reasons that failure to give proper particulars may be a particularly damaging abuse of process.” 33. Secondly, in CMI-Centers for Medical Innovation GmbH v Phytopharm plc [1999] FSR 235 Laddie J said, when considering an application for an interim injunction, at [27]: “As to the first of these four matters [namely ‘the plaintiff must identify clearly what is the information he is relying on’], the fact that the proceedings are only at an interlocutory stage does not justify less precision. The defendant must be told what it is he is accused of misusing. He must be told precisely what it is that he will be prevented from doing or using by the injunction sought. This does not mean that the plaintiff is locked into his case at the interlocutory stage. He may find that additional information has been taken or misused by the defendant in which case he will be able to amend his claim to include additional material. He may find that some of the information which he had thought was confidential is not or has not been used by the defendant. In that case he can restrict his claim. But this does not affect his obligation to set out precisely what, at the interlocutory stage, is the confidential information he wishes to rely on.’ “The rules relating to the particularity of pleadings apply to breach of confidence actions as they apply to all other proceedings. But it is well recognised that breach of confidence actions can be used to oppress and harass competitors and ex-employees. The courts are therefore careful to ensure that the plaintiff gives full and proper particulars of all the confidential information on which he intends to rely in the proceedings. If the plaintiff fails to do this the court may infer that the purpose of the litigation is harassment rather than the protection of the plaintiff's rights and may strike out the action as an abuse of process. Such a case was John Zink Co. Ltd. v. Wilkinson [1973] RPC 717 in which the Court of Appeal ordered particulars before defence. The case returned to the High Court on a successful application to strike out. This is reported under the name John Zink Co. Ltd. v. Lloyds Bank Ltd [1975] RPC 385. … The normal approach of the court is that if a plaintiff wishes to seek relief against a defendant for misuse of confidential information it is his duty to ensure that the defendant knows what information is in issue. This is not only for the reasons set out by Edmund Davies LJ in John Zink [namely, that an allegation of misuse of trade secrets is a serious allegation] but for at least two other reasons. First, the plaintiff usually seeks an injunction to restrain the defendant from using its confidential information. Unless the confidential information is properly identified, an injunction in such terms is of uncertain scope and may be difficult to enforce: … Secondly, the defendant must know what he has to meet. He may wish to show that the items of information relied on by the plaintiff are matters of public knowledge. His ability to defend himself will be compromised if the plaintiff can rely on matters of which no proper warning was given. It is for all these reasons that failure to give proper particulars may be a particularly damaging abuse of process.” “As to the first of these four matters [namely ‘the plaintiff must identify clearly what is the information he is relying on’], the fact that the proceedings are only at an interlocutory stage does not justify less precision. The defendant must be told what it is he is accused of misusing. He must be told precisely what it is that he will be prevented from doing or using by the injunction sought. This does not mean that the plaintiff is locked into his case at the interlocutory stage. He may find that additional information has been taken or misused by the defendant in which case he will be able to amend his claim to include additional material. He may find that some of the information which he had thought was confidential is not or has not been used by the defendant. In that case he can restrict his claim. But this does not affect his obligation to set out precisely what, at the interlocutory stage, is the confidential information he wishes to rely on.’
[22]It is necessary to strike a balance. On the one hand, the court must be careful to guard against a broad and unparticularised claim being used as an instrument of harassment in the manner described by Mr Justice Laddie. On the other hand, the court must ensure that a potentially viable claim is not strangled at birth by unrealistic and ever more demanding requests for particularisation if in reality the nature of the claim is sufficiently clear. In this regard, there is a distinction between identifying when and how the claimant communicated its confidential information to the defendant, and identifying the defendant’s unlawful use of that information. It should generally be possible for a claimant to identify its confidential information with reasonable particularity and to explain the way in which it was communicated to the defendant. It may be more difficult, at least prior to disclosure, to specify precisely how that information was misused by the defendant, in which case the claimant may have to rely on the drawing of reasonable inferences. Thus, as Lord Justice Arnold recognised in Celgard:
‘48. … What amounts to sufficient particularisation must depend on the circumstances of the individual case, however. Furthermore, a lesser degree of particularisation may be acceptable at the outset of a case than at later stages of the case. Still further, I accept that it is relevant to take into account the claimant’s ability to provide further particulars, and the extent to which the claimant has been hampered by obstructiveness, or at least non-cooperation, on the part of the defendant …’
[23]I would add that sufficient particularisation, whatever that might mean in any individual case, is especially important in a breach of confidence claim because of the potential for such claims to give rise to wide-ranging requests for expensive and time-consuming disclosure, with the risk that the cost of litigation may be out of proportion to what is actually at stake. In this connection I note that, although there is a dispute as to the period for which the Titan Model Portfolio Service was active, even on Tavistock’s case it was active only for a relatively short period.

