Segulah Medical Acceleration AB & Ors v Akhilesh Shailendra Tripathi & Anor [2026] EWHC 1002 (Ch)

[2026] EWHC 1002 (Ch)Case No BL-2024-000036
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 29 April 2026
Before
Andrew de Mestre K.C.
Between
AKHILESH SHAILENDRA TRIPATHIDefendantSILVIE KENTDefendant
Between
SEGULAH MEDICAL ACCELERATION ABSPEECA LIMITEDCHRIS TUOHY
Tony Beswetherick KC and Matthew Chan (instructed by Proskauer Rose (London) LLP) for First ClaimantAdam Baradon KC and John Eldridge (instructed by Mishcon de Reya LLP) for First DefendantHearing Hearing dates: 24-25 February 2026Draft Judgment: 19 March 2026Revised draft Judgment: 22 April 2026
JUDGMENTAndrew de Mestre K.C. :

Introduction

[1]On 24 and 25 February 2026, I heard applications made in three sets of proceedings:(i) an unfair prejudice petition under number CR-2023-005099 (“the Petition”) and(ii) two claims under numbers BL-2024-000036 and BL-2024-000401 (together “the Deceit Claims” and where it is necessary to refer to them separately, “036” and “401” respectively). The proceedings are related because a significant number of the Petitioners are also Claimants in the Deceit Claims, and the underlying complaints concern investments in and the management of the same company, Signifier Medical Technologies Limited (“the Company”). The Deceit Claims also include claims in negligent misstatement, conspiracy, and contract by at least some of the Claimants but, as I will explain further below, the focus of the hearing relevant to this judgment was those claims made in deceit.[2]The applications before me were(i) a significant case management application in relation to the shape of the proceedings,(ii) a related application by the First Respondent to the Petition (referred to as “Mr Tripathi” by the Claimants and as “Professor Tripathi” by his legal team) for extensions of time for disclosure and witness statements in the Petition; and(iii) an application in 036 by the First Claimant, Segulah Medical Acceleration AB (“Segulah”), for permission to bring an additional claim against Mr Tripathi by way of amendment (“the Segulah Amendment Application”). No discourtesy is intended where I refer below to Mr Tripathi as opposed to Professor Tripathi.[3]The Segulah Amendment Application was initially just one aspect of a wider application by the Claimants (and two proposed new claimants) to amend their claims in 036 and 401 but, by the time of the hearing before me, the parties had agreed the terms on which the majority of those amendments (including the addition of two further Claimants) would either be allowed or not proceeded with. As a result, I heard argument only in relation to the Segulah Amendment Application.[4]On the afternoon of 25 February 2026, I gave my ruling on the first and second of these applications and made orders about the future conduct of all three sets of proceedings which are to be case managed together. However, I reserved judgment on the Segulah Amendment Application and it is that application which I deal with in the remainder of this judgment.[5]Segulah was represented by Mr Beswetherick KC and Mr Chan while, for the purposes of the Segulah Amendment Application, Mr Tripathi (the First Defendant in 036) was represented by Mr Baradon KC and Mr Eldridge. For completeness I note that the Second Defendant in 036, Ms Silvie Kent (“Ms Kent”), was not present and was not represented. Shortly before the hearing Ms Kent had sent a letter to the Court explaining that she was now acting as a litigant in person and would not be attending the hearing. In any event, the Segulah Amendment Application did not concern or affect her position as the new claim is against Mr Tripathi only.

