Dee Holdings Limited & Anor v Benson Mazure LLP & Anor [2025] EWHC 1676 (Ch)

[2025] EWHC 1676 (Ch)

Case No BL-2023-001185

In the High Court of Justice

Chancery Division

Business and Property Courts of England and Wales

Date 07/07/2025

Before

Deputy Master Valentine

Between

(1) DEE HOLDINGS LIMITEDClaimant

(2) RENEWABLE HOLDINGS LIMITEDClaimant

(1) BENSON MAZURE LLPDefendant

(2) DANIEL BELSHAMDefendant

Andrew Bowen KC (Scotland)(instructed by Westbrook Law Limited) for Claimant

Jack Steer (instructed by Beale & Co Solicitors LLP) for Defendants

Hearing Hearing date: 20 May 2025

JUDGMENT

This judgment was handed down remotely on 7 th July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Deputy Master Valentine:

[1]This is my judgment following the hearing of the Claimant’s application dated 1 October 2024 to amend its Particulars of Claim and the Defendants’ application dated 21 November 2024 to strike out the claim.

[2]The first claimant, Dee Holdings Ltd, (“Dee” or the “First Claimant”) has discontinued its claims pursuant to a notice of discontinuance dated 23 April 2025. The application of the remaining claimant Renewable Energy Holdings Ltd (“REH” or the “Claimant”) to amend incorporated an application(i) to amend the Particulars to the form of the Re-Amended Particulars of Claim dated 21 August 2024 (the “RAPoC”) and

(ii) make further amendments solely to the extent necessary to reflect the discontinuance of the claims of the First Claimant.

[3]It was aired at the hearing that the Claimant might seek permission to make further amendments to the RAPoC in order to particularise an allegation of fraud. The RAPoC contains language, in place since the first version of the Particulars of Claim, along the lines “The Claimants reserve the right to plead further allegations, in particular allegations of fraud and dishonesty, pending full disclosure of the documents relevant to this matter”. However, ultimately Mr Bowen KC for the Claimant confirmed he was not pursuing such an application. He conceded that no pleading of fraud or dishonesty had been made to date and it was not open to him to do so because it would amount to a new cause of action outside of its limitation period and it could not be said, following Paragon Finance Plc v DB Thakerar & Co

[1999] 1 All ER 400

, CA and D&G Card Ltd v Essex Police Authority

[2013] EWCA Civ 514

, that it arises out of the same facts as those already pleaded.

Parties and Background to the Case

[4]The only remaining claimant, REH, is a limited company incorporated in 2016 for the purpose of acquiring a waste-to-energy business called O-Gen Acme Trek Ltd (renamed in September 2017 to Stoke Energy Ltd) (“O-Gen”) together with particular land for use in the business (the “Additional Land”) (together, the “Acquisition”). REH is owned directly or indirectly by Mr Khawaja Mustafa Zulquarnain Majid (“Mr Majid”), who is not party to the proceedings.

[5]The defendants are a solicitor Daniel Belsham and the firm for which he worked at the relevant time, Benson Mazure LLP.

[6]Many of the facts of the case are disputed, but I summarize the background facts as the Claimant alleges them to be in the RAPoC.

[7]It is claimed that in December 2016, REH entered into a retainer arrangement with Benson Mazure in connection with REH’s acquisition of O-Gen. The acquisition was completed in January 2017, and REH became the sole shareholder of O-Gen. Mr Majid, the owner and director of REH, became the sole director of O-Gen. At that time the Additional Land was also purchased by O-Gen, and this is an issue in the case as it is claimed that REH’s instructions were that the Additional Land should be purchased by REH (the “Additional Land Claim”).

[8]The purchase price for O-Gen was £2,305,919.91 and for the Additional Land was £367,635. The Claimant says that amount was borrowed from its parent company (Dee Holdings), another family company of Mr Majid, pursuant to an informal credit facility of up to £3,500,000, and on-loaned to O-Gen, though it is not clear why purchase monies were loaned to O-Gen, the target company, rather than directly paid to the Sellers. No security for that credit facility or such loan was granted, which the Claimant says it should have been advised to obtain (the “Security Claim”).

