“(2) The court may strike out a statement of case if it appears to the court— (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or (c) that there has been a failure to comply with a rule, practice direction or court order.”
“I was addressed by Mr Hossain on the footing that the adequacy of Crypton’s pleading is to be assessed by an essentially granular consideration of the elements of each cause of action relied upon, and of the contents of the particulars of claim, in order to determine whether each cause of action is supported by pleadings of fact which, if established at trial, would enable each element of each claim to succeed. Mr Sheehan did not demur from this approach which is replicated, particularly, in his skeleton argument. He did, however, urge against a formalistic approach, submitting that the claim in conspiracy was unusually compelling, given the (alleged) concealment by Blockchain and the other defendants of the appropriation of Crypton’s business.”
“The basic purpose of pleadings is to enable the opposing party to know what case is being made in sufficient detail to enable that party properly to prepare to answer it. To my mind it seems that in recent years there has been a tendency to forget this basic purpose and to seek particularisation even when it is not really required. This is not only costly in itself, but is calculated to lead to delay and to interlocutory battles in which the parties and the court pore over endless pages of pleadings to see whether or not some particular point has or has not been raised or answered, when in truth each party knows perfectly well what case is made by the other and is able properly to prepare to deal with it. Pleadings are not a game to be played at the expense of the litigants, nor an end in themselves, but a means to the end, and that end is to give each party a fair hearing. Each case must of course be looked at in the light of its own subject matter and circumstances. Thus general statements to the effect that global or composite claims are embarrassing and justify striking out, to be found for example in Hudson on Building and Engineering Contracts (11th edn, 1994) para 8-204 are not automatically applicable to every case. With regard to the particular pleadings in question, I remain unpersuaded that either McAlpines or PDP were put to any sort of material unfair disadvantage by the way the matter had been set out by the plaintiffs.”
“20. I agree with Mr Gourgey QC that this overstates what is required for a valid plea of fraud. The claimant does not have to plead primary facts which are only consistent with dishonesty. The correct test is whether or not, on the basis of the primary facts pleaded, an inference of dishonesty is more likely than one of innocence or negligence. As Lord Millett put it, there must be some fact “which tilts the balance and justifies an inference of dishonesty”
“23. More important for the purposes of this appeal are the principles governing the pleading of dishonesty. There was little dispute as to these before either the Judge or us. They were summarised, in my judgment accurately, by counsel for the Claimant as follows: i) Fraud or dishonesty must be specifically alleged and sufficiently particularised, and will not be sufficiently particularised if the facts alleged are consistent with innocence: Three Rivers District Council v Governor and Company of the Bank of England (No.3)[2003] 2 AC 1 . ii) Dishonesty can be inferred from primary facts, provided that those primary facts are themselves pleaded. There must be some fact which tilts the balance and justifies an inference of dishonesty, and this fact must be pleaded: Three Rivers at [186] (Lord Millett). iii) The claimant does not have to plead primary facts which are only consistent with dishonesty. The correct test is whether or not, on the basis of the primary facts pleaded, an inference of dishonesty is more likely than one of innocence or negligence: JSC Bank of Moscow v Kekhman[2015] EWHC 3073 (Comm) at [20]-[23] (Flaux J, as he then was). iv) Particulars of dishonesty must be read as a whole and in context: Walker v Stones[2001] QB 902 at 944B (Sir Christopher Slade).”
“24. To these principles there should be added the following general points about particulars: i) The purpose of giving particulars is to allow the defendant to know the case he has to meet: Three Rivers at [185]-[186]; McPhilemy v Times Newspapers Ltd[1999] 3 All ER 775 at 793B (Lord Woolf MR). ii) When giving particulars, no more than a concise statement of the facts relied upon is required: McPhilemy at 793B. iii) Unless there is some obvious purpose to be served by fighting over the precise terms of a pleading, contests over their terms are to be discouraged: McPhilemy at 793D.”
“72. Subsequently, at a time which Crypton is unable to identify precisely prior to disclosure but which it believes to have been between 10 and14 February 2020 , the combination or agreement between the Defendants evolved into one pursuant to which, rather than Blockchain SA acquiring Crypton’s business (and in particular the Crypton Platform) for value, Mr Jones, Mr Koumpas and Mr Curtis would instead simply join Blockchain, solicit other key Crypton staff, and pursue the Crypton Platform Opportunity through Blockchain, without any payment to Crypton in return.”