The amendment

[24]The Tavistock Model Portfolio Service is introduced at paragraphs 40A and 41 of the draft amended pleading (paragraph 41 being part of the original pleading) as follows:
‘40A. The Tavistock MPS is comprised of a series of different investment strategies and risk levels which can be tailored to each individual investor. In relation to each such strategy, Tavistock AM and the Tavistock group invest significant time, expertise and resources in identifying and selecting appropriate asset classes and product types from a wide range including unit trusts, OEICs, investment trusts, structured products, Exchange Traded Funds (“ETFs”), and commodities. As a result, the individual investor is able to invest in a broad range of products selected by Tavistock within asset classes also selected by Tavistock without the investor or their financial adviser having to conduct their own due diligence on each individual product or themselves construct an investment portfolio. 41. For each MP offered by Tavistock AM: 41.1 The portfolio comprises a basket of investments selected and managed by Tavistock AM in line with a strategy and within a risk or volatility range which is set out in a publicly available factsheet. 41.2 The investments within a given portfolio may include, for example, investment holdings (e.g. ETFs), investment funds (such as Unit Trusts and OEICs sub-funds), individual company shares, bonds and cash. 41.3 Tavistock AM designates the MP [i.e. the Model Portfolio] with an internal risk rating classification and manages the portfolio with a view to maintaining that classification. The risk rating is from 1 (lowest risk) to 10 (highest risk). All MPs offered by Tavistock AM use a risk rating range from 3 to 8. 41.4 Tavistock AM receives a DFM [discretionary fund management] fee from investors who have invested in the MP, but for any proportion of the MP which invests in another Tavistock AM product (including the Acumen Funds which are now owned by Titan Wealth), the DFM fee is reduced to zero. The Tavistock Profiles are the only MPs in respect of which the DFM fee has been waived in this manner.’ 41.1 The portfolio comprises a basket of investments selected and managed by Tavistock AM in line with a strategy and within a risk or volatility range which is set out in a publicly available factsheet. 41.2 The investments within a given portfolio may include, for example, investment holdings (e.g. ETFs), investment funds (such as Unit Trusts and OEICs sub-funds), individual company shares, bonds and cash. 41.3 Tavistock AM designates the MP [i.e. the Model Portfolio] with an internal risk rating classification and manages the portfolio with a view to maintaining that classification. The risk rating is from 1 (lowest risk) to 10 (highest risk). All MPs offered by Tavistock AM use a risk rating range from 3 to 8. 41.4 Tavistock AM receives a DFM [discretionary fund management] fee from investors who have invested in the MP, but for any proportion of the MP which invests in another Tavistock AM product (including the Acumen Funds which are now owned by Titan Wealth), the DFM fee is reduced to zero. The Tavistock Profiles are the only MPs in respect of which the DFM fee has been waived in this manner.’
[25]For example, the various investment strategies include active and passive investment, and investment in funds specialising in environmentally sustainable investments, while each individual portfolio has a risk rating ranging between 3 (lowest risk) and 8 (highest risk).[26]An immediate difficulty with the plea in paragraph 40A is that while it may accurately describe the position up until the sale of Tavistock Wealth and its renaming as Titan AM, which may well have represented a significant investment by Tavistock of time, expertise and resources, it is not what happened thereafter. Thereafter, as already explained, it was Titan AM and not the Tavistock group which invested time and expertise in identifying and selecting appropriate investments to be included in the portfolios and which made recommendations to Tavistock AM pursuant to the OMA, in exchange for which Titan AM was to be remunerated by a 50% share in the fees paid by investors.[27]The claim for breach of confidence and copyright infringement is at paragraphs 153E to 153V of the draft pleading which, for reference, I set out in an Annex to this judgment. It is introduced at paragraphs 153E and 153F in the following terms:
‘153E. Following and pursuant to the OMA, Tavistock AM communicated information necessary to implement the Tavistock MPS to Titan AM. Such information formed part of the MPS as described at paragraph 41 above, within the Tavistock MPS as described in paragraph 40A above. This information included instructions as to which investments were to be on boarded for the Tavistock MPS (the “Investment Information”). This included, by way of example only, instructions contained within: (i) emails sent by David Chandler, a Senior Portfolio Analyst of Titan AM, dated 13 June 2024 and 27 August 2024, and two emails dated 20 September 2024), and (ii) email exchanges between third parties and James Peel, a portfolio manager of Titan AM in July-August 2023 and July 2024 (the “Investment Emails”). The Investment Emails are attached at Annex 4. 153F. On a date unknown to the Defendants but believed to be in or around January 2023, Titan AM launched its own Model Portfolio Service (the “Titan MPS”). The Titan MPS was, and was intended to be, a rival to the Tavistock MPS.’