[9]Two further characters are relevant to the case - Adrian and Simon Lupson. It is alleged by REH that these individuals were recommended to REH by the Defendants as experienced waste-to-energy consultants, and they were engaged by REH in such capacity. It is important to the Claimant’s case that these individuals, as well as their companies Navitas Estates Ltd and Navitas Environmental Ltd (“Navitas”) were clients of the Defendants, and that REH says this fact was not disclosed by the Defendants, and further that there was no commercial relationship at any time between REH or O-Gen and Navitas.

[10]In October 2017, O-Gen entered into an agreement with Amicus Finance Plc (the “Amicus Mortgage”) to guarantee a loan facility to Navitas by way of a mortgage over O-Gen’s property. This included an obligation not to create any further encumbrance over its property in favour of any other person. The Claimant says that Mr Majid and by extension the Claimant and O-Gen did not know of, consent to or sign any agreement in connection with the Amicus Mortgage. The RAPoC states “It is Mr Majid’s view (and it is averred by the Claimants) that his signature was transplanted onto this document without his knowledge or consent.”

[11]REH and/or O-Gen subsequently attempted to raise financing and were unable to do so from third party sources, the Claimant says due to the Amicus Mortgage. Between January and June 2018, further loans were advanced from REH’s parent company. The total “value of the loans” (which I take to mean principal amount advanced) as of 30 June 2017 was £3,537,854 and as of 30 June 2018 was £4,265,691.

[12]In October 2018 Amicus appointed receivers under the Amicus Mortgage and took possession of and sold O-Gen’s property securing that mortgage.

[13]Subsequently, O-Gen went into administration.

Procedural Background

[14]The claim was issued on 1 September 2023. The claim form says “the Defendants acted, inter alia, negligently in a conflict of interests, against their best interests, and without their consent. This is because the Defendants caused Stoke [i.e. O-Gen] to enter into a mortgage deed as the guarantor in respect of a third party’s loan with a financier. This meant Stoke was unable to obtain necessary financing and it ultimately became insolvent. The Claimants aver, inter alia, that the Defendants breached their contractual and tortious duties to them in relation to this.” I refer to this, because of how it was explained at the hearing, as the “Conflict Claim”.

[15]The Claim Form sets out two further claims, namely the Additional Land Claim and the Security Claim: i) “that the Additional Land was registered in the name of O-Gen “contrary to the express instructions of the First Claimant”, and ii) “that the Defendants were, inter alia, negligent in that they did not advise the Claimants to take security over the property and assets of O-Gen in relation to the loans they provided.”

[16]The original Particulars of Claim were attached to the claim form.

[17]On 15th December 2023, a Defence was filed. The Defendants pointed out a number of serious deficiencies they said existed in the Particulars of Claim. On 14th March 2024, the Claimants filed an Amended Particulars of Claim without any application to amend. The Defendants objected to the Amended Particulars of Claim and the Claimants issued an application on 22nd April 2024 to amend the particulars of claim to the form of the 14th March Amended Particulars of Claim.

[18]A CCMC was listed for 10th July 2024. On 27th June 2024, the Claimants’ solicitors wrote to the Defendants indicating an intention to produce a revised amended Particulars of Claim. By consent order on 4th July 2024, the CCMC was vacated and the Claimants were given until 21st August 2024 to serve a revised amended Particulars of Claim, with a timetable agreed for consideration and agreement or an application to the court to amend the Particulars of Claim in the manner so re-drafted. The agreed deadline for making such an application was 18th of September 2024. In the event there was no agreement and the application to amend the Particulars of Claim in the form of the RAPoC was made, late, on 2nd October 2024, with its supporting witness statement arriving on 23rd April 2025. Also on 23rd April 2025, the First Claimant discontinued its claim, but the RAPoC were not then, and have not yet been, updated to reflect that discontinuance.

[19]The Defendants’ position is that even as amended to date the Particulars of Claim are embarrassing for want of particularity and otherwise susceptible to strike out. They resist the amendment application and seek the claim’s strike out on this basis. At the hearing, in addition to permission to amend the statement of case to the form of the RAPoC, the Claimant sought permission giving the Claimant further time to edit the RAPoC to remove the parts only relevant to the discontinued First Claimant’s claim, and the Defendants resist this element as well. They say the Claimant has not thought through how the First Claimant’s claim can be disentangled from the RAPoC, and that the court should not afford “yet further” time for this to occur where the claim was made over 18 months ago and the First Claimant’s discontinuance occurred nearly a month prior to the hearing.