The background to the Segulah Amendment Application

[6]In broad terms, the Deceit Claims relate to purchases by the Claimants of shares or convertible securities issued by the Company. Where the purchases related to shares, the seller was Ms Kent; where they related to convertible securities, the notes were issued by the Company to the relevant Claimant purchaser as part of fundraising by the Company. Further: 6.1. In the case of the shares purchased from Ms Kent, the Claimants allege that they were induced to purchase those shares by fraudulent misrepresentations made by Mr Tripathi who was a founder of the Company and its CEO at the time of the alleged misrepresentations. Those representations relate principally to the ownership of the shares being sold, the circumstances of Ms Kent as seller, and the use to which the proceeds of sale would be put. The Claimants assert that, as a result of the misrepresentations, they are entitled to rescind the purchases and have proprietary claims over the purchase money which ended up in the hands of Mr Tripathi. 6.2. In the case of the investments made in convertible securities, as I understand the various Claimants’ pleaded cases, it is not said that they relied on any misrepresentations in making such investments but rather that, without the prior misrepresentations which caused them to buy shares from Ms Kent, they would not have made the additional investments in convertible securities (see, for example, ¶34-35 and ¶64(d)(i) of the Particulars of Claim in 036). As a result, the Claimants say that the losses they have suffered by reason of those latter investments are losses which they can also recover in deceit (or negligent misstatement) (see, for example, ¶91 of the Particulars of Claim in 036).[7]Between them, the Deceit Claims allege that: 7.1. In October/November 2020, an aggregate total of 43,358 shares in the Company were sold by Ms Kent to investors for a purchase price of $3,999,775.50. 7.2. Between July and December 2021, an aggregate total of 42,684 shares in the Company were sold by Ms Kent to investors for a purchase price of $8,536,800. 7.3. The proceeds of these sales were paid via the Company to Ms Kent but she then transferred those proceeds (or at least the vast majority of them) to Mr Tripathi. In particular, it is alleged that four payments totalling $3,850,111.11 were made from Ms Kent’s account to Mr Tripathi in November 2020 (see ¶58(b)(viii) of the Particulars of Claim in 036). 7.4. The Claimants say that the proceeds of sale were applied in this way because, in fact, Mr Tripathi was the beneficial owner of the relevant shares or because he had agreed with Ms Kent in advance of the sales that he would benefit from the proceeds of sale.[8]Segulah initially made a claim only in respect of 25,000 shares registered in the name of Ms Kent which it purchased on 8 September 2021 pursuant to a written share purchase agreement. However, at ¶36 of the original Particulars of Claim in 036, Segulah referred by way of background to the fact that it had loaned $5 million to the Company in exchange for convertible securities in July 2021 pursuant to the Company’s Series D fundraising. The claim which Segulah wishes to add by way of amendment relates to this initial investment.[9]The starting point for Segulah’s proposed additional claim is a phone call said to have taken place on 8 June 2021 and which is pleaded at ¶35A of the draft Amended Particulars of Claim (“APoC”) in 036 as follows (¶35A being an entirely new paragraph):
“On 8 June 2021, Mr Roger Gunnarrson (who was the Managing Partner at Segulah) had a telephone conversation with Mr Tripathi (the “8 June 2021 Call”) during which Mr Tripathi explained to Mr Gunnarsson that [the Company] wished to raise c. US$ 30m through its Series D round of fundraising. Mr Tripathi told Mr Gunnarsson that: (1) He (Mr Tripathi) was fully committed to the business; (3) Mr Alan Howard, Mr Kieran Gallahue and he himself would be participating in [the Company’s] Series D round of fundraising; (4) Mr Kieran Gallahue would be investing US$ 2m; and (5) He (Mr Tripathi) would be personally investing US$ 1m in the said fundraising round using his own money (or words to that effect).”
[10]The draft APoC then plead at ¶35B (another entirely new paragraph) that the following implied representations were made during or arose from the phone call on 8 June 2021:
“In the premises, during the 8 June 2021 Call, Mr Tripathi impliedly represented to Mr Gunnarsson, and therefore to Segulah, that the money which Mr Tripathi intended to use was money to which Mr Tripathi had obtained [sic] in a legitimate manner and/or to which he had an indefeasible title (the “8 June Segulah Representation”).”
[11]The draft APoC then include, in ¶36, a proposed amendment to allege that, when Segulah invested $5 million in the Company in the Series D round of fundraising, it did so in reliance on the implied representations set out in paragraph 10 above (which I will refer to as “the Implied Representations”).[12]Segulah’s case as to the falsity of the Implied Representations and as to inducement is found in ¶65A – 65I of the draft APoC. By ¶65C and 65D, Segulah alleges that the Implied Representations were false because Mr Tripathi intended that the money which he would invest was “derived from the sale of shares registered in the name of Ms Kent and which had been obtained by Mr Tripathi’s fraud”. Further, ¶65F pleads that:
“Mr Tripathi intended Segulah to rely upon the 8 June 2021 Segulah Representation. In particular, Mr Tripathi would have appreciated that whether or not the funds he proposed to loan to [the Company] were potentially subject to the claims of third parties (such that such moneys would not be at the free disposal of [the Company] and/or at risk of recoupment) and/or was obtained in an illegitimate manner was likely to be important to Segulah’s decision to invest in [the Company].”
