Golda Ajayi v Ebury Partners Limited [2025] EWHC 3150 (Comm)

[2025] EWHC 3150 (Comm)Case No CL-2022-000572
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
KING’S BENCH DIVISION
COMMERCIAL COURT
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 11/12/2025
Before
LIONEL PERSEY KCsitting as a Judge of the High Court
Between
GOLDA AJAYIClaimantEBURY PARTNERS LIMITEDDefendant
The Claimant acting in person for in personJamie Riley KC and Gretel Scott (instructed by Shakespeare Martineau) for DefendantHearing Hearing dates: 10, 11, 12 and 19 June 2025
Approved JudgmentThis judgment was handed down in court at 10.30am on 11 December 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Lionel Persey KC :

[1]In this action the Claimant, Ms Golda Ajayi, seeks to set aside the judgment of Henshaw J, handed down on 31 January 2020, in Ajayi v Ebury Partners Limited [2020] EWHC 166 (Comm) (“theJudgment”), following a trial (“the Original Trial”) in proceedings brought by Ms Ajayi against the Defendant, Ebury Partners Limited (“Ebury”).Ms Ajayi contends that she is entitled to set aside the Judgment on the grounds that it was procured by the fraud of Ebury, a fraud that was perpetrated by Ebury against both her and the Court. This is strongly disputed by Ebury.[2]The Original Trial was heard in 2019. In the Judgment, Henshaw J decided what was known as the Salary Sacrifice Claim in favour of Ebury and rejected it.[3]The Salary Sacrifice Claim concerned share options in Ebury granted to Ms Ajayi pursuant to an Enterprise Management Incentive Scheme (“EMI Scheme”). An EMI Scheme allows qualifying small and medium sized enterprises (“SME”s) to grant share options to their employees in a tax efficient way. It was common ground that, by a series of emails dated between 7 to 19 November 2013, Ms Ajayi had agreed with Mr Juan Lobato (Ebury’s director at all material times) that from December 2013 onwards, Ms Ajayi’s total remuneration package was to be valued at £45,000, and that Ms Ajayi had elected to take £5,000 of the package in cash, and £40,000 in equity. Ms Ajayi was to receive her share entitlement by way of options granted pursuant to an EMI scheme.[4]By the Salary Sacrifice Claim, Ms Ajayi alleged that she should have been granted options for 22,472 shares, calculated by dividing £40,000 by £1.78, the Actual Market Value (“AMV”) of each share as approved by HMRC on 15 January 2014. Ms Ajayi further contended that had she been granted those options, she would have exercised them and would have converted her shares to preference shares in early November 2015 and sold them at £78.05 per share, as did Ebury’s directors around that time. She accordingly alleged that her total loss was £1,753,939.60. Ebury disagreed. It alleged that the correct interpretation of the agreement reached was that Ebury was offering a number of options based on the then last traded share price of £17.80. Hence, it granted 3,000 options, which number was arrived at by dividing £40,000 by £17.80 resulting in 2,247 options, which Ebury rounded up to 3,000 options, taking particular account of the fact that Ms Ajayi would need to pay the exercise price.[5]The parties signed an option agreement dated 12 March 2014, pursuant to which Ms Ajayi was granted options for 3,000 ordinary B shares in Ebury. Ebury alleged that this written agreement was intended to reflect the agreement reached between the parties in November 2013. Ms Ajayi denied that this was the case. The issue at the Original Trial was therefore whose construction of the November 2013 agreement was correct and how many shares in Ebury Ms Ajayi should have become entitled to acquire.[6]The key issue that Henshaw J had to decide in relation to the Salary Sacrifice Claim was the interpretation of the agreement reached by the Parties for Ms Ajayi’s remuneration and specifically the number of share options that the Parties had agreed Ms Ajayi should receive. This issue was concerned with the number of share options to which Ms Ajayi was contractually entitled. It turned on which share value to apply to divide the sum of £40,000 which Ms Ajayi chose to replace with share options. Ebury argued that the correct divisor was £17.80. This was the price at which shares had recently been sold to investors and which was expressly referred to in the relevant emails negotiating the terms of the remuneration agreement. Ms Ajayi for her part contended that the applicable divisor was £1.78, this being the value of shares as subsequently agreed with HMRC in accordance with legislation for the tax treatment of the share options scheme. For the reasons he gave in the Judgment at [46]-[61], Henshaw J favoured Ebury’s interpretation.[7]Ms Ajayi sought permission to appeal from both Henshaw J and the Court of Appeal (Males LJ). This was refused. Following this refusal Ms Ajayi trenchantly criticised Henshaw J and Males LJ in a website that had, I find, been set up on her behalf. Although she sought to distance herself from this website in evidence I did not find her disavowal to be convincing.[8]On 27 September 2022, Ms Ajayi commenced this claim to set aside the Judgment, alleging that Ebury had made various false statements at the Original Trial, through the evidence of its directors and also (in effect) the submissions of Leading Counsel. Her original Particulars of Claim were settled by leading and junior counsel. They were heavily amended and re-amended by Ms Ajayi, who represented herself at the trial before me.[9]Ms Ajayi has asserted that 42 false statements were made, which Ebury knew to be false, and which were material to the judgment. The essential gravamen of her case is that Ebury deliberately deceived Henshaw J by stating that the value of the shares – and, thus, the applicable number or divisor with which to divide the £40,000 - was £17.80. Ms Ajayi instead says that:(1) the shares over which she had taken options were B shares;(2) it was agreed with HMRC that those B shares had a value of £1.78;(3) the figure of £17.80 was the value of A shares over which she had not been granted options and, therefore,(4) the appropriate divisor was £1.78, meaning that she was entitled to options over 22,472 shares.[10]Ebury submit first, that Ms Ajayi’s present arguments are a reformulation of her arguments at the Original Trial and secondly, that her core arguments and the evidence upon which she relies in order to support them have not changed from the Original Trial. Ms Ajayi, they say, has always sought to argue by reference to the relevant legislation, HMRC guidance and rules that £1.78 was the correct divisor because this was the value approved by HMRC for tax purposes. Henshaw J rightly rejected that argument because, while relevant to tax issues once the options have been granted, the legislation, guidance and rules play no role in calculating the number of options granted, that being a matter entirely for the Parties’ agreement.[11]Ebury further contends that Ms Ajayi is now seeking to change her case on the significance of the £1.78 figure. It was never part of Ms Ajayi’s case at the Original Trial that a distinction needed to be drawn between the respective values of A and B shares. Instead, Ms Ajayi argued that:(1) £1.78 was agreed with HMRC as a 90% discount of the share price (for all shares) of £17.80;(2) at the time of the agreement for her remuneration, it was anticipated that HMRC would approve this discount for the purposes of the options scheme; and so,(3) by referring to the share price of £17.80 and the share options scheme, Ebury impliedly agreed to divide £40,000 by £1.78 – and not by the stated share price of £17.80 – in order to calculate the number of options. Ebury says that Ms Ajayi’s claim is a baseless and blatant attempt to relitigate the Original Trial.[12]At the hearing before me Ms Ajayi contended that she was entitled to summary judgment on her claim and submitted that I should hear and decide this application first. This was opposed by Ebury. An earlier application for summary judgment had been adjourned to the trial judge by Robin Knowles J. I ruled on the first day of the trial (10 June) that the court should proceed to the hearing of the trial, and that the summary judgment applications should be heard in parallel with the trial. I did so for the following reasons. First, the parties have had the expense of preparing for a full trial and court time has been set aside for it. Secondly, the key issues in the case were each opposed and Ebury had given substantial evidence and made substantial arguments in relation to them. There were in my view triable issues in respect of each of them. Thirdly, this was a case involving serious allegations of fraud and these should not, in the ordinary event, be dealt with on a summary basis; see, for example King v Stiefel [2022] 1 All ER (Comm) 990 and Allied Fort Insurance Services Limited v Ahmed [2015] EWCA Civ 841.[13]This case was well argued by Ms Ajayi on her own, and by Mr Riley KC and Ms Scott for Ebury. I have, in writing this judgment, carefully considered all of the written and oral submissions made on behalf of each of the Parties and all of the oral and written evidence on which each of them wished to rely. I have not addressed them all in this judgment and have sought instead to focus upon what seemed to me to be the principal issues between the Parties.[14]After the draft judgment was sent to the Parties for corrections Ms Ajayi sought to reopen a number of issues and contended that my judgment contained demonstrable errors that materially affected the result. I gave careful consideration to her submissions. In my judgment, however, they were misconceived. The Law 15. Introduction