Applicable Legal Principles

[20]The court has a discretionary power to grant permission to amend a statement of case pursuant to CPR17.3. As with all discretionary powers, it is to be exercised with reference to the overriding objective as set out in CPR 1.1. Amendments will generally be permitted in the absence of prejudice if amendment allows the real dispute to be adjudicated upon (Nicklin J in Hewson v Times Newspapers Ltd

[2019] EWHC 1000 (QB)

). However, it is important to balance the potential prejudice to the applicant if permission is refused against the need for finality in litigation and potential prejudice to the respondents if the amendment is permitted (Invest Bank P.S.C. v El-Husseini

[2024] EWHC 1235 (Comm)

, Bryan J). If an amendment is made at a late stage, this must be brought into the balance (PJSC Tatneft v Bogolubov

[2020] EWHC 623 (Comm)

Jacob J).

[21]Amendments should be properly formulated (appropriately particularised and not an abuse of process) and clearly formulated and readily understandable as set out in Invest Bank v El-Husseini, and the applicant must show the proposed amendment has a real prospect of success, per Hewson v Times.

[22]In Amersi v Leslie

[2023] EWHC 1368 (KB)

, at paragraphs 140 to 142, Nicklin J summarised some of the key principles guiding the exercise of this power in the following terms:

“(1) The threshold test for permission to amend is the same as that applied in summary judgment applications: Elite Property Holdings Ltd -v- Barclays Bank plc [2019] EWCA Civ 204 [40]-[42] per Asplin LJ ("the merits test"). (2) Amendments sought to be made to a statement of case must contain sufficient detail to enable the other party and the Court to understand the case that is being advanced, and they must disclose reasonable grounds upon which to bring or defend the claim: Habibsons Bank Ltd -v- Standard Chartered Bank (HK) Ltd [2011] QB 943 [12] per Moore-Bick LJ. (3) The court is entitled to reject a version of the facts which is implausible, self-contradictory, or not supported by the contemporaneous documents. It is appropriate for the court to consider whether the proposed pleading is coherent and contains the properly particularised elements of the cause of action or defence relied upon: Elite Property Holdings Ltd [42] per Asplin LJ.”

[23]There is therefore an overlap in the analysis of applications to strike out a statement of case, or part thereof, under CPR 3.4. This is also a discretionary power of the court, which may be exercised, again with reference to the overriding objective, if(a) the statement of case discloses no reasonable grounds for bringing the claim,

(b) 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

[24]This can be the case where a claim which does not set out facts indicating what the case is about, or where even if the facts set out are true they do not disclose a legally recognisable claim against the defendant. Chief Master Marsh described this set of circumstances in MF Tel Sarl v Visa Europe Ltd

[2023] EWHC 1336 (Ch)

as setting out a claim that was “unwinnable” or “bound to fail”. Relatedly, this power can be used to strike out where the claim is incoherent and makes no sense. In Towler v Wills

[2010] EWHC 1209 (Comm)

, Teare J said that a case may be struck out if it is so vague or incoherent that the other party cannot understand the case and plead in response, disclosing relevant documents and preparing witness statements, or if the court cannot understand the case brought so as to fairly and expeditiously decide the case without unnecessary expense.

Analysis

[25]The proposed amendment to the particulars of claim comes some 18 months after the claim was first issued, and there is no good reason the original draft could not have been cast in the terms now sought. That would have saved both parties time and expense. The application to amend was also made after the date required pursuant to the court order. These delays are not in this case themselves sufficient reason to refuse the application to amend, or indeed a reason to strike out the statement of case. However, in respect of both applications the question remains whether, as amended, the RAPoC disclose a reasonable ground for bringing the claim, put sufficiently clearly and coherently to allow the Defendants know the basis for the claim and to respond.

Pleading of a Duty to the Claimant

[26]The RAPoC have gone some way to addressing the problems raised by the Defendants in their Defence and correspondence. The Defendants raised issues with the particularity with which the genesis of a (contractual, tortious and/or fiduciary) duty of the Defendants to the Claimant is described, with the description of the scope of that duty, in the way in which it is described that duty was breached, in the way in which any such breach can be said to have caused any loss and with the basis on which that loss has been calculated.