[13]Finally, Segulah’s loss is set out in ¶90A of the draft APoC.[14]At the hearing before me, the only issue taken by Mr Tripathi on the Segulah Amendment Application was whether Segulah has a real prospect of demonstrating that the Implied Representations were actually made. Mr Tripathi does not accept that Segulah will make good the other aspects of the proposed new claim at trial, but those matters were not in issue for the purposes of the Segulah Amendment Application. Further, where I refer below to the words used by Mr Tripathi or their context, I am referring simply to the case as alleged by Segulah without intending to make any findings of fact about those words or context, or to suggest that they are anything more than allegations at present.

The law

(i) Contested amendments

[15]There was little if anything between the parties on the legal test to be applied in respect of contested amendments: 15.1. Applications for summary judgment and applications to amend a statement of case are governed by the same test: CNM Estates (Tolworth Tower) Ltd v Carvill-Biggs [2023] 1 W.L.R. 4335 at [48] (in the judgment of Males LJ) and [75] (in the majority judgment of Vos MR and Briggs LJ). 15.2. The test is therefore whether a proposed amendment has a real as opposed to fanciful prospect of success: CNM Estates at [70] relying on Elite Property Holdings Ltd v Barclays Bank Plc [2019] EWCA Civ 204 at [41]. 15.3. In order to satisfy this standard, it is not enough that the claim is merely arguable; it must carry some degree of conviction: CNM Estates [70] again relying on Elite. (ii). Deceit[16]There was also agreement as to the requirements for a claim in deceit. Mr Tripathi referred me to the statement of principle by Viscount Maugham in Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All E.R. 205 as 211 as follows (with citations omitted):
“First, there must be a representation of fact made by words, or, it may be, by conduct. ... Secondly, the representation must be made with a knowledge that it is false. It must be wilfully false, or at least made in the absence of any genuine belief that it is true ... Thirdly, it must be made with the intention that it should be acted upon by the plaintiff, or by a class of persons which will include the plaintiff, in the manner which resulted in damage to him ... Fourthly, it must be proved that the plaintiff has acted upon the false statement and has sustained damage by so doing ...”
[17]This passage was referred to and relied on by the Privy Council in the recent decision in Credit Suisse (Bermuda) Ltd v Ivanishvili [2025] 3 W.L.R. 789 at [137].[18]As the proposed amendments in this case concern the Implied Representations, I was also referred by both sides to a wide range of authorities which either explain how the Court is to go about identifying whether an implied representation has been made and, if so, in what terms, or provide examples of such representations. Particular attention was given to: 18.1. The decision of Colman J in Geest v Fyffes [1999] 1 All E.R. (Comm) 672 at 683c-e where the Judge said the following: “Where there is no express misrepresentation, the first question to ask is whether there has been any implied misrepresentation at all and, as with any other type of contract, the essential issue is whether in all the circumstances relating to the entering into of the contract of guarantee or indemnity, including in particular(a) the nature of the contract between the beneficiary and the principal debtor,(b) the conduct of the beneficiary and(c) express representations made by him to the surety, it has been impliedly represented to the surety that there exists some state of facts different from the truth. In evaluating the effect of the beneficiary’s conduct a helpful test is whether, having regard to the beneficiary’s conduct in such circumstances, a reasonable potential surety would naturally assume that the true state of facts did not exist and that, had it existed, he would in all the circumstances necessarily have been informed of it.” 18.2. The decision of Toulson J (as he then was) in IFE Fund S.A. v Goldman Sachs International [2007] 1 Lloyd's Rep 264 where the Judge held at [50] that: “In determining whether there has been an express representation and to what effect, the court has to consider what a reasonable person would have understood from the words used in the context in which they were used. Indetermining what, if any, implied representation has been made, the court has to perform a similar task, except that it has to consider what a reasonable person would have inferred was being implicitly represented by the representor's words and conduct in their context.” 18.3. The decision of Mrs Justice Cockerill (as she then was) in Loreley Financing (Jersey) No. 30 Ltd v Credit Suisse (Europe) Ltd & Ors [2023] EWHC 2759 (Comm) particularly at [292]-[308] where the Judge undertook a detailed review of the law on implied representations and, amongst other things, referred to both of the passages which I have set out above. The Judge also explained the limits of the “helpful test” from Geest (at [299]-[302)]) and referred at [303] to other words of caution from earlier cases in relation to implied representations namely that (a) they should not be too easily found and (b) the more vague, uncertain, imprecise or elastic the meaning of the implied representation alleged, the less likely it is that it will be implied.