“Mr. Parker submitted that the critical issue in this case so far as Ranga's adherence to the conspiracy is concerned is that of knowledge. To a large extent I would agree with that. Common sense suggests that the plaintiffs are unlikely to be able to state exactly when, where and in what terms they say an agreement was made between Mr. Jayatilaka and Mr. Thompson; their case that there was such an agreement will almost inevitably be one of inference to be drawn from other facts. Of these, knowledge on the part of Mr. Jayatilaka of the other elements of the fraud and of Ranga's place in it is likely to be of great importance. Mr. Parker submitted that the plaintiffs' case concerning Ranga's knowledge is fully set out in the pleading, but in a case of this kind it is not sufficient for a plaintiff simply to include all the necessary allegations without pleading the inferences which he says are to be drawn from them. It is incumbent on him both to plead the primary facts on which he relies and to set out clearly how they give rise to the inference that the defendants were parties to a conspiracy. That, it seems to me, is what Carnwath J. had in mind when he said that the plaintiffs had to make clear the logical connection between the facts pleaded and the substantive allegations. If that is not done the defendant is placed in a difficulty because he is unable to identify clearly the nature of the case to which he must plead and which he must meet at trial.”
“I consider that the overt acts which it is alleged Blockchain carried out before and after14 February 2020 are acts from which a combination involving Blockchain could be inferred. It is pleaded that at least some of the relevant pleaded acts were coordinated with Blockchain. I further consider that a trial judge could find that the matters pleaded by Crypton as to Blockchain’s involvement lead, in the absence of satisfactory explanation, to the necessary inference that Blockchain was a member of the combination: see Bird v O’Neal[1960] AC 907 at 920–921.”
“106. The unlawful acts pleaded in paragraphs 69.5 and 83 to 103 above were carried out as unlawful means pursuant to the said combination or agreement.”
“96. By its conduct as pleaded in paragraphs 72 to 81 above, Blockchain intentionally induced the breaches of contract by Mr Jones and Mr Koumpas pleaded in paragraphs 85.6 to 85.8 above.”
“1. In relation to the allegation that Blockchain ‘[b]y its conduct as pleaded in paragraphs 72-81 above’ induced the breaches of contract pleaded in paragraphs 85.7 and 85.8: (1) Please identify each passage within paragraphs 72-81 which is alleged to be the ‘conduct’ by which Blockchain induced those breaches. (2) In particular, does Crypton rely on any passage other than paragraph 74.2 in this respect? If so, please identify each such passage.”
“101. By its conduct as pleaded in paragraphs 72 to 81 above, Blockchain assisted in the said breaches of fiduciary duty.”
“7. In relation to the allegation that Blockchain assisted in the breach of fiduciary duty pleaded at paragraph 83(b): (1) Please identify each passage within paragraphs 72-81 which is alleged to be the ‘conduct’ by which Blockchain assisted in the said breach of fiduciary duty. (2) In particular, does Crypton rely on any passage other than paragraph 75 in this respect? If so, please identify each such passage.”
“7. Crypton relies on the conduct pleaded and referred to in responses 1.2 to 1.5 above.”
“8. In relation to the allegation that Blockchain assisted in the breach of fiduciary duty pleaded at paragraph 83(c), please identify each passage within paragraphs 72-81 which is alleged to be the ‘conduct’ by which Blockchain assisted in the said breach.”
“50. I consider that each of the allegations set out at paragraph 102 are allegations which are, read as a whole and in context and if all the factual averments made by Crypton are true, more likely to lead to an inference of dishonesty than an inference of innocence or negligence: i) The allegation that Blockchain knew or was reckless as to the relevant contractual obligations of Mr Jones and Mr Koumpas (and the other relevant employees) is not made in vacuo. It is made in the context of an allegation that Blockchain combined to procure breaches of others’ employment contracts and to compete with Crypton. I do not agree that this could be read as an allegation that Blockchain merely knew the terms of the employees’ previous contracts of employment. ii) The first allegation must be read together with paragraph 102.2, which is an allegation that Blockchain knew that it was wrong for Mr Jones and Mr Koumpas as directors (i.e. as fiduciaries) to exploit an opportunity belonging to Crypton outside of Crypton. iii) The allegation at paragraph 102.3, which is a plain plea of dishonesty, is placed squarely in the context of the alleged assistance of Mr Jones and Mr Koumpas in soliciting staff, and in exploiting the Crypton Platform opportunity together with them. It is not just a plea of primary wrongdoing. iv) The allegation that Blockchain put forward a false pretextual explanation might not justify a finding of dishonesty when divorced from all other allegations, but it is expressly linked to a plea that Blockchain was not innocently withdrawing from negotiations. If found to be true, that plea would justify an inference of dishonesty not least as it thus clearly refers back to the allegation (pleaded immediately before, in paragraphs 73 to 77) that Blockchain assisted Mr Jones and Mr Koumpas in soliciting the resignation and re-employment by Blockchain of other employees, in what is said to be a breach of fiduciary duty on their part.”
“77. Finally, I would note that I received submissions, by reference to the Bord Na Mona Horticulture case and the decisions cited within it, on the question whether the more generous ambit given to claimants in claims for infringements of competition law by cartels, which are by their nature clandestine, applies more generally to claims in conspiracy. For the avoidance of doubt, I have not considered it necessary to decide this point in order to determine the application. The unlawful means conspiracy claim is sufficiently pleaded without the need for separate reliance on this principle.”