[28]It can be seen at once that the premise for this claim is that ‘Tavistock communicated information necessary to implement the Tavistock MPS to Titan AM’. But the only example of any communication of information which is given is ‘instructions as to which investments were to be onboarded for the Tavistock MPS’ which instructions are defined as the ‘Investment Information’. As already explained, onboarding is an essentially administrative process which ensures that an investment is available for purchasing. Although, no doubt, an investment would not be onboarded unless it was at least a candidate for inclusion in a portfolio, the fact that it has been onboarded does not necessarily mean that it will be purchased and says nothing about the value of any investment which may be made.[29]The only pleaded examples of any ‘Investment Information’ being communicated by Tavistock to Titan AM are the ‘Investment Emails’. But as is apparent on the face of the pleading, and is confirmed by reference to the emails themselves, these emails are not examples of information being communicated by Tavistock to Titan AM. They are emails sent by Titan AM to third party providers arranging for the onboarding of investments. Paragraph 153E is therefore self-contradictory and incoherent.[30]It is also problematic that the information alleged to have been communicated by Tavistock to Titan AM is only said to have ‘included’ the Investment Information, and that the Investment Emails are stated to be ‘example[s] only’ of the provision of Investment Information. The pleading leaves the reader to guess what other kinds of information Tavistock will allege has been communicated to Titan AM.[31]Paragraph 153N is the closest the pleading comes to answering that question. It pleads that:
‘153N. In light of the commercial sensitivity and value of each and all of the Investment Information, the MPs and the Tavistock MPS and of the context in which and purpose for which they were created, each part of the Tavistock MPS Information was inherently confidential, save insofar as that information was deliberately published by Tavistock Plc or Tavistock AM. That confidential information is referred to hereafter as the “Tavistock MPS Information”.’
[32]It is then the ‘Tavistock MPS Information’ which is alleged to have been misused in creating and administering the Titan Model Portfolio Service.[33]Thus the ‘Tavistock MPS Information’ is said to consist of three elements. The first is the Investment Information as defined in paragraph 153E on which I have already commented.[34]The second is the Model Portfolios themselves. Here I would have no difficulty in accepting that there is at least a real prospect of proving that the composition of the Model Portfolios is confidential and potentially valuable information. The publicly available factsheets reveal in general terms the investment strategy for each portfolio, and identify the portfolio’s top five holdings, but the composition of the portfolios is otherwise secret. The factsheets would not enable a competitor to replicate the portfolios. Even if they did, the competitor would not achieve the same performance because, by the time the factsheets are published, the investments have already been made and the information is to that extent not fully up to date.[35]The third element of the ‘Tavistock MPS Information’ is said to be ‘each part of the Tavistock MPS’, but this is both broad and undefined. Again, it is not difficult to see that some aspects of what is involved in offering the Model Portfolio Service may be confidential, such as the product of research into potential investments and the recommendations made as a result, but Tavistock has not sought to limit its claim in this way. It appears that this is deliberate. As explained in Tavistock’s skeleton argument and confirmed by Ms Anneliese Day KC in the course of the hearing, the plea is ‘deliberately broad’ because Tavistock’s case is that all information obtained by Titan AM in the course of performing its duties under the OMA was confidential. As Ms Day also put it, Tavistock’s case is that ‘Everything that is not published about the Tavistock MPS is confidential’.[36]The qualification ‘save insofar as that information was deliberately published by Tavistock Plc or Tavistock AM’ is similarly undefined. It is obvious that information which has been deliberately published cannot be confidential, but the pleading does not explain what is referred to here. It may be that it refers to the limited information published in factsheets, but on its face the pleading does not say so and the reader is left to guess.[37]There are, therefore, two fundamental problems with Tavistock’s attempt to identify the confidential information on which it relies. The first is that the definition of the ‘Tavistock MPS Information’ is broad and undefined, leaving it impossible for Titan to understand from the pleading the case which it would have to face. It may be, as I have sought to explain, that the Tavistock MPS Information includes some information, such as the composition of the portfolios, which is genuinely confidential, but the definition is so wide that it almost inevitably includes much that is not.