[19]Mr Baradon KC also developed an additional argument about the need for necessity or obviousness if an implied representation is to be found. In my draft judgment circulated on 19 March 2026, I indicated that I did not consider that it was appropriate to reach a conclusion on this argument, given that it was said in Mr Tripathi’s skeleton argument (at ¶15) that determining it would not have a practical impact on this case. It seemed to me that a decision on this argument was better left to a case where it might affect the result. Having circulated my draft judgment, it was clarified that this additional argument worked as a further and separate argument which could, in fact, be relevant if I did not accept Mr Tripathi’s primary argument that the proposed amendments failed on an application of the general principles which I have described above. It was said that, if I was of the view that Segulah’s amendments should be permitted on the basis of the general principles, those amendments should nonetheless be refused because I should hold that an implied representation should be necessary or obvious, and neither requirement was satisfied in this case. I will address this additional argument at the end of this judgment.[20]Finally, Mr Beswetherick KC relied on two authorities which refer to the need for caution in determining on a summary basis the existence or not of an implied representation as it is a matter of fact not law: Hamoodi v Lombard Odier Asset Management Ltd [2024] EWHC 1314 at [79] approved in Varanova Bidco LP v Johnson Matthey Plc [2025] B.C.C. at [89]-[90]. Hamoodi was a case in which the Judge, HHJ Pearce, expressed significant doubts about the strength of the case based on an implied representation but declined to strike it out. Mr Baradon KC’s response was to refer to Geest and Candey Ltd v Bosheh [2021] EWHC 3409 as examples of cases where claims relying on implied representations had been rejected on a summary basis. Further, he made the point that the proposed new claim is itself a substantial one – at least $5 million plus accrued interest – and the Court should, if the lack of merit in the claim is sufficiently clear, grasp the nettle and refuse to allow it to proceed.

The arguments in outline

[21]Mr Tripathi’s case on the Segulah Amendment Application was that, even if all of the allegations of primary fact upon which Segulah’s proposed amendment is predicated were taken at their highest, that claim would fail to meet the threshold described above. This was because, Mr Tripathi argued, Segulah would have no real prospect of persuading any Court that the Implied Representations were actually made. This was said to be the case irrespective of whether or not there is a requirement for necessity or obviousness (the secondary argument referred to in paragraph 19 above).[22]In order to understand why Mr Tripathi said that this was the answer to the proposed amendments, it is necessary to consider how Segulah advanced its case: 22.1. I have set out above the draft pleading in respect of the telephone call from which the Implied Representations are said by Segulah to arise. The sub-paragraph of most relevance and to which the parties directed their particular attention at the hearing is APoC ¶35A(5) which pleads that Mr Tripathi said that “He (Mr Tripathi) would be personally investing US$ 1m in the said fundraising round using his own money (or words to that effect).” 22.2. Although the draft amended pleading sets out more detail in respect of the telephone call on 8 June 2021, it is principally these words which provide the foundation for the Implied Representations, namely that the money which Mr Tripathi would invest was “money to [sic] which Mr Tripathi had obtained in a legitimate manner and/or to which he had an indefeasible title” (APoC ¶35B). 22.3. The basis for the Implied Representations was dealt with further in the evidence of Mr Gunnarsson which was served by Segulah in support of the Segulah Amendment Application. That evidence, which was the subject of significant scrutiny by Mr Tripathi’s legal team, included the following passages which dealt with the actual words said to have been used by Mr Tripathi and what Mr Gunnarsson understood from them: 22.3.1. First Mr Gunnarsson dealt, in paragraph 12, with the operative part of the conversation as follows:
“I also remember Mr Tripathi said words to the effect that “I am investing a million dollars of my own money”…..I cannot be sure of the exact words but that is my best recollection. I am absolutely clear that the words he used conveyed to me that it was his own money he was putting in.” 22.3.2. He then dealt with the impact of those words in paragraph 13 as follows: “As was obvious to me, Mr Tripathi was clearly conveying that the money he was going to put in was money which was available to [the Company] for its business. That carried with it the obvious implication that it was legitimately obtained and not potentially subject to third party claims. It is Segulah’s case that Mr Tripathi would have known that he was making these representations and intended them to be relied on by Segulah. It was important to Segulah that if it was going to be putting money in alongside Mr Tripathi, the money which Mr Tripathi was putting in would be available for [the Company] in the same way that the money which Segulah was investing.”