[27]In relation to the Amicus Mortgage which was entered into some months after the Acquisition, and the Claimant says is the cause of all its losses I note for completeness that one of the amendments set out in the RAPoC appeared make a slightly different case on causation, saying that but for the breaches of duty otherwise set out, “The Claimants would not have bought O-Gen and the Additional Land.” (para. 39.1). At the hearing, Mr Bowen acknowledged that this amendment makes the RAPoC internally inconsistent as the RAPoC also say that the whole purpose of the engagement of the Defendants and the incorporation of the Claimant was for it to buy O-Gen and the Additional Land. The application for permission was not pursued insofar as it relates to this change. , the Defendants say it is not clear why they owed the Claimant (as opposed to O-Gen) any duty at all.

[28]To address this, as revised, the RAPoC alleges a “Retainer” (in the form of two letters of 20 December 2016, parties unspecified) of the Defendants by the Claimant for the purposes of completing the Acquisition. At paragraph 12 the Claimant pleads (additions underlined) that “Following the Acquisition: BM LLP The RAPoC appear therefore to say that while the Retainer set out the engagement of both Defendants, it was the firm (BM LLP) rather than the individual defendant that continued to provide services under that Retainer after the original acquisition. continued to provide legal and management services to REH under the Retainer. The Defendants continued to be subject to the continuing fiduciary duty to Dee and REH”. The solicitor-client relationship created by the Retainer is now pleaded to be the source of all the express and implied contractual duties, duties in tort and fiduciary duties alleged to have existed between the parties in relation to the services undertaken in the Acquisition, and for additional matters undertaken under the auspices of the Retainer thereafter.

[29]The RAPoC plead in the alternative at paragraph 19 that one or both Defendants had assumed responsibility (other than in the capacity of solicitors acting pursuant to the terms of the Retainer) “and was under a fiduciary duty Before amendment this had been cast as a duty of care. ” to “REH and/or Dee in relation to the acquisition of O-Gen and future legal and management services relating to O-Gen”. It is a matter of dispute between the parties whether the facts pleaded even if true amount are sufficient to result in an assumption of responsibility.

[30]The alleged breach or default is different in respect of each of what I have characterised as the Conflict Claim, the Security Claim and the Additional Land Claim. The Conflict Claim

[31]This is the Claimant’s primary claim for the loss of the entire investment in O-Gen of £4,265,691. It is asserted by the RAPoC that the Claimant’s entire investment was lost due to the existence of the Amicus Mortgage, because(i) this meant O-Gen could not raise alternative financing to keep it running and

(ii) the appointment of receivers and sale of O-Gen’s property at an undervalue under the Amicus Mortgage was a “but for” cause of O-Gen’s going into administration.

[32]The RAPoC is confused as to how the Defendants are responsible for O-Gen’s entry into the Amicus Mortgage.

[33]The Claimant’s actual position is that O-Gen and REH and Mr Majid had no knowledge of the Amicus Mortgage and did not consent to enter into it. It is pleaded that Mr Majid’s signature was transplanted (the RAPoC does not say by whom) onto the Mortgage Deed without his knowledge or consent, and that he did not know of or sign any of the surrounding documentation. However, the Claimant has not pleaded fraud or dishonesty on the part of the Defendants and has not pleaded that the Defendants knew the signature(s) were false. There are implications that this is the Defendant’s case – the RAPoC say the Defendants “caused” O-Gen to enter the Amicus Mortgage, and say that Mr Belsham was the witness to one of the signatures alleged to be false. However, it is not sufficient under paragraph 8.2 of PD16 or consistent with paragraph 4.8 of the Chancery Guide to suggest or imply dishonesty where it is not stated or pleaded.

[34]The RAPoC attempt to remedy this by relying on the allegation that the Defendants were in breach of a continuing fiduciary duty to the Claimant at the time of the entry into the Amicus Mortgage. However, they are confused as to what the breach is.