The Law

[15]I start by summarising the law that is applicable to this claim. The Court has an equitable jurisdiction to set aside a judgment for fraud. This jurisdiction arises from the public policy consideration that a judgment obtained by fraud should not be allowed to stand. The exercise of this jurisdiction is, however, exceptional and is strictly limited. This is because it is in tension with the equally important principle that there must be finality in litigation: The Ampthill Peerage [1977] AC 547 at 575-576; Johnson v Gore Wood & Co [2002] 2 AC 1 at 31A-D; Takhar v Gracefield Developments Ltd [2020] AC 450 at [68].[16]The risk of vexatious fraud claims was recently re-emphasised by the Privy Council in Finzi v Jamaican Redevelopment Foundation Inc [2024] 1 WLR 541. Lord Leggatt JSC recognised at [65] that the very purpose of a judgment is to put an end to further disputation. The court may view it as an abuse of its process if a claimant alleges that a judgment was obtained by fraud where the evidence relied on was already known to the claimant at the time of the judgment. Lord Leggatt added: “…67. When once it has been established, or if it is incontrovertible, that a judgment or settlement agreement was obtained by fraud, it cannot – as Lord Sumption pointed out – be a reason to allow the judgment or settlement to stand that the victim of the deceit was negligent in failing to recognise or allege fraud in the earlier proceedings. Clearly fraud is not excused by negligent failure to expose it … Yet what this reasoning leaves out of account is the burden and expense involved in litigating allegations of fraud. If a new action in which fraud is alleged proceeds to trial and the allegation is not made out, the mischief which the power to prevent abuse of the courts process is designed to prevent will have been incurred. As Lord Briggs JSC pointed out in his separate judgment in Takhar, at para 75: “In particular cases the fraud allegation may be a weak one, just passing the summary judgment test, whereas the invasion of the finality principle in such a case will not merely be a risk but an expensive and time-consuming actuality”.68. The risk of a party being vexed by allegations of fraud which amount to “wasteful and potentially oppressive duplicative litigation” is as at least as great as the risk as regards other types of new claim. In fact, it may be considered greater, as the jurisdiction to set aside a judgment or settlement agreement for fraud creates the potential for using allegations of fraud as a pretext for relitigating the dispute supposed to have been finally determined. The Board would endorse in this context the observation of Coulson J in Seele Austria GmbH & Co KG v Tokio Marine Europe Insurance Ltd [2009] BLR 261, para 107, that: “the court should be astute to prevent a claiming party from putting its case one way, thereby causing the other side to incur considerable expense, only for the claiming party to lose and then come up with a different way of putting the same case, so as to begin the process all over again”. […]69. It is by no means unknown for disappointed litigants, looking back at proceedings which resulted in an adverse judgment or a settlement that with hindsight seems to them disadvantageous, to come to believe that, to achieve such an outcome, their opponent must have engaged in deceit. Conduct and intentions not originally seen as fraudulent may now be perceived in a malign light. Such a change of perception cannot, in the Board’s opinion, provide an adequate basis for allowing a party to bring fresh proceedings relying on material it already had when the earlier proceedings were taking place but which is now rebranded as evidence of fraud ...” “In particular cases the fraud allegation may be a weak one, just passing the summary judgment test, whereas the invasion of the finality principle in such a case will not merely be a risk but an expensive and time-consuming actuality”. “the court should be astute to prevent a claiming party from putting its case one way, thereby causing the other side to incur considerable expense, only for the claiming party to lose and then come up with a different way of putting the same case, so as to begin the process all over again”. […] The standard of proof for fraud claims[17]As Aikens LJ stated in Royal Bank of Scotland plc v Highland Financial Partners LP [2013] 1 CLC 596 at [107], there is one civil standard of proof which is the balance of probabilities. If, assessed by that standard, a court finds that an event and state of mind of someone is proved, then the claimant will succeed on that issue. The inherent probabilities may be taken into account where relevant in deciding whether a fact or state of mind is proved: Re B (Children) (Care proceedings: standard of proof) [2009] 1 AC 11 at [70]. It is inherently less likely that a defendant will be dishonest than, say, that he will be negligent. The question is always whether the allegation of fraud or dishonesty has been established to the usual civil standard on the evidence before the court: Bank St Petersburg PJC v Arkhangelsky [2020] 4 WLR 55 at [44]-[47]. The principles applicable to setting aside a judgment for fraud[18]The legal requirements were summarised by Aikens LJ in Royal Bank of Scotland plc v Highland Financial Partners LP at [106]. This summary was approved by the Supreme Court (obiter) in Takhar at [56]-[57], [67] and [76], and by the Privy Council in Finzi at [34]. In order to set aside a judgment for fraud:-(1) First, there must be conscious and deliberate dishonesty in relation to the relevant evidence given, or action taken, statement or matter concealed which is relevant to the judgment sought to be impugned;(2) Secondly, the relevant evidence, action, statement or concealment must be material, meaning that the fresh evidence demonstrates that the previous relevant evidence, action, statement or concealment was an operative cause of the court’s decision to give judgment, thereby meaning that the fresh evidence would have entirely changed the way in which the first court approached and came to its decision;(3) Thirdly, the materiality of the fresh evidence is to be assessed by reference to its impact on the evidence supporting the original decision, and not by reference to its impact on what decision might be made if the claim were to be retried on honest evidence.[19]The cause of action to set aside a judgment in earlier proceedings for fraud is independent of the cause of action asserted in the earlier proceedings. It relates to the conduct of the earlier proceedings, and not to the underlying dispute: Takhar at [61], per Lord Sumption JSC. It is not possible attack the merits of the earlier judgment on the evidence as it stood at the time. The question is whether there is fresh evidence capable of showing that the earlier judgment was brought about by fraud: see Kostakopoulou v University of Warwick & Others [2025] EWHC (KB) 342 (Bourne J) at [25]. (1) Conscious and deliberate dishonesty[20]Sir Geoffrey Vos MR described the nature of an action to set aside a judgment for fraud in Tinkler v Esken Ltd [2023] 3 WLR 457. He said this at [12]:
“… In modern terms, we can perhaps regard the action to set aside a judgment for fraud as akin to an action for deceit. The only significant differences are that the court, rather than the opposing party to the first action, has to be shown to have been deceived, deliberate dishonesty is required, and materiality rather than simple reliance must be shown. If the elements are made out (misrepresentation or misleading conduct, made or undertaken fraudulently, with reliance for deceit and materiality for an action to set aside a judgment), the contract or the judgment can be rescinded or set aside ...”