[23]Although it is for Segulah to persuade me that the proposed amendments should be permitted, it is convenient to set out Mr Tripathi’s arguments first as much of the debate centered on Mr Tripathi’s objections to the proposed amendments. As to this Mr Baradon KC was critical of the proposed amended case for a number of reasons. In particular, he said that: 23.1. The implied representations relied on did not have any foundation in the express words alleged to have been used by Mr Tripathi, with the reference to using “his own money” being no more than a reference to money which he owned “legally or beneficially”. 23.2. Moreover, the explanation contained in the evidence of Mr Gunnarsson revealed that the Implied Representations were themselves derived from a prior implied representation that the money which Mr Tripathi was going to invest would be available to the Company for its business. This would be, as Mr Baradon KC put it, a two-stage process of implication. However, that initial implied representation had not been pleaded in the draft amendments and could not be because, Mr Baradon KC said, if it was made by Mr Tripathi then it was true. The money which Mr Tripathi invested in the Company’s Series D fundraising had, in fact, been used by the Company and no claim has been made against the Company to recover it. 23.3. In any event, there was a disconnection between the starting point – the initial (unpleaded) implied representation that the monies to be invested by Mr Tripathi in the Company would be available for its business – and the further (pleaded) implied representations as to the source of the monies because whether or not they had been “legitimately obtained” or Mr Tripathi had “indefeasible title” to them would not affect whether or not the money was available to the Company for its business. As a result, no hypothetical reasonable person in the position of Mr Gunnarsson would have understood the reference to Mr Tripathi using his own money to convey the Implied Representations. 23.4. The formulation of the Implied Representations was, in any event, “hopelessly vague” or involved inferences which were “too nebulous and too abstruse to impute to the reasonable person.” 23.5. The Court would not be in a better position at trial than it was at the hearing to determine whether the Implied Representations were made.[24]Mr Beswetherick KC’s position was, in summary, that: 24.1. Whether an implied representation has been made is a fact sensitive inquiry in which the context is extremely significant. Indeed, Flaux J (as he then was) had said “context is everything” in Lindsay v O’Loughnane [2012] B.C.C. 153 at [87]. The underlying facts and context would only be determined conclusively at trial but, in the context known to me (as set out in Mr Gunnarsson’s witness statement), the Implied Representations were plainly arguable to the relevant degree. 24.2. Mr Tripathi’s detailed attack on the evidence of Mr Gunnarsson was misplaced as the exercise of identifying whether an implied representation has been made is an objective one. Mr Gunnarsson’s evidence had been prepared when wider objections were being taken to the proposed amendments and he was therefore dealing with all of the aspects of a deceit claim including inducement. Save for setting out Mr Gunnarsson’s characteristics and the context in which the 8 June Call took place, the balance of the evidence was essentially irrelevant to the question of whether the Implied Representations had been made. 24.3. Mr Tripathi’s attack on the Implied Representations itself involved reaching a definitive conclusion on the meaning of the express words used – “my own money” – before using that meaning to attack the Implied Representations. However, the meaning of those words was itself a matter which would have to be determined at trial as they did not have the fixed meaning contended for by Mr Tripathi (see paragraph 23.1 above). 24.4. The “helpful test” in Geest illustrates why Segulah’s case satisfies the threshold for contested amendments. A careful professional investor who is being encouraged to invest in a business – i.e. a reasonable person in the position of Mr Gunnarsson and sharing his characteristics – would naturally assume that, when Mr Tripathi said that he was going to put in his own money, the money in question had been earned through legitimate business dealings and, if that was not the true state of affairs, that investor would have expected Mr Tripathi to say “By the way, I’ve obtained this through some illegitimate means”.