[35]Paragraph 27 of the RAPoC is the first item under “Breaches of Contractual and Tortious Duties” and says that the Defendants “breached the fiduciary duties owed under the Retainer to Dee and O-Gen This paragraph says that it was Dee and O-Gen (neither of whom is a claimant) to whom the relevant duty was owed, but this must be a mistake as is inconsistent with the rest of the RAPoC which allege that the Retainer created a duty to the Claimant. by arranging, facilitating, and causing the Mortgage to be entered into by O-Gen when there was a clear conflict of interests of the claimants and Navitas (and failing to advise O-Gen, REH or Dee of the benefits and disadvantages of entering into the Mortgage).” (emphasis added)

[36]This is problematic because: i) it is inconsistent with the case as pleaded to say that the Defendants “caused” the Mortgage to be entered into by O-Gen because(a) dishonesty is not pleaded, so it was not the Defendants’ actions that “caused” O-Gen’s signature to be placed on the mortgage documents and

(b) as the Claimant says REH, O-Gen and Mr Majid had no knowledge of the Mortgage it also cannot have been the Defendants’ advice that “caused” O-Gen’s entry into the Amicus Mortgage, and ii) it cannot be pleaded that the Defendants failed to properly advise O-Gen, REH or Dee on the benefits and disadvantages of entry into the Amicus Mortgage where the case is that the Defendants were not advising REH (or O-Gen or Dee) on the Mortgage at all. These cannot therefore be the breaches of duty complained of.

[37]It is, however, also pleaded that: At 15.3 – pursuant to the Retainer the Defendants had a duty to the Claimant that they “would not act in a way in which an actual, or significant risk of a, conflict of interest (or own interest conflict) arises with their client(s)”; At 25 – “It has now become clear (and it is averred) that Mr Belsham had been negotiating with Amicus in respect of the Mortgage for many weeks, and possibly months, prior to 13 October 2017, contrary to the instructions to BM LLP, and Mr Belsham from Mr Majid, REH and O-Gen to negotiate a Sukuk loan” At 26 – “It has now become clear (and it is averred) that Mr Belsham (and/or BM LLP) were acting for Navitas at all material times – in particular during the negotiations with respect to, and the signing of, the Mortgage deed. This was an actual, or significant risk of a, conflict of interest with respect to their/his duties towards O-Gen, REH, and Dee. It was also not in the best interests of O-Gen, REH, and Dee" and At 27.4. “Mr Belsham (and BM LLP) failed to advise REH and/or O-Gen that they were in a position of actual, or significant risk of, conflict of interest – such that REH and/or OGen should seek independent legal advice.”

[38]To the extent these are claims about what the Defendants should have done in the course of advising O-Gen on the Amicus Mortgage, they are inconsistent with the allegation that O-Gen did not know about the Amicus Mortgage and cannot therefore stand.

[39]However, drawing these separate statements together, a further breach seems to be pleaded, i.e. that the Defendants acted for the borrowers on the Amicus Mortgage, that put them in a position of conflict with O-Gen as the Guarantor which was not cleared by informing REH or obtaining its consent to act in this capacity and this was a breach of their continuing fiduciary duty to REH. They represented someone else whose interests were opposed to O-Gen’s without getting O-Gen’s informed consent to do so.

[40]If we ignore, as we must, unpleaded implications that the Defendants were fraudulent, it is not set out anywhere, however, how this breach caused O-Gen to enter into the Amicus Mortgage.

[41]In response to questions at the hearing, Mr Bowen suggested that it should be enough that there was a breach of the Defendants’ duty to their client and the transaction in which they were involved in breach of that duty caused the loss i.e. whether or not the breach caused that loss. Authority for this proposition was not cited to me, and indeed it is inconsistent with the passage of Clerk & Lindsell on Torts (24th edition) provided to me by the Defendant, which at 9-35 says in terms “the claimant must prove that but for the breach of fiduciary duty, he would not have suffered the loss he did.” It goes on to suggest “there may be an exception where the breach of fiduciary duty is not only deliberate but dishonest, allowing the claimant to recover the entire loss suffered as a result of the transaction entered into with or through the fiduciary.” However, in this case dishonesty has not been pleaded.

[42]The breach pleaded is either the Defendants’ representation of Navitas, or failure to tell REH about its representation of Navitas for purposes of clearing conflicts. There is no pleading and no facts to substantiate that if the Defendants had not represented Navitas (i.e. the first breach had not happened) the Amicus Mortgage would not have happened. If the second breach had not happened, it is not pleaded what the consequence would have been – the implication is that REH would have known about the mortgage before it was entered into, but as there is no particularity about how it was entered into without REH’s knowledge, it is not clear how REH’s knowledge would have prevented its being entered into. It is not appropriate to put the Defendants in a position of having to supply by guesswork this crucial part of the case against themselves. The Security Claim

[43]The Claimant asserts that the Retainer contained an express or implied contractual term, or alternatively a duty in tort arises from the solicitor-client relationship or possibly an assumption of responsibility, to act with reasonable skill and care and “proffer all reasonable advice which is reasonably incidental to the work that they were carrying out.”