[21]For there to be an actionable misrepresentation in the tort of deceit, a false representation must have been made fraudulently. The representation is to be interpreted objectively in the context based on its reasonable interpretation from the perspective of the representee: Vald Nielsen Holding AS v Baldorino [2019] EWHC 1926 (Comm) at [132]. If a statement is capable of being understood in more than one sense, the representor must have intended it to be understood in its untrue sense (or have used the ambiguity deliberately to deceive): Vald Nielsen at [141]. See also Clerk & Lindsell on Torts (24th Ed) at [17-06 and 17-26], where the learned editors say “Conversely, if a statement is in terms untrue, but is not intended to be interpreted in its literal sense, it cannot be charged as a deceit.” For a misrepresentation to be fraudulent, the Court must apply a subjective test to the meaning the representor intended the representation to convey: Cartwright, Misrepresentation, Mistake and Non-Disclosure (7th Ed)at [5-19].[22]It follows from the above that for Ms Ajayi to succeed in the present case the Court must find that Ebury made the alleged fraudulent statements both consciously and also deliberately – in other words, that Ebury did not honestly believe that the representations were true, and that Ebury intended Ms Ajayi and Henshaw J to act upon them. (2) Materiality[23]The test for materiality is set out in Royal Bank of Scotland Plc v Highland Financial Partners LLP at [106]. The question for the court is whether the new evidence shows that the previous evidence was an operative cause of the court’s decision to give judgment; i.e. that it would have entirely changed the way in which the first court came to its decision, rather than merely that there was a real danger that the dishonest conduct had affected the outcome.[24]The Highland test has since been followed in the trial of the claim in Takhar v Gracefield Developments Limited [2020] EWHC (Ch) 2791 (following the Supreme Court’s decision), by the Court of Appeal in Park v CNH Industrial Capital Europe Ltd (t/a CNH Capital) [2022] 1 WLR 860 at [50], and by the Court of Appeal in Tinkler at [56].[25]Therefore, this Court should not approach the matter to see what the decision would be if the matter were to be retried with honest evidence. However, it may be hard to avoid considering this at least to some extent: Mumford & Grant: Civil Fraud at [38-017]. (3) New evidence[26]The law is clear that the party seeking to set aside the judgment must rely on evidence or material which was not before the original court: Takhar at [65]. Whether material was before the original court means whether it was deployed at trial.[27]The position is more nuanced where the evidence was available at the time of the original trial, or might have been available. The Supreme Court in Takhar made clear that where no allegation of fraud is raised in the original action, there is no requirement that the party seeking to set aside the judgment must have acted with reasonable diligence in failing to discover the new evidence: see Takhar at [54] (per Lord Kerr JSC) and [42] (per Lord Sumption). In Takhar, the claimant relied on evidence from a handwriting expert to show that the signature on a document produced in evidence by the other side at the original trial was a forgery. The defendant unsuccessfully argued that the claimant was precluded from relying on the handwriting evidence because it could have been obtained during the first set of proceedings. The Supreme Court stated, however, that one exception to the general rule would be where a party in the original trial had made a deliberate decision not to investigate a suspected fraud or rely upon a known one: Takhar at [55], [66]. Based on the judgments in the Supreme Court, in such a case the claimant will likely not be entitled to challenge the judgment subsequently, because this would be an abuse of process: Mumford and Grant: Civil Fraud at 38-019B.[28]Where the losing party raised fraud unsuccessfully in the earlier proceedings or could have done so on the basis of evidence known to the claimant but they did not do so deliberately, the claim may fail as an abuse of process: Elu v Floorweald Ltd [2020] 1 W.L.R. 4369 (Linden J). In Elu the defendant had raised the allegations of fraud in the original trial and almost all of the evidence relied upon to set aside the judgment for fraud (a supplementary report, invoices and witness evidence which allegedly showed various documents were forgeries) was known and in its possession, but the defendant had deliberately (for tactical reasons) chosen not to deploy some of the material [173]-[189].[29]In Finzi, the claimant argued that ‘fresh evidence’ simply meant material not deployed in the earlier proceedings, even if the claimant was aware of it, unless the claimant took a deliberate decision not to rely on the material. The Privy Council agreed with the lower courts that Mr Finzi’s claim to set aside various judgments and settlements on the ground that they had been procured by the defendants’ fraud was an abuse of process given that Mr Finzi had all the information upon which he was now relying to support his claim for fraud, and thus those allegations of fraud could and should have been raised in the earlier proceedings. Takhar was a different kind of case – the claimant there was relying on evidence obtained after the trial and so there was no question that the evidence was not ‘new’ (at [61]). The claim failed in Kostakopoulou in which Bourne J held that the claim in respect of costs was based on evidence which was available, and indeed before the Court, in the earlier proceedings and that it was the claimant’s decision not to investigate that evidence herself any further at the time (at [81]).[30]Therefore, following Finzi, the position seems to me to be that where a claimant relies on evidence not adduced in the original proceedings in order to allege that a judgment was obtained by fraud the burden is on the claimant to establish that the evidence is new in the sense that it has been obtained since the judgment or settlement. Where the evidence is not new in this sense, the claim is likely to be regarded as abusive unless the claimant is able to show a good reason which prevented or significantly impeded his or her use of the evidence in the original action: see Finzi at [72], per Lord Leggatt. The editors of Phipson on Evidence (20th Ed) helpfully observe at [43-08] that: “By “new” evidence, what is usually required will be facts or evidence that were not known, at the time of trial, to the party now alleging that it was deceived, although it is possible that there will be exceptional cases where the evidence in question was known about at the time of trial but could not be deployed”.