[38]The second problem is that the pleaded case relies on the communication of confidential information by Tavistock to Titan AM, which does not correspond with reality. That the essence of Tavistock’s case is that it communicated confidential information to Titan AM is confirmed by other paragraphs of the pleading in addition to paragraph 153E. Thus paragraph 153Q refers to each part of the confidential information being ‘imparted to Titan AM in circumstances importing an obligation of confidence on Titan AM’, and to confidential information being ‘supplied to Titan AM subject to the terms of the OMA, including in particular clause 5 concerning confidentiality’. However, nowhere does the pleading identify what information was communicated or imparted in this way or how it was communicated or imparted.[39]That may not be surprising because, in reality, it is unlikely that there was any such communication going beyond (or much beyond) communication of the investment decisions made by Tavistock in response to the recommendations made by Titan AM. As already explained, it was Titan AM (in its previous incarnation as Tavistock Wealth) which had developed the Model Portfolio Service, had carried out the research which led to the creation of the various Model Portfolios, and which was responsible for rebalancing the portfolios from time to time to ensure that they conformed to their investment strategy and maintained the appropriate risk rating. After Titan’s acquisition of Tavistock Wealth, it continued in this role pursuant to the OMA, save that the ultimate investment decisions were made by Tavistock. So there would have been no need for any communication by Tavistock of confidential information. Save for the ultimate investment decisions, any communication of information would have been in the other direction.[40]Ms Day sought to meet this difficulty by submitting that Titan AM owed a duty of confidence to Tavistock in the performance of its services under the OMA, so that all of the information generated by Titan AM should be regarded as the confidential information of Tavistock, which Titan AM was not entitled to use otherwise than for the purpose of the OMA. This duty was said to arise as a result of the duty of good faith referred to in the recitals to the OMA, together with the express obligation of confidence in clause 5, alternatively in equity, and did not depend on any communication of information by Tavistock to Titan. Ms Day pointed out that Titan AM was being paid for performing its services under the OMA and that it appears that the individuals who were performing these services were the same individuals who developed and managed the Titan Model Portfolio Service. It was therefore a reasonable inference that the investment research which led to the creation of the Titan service was the same research for which Tavistock had paid pursuant to the OMA and that investments which had been identified as strong candidates for inclusion in the Tavistock portfolios would equally be regarded as strong candidates for the equivalent Titan portfolios.[41]Mr Iain Purvis KC submitted on behalf of Titan that this way of putting the case would fail on its merits. He said that there was no provision of the OMA requiring Titan AM to work exclusively for Tavistock, that Titan AM was entitled to create its own Model Portfolio Service, that its employees would have had their own skill and experience in investment research, and that it would have been surprising if an investment identified as suitable was somehow not available for inclusion in a Titan portfolio. More fundamentally, however, Mr Purvis submitted that this was not the case which was pleaded.[42]I accept that latter submission. It may be that a case in accordance with Ms Day’s submission could be pleaded which would have a real prospect of success, but we are concerned with the case which has been pleaded and not with one which might be.[43]So far I have been considering what the pleading has to say about the identification of Tavistock’s confidential information. I turn now to the allegation of misuse of that information. This is to be found in paragraph 153U:
‘153U. It is to be inferred that Titan AM used the Tavistock MPS Information in creating and administering the Titan MPS. The precise nature and scope of use is outside the knowledge of Tavistock AM but pending disclosure, further information and/or evidence Tavistock AM pleads as follows. 153U.1 When Titan AM was discharging its obligations under the OMA to undertake the work of onboarding new investments for the Tavistock MPS, it also onboarded the same investments for Titan AM. This is demonstrated in the Investment Emails. 153U.2 Titan AM’s use of the Tavistock MPS Information is further to be inferred from the similarities of (i) the factsheets for relevant Titan MPS profiles compared to the equivalent factsheets for Tavistock MPS profiles, and (ii) the underlying investments described in those factsheets examples of which are set out in Annex 8.’ 153U.1 When Titan AM was discharging its obligations under the OMA to undertake the work of onboarding new investments for the Tavistock MPS, it also onboarded the same investments for Titan AM. This is demonstrated in the Investment Emails. 153U.2 Titan AM’s use of the Tavistock MPS Information is further to be inferred from the similarities of (i) the factsheets for relevant Titan MPS profiles compared to the equivalent factsheets for Tavistock MPS profiles, and (ii) the underlying investments described in those factsheets examples of which are set out in Annex 8.’