[44]It is further alleged that prior to, and following, the Acquisition a “reasonably competent solicitor exercising reasonable care and skill” would have advised the Claimant to take “some form of security over the current and future property and assets of O-Gen”. If the Claimant had had security over O-Gen’s assets then either “the [Amicus] Mortgage would not have been entered into, and Dee and REH would not have lost their investments; or (ii) the [Amicus] Mortgage would have been entered into, but Dee and REH would have had prior security over the assets and property of REH/O-Gen – and so would not have lost their investments.”

[45]Now that Dee has discontinued its claim, the Security Claim must be based on loans made by REH to O-Gen, and the claim is that the entirety of the amount invested by Mr Majid’s family companies (some £4 million) was provided by REH to O-Gen by way of a loan. A viable claim would also have to include facts indicating that the Defendants were aware that such loan(s) existed.

[46]It is not alleged there was a written loan agreement or that the Claimant was advised as to financing by the Defendants, but rather that, at paragraph 11 (additions underlined, emphasis in bold my own):

“The funds used to complete the Acquisition were loaned from Mr Majid’s father (“Anver Majid”) to Dee, and then from Dee to REH. The terms of the loan from Anver Majid to Dee were as follows: (i) there was a £3.5 million facility agreement; (ii) any monies drawn down were to be invested in REH for the purpose of acquiring O-Gen; (iii) Dee had to pay interest at a rate of 0.75% above the base rate of the Bank of England; (iv) any sums drawn down were required to be repaid along with interest five years after date the sums were drawn down (or earlier if certain conditions were met); (v) Anver Majid was entitled to immediately cancel the facility agreement (if he ceased to be 50% or more interested in the share capital of Dee) which would mean that all sums were immediately repayable; and (vi) the sums would also be immediately repayable after various events of default. The sums advanced from Dee to REH were on the same terms (with Anver Majid substituted for Dee, and Dee substituted for REH). Ultimately, REH then lent monies to O-Gen on the same terms. There was no formal written agreement between Dee and REH, and REH and O-Gen, but this was the understanding and agreement of all three companies. Mr Majid had advised Mr Belsham that these were the terms of the loan. Mr Majid acting on behalf of Dee had then instructed Mr Belsham to explain to Dee’s bankers Santander UK Ltd the reason for drawing down the initial loan from Dee’s account to BM LLP’s client account which Mr Belsham did by letter of 22 December 2016.”

[47]There is a bare assertion that “Ultimately, REH then lent monies to O-Gen on the same terms” but no real particularisation of what monies were lent when, or how or when the Defendants knew this.

[48]Paragraph 18.4 of the RAPoC says (in relation to the period January-June 2018) “Further loans were provided by Mr Majid’s father to Dee, and then from Dee to REH and from REH to O-Gen. The total value of these loans as of June 30, 2017 was £3,537,854. The total value of these loans as of 30 June 2018 (and to date) was £4,265,691”

[49]This implies the total amount advanced to O-Gen by REH prior to entry into the Amicus Loan was £3,537,854, which amount appears to include the purchase price for O-Gen itself (£2,305,919.91) plus the purchase price of the Additional Land (£367,635 ), and an additional £864,299.10.

[50]It is unlikely, though not impossible, that the purchase price for O-Gen itself (£2,305,919.91) was loaned to O-Gen rather than being paid by REH to the Sellers. I would have expected an explanation of this financing structure. In respect of the price of the Additional Land, it is inconsistent to say that the Defendants knew REH loaned money to O-Gen to purchase Additional Land (£367,635) and also that REH did not intend O-Gen to purchase the Additional Land and Defendants knew that it was the Claimant itself who was supposed to purchase the land. There is no description of when or why REH loaned a further £864,299.10 to O-Gen before the Amicus Mortgage was entered into.

[51]These obvious concerns, with which counsel for the Claimant was not able to help me at the hearing, go to whether it can be said that the Claimant has properly set out facts supporting a claim that £4,265,691, or any amount The amount matters not to the first alternative of the Claimant’s case on loss, but to the second in which it says even if the Amicus Mortgage had been entered into the Claimant would have had security, which can only be to the extent of the amount advanced. was lent to O-Gen by REH.