[31]Although the court’s primary focus will be on the new evidence, it may also need to look at some of the evidence at the Original Trial alongside the new evidence to see if they together show that the first court was misled: Tinkler [45]. What is the effect of a successful set aside application?[32]Where the requirements to set aside a judgment summarised above are satisfied, the court will set aside the judgment. It will not go on to retry the underlying claim or re-run the original proceedings on the hypothetical basis the fraud had not occurred. If the judgment is set aside, the successful party in the original proceedings must give restitution of all benefits flowing from it. Thus, it must repay any damages awarded and any costs recovered, together with interest. The Parties and the Evidence 34. The Parties[33]Ms Golda Ajayi is a qualified chartered accountant and has a BSc in Accountancy and Finance and an MBA. She is a member of the Association of Chartered Certified Accountants (ACCA) and the Chartered Institute of Management Accountants (CIMA). In March 2013, Ebury engaged Ms Ajayi as a consultant (she said as their Finance Director) on a part-time basis. She worked for Ebury for 2-3 days per month. Ms Ajayi assisted Ebury with its internal financial management including tax related matters, research and development grants and the implementation of Ebury’s EMI schemes. Ms Ajayi provided her services via an LLP called XP One Consultants.

The Parties and the Evidence

[34]Ebury is the holding company of Ebury Partners UK Ltd. It was founded in November 2009 by Mr Lobato and Mr Garcia as a fintech start-up focusing on providing SMEs with better access to more efficient international payments. In the period relevant to Ms Ajayi’s claim (i.e. between 2013 to 2015), Ebury was at an early stage in the development of its business. It was loss-making and relied on raising funds from investors to continue its development.[35]Ebury has since successfully grown and attracted equity investment from venture capital funds and other investors. Banco Santander and Vitruvian Partners now own c.70% of Ebury. It is one of Europe’s fastest growing fintech businesses and has revenues in excess of US$100 million. The witnesses of fact[36]I heard evidence from Ms Ajayi for herself, the Claimant, and from Mr Lobato and Mr Lloyd on behalf of Ebury.[37]Ms Ajayi gave her evidence over more than a day. As was perhaps inevitable, there was a considerable overlap between her evidence of fact and the submissions that she wished to make in support of her claim. She described herself in closing as having given evidence that was both consistent with the contents of her witness statement and which demonstrated a clear and measured understanding of the issues. She certainly demonstrated a clear command of the arguments that she made and some of her evidence was argument. However, I agree with Henshaw J’s findings in the Judgment in which he found “Ms Ajayi ’s strength of feeling about the case was clear from the way in which she gave evidence” and that she had become “wedded to her view of the merits of her case to such a degree as to lack objectivity.” She clearly felt that she has been wronged by Ebury and it seemed to me that both her evidence and argument were tailored, perhaps unconsciously, in order to maximise the prospects of setting aside the Original Judgment. I am satisfied that many of her arguments simply assumed that which she had to prove.[38]Mr Juan Lobato is a director, founder and the CEO of Ebury. He has an MSc from Madrid University and was employed by McKinsey in London for 3 years. In 2009 he became the CEO of Basekit Platform Ltd (“Basekit”) and was able to raise a considerable amount of money. He also co-founded Ebury later in 2009. He was Ebury’s principal witness before me. Ms Ajayi contended that his evidence was frequently unclear, inconsistent and evasive. I disagree. I found his evidence to be honest, clear and direct. He was a very impressive witness.[39]Mr Nicholas Lloyd is a partner in EMW LLP, Ebury’s corporate solicitors at the time. Ms Ajayi submitted that his evidence demonstrated a striking pattern of evasiveness and inconsistency. Again, I disagree. I considered that Mr Lloyd gave evidence that was clear, honest and compelling. He too was an impressive witness.[40]Ebury also tendered a witness statement from Mr Salvador Andras Garcia. I was told during opening submissions that he was unable to attend to give evidence and Ebury applied for leave to put his statement in under the Civil Evidence Act 1995. This application was made very late and I did not accede to it. Expert evidence[41]Pursuant to para. 3 of the order of Knowles J dated 4 October 2024, Ms Ajayi was permitted to adduce expert evidence from an independent accountant on the accounting entries recording Ebury’s grant of options to Ms Ajayi and her acquisition of shares as part of the EMI 2. Ms Ajayi adduced the report of Ms Nicola Larkin. Pursuant to para. 7 of Knowles J’s order it was for the trial judge, i.e. me, to determine what, if any, time is to be allocated to oral evidence from experts.[42]Ebury did not serve any expert evidence on the accounting entries in respect of the grant of options to Ms Ajayi because it did, and does not, consider such evidence to be relevant to the issues in this case. It said that it did not dispute the accuracy of Ms Larkin’s report. Ms Ajayi nevertheless sought my leave to call Ms Larkin. I did not give leave in circumstances where her (very limited) evidence was not in dispute. Documents[43]The trial bundles before me included all of the bundles that were available to the Court at the Original Trial, as well as transcripts of the evidence and argument deployed before Henshaw J. Factual Background 46. The EMI schemes[44]In order to incentivise its employees and consultants, Ebury ran an EMI scheme. Through this scheme, employees were granted share options in consideration for the provision of their services. Recipients of EMI share options were then entitled to exercise those options by making an election and paying the strike price (as set out in Ebury’s EMI rule 8.4.1), at which point they would receive B shares in Ebury. The advantage and incentive of an EMI scheme is that it provides a tax efficient means of enabling employees to acquire shares in the business for which they work. It also incentivises them.[45]Ebury ran its first EMI scheme around July 2013 (EMI 1), its second around January 2014 (EMI 2), and its third around May 2015 (EMI 3). Only EMI 2 is relevant to Ms Ajayi’s claim. For EMI 2, Ms Ajayi, on Ebury’s behalf, applied to HMRC’s Shares Assets Valuation (“SAV”) team on 6 January 2014 for an actual market value (“AMV”) and an unrestricted market value (“UMV”) of the options.