[44]The inference of misuse is based on three matters. The first is that the same investments were onboarded for the Titan Model Portfolio Service as for Tavistock’s. That appears to be correct, as the ‘Investment Emails’ show Titan AM requesting investment providers to make the various products available for Titan as well as Tavistock. It is worth adding, however, that this was done openly as the emails in question were copied to Tavistock, among others.[45]The second matter consists of similarities between the Titan and the Tavistock factsheets. It is these similarities which have given rise to the copyright infringement claim, which the judge allowed and which (as that decision is not challenged) will go to trial. However, the factsheets were publicly available documents. The fact (if that is what happened) that Titan copied material parts of the Tavistock factsheets does not give rise to any inference that Titan used confidential information of Tavistock in creating and managing its Model Portfolios.[46]The third matter relied on is the similarity of the underlying investments described in the Titan and Tavistock factsheets respectively. This seems to me to be potentially of considerable significance. If it could be shown that the same top five investments regularly appeared in both companies’ equivalent factsheets, and that changes to a Tavistock portfolio in one month were mirrored by the same or substantially the same changes in the equivalent Titan portfolio, that would give rise to a strong inference that Titan had largely replicated the Tavistock portfolios which were the product of the research done under the OMA for which Tavistock was paying. Conversely, if there was little or no correspondence in the rival portfolios’ top five investments, that would make any such conclusion much less likely. The same point can be made about asset allocation, as the factsheets identify the percentage of assets held in various categories of investment (stocks, bonds, cash, etc).[47]The difficulty for Tavistock is that it has identified only three examples of what are said to be equivalent factsheets in its Annex 8. However, its witness Mr Raven appears to acknowledge that two of these examples may be explained as a Model Portfolio Service replication of the Acumen Fund’s strategy, and therefore that they do not provide any foundation for an inference of copying. But the third example has only one investment in common between the two portfolios, which have a rather different asset allocation. It therefore does not support, but rather contradicts, the pleaded inference.[48]Accordingly the plea of misuse of confidential information is also self-contradictory. It is a plea based on an inference drawn from similarities when, on examination, those similarities are either readily explicable or do not exist.[49]It must be possible to carry out a more extensive comparison of the parties’ factsheets, which would show whether or not it is reasonable to infer that the Titan portfolios are essentially a copy of the Tavistock portfolios. Indeed I am surprised, bearing in mind the public nature of these factsheets and the very considerable expenditure incurred by both parties on this litigation, that this exercise has not already been done on both sides (if indeed it has not For its part, Tavistock says that it does not have access to historic factsheets, which are no longer public, and so has been unable to analyse them. ). But in the absence of any such evidence we must consider whether the judge was wrong to allow the amendment as it stands.[50]I have so far been considering the pleading itself, which in my view is the correct approach as the pleading must be a self-contained statement of the case which Titan has to meet. However,

the judge found support for his conclusion in the evidence of Mr Raven, who said that:

‘25. I would generally expect that any discussions between investment professionals as to the assets that they intend to purchase in the future would be confidential by default. 26. The Tavistock group invests significant time, effort, expertise and resources in identifying and selecting appropriate assets. If a competitor obtained knowledge of the assets that the Tavistock MPS intended to invest in, they would gain the commercial benefit of Tavistock’s investment knowledge and analysis without paying for it. This is particularly true if such a competitor obtained access in real time. Access to comprehensive historic records may also be valuable but that value would be less. 27. To give a simple example, if a successful fund or portfolio makes a profitable investment and this is reflected in the factsheet which is published later, other competitors may copy the strategy and hope to benefit from the successful fund's expertise by doing so. However, by the time that the factsheet showing the profitable investment is made public, the value of the relevant investments will have changed. A fund which mimics other funds' investments using public factsheets will often be behind the curve and will lose out on some of the profit made by the original fund because it identified the opportunity earlier than others. If a rival fund or portfolio service has access to investment decisions in real time, then it does not have that disadvantage and can copy the investment strategy much more successfully, thereby positioning itself as a rival more successfully. For this reason, investment research and analysis is highly confidential and a significantly valuable asset for a firm such as Tavistock. 28. For these reasons, the work of the Investment Team was generally confidential at the time when it was conducted.’
[51]The judge commented that this was ‘further information in relation to why it is said that the information that crossed the line between the parties was confidential to Tavistock’. However while what Mr Raven says seems entirely plausible, he does not say anything here about information ‘crossing the line between the parties’. He does not address the fact that it was Titan AM, performing services under the OMA, which carried out the relevant research and that this was not a case of Tavistock communicating confidential information to Titan AM.