Analysis

[25]The question I have to answer is whether there is a real prospect (with a sufficient degree of conviction) of Segulah demonstrating at trial that a reasonable person in Mr Gunnarsson’s position and with his known characteristics would have inferred that the Implied Representations were being implicitly represented by Mr Tripathi’s words and conduct in their context.[26]The answer to this question is not as straightforward as suggested by Segulah.[27]First, there does seem to me to be scope to criticise the formulation of the Implied Representations, particularly given that, although they were presented as either alternative or cumulative (by the use of “and/or”), there seems to me to be a material difference between the two formulations used: one goes specifically to the title of Mr Tripathi to the monies to be invested but the other is in more general terms and goes to the manner in which those monies had been obtained (which may have no effect on Mr Tripathi’s title to the monies but could expose him to a personal claim). The very fact that there are two different implied representations relied on but Segulah is equivocal about whether one or both was made is a relevant factor in considering whether the claim has a real prospect of success.[28]Moreover, the first of the Implied Representations – referring to “legitimate manner” – suffers from a certain lack of precision and a degree of elasticity as it could cover a range of conduct from Mr Tripathi beyond the deceit which is alleged against him to, while the second of them – referring to “indefeasible title” – has more precision but adds a degree of complexity in that it involves a particularly legal concept which may well be unknown to an objective observer of the words used and their context.[29]Second, it seems to me that there is some force in the submission by Mr Baradon KC that the Implied Representations are not of the type which would flow naturally from the express words used or would naturally be assumed. Rather, they seem to have been conceived in order to tread a narrow path between the actual words used and a more general representation as to honesty. As to this: 29.1. Segulah was not seeking before me to advance a case that the statement by Mr Tripathi that he would invest his “own money” was an express misrepresentation. As I have referred to above, Mr Tripathi argued that this phrase, properly construed, meant money which he owned “legally or beneficially”. Although Mr Beswetherick KC was critical of this formulation, it was not entirely clear to me what Segulah is saying that those words mean when properly construed. Moreover, at points in his submissions, Mr Beswetherick KC appeared to come close to arguing that there was an express misrepresentation (notably on page 12, lines 3-10 of the transcript from day 2), but he ultimately put Segulah’s case solely on the basis of the Implied Representations. 29.2. Equally, Segulah was not seeking to rely on a more general implied representation as to honesty in relation to the transaction. Such a case could have run into the difficulties identified by Cockerill J in Loreley where the “honesty” representations relied on (and ultimately rejected by the Judge) related to past conduct and were dependent upon representations made to others (see [336]-[337]). Here, the starting point for Segulah’s complaint was essentially that Mr Tripathi had acted dishonestly in relation to an earlier transaction with third parties – the sale of shares in the Company to various of the Claimants in 2020 – rather than solely in relation to the transaction in issue in the proposed amendment, namely the investment by Segulah in the Series D fundraising by the Company.[30]As such, the Implied Representations might be said to have been reverse-engineered back from Segulah’s underlying case that the money which Mr Tripathi used to invest in the Series D fundraising had been obtained pursuant to transactions which they say were, at the relevant time, voidable but had not been avoided. Rather than looking at what (if anything) was being implied as at 8 June 2021 without reference to matters of which Segulah was unaware at the time, the Implied Representations appear to have been designed to cover the particular situation in which the money obtained through those earlier transactions can be said be Mr Tripathi’s money but could also be the subject in due course of third-party claims either against Mr Tripathi personally or against the money in Mr Tripathi’s hands (or even in the hands of the Company).[31]Third, the evidence from Mr Gunnarsson confuses matters. It is right that, on its face, his evidence is suggesting that he went through a two-stage process to understand and appreciate what was being implied by Mr Tripathi’s words. It is also the case that the evidence proceeds on the basis that the availability of the money to the Company was the key to the Implied Representations which followed. Mr Gunnarsson’s need to go through two steps to get to the Implied Representations would, if relevant, be an indicator against the existence of the Implied Representations.[32]The problem with this third point is twofold: 32.1. In the first place, as the authorities make clear, the test for an implied representation is an objective one and it does not assist to know what Mr Gunnarsson thought subjectively was being conveyed by Mr Tripathi’s words and conduct. Moreover, I note that in Loreley at [347]-[350] the Judge rejected the argument that the subjective evidence of witnesses (albeit from the representor side rather than the representee side) was important evidence to shed light on what an objective observer would understand by particular words and conduct. It may be that Mr Gunnarsson’s evidence will be more relevant to Mr Tripathi’s intention and inducement (not least as the substance of that evidence is replicated in ¶65F of the APoC which I have set out above) but those are not matters which were in issue at the hearing before me. 32.2. However, even if the evidence of Mr Gunnarsson’s thought processes was relevant, to subject it to the sort of detailed analysis suggested by Mr Tripathi would be to conduct a mini-trial on the papers but without the benefit of understanding the detail of the call which took place on 8 June and the full context in which it took place from live evidence.