Factual Background

[46]Ebury submits that it was free to grant whatever number of options it chose to each employee. It was also entitled to set any exercise price, and did not need to agree a value with HMRC in advance of agreeing to grant options. The relevance of the AMV is that if the exercise price is less than the AMV, the recipient will be deemed to have acquired the shares at a discount and thus would incur an income and national insurance tax charge for the difference. Accordingly, the lower the AMV that Ebury could agree with SAV, the greater the benefit - and in turn, incentive - to the recipient of the option; if the business subsequently proves to be successful and the shares became more valuable they can be acquired cheaply and without incurring income tax (although any capital gains tax would be levied on the sale at a lower rate than income tax).[47]At the time of EMI 2, Ebury had 993,927 A shares and 88,902 B shares. Ebury had recently raised £3.9m from investors in a fundraising round and received £17.80 per share (these were A shares). The EMI options were to be over B shares and Ebury intended to grant 50,000 EMI options (representing a small minority of shares) once the AMV/UMV had been approved with SAV. The application proposed a valuation of “£1.78 per ordinary share” as both the AMV and UMV of the options, and explained that this represented a 90% discount on the share price of £17.80 achieved in the 2013 investment round. The application did not refer to the share price as being specific to A shares or state that £17.80 was the ‘market value’ of A shares.[48]Ms Ajayi prepared Ebury’s EMI 1, EMI 2 and EMI 3 applications to SAV. The EMI 2 application included a list of current shareholders which showed that there were both A shares and B shares, Ebury’s articles of association, and Ebury’s recent accounts and management accounts. Ms Ajayi said in evidence that she simply used a Basekit template with which she had been provided by Mr Lobato and she was not really aware of the EMI options rules. Whilst she clearly knows much more now than she did at the time, I did not find this evidence to be convincing. Ms Ajayi is highly intelligent, very qualified, and struck me as someone who would take her employment, whether part time or not, seriously. I find that she did have an understanding of the EMI options rules.[49]On 15 January 2014, HMRC approved Ebury’s AMV/UMV at £1.78 per ordinary B share. They did so in a letter addressed to Ms Ajayi. For EMI 1, HMRC had previously approved an AMV/UMV of £0.82 on 23 July 2013. This represented a 90% discount on the then share value of £8.19. For EMI 3 HMRC went on to approve an AMV/UMV of £1.92 on 9 June 2015, also a 90% discount on the then share value of £19.20.[50]In relation to the operation of Ebury’s EMI schemes, the following terminology is relevant to Ms Ajayi’s present claim(1) The AMV/UMV is the market value of the option shares as approved by SAV for each particular EMI scheme. Henshaw J referred to this as the AMV/UMV or the “discounted share price” (Judgment [47] [57]) since it was common ground at the Original Trial that the AMV for Ebury’s EMI schemes was calculated by applying a discount, in this case 90%, to the “share price”. Hence for EMI 2 the share price was £17.80 and SAV agreed an AMV/UMV of £1.78. Ms Ajayi refers to the AMV/UMV as the “market value”.(2) The AMV/UMV is to be contrasted with the “share price”, this being the price at which incoming investors acquired shares and which reflects the amount of their investment divided by the number of shares they received. Henshaw J referred to this as the “share price”, “real share price”, “real market value” or “undiscounted share price”: Judgment [92] [45] [13] [48].[51]Ebury contends that in these proceedings Ms Ajayi now conveniently asserts that there is no distinction between the “market value” and “the share price” and that in agreeing the AMV/UMV there was no discount to the share price of the shares over which she was granted options.[52]The pleadings in this claim contain various references to (and extracts from) parts of the Income Tax (Earnings and Pensions) Act 2003 (“ITEPA 2003”) and the Taxation of Chargeable Gains Act 1992 (“TCGA 1992”) relating to the taxation of EMI schemes. There is no dispute between the Parties on the text of these provisions or as to their scope and basic operation. The Parties also agree that HMRC has produced various guidance relating to EMI schemes to which they have referred at the Original Trial and for this claim, in particular a number of Employee Tax Advantaged Share Scheme User Manuals (“ETASSUM”) 57010, 57030, 57140, 58010, 58020, and the Shares and Assets Valuation Manual (“SVM”).[53]The Parties disagree on whether this legislation and guidance is relevant to Ms Ajayi’s claim. Ebury submits that there is nothing in the guidance or legislation which undermines the Judgment (or Ebury’s case at the Original Trial). It points, for example, to the fact that the “start-up company A” and “Rosalind Ltd” examples in the SVM1100050 guidance support the case that the AMV may be substantially discounted from the price paid for shares by investor. Henshaw J was referred to Schedule 5 of ITEPA 2003 on several occasions during the Original Trial. Ebury submits that it was not material to his Judgment because he correctly concluded that the number of options to which Ms Ajayi was entitled was a matter for commercial negotiation, rather than the result of anything prescribed in the legislation: Judgment [60]. Ebury further submits that although the tax and accounting law/principles are irrelevant to this issues in this case, Ms Ajayi is nevertheless seeking to use the legislation and guidance to cloud the issues for this trial and re-run her original claim, albeit on different technical grounds. Ms Ajayi disagrees. November 2013 agreement[54]In November 2013, Ms Ajayi felt that her work for Ebury was taking up more time than 2-3 days per month and so she entered into discussions with Mr Lobato in order to vary her remuneration. Mr Lobato considered that remuneration of around £45,000 per annum was appropriate, and offered Ms Ajayi the opportunity to take this as either cash, equity, or a mix of the two. He referred to the share price being at £17.80. The key email exchange is set out in the Judgment at [18]-[23] and I refer to it in more detail below. These emails contained the November 2013 Agreement. At the time of the November 2013 Agreement, EMI 1 had already occurred but the AMV/UMV for EMI 2 had not yet been agreed with HMRC. There was, therefore, no certainty as to the figure that SAV would approve for the AMV/UMV. Subsequent events[55]Following SAV’s approval of the EMI 2 market value, and board approval, the Parties signed a written option agreement dated 12 March 2014 for 3,000 options (the “2014 Option Agreement”) as was required by the relevant legislation and rules. At the Original Trial, Ms Ajayi argued that this was signed subsequently and backdated, and concerned a further, separate tranche of options rather than those the subject of the November 2013 Agreement. Henshaw J disagreed. He agreed with Ebury that there was only a single tranche of options granted pursuant to the November 2013 Agreement and that these were the 3,000 options the subject of the 2014 Option Agreement: Judgment [26] [61]-[64].