The judge then set out further paragraphs of Mr Raven’s evidence:

‘B. Information required for the creation or management of an MPS 29. From an external perspective, an MPS appears to be a single defined product. In fact, it is comprised of a collection of documents, agreements and investment philosophies which are built up over time into a set of strategies and related investments which are appealing to investors. 30. A party who wished to set up their own MPS would need to invest a substantial amount of time, resources, and expertise. By way of illustration only, they would need to identify and negotiate agreements with suitable fund managers, identify and investigate a range of assets which are suitable for investment, benchmark those assets in relation to risk (both individually and in aggregate), determine appropriate asset allocation, and establish mechanisms to monitor and update the investments over time. Furthermore, they would need to create public-facing documents (factsheets) which are attractive to investors and which contain various key information (both from a regulatory perspective and in terms of what investors/IFAs expect to see). 31. A relatively small proportion of the information relating to an MPS is initially public. For example, in relation to Tavistock, I would expect information relating to live strategy or future investments to be kept strictly confidential. However, we also publish factsheets which specify some limited detail, for example the top 5 investment holdings. In this way, some limited information that would initially be confidential may later become public. This is important because it is not generally advisable to copy a party's historic investment decisions, but as I have explained above, access to their real time strategy decisions could be very valuable. 32. Tavistock alleges that Titan misused confidential information in order to create the Titan MPS. I understand that Titan has criticised the degree to which Tavistock has provided a list of the exact confidential information that was misused. Titan was in an advantaged position in respect of the Tavistock MPS with access to its core workings including live information regarding future investments and strategy. Prior to disclosure by Titan, I am not able to say for sure what information Titan copied or misused in the creation of the Titan MPS. However, in my view, from my experience of MPS set-up and operation, the information which would have been helpful to Titan is likely to have included: 32.1 The fundamental structure of the Tavistock MPS including factors such as the way in which risk is categorised and assigned; 32.2 Information received from the TAM Investment Committee and Abacus Investment & Oversight Committee regarding matters such as investment strategy and appropriate assets to on-board; and 32.3 Information received in relation to the “rebalancing” of holdings within each portfolio so that the proportion held is returned to the appropriate level of risk.’ 32.1 The fundamental structure of the Tavistock MPS including factors such as the way in which risk is categorised and assigned; 32.2 Information received from the TAM Investment Committee and Abacus Investment & Oversight Committee regarding matters such as investment strategy and appropriate assets to on-board; and 32.3 Information received in relation to the “rebalancing” of holdings within each portfolio so that the proportion held is returned to the appropriate level of risk.’
[53]While this may be so, the information described, albeit in fairly general terms, in sub-paragraphs 32.1 to 32.3 is not information which is identified in the pleading. Moreover, what Mr Raven does not say is telling. His evidence does not support any case that the similarities between the Tavistock and Titan portfolios, based on what can be seen about them from the factsheets, are such as to give rise to an inference that the Titan portfolios are copies of the Tavistock portfolios.[54]Ms Day placed considerable reliance on pre-amendment correspondence in which, among other things, Tavistock’s solicitors requested disclosure of documents which Titan’s solicitors declined to provide, the implication being that this was obstructive and that Tavistock’s pleading should be allowed to stand with any necessary particularisation coming at a later stage after disclosure. She submitted that it would be very simple for Titan to produce documents demonstrating that it had not copied Tavistock’s Model Portfolios. In my view, however, this is to put the matter the wrong way round. Before Titan was under any obligation to provide potentially burdensome disclosure, it was incumbent on Tavistock to put forward a case with a real prospect of success.

Conclusion

[55]I am left with a sense that, lurking within a broad and unparticularised pleading of breach of confidence based on the communication of confidential information from Tavistock to Titan, there may be a potentially viable claim struggling to get out, to the effect that Titan substantially copied the Tavistock portfolios in breach of a duty of confidence or good faith in the performance of the OMA. That may be why the judge, standing back from the detail, thought it right to allow the amendment – and I should make clear that we have had the benefit of much fuller argument than was before the judge. But that is not the case which has been pleaded and it is not for us to attempt to reformulate the pleading or to salvage bits of it. The case which has actually been pleaded is incoherent, self-contradictory and insufficiently particularised. In my judgment, therefore, the judge should not have allowed the amendment and, despite the broad discretion given to first instance judges making case management decisions, the appeal should be allowed.[56]If Tavistock is able to advance a more focused case, perhaps with the benefit of a full analysis of the factsheets which (we were told) are due to be disclosed on 24th July 2026 because they are relevant to the copyright infringement claim (although I do not see why they could not be disclosed earlier), it will be open to it to make an application to the Commercial Court. I do not attempt to prejudge the outcome of any such application. After this judgment was circulated to the parties in draft, Tavistock submitted a revised amendment which was said to address the criticisms of the existing amendment made in this judgment. Tavistock invited us to give permission for this revised amendment. We declined to consider this new application. Any application for permission to amend must be made to the Commercial Court.