[33]More generally, notwithstanding the force of the points identified above and Mr Baradon KC’s submissions more generally, I have concluded, on balance, that Segulah should be permitted to make the amendments it has proposed. While I do not agree with Mr Beswetherick KC that this is a case where the merits of the proposed new claim clearly or plainly exceed the required threshold, I consider that there is a real prospect that the trial judge, having heard the evidence and having been able to judge both the words used and their context, will find that the Implied Representations (or one or other of them) were made.[34]This is not a case in which the implied representations relied on are to be implied solely from conduct (such as the restaurant or taxi examples discussed in Ivanishvili). Rather, in this case there were dealings between the parties from about February 2021 including due diligence and various calls with Mr Tripathi leading to the call on 8 June 2021. As a result, it is first necessary to construe the words on that call in their context before consideration can be given to whether or not those words and the context in which they were used also convey the Implied Representations. This is not a task which can easily be done without hearing the evidence about the circumstances in which the call on 8 June 2021 took place.[35]Further, even if the first part of Mr Tripathi’s argument is accepted at this stage - that the reference to “his own money” was an express representation that he would invest money which he owned “legally or beneficially” - it is sufficiently possible that the trial Judge will conclude that, in their context, those words also conveyed something more about the source or nature of the funds. On Mr Tripathi’s case, the construction of the express representation might be said to draw a somewhat artificial distinction between money which Mr Tripathi had obtained pursuant to a transaction which was void and one which was merely voidable, and that the objective observer would assume or infer the Implied Representations to remove the artificiality. Of course, it may be that the Judge will conclude that the words meant only that Mr Tripathi was investing money on his own behalf rather than for the benefit of someone else (the relevant conversation pleaded by Segulah having started with Mr Tripathi’s commitment to the business) and conveyed nothing additional about where Mr Tripathi had got the funds from or how.[36]I do not consider, however, that I can reach a conclusion at this stage with sufficient certainty that the evidence as to what Mr Tripathi said and the context in which he said it are such that the making of the Implied Representations can be ruled out. Put another way, and as I have already referred to above, rejecting the claim now would involve a determination of fact that the Implied Representations were not sufficiently arguable after what would, in effect, be a mini-trial on the evidence of Mr Gunnarsson alone, but the authorities caution against such mini-trials.[37]Having provided my draft judgment to the parties, I was invited by Mr Tripathi’s legal team to expand upon my reasons to deal with its submissions as to the significance of further evidence. They said, in particular, that Segulah had had the opportunity to adduce all of the evidence it wanted in order to provide both the relevant context to the alleged words and Mr Gunnarsson’s personal characteristics. As such, an appeal to the potential significance of further evidence was nothing more than Micawberism. However, I do not consider that my judgment in the paragraphs above rests on the significance or otherwise of further evidence, nor was I assuming that further evidence might become available. Rather, I was seeking to draw a distinction between the (inevitably somewhat arid) exercise of considering the existing evidence on the papers and the impact at trial of the Judge having heard and considered that evidence live at the trial. My conclusions at paragraphs 33-36 above were based on the evidence put before me by Segulah from which I concluded to the standard necessary for an application to amend that the Judge at trial could, having heard and considered that evidence, find that the implied representations were made.[38]It also seems to me that the criticisms of the way in which the Implied Representations have been formulated only go so far. It is often possible, at the pleading stage, to criticise the implied representations being relied on. If the pleader is too specific and seeks to tie the representation to the matters which have subsequently become known, then it will be said that the representation has been tailored to fit the circumstances. Equally, if the pleader seeks to avoid this trap with a more general representation, then it will be said to be too vague, general, or imprecise.[39]Further, this is not a case like Candey where the weakness of the case was evident from(a) the alleged misrepresentations having gone through different versions (including even as to who had made the representation) (see [99]) and(b) the absence of clear words or conduct from which any implied representation could be implied (see [100]-[102]). Rather, this is a case where there are words and conduct from which the Implied Representations could be implied and the precise nature and scope of what, if anything, was being implied as a matter of fact from those words and that conduct is a matter for trial.