[56]In July 2015, Ms Ajayi told Ebury that she wanted to exercise her options. Following various emails, Mr Lloyd explained to her on 5 November 2015 that she would need to pay the exercise price of £1.78. In November 2015, various employees with options exercised their options and sold their (B) shares for £78.05 per share as part of an investment round. The investment round involved no difference in value between A and B shares and both categories were converted to preferred shares following the acquisition by the investor.[57]As a private company, shares in Ebury have never been sold on the open market. Ebury’s fundraising has instead been from specific investors, such as venture capital funds, who have invested in anticipation of Ebury’s growth and profitability, and with a view potentially to selling their shares and/or receiving dividends as a result of Ebury’s growth. The Original Trial[58]The Salary Sacrifice Claim concerned the number of options which were granted to Ms Ajayi under EMI 2. The key issue for Henshaw J was the construction of the various emails which the Parties sent in November 2013 and which comprised the November 2013 Agreement: Judgment [43]. In particular, in these emails Ms Ajayi asked “Can you tell me how many shares £45k works out at?” (Judgment [21]), and Mr Lobato replied that “share price is at £17.8 you can choose all equity or al [sic] cash or in between, let me know what you want”: Judgment [22].[59]Henshaw J had to decide between two competing interpretations of the November 2013 Agreement:(1) Ms Ajayi said that £40,000 should be divided by £1.78 to give the number of options, £1.78 being the AMV per share subsequently approved by HMRC as the market value of the option shares for the purposes of the EMI Scheme: Judgment [44]. Ms Ajayi therefore claimed to be entitled to 22,472 options in lieu of her salary.(2) Ebury disagreed and said that Ms Ajayi was only entitled to 2,247 options, which Ebury had voluntarily rounded up to 3,000 options in order to take account of the fact that Ms Ajayi would need to pay the exercise price when converting the options to shares. Ebury said that £40,000 should be divided by £17.80 to give the number of options, £17.80 being the share price at the time the options were granted at which incoming investors had acquired Ebury’s shares in October 2013, shortly before the November 2013 Agreement: Judgment [45].[60]Henshaw J decided the Salary Sacrifice Claim in Ebury’s favour: Judgment [46]-[61]. His principal reasons were:(1) The email communications between the parties supported the view that the number of options was to be calculated by reference to what he termed the “real” market value of £17.80 (as agreed with investors) rather than the AMV of £1.78 later approved by HMRC for the purposes of the EMI Scheme: Judgment [47].(2) The context in which the email correspondence took place supported this: Judgment [48]-[52]. In particular, there was evidence that the numbers of options granted to employees was calculated by the “real” or non-discounted share price as opposed to the discounted value approved by HMRC because HMRC only subsequently approved the 90% discount for AMV purposes (in January 2014). In November 2013 the Parties would not have known what the AMV would be.(3) The commercial consequence of Ms Ajayi’s approach suggested her interpretation was incorrect as this would have involved allocating shares to Ms Ajayi which, by reference to the value of the shares obtained in the recent investment round, would have represented a tenfold increase in Ms Ajayi’s salary; i.e. in lieu of salary of £40,000, she would have received options worth more than £400,000: Judgment [53].[61]Henshaw J decided that it was a matter for negotiation between the company and its employees as to how many options were allocated to its employees rather than an automatic consequence of the amount approved for the AMV/UMV: Judgment [57] and [60].

The Parties’ cases at the Original Trial

[62]At the Original Trial, neither party suggested that any other share values or prices were in contention apart from £1.78 and £17.80. In particular:(1) It was common ground at the Original Trial that the whole point of EMI schemes was that they provide for shares to be acquired at a discount.(2) Ms Ajayi’s pleaded case was that the £1.78 AMV was not the same as the “share price” or “normal share price”. She claimed that the value of the shares was £17.80 but that this was different to what she referred to as the EMI option price.(3) Ms Ajayi relied on the £17.80 share price figure and the fact that HMRC’s SAV team previously calculated the AMV by applying a 90% deduction to the share price, in order to be able to derive the “EMI share price and thus the number of options shares (at a 90% discount on the share price).” and thereby overcome the problem that otherwise the parties had no way of knowing what the AMV would be at the time of the November 2013 Agreement. (In contrast, Ms Ajayi now says that the shares over which options were granted only ever had a price or value of £1.78).(4) Ms Ajayi did not allege at the Original Trial (and nor does Ms Ajayi allege in these proceedings) that Ebury deceived HMRC in applying to HMRC’s SAV team for an AMV of £1.78 per share.(5) Ms Ajayi did not challenge Ebury’s belief in the £17.80 “share price”.[63]Neither Party distinguished between A and B shares at the Original Trial:(1) Both parties knew (both at the Original Trial but also when the November 2013 Agreement was made) that Ms Ajayi was granted options to acquire B shares and that B shares would have certain restrictions compared to A shares: see, for example, paras 1.7, 3.2 and 3.3 of the EMI 2 application which Ms Ajayi presented on behalf of Ebury.(2) Ms Ajayi treated A and B shares as having the same value in relation to loss. When it came to valuing Ms Ajayi’s shares for another claim in the Original Trial (known as the AOA Claim), both parties’ experts accepted that a share price for a minority holding in “Ebury’s shares” throughout the period in which Ms Ajayi would have sold her shares was £78.05, i.e. the same for both A and B shares.