LORD JUSTICE MILES:

[57]I agree.

LADY JUSTICE ASPLIN:

[58]I also agree. ANNEX – TAVISTOCK’S PLEADING THE TITAN MPS 153E. Following and pursuant to the OMA, Tavistock AM communicated information necessary to implement the Tavistock MPS to Titan AM. Such information formed part of the MPS as described at paragraph 41 above, within the Tavistock MPS as described in paragraph 40A above. This information included instructions as to which investments were to be onboarded for the Tavistock MPS (the “Investment Information”). This included, by way of example only, instructions contained within:(i) emails sent by David Chandler, a Senior Portfolio Analyst of Titan AM, dated 13 June 2024 and 27 August 2024, and two emails dated 20 September 2024), and(ii) email exchanges between third parties and James Peel, a portfolio manager of Titan AM in July-August 2023 and July 2024 (the “Investment Emails”). The Investment Emails are attached at Annex 4. 153F. On a date unknown to the Defendants but believed to be in or around January 2023, Titan AM launched its own Model Portfolio Service (the “Titan MPS”). The Titan MPS was, and was intended to be, a rival to the Tavistock MPS. (1). Copyright infringement 153G. From at least June 2020 Tavistock AM created and published factsheets with updated information about each MP offered, as referred to at paragraph 41.1 above (the “Tavistock Factsheets”). The Tavistock Factsheets were published online on a monthly basis for financial advisers to use with their clients and in order to satisfy regulatory requirements. 153H. The content of each Tavistock Factsheet was based on that of a previous Tavistock Factsheet such that its content had been created over time by an iterative process. Accordingly each Tavistock Factsheet incorporated a combination of original content and pre-existing content from earlier Tavistock Factsheets, including in each case the following: 153H.1. text (the “Tavistock Factsheet Text”), which is a literary work within the meaning of section 3(1) of the Copyright, Designs and Patents Act 1988 (the “1988 Act”; and 153H.2. design and layout, including the arrangement of sections of text and charts of data in the form of line graphs and pie charts (the “Tavistock Factsheet Design”), which is an artistic work and a graphic work within the meaning of sections 4(1)(a) and 4(2) of the 1988 Act. 153I. Copyright subsists in the Tavistock Factsheet Text and the Tavistock Factsheet Design, and is owned by Tavistock Plc. 153I.1. Each iteration of each Tavistock Factsheet was created by BSR, Gregor Preston and SMM and was a work of joint authorship within the meaning of section 10 of the 1988 Act. Each of the Tavistock Factsheet Text and the Tavistock Factsheet Design in each iteration of each Tavistock Factsheet was original in that it was its authors’ own intellectual creation. 153I.2. At the time of creation of each Tavistock Factsheet each of BSR, Gregor Preston and SMM was an employee of Tavistock Plc. Tavistock Plc was the first owner of any copyright in each Tavistock Factsheet by operation of section 11(2) of the 1988 Act. 153I.3. Each iteration of each Tavistock Factsheet was first published in the United Kingdom or in a country to which the relevant provisions of Part I of the 1988 Act extend. Accordingly, the Tavistock Factsheet Text and the Tavistock Factsheet Design in each iteration of each Tavistock Factsheet qualify for copyright protection for the purposes of sections 153(1)(b) and 155 of the 1988 Act. 153J. As part of the Titan MPS, the Titan AM Investment Team created monthly factsheets about each MP within the Titan MPS (the “Titan Factsheets”). Each of the Titan Factsheet was based on a factsheet which had been created for the Acumen Funds by or with the licence of Tavistock Plc and Tavistock AM. Accordingly, each of the Titan Factsheets was a copy of a substantial part of the Tavistock Factsheet Text and of the Tavistock Factsheet Design in a corresponding Tavistock Factsheet. The use of the Tavistock Factsheet Text and of the Tavistock Factsheet Design in the Titan Factsheets was without the licence of Tavistock Plc. 153K. Pending disclosure, further information and/or evidence Tavistock Plc relies upon examples of Titan Factsheets as attached at Annex 5. Each of these Titan Factsheets is a copy of a substantial part of the Tavistock Factsheet Text and the Tavistock Factsheet Design as set out in one or more of the Tavistock Factsheets, examples of which are also attached at Annex 6. As to the similarities between the relevant Titan Factsheets and Tavistock Factsheets, Tavistock AM relies on the matters set out in Annex 7. 