[40]Thus, although I have doubts about the strength of Segulah’s case in relation to the making of the Implied Representations, on the application of the general principles described in paragraph 18 above, I consider that Segulah should be permitted to make the proposed amendments. I assume that it will also wish to correct several typographical errors which appear in the draft (the spelling of Mr Gunnarsson and the sub-paragraph numbering in ¶35A, and the deletion of an additional “to” in ¶35B). Mr Tripathi’s further argument[41]As I have referred to above, Mr Tripathi had a further argument that there is more to the law on implied representations than simply the general principles derived from Geest/IFE/Loreley and described in paragraph 18 above. In fact, Mr Tripathi said that, properly understood, the legal position is that an implied representation can only be held to have been made where a reasonable person in the position of the putative representee would regard the putative implied representation as either(i) having necessarily been conveyed by the relevant words and/or conduct in their context or(ii) having so obviously been conveyed by the relevant words and/or conduct in their context that it went without saying.[42]Having considered further the nature of this part of Mr Tripathi’s case, I remain of the view that it is not appropriate or necessary for me to determine whether or not there is a requirement of necessity or obviousness for the existence of an implied representation at this stage in the proceedings.[43]It is well established that it is not generally appropriate on applications for summary judgment (and therefore on applications for permission to make amendments) to seek to resolve complex issues of fact or law. However, it seems to me that Mr Tripathi’s secondary argument is seeking just that, namely the resolution of a complex point of law. I say this because Mr Tripathi’s own case accepted that the requirement of necessity or obviousness “has not always been stated as such in the authorities” (Mr Tripathi’s skeleton at ¶17).[44]The following authorities in particular were referred to by Mr Tripathi in the context of his argument as to the requirement for necessity or obviousness: 44.1. First Mr Tripathi referred to the fact that the “helpful test” from Geest (which was endorsed by the Court of Appeal in Property Alliance Group Ltd v Royal Bank of Scotland Plc [2018] 1 W.L.R. 3529 at [132]) describes the true state of affairs as something that the reasonable representee “would necessarily have been informed of” (emphasis added). However, he also accepted that this was not “a foursquare endorsement of the existence of a necessity or obviousness requirement” (Mr Tripathi’s skeleton at ¶19.1). 44.2. Second, Mr Tripathi referred to the statement by Ms Clare Ambrose in Candey at [103] that “Like implied terms, implied representations are usually based on necessity.” This is not however a statement that such representations can only ever be found if there is necessity (or obviousness). Indeed, it is, on its face, inconsistent with such a conclusion. 44.3. Third, Mr Tripathi referred to Foster v Action Aviation Ltd [2013] EWHC 2439 at [93] in which Hamblen J (as he then was) stated that “Although necessity is not a requirement, in order to establish that an implied representation has been made, proof or necessity or obviousness will usually be important” (emphasis added). Mr Tripathi said that the first part of this statement, which was obviously contrary to its case on the point of principle, was obiter. 44.4. Fourth, Mr Tripathi also very fairly pointed to the judgment of HHJ Klein in C21 London Estates Ltd v Maurice Macneill Iona Ltd [2017] EWHC 998 (Ch) at [42] as a case where necessity and obviousness might have been said not to form part of the requirements for the making of an implied representation. Mr Tripathi said that the relevant passage from this case was unclear and/or wrong.[45]Having considered these authorities, it seems to me that, in fact, the position is rather more unhelpful to the secondary argument than simply the fact that the requirements argued for by Mr Tripathi have “not always been stated” in the cases. As far as I am aware, none of the numerous authorities to which I was referred states, in terms, that necessity or obviousness are absolute requirements. Moreover, the passages I have referred to in paragraph 44 above are generally inconsistent with necessity or obviousness being factors without which an implied representation can ever be found to have been made.[46]Indeed, as I understand it, Mr Tripathi’s argument proceeds not so much from existing authority but from a point of principle that, so it is said, there is a sufficient similarity between the implication of terms into a contract and the identification of implied representations, that the same or very similar tests should be used for each process. Given that a contractual term will be implied if the term is so obvious as to go without saying or is necessary for business efficacy (Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd [2016] A.C. 742 at [23]), very similar requirements should be applied to the question of whether an implied representation was made. The strictness with which the implication of terms is dealt with was said also to be justified in relation to implied representations. However, there was limited reference in the authorities to the cross-over between the implication of terms and the identification of implied representations.[47]In setting out the issues with Mr Tripathi’s argument in the paragraphs above, I am not saying that he would not succeed at trial in persuading a judge that he is correct as to the point of principle and the explanation of the authorities which are inconsistent with that principle. However, I do consider that they illustrate that this argument is a complex one, the resolution of which is best done at or after a trial at which findings of fact will have been made about whether any implied representations were made and, if so, on what basis. A judge would be able, at that stage, to consider how the requirements of obviousness or necessity might work with the more general principles which were common ground between the parties.[48]By contrast, my task on the Segulah Amendment Application is to determine only whether or not the proposed amendments are sufficiently arguable and it seems to me that the existence of this secondary argument does not undermine the conclusions which I have reached on the application of the general principles.[49]In these circumstances, I will allow the amendments subject to the points made in the final sentence of paragraph 40 above.