The Alleged False Statements

[64]Ms Ajayi now alleges that Ebury, through those giving evidence on its behalf, made 42 false statements at the Original Trial. Ms Ajayi says that these show that she should have been awarded 22,472 options and that the Judgment was procured by fraud.[65]The Parties have helpfully agreed that these 42 alleged statements are conveniently summarised and represented by the six alleged misrepresentations as set out below. 1 The Investor Purchase Representation[66]Ebury is alleged to have represented that Ms Ajayi was given shares that investors had bought in 2013 for £17.80 per share. Ms Ajayi alleges this is false because only A shares were sold in the 2013 investment round for £17.80 or, in other rounds, for £8.19 (EMI 1) or for £19.20 (EMI 2), and not B shares over which Ms Ajayi had been granted options. 2 The Value Representation[67]The alleged representation is that Ms Ajayi was given shares worth £17.80 each. Ms Ajayi alleges this is false because the value of the B shares to which she was entitled was £0.82 or £1.78 (the AMV/UMV as determined by SAV) and not £17.80. According to Ms Ajayi, the AMV should have been the benchmark for calculating the number of shares to which she was entitled. As it was not (and £17.80 was used instead), Ms Ajayi only received shares worth £2,640 or £5,340, rather than £40,000. 3 The 90% Discount Representation[68]It is alleged Ebury represented that HMRC approved a 90% discount of the value of B shares as the AMV. Ms Ajayi alleges this is false because the AMV was calculated using a 90% discount on the value of A shares, and not the value of B shares. The AMV had to be the real market value of the B shares, and this was £0.82 or £1.78, not £17.80. 4 The Tax Advantage Representation[69]The alleged representation here is that Ms Ajayi was entitled to acquire shares worth £17.80 by paying £1.78 per share and even if the value of the shares increased, Ms Ajayi did not incur an income tax liability. Ms Ajayi alleges that this is false because there was no tax advantage. The recipient had to pay the market value (being the AMV) at the date of the option, and because income tax and National Insurance must be paid on all remuneration whether received in cash or as shares (and EMI cannot be used to avoid tax). 5 The Share Options Representation[70]Ms Ajayi contends that Ebury represented that Ms Ajayi agreed to take £40,000 in share options, and that the figure of 3,000 reflected the fact that Ms Ajayi would need to pay the strike price. Ms Ajayi alleges this is false because Ms Ajayi agreed to take £40,000 in shares, not in share options. Ms Ajayi claims that as a salary sacrifice, her salary was used to pay the exercise price of the options. 6 The Participation Representation[71]The alleged representation is that Ms Ajayi paid £40,000 to become a participant in the EMI scheme. Ms Ajayi alleges this is false because the grant of an option must be paid for by services and cannot be a payment to enable her to participate in the EMI scheme. Discussion 75. Introductory[72]As the Court of Appeal observed in Tinkler at [49], the appropriate starting point for my analysis is the ‘new evidence’ requirement. Ms Ajay submitted that this is something that I should consider last, saying I should first consider whether the alleged statement was false and then whether the statement had been made with conscious and deliberate dishonesty and then whether the statement was material. Although Ms Ajayi’s proposed order of issues follows the order of the issues identified by Baker J in a CCMC, I consider that it is more appropriate for me to follow the order set out in Tinkler, and then proceed to consider whether Ebury was fraudulent, and if so, whether Henshaw J was induced to make a potentially wrong judgment by reason of the fraud and whether any fraud was material. I should stress, however, that considering matters in this order has no bearing upon the outcome.[73]I bear in mind that Ms Ajayi must prove the fraud “wholly free from…any of the matters originally tried”: Flower v Lloyd (1877) 6 Ch Ebury 297 per James LJ, cited in Tinkler (CA) at [14]. As Leech J said in Tinkler (first instance) [33], I must avoid “looking through the telescope from the wrong end”. I should evaluate the new evidence and then decide whether the Judge’s findings can stand in the light of it. I should not rehear and decide the same issues again with the benefit of both the old and new material and then ask whether the witnesses must have deceived the trial judge; with that approach there is “a real danger of injustice in a second court reaching different conclusions based on hearing part only of the evidence before the Court.” In the absence of a successful appeal, I have to assume that Henshaw J decided the issues correctly on the evidence before him. I should, as Ebury submits, respect the finality of the Judgment even if I am tempted to reach conclusions different to those of Henshaw J. “New Evidence”[74]In her Re-Amended Particulars of Claim, Ms Ajayi expressly relied on 17 pieces of “new evidence” as being material to the Judgment. These had not previously featured in her pleadings. Ebury argues that all 17 of these do not amount to ‘new evidence’ in the sense that is required for to establish a cause of action and that the 17th, Ms Larkin’s report, is also irrelevant. Ms Ajayi only took Ebury’s witnesses to 7 items of the alleged new evidence in cross-examination. Legislation, HMRC guidance and IFRS2 accounting rules

Discussion

[75]Of the 17 items, 11 are parts of legislation (ITEPA 2003 and TCGA 1992), HMRC guidance or IFRS2 accounting rules. I do not consider these to be evidence properly so-called. Phipsonon Evidence states at [1-10] that “In a real sense evidence is that which may be placed before the court in order that it may decide the issues of fact”. Ebury contends, and I agree, that these materials do not relate to any issue of fact at the Original Trial. They are not “testimony, whether oral, documentary or real, which may be legally received in order to prove or disprove some fact in dispute” or the “content of that testimony”. Further, they are not materials which Ebury could have concealed or did in fact conceal. They are independent, publicly sourced materials which were equally as available at the Original Trial to Ms Ajayi, a qualified accountant and to her legal representatives, as to Ebury.[76]As to the sections in ITEPA 2003, Ebury submits that ss.423 and 424 are irrelevant to Ms Ajayi’s cause of action as the AMV and UMV were the same; s. 530 is the legislative basis of ETASSUM 57010 and ETASSUM 57140 which were both before Henshaw J, and sections 6, 62 and 203 are generic provisions about income tax (EMI schemes have specific tax treatment). I agree.(1) Sections 272 and 273 in Part 8 of TCGA 1992 define “market value” as open market value and this definition is incorporated by reference for EMI schemes by para 55(1) of Schedule 5 ITEPA 2003. This was before Henshaw J. Further, Ms Ajayi herself referred to the definition of “market value” in Ebury’s EMI rules (which in turn refer to Part 8) during her cross-examination at the Original Trial.(2) As to the guidance, Ms Ajayi was clearly aware of HMRC’s guidance at the Original Trial as she relied upon various parts of it in both her written opening submissions (settled by counsel) and her written closing submissions (settled by herself). At the Original Trial Ms Ajayi relied upon ETASSUM 57010, but now claims that 57030 (a different page of the same manual, both dealing with the taxation of EMI options) is new evidence. I find, however, that Ms Ajayi in fact referred Henshaw J to that exact part of the guidance in one of her submissions following circulation of the draft judgment.