153L. In the premises Titan AM has infringed Tavistock Plc’s copyright in the Tavistock Factsheet Text and the Tavistock Factsheet Design by doing or authorising another to do the following acts without the licence of Tavistock Plc: 153L.1. copying and/or authorising another to copy in breach of sections 16(1)(a), 16(2) and/or 17 of the 1988 Act, including by storing in any medium by electronic means; 153L.2. issuing and/or authorising another to issue copies to the public in breach of sections 16(1)(b), 16(2) and/or 18 of the 1988 Act; and/or 153L.3. communicating and/or authorising another to communicate to the public in breach of sections 16(1)(d), 16(2) and/or 20 of the 1988 Act. (2). Breach of confidence and breach of contract 153M. In creating the Titan MPS, Titan AM used or authorised the use of confidential information and/or trade secrets created and owned by Tavistock AM. Such use was unauthorised by Tavistock AM and was to the detriment of Tavistock AM. Tavistock AM is not presently aware of all such acts of use but will seek relief for all such uses as are proven at trial. 153N. In light of the commercial sensitivity and value of each and all of the Investment Information, the MPs and the Tavistock MPS and of the context in which and purpose for which they were created, each part of the Tavistock MPS Information was inherently confidential, save in so far as that information was deliberately published by Tavistock Plc or Tavistock AM. That confidential information is referred to hereafter as the “Tavistock MPS Information”. 153O. Further, Tavistock AM took reasonable steps to keep the Tavistock MPS Information secret. 153P. The Tavistock MPS Information had commercial value because it was secret. This was reflected by the decision of Tavistock AM and Titan AM to enter into the OMA notwithstanding that Titan AM had declined the opportunity to purchase the Tavistock MPS: paragraph 36 above is repeated. 153Q. Each part of the Tavistock MPS Information was imparted to Titan AM in circumstances importing an obligation of confidence on Titan AM: 153Q.1. All such information was confidential information within the definition in clause 1.1 of the OMA and was supplied to Titan AM subject to the terms of the OMA, including in particular clause 5 concerning confidentiality. 153Q.2. All such information was subject to an equitable duty of confidence including because in the circumstances of the OMA and of the commercial and market context Titan AM had implicit notice that it was confidential. 153R. In the premises Titan AM owed a contractual and/or equitable obligation of confidence to Tavistock AM not to disclose the Tavistock MPS Information or to use it for any purpose other than complying with its obligations under the OMA. 153S. In all the premises, at all material times each part of the Tavistock MPS Information comprised a trade secret for the purposes of Regulation 2 of the Trade Secrets Regulations, in that: 153S.1. it was secret in the sense that it was not, as a body or in the precise configuration and assembly of its components, generally known among, or readily accessible to, persons within the circles that normally deal with the kind of information in question; 153S.2. it had commercial value because it was secret; and 153S.3. it had been subject to reasonable steps by the person lawfully in control of the information to keep it secret. 153T. Tavistock AM was the trade secret holder in respect of each part of the Tavistock MPS Information. 153U. It is to be inferred that Titan AM used the Tavistock MPS Information in creating and administering the Titan MPS. The precise nature and scope of use is outside the knowledge of Tavistock AM but pending disclosure, further information and/or evidence Tavistock AM pleads as follows. 153U.1. When Titan AM was discharging its obligations under the OMA to undertake the work of onboarding new investments for the Tavistock MPS, it also onboarded the same investments for Titan AM. This is demonstrated in the Investment Emails. 153U.2. Titan AM’s use of the Tavistock MPS Information is further to be inferred from the similarities of (i) the factsheets for relevant Titan MPS profiles compared to the equivalent factsheets for Tavistock MPS profiles, and (ii) the underlying investments described in those factsheets, examples of which are set out in Annex 8." 153V. By using the Tavistock MPS Information for purposes other than complying with its obligations under the OMA, Titan AM used confidential information and/or trade secrets without the authorisation of Tavistock AM and to the detriment of Tavistock AM in breach of its obligations of confidence to Tavistock AM and in breach of its contractual obligations under the OMA.