[52]Even if I were to accept that it is adequately pleaded that loans of some amount were made by REH to O-Gen, I cannot see from the RAPoC what the Claimant’s case is on how, if at all, the Defendants were involved or made aware of the loan(s).

[53]The RAPoC describes a £3.5m credit facility made available to Dee and then REH. There is an assertion that the Defendants knew REH borrowed money for the Acquisition from its parent company Dee (who had borrowed it from Anver Majid), and reference to supporting evidence of a letter from the Second Defendant to Dee’s bank to transfer money to the First Defendant’s client account. But as to the on-lending of money to O-Gen there is nothing about the Defendants’ knowledge of the loan.

[54]I was left with the impression at the hearing that this element of the claim had not been properly thought through as it relates to REH’s claim, as distinct from Dee’s (now discontinued) claim.

Additional Land Claim

[55]The claim form set out a straightforward claim in relation to the Additional Land only (i.e. for a total of £367,635 or the value of the Additional Land at the date of trial). The claim was that in contravention of instructions (and negligently) the Defendants registered the title to the Additional Land in the name of O-Gen rather than that of the Claimant as instructed.

[56]Seemingly in response to the Defence which noted Mr Majid (the animating spirit of the Claimant and O-Gen) had signed the sale contract and later the TR1 on behalf of O-Gen, the Claimant seeks permission for an amendment of para 46 to say (with additions underlined) “Mr Majid did not sign a sale contract or a TRI as between the seller and O-Gen. The registration in the name of O-Gen was a breach of the First Contract and/or negligent and a breach of fiduciary duty”.

[57]This amendment is concerning, as it appears to be another attempt to make a claim of fraud by the back door, and makes the original claim harder to understand. If one disregards the implication that the Defendants fraudulently placed O-Gen’s signature on the documents, the sequence of events now pleaded is(i) the Retainer required that the Additional Land be acquired by REH,

(ii) Mr Belsham confirmed this had been done though in fact the sale was concluded by O-Gen (without fault alleged on the part of the Defendants),

(iii) 18 months later the Defendants registered the Additional Land in the name of O-Gen. It is not clear from the RAPoC what the actionable wrong by the Defendants here is. If it were the incorrect (perhaps negligent) confirmation that REH had acquired the land, nothing is pleaded about how that breach caused loss (i.e. how the absence of such confirmation or telling the client the correct information would have affected future events in the counterfactual situation).

[58]Accordingly, I consider that as now set out the Additional Land is incoherent and vague.

Decision

[59]Most of the RAPoC are dedicated to assertions irrelevant to any claim not based on a fraud of the Defendants. My strong impression from the papers was of a Claimant to wished to plead fraud against the Defendants in respect of the Amicus Mortgage, but having failed to do so had to make do with an alternative allegations of breaches of contractual, tortious and fiduciary duty, pleaded at a high level but failing to properly particularize what the consequences of those breaches were that led to the loss of the investment in O-Gen or indeed how the investment in O-Gen represents legally recoverable loss.

[60]It is unsatisfactory that, on the third iteration of pleadings, the court still has to use inference and guesswork to determine the legal claims pursued and the factual basis for them. But even having done so to pinpoint what the breach of duty alleged must be for each claim, the RAPoC fail to particularize for any of the claims how the alleged breach caused any loss.

[61]Even with the benefit of the proposed amendments within the RAPoC and the assistance of Mr Bowen’s oral submissions, the case put by the Claimant remains vague and confused with respect to each of the claims made, and internally inconsistent in some respects, to the extent that I am satisfied the Defendants would have unreasonable difficulty in understanding and responding appropriately to the claim. The Claimant has already had ample opportunity to revise the statement of case to jettison those parts that hint but do not say the Defendants have been dishonest, and clearly set out how specified breaches of clearly pleaded duties led to recoverable losses. The RAPoC do not do this. The Defendants should not in my judgment be left in position of having to guess what case they are supposed to meet. I will therefore grant the Defendants’ application to strike out the claim. Permission for Further Amendment

[62]The Claimant’s application for permission to make further amendments was strictly limited to changes necessary to remove the discontinued First Claimant’s claim. Given my decision with respect to the RAPoC as a whole, further amendment for this purpose is no longer relevant.