[77]Ms Ajayi is a qualified accountant who oversaw the implementation of Ebury’s EMI schemes. She was represented by solicitors and Counsel at the Original Trial, and she produced her own written closings. I find that there is no basis for saying that Ms Ajayi (or her lawyers) did not know that she could rely upon various pieces of tax legislation and guidance in the Original Proceedings. Filings at Companies House[78]Four of the 17 pieces are Ebury’s public filings at Companies House – financial statements, shareholding filings, and a register of members. Ebury has satisfied me that Ms Ajayi’s expert at the Original Trial stated that he had received Ebury’s year end (“y/e”) accounts for 2016, 2017 and 2018. The only additional financial statement on which Ms Ajayi relies as new evidence is the accounts for y/e April 2019, which seems to me to be irrelevant to EMI 2 (in 2014) and the November 2013 Agreement. These documents were in any event publicly available. Ms Ajayi has not satisfied me that she only obtained this evidence since the Judgment or that, if she had it before, why she did not deploy it. Ebury submits that the reality is that Ms Ajayi has no good reason as to why the evidence was not deployed at the Original Trial. A likely explanation, Ebury submits, is that Ms Ajayi was not interested in proving that only A shares were sold in the 2013 investment round. This is because if the B shares were to be valued separately and at merely 10% of the A shares (i.e. £1.78 in November 2013), this would significantly have reduced her damages claim based on her expert’s evidence that her shares were worth the same as A shares i.e. £78.05 each in 2016. I consider this to be speculation. PwC’s letter dated 8 April 2016(the “PwC Letter”)[79]This was a letter written on Ebury’s behalf by PwC to SAV. In it PwC stated, inter alia, that “… B shares do not carry voting rights and are subject to a number of “bad leaver” clawback provisions (in accordance with their purpose in encouraging employee retention), reducing their value compared with A shares The introduction of preferred shares as part of the November funding-round further diluted the value of the B shares … … As set out in Ebury’s letter of 26 May 2015, the valuation of the B Ordinary shares over which options were granted reflected the fact that these shares do not carry voting rights. The B Ordinary shares are also subject to a number of “bad leaver” provisions enabling Ebury to claw back the awards in certain circumstances, including post-exercise, and are highly illiquid. This is in accordance with the function of awarding these share options, which is to incentivise and retain employees without incurring an immediate cash cost to the company ...” Ms Ajayi relies upon the PwC Letter in support of her submission that the B shares allocated to her did not have the same value as the A shares that had been sold by Ebury.[80]Ebury submits that Ms Ajayi had the PwC Letter at the Original Trial. It was provided to both Parties’ experts and thus it is not new evidence. The PwC Letter was written on behalf of Ebury in response to a letter from HMRC’s SAV team on 16 February 2016 regarding the AMV/UMV agreed for EMI 3 in May 2015. In that letter, SAV queried whether the figure of £1.92 was correct, given Vitruvian Partners had paid £78.05 per share for Ebury’s shares in 2015. That letter from SAV was in the bundle and Mr Lobato was taken to it in re-examination at the Original Trial, he having referred to it in his cross-examination. The PwC Letter was written in response to this and explained that the share price of £78.05 was not indicative or representative of the market value that had been agreed by SAV. PwC referred to the specific features of the investment in 2015 to explain why a share price of £78.05 was achieved. In response to the PwC Letter, SAV confirmed that it accepted the AMV/UMV that it had agreed for EMI 3.[81]Ms Ajayi explained in her evidence to me that she had not herself been aware of the PWC Letter at the Original Trial. Even if that is correct, her lawyers and expert were aware of the letter. It is not, therefore, new evidence. Nor, in my judgment, is it directly relevant. It was dealing with EMI 3. This claim is concerned with EMI 2. In any event, the reasons for the 90% discount were stated in the application letter for EMI 2. That letter had been presented to SAV/HMRC by Ms Ajayi herself. The 2016 Grant Thornton Report (the “2016 Grant Thornton Report”)[82]Ebury submits that Ms Ajayi had the 2016 Grant Thornton Report at the Original Trial and that it was provided to the experts.[83]In 2015, Ebury asked Grant Thornton to calculate the fair value of options granted under EMI 1 and 2, which it did using the Black-Scholes valuation model, calculating a fair value of between £0.08 and £0.20 per EMI option (the “2015 Grant Thornton Report”). The 2015 Grant Thornton Report was in the bundles for the Original Trial. In 2016, Ebury asked Grant Thornton to calculate the fair value of options again, this time for the EMI 3 options. In both reports, Grant Thornton was aware of the AMV and UMV agreed between Ebury and HMRC and the exercise price. Both of these reports are very similar to each other, apart from the numbers used for the applicable EMI scheme. Ms Ajayi has referred to the 2016 Grant Thornton Report as showing the market value of B shares as part of EMI 1 and EMI 2. However, the 2015 Grant Thornton Report dealt with EMI 1 and EMI 2. This is not new evidence. Ms Ajayi accepted in cross-examination that the 2016 Grant Thornton Report did not relate to EMI 2. The Expert Report of Ms Larkin[84]As referred to above, Ms Ajayi has also relied on an expert report from Ms Larkin which has been produced to explain and illustrate the accounting entries to record Ebury’s grant of options to Ms Ajayi and Ms Ajayi’s acquisition of shares as part of EMI 2. Ebury accepts that the report is technically new evidence as Ms Ajayi has obtained it since the Judgment. The subject matter of the report is not, however, new evidence. It concerns accounting matters with which Ms Ajayi would have been familiar at the Original Trial given that Ms Ajayi provided Ebury with accountancy services. I find that it is not relevant to the issues before me. It does not purport to deal with either the interpretation of the November 2013 Agreement or the number of options granted pursuant to it. Conclusions on the “New Evidence”[85]For the reasons that I have given above, I do not accept Ms Ajayi’s assertions that there is “New Evidence” upon which she is entitled to rely in this case. Save for the Expert Report of Ms Larkin, all of the matters referred to were available to her and her lawyers at the Original Trial. She made much of the fact that this “New Evidence” was not deployed at the Original Trial and that she was not personally aware of it. This is not, in my judgment, of itself sufficient for the matters upon which she now relies to amount to “new evidence”. The fact that matters were not investigated or considered at the Original Trial does not mean without more that they can be considered in a new trial. Conscious and Deliberate Dishonesty[86]I turn next to consider whether Ebury were consciously and deliberately dishonest in making the representations that Ms Ajayi asserts that they did make. 1 The Investor Purchase Representation[87]Ebury did not make the Investor Purchase Representation. I find that Ebury did not represent that B shares specifically, as opposed to shares generally, were sold to investors in 2013. Ms Ajayi’s submissions assume that which she has to prove. Although Mr Lobato said in cross-examination at the Original Trial that “she was given 3,000 shares that, in 2013, were paid by people, £17.80 per share”, it is clear from his evidence that he understood the shares for which the options were granted to be worth £17.80, rather than that B shares specifically were sold for £17.80 in 2013. In the same answer Mr Lobato said that everyone was lucky because the same shares, in 2015, were worth £77.80 so what Ms Ajayi had been given was worth much more than £40,000 in 2015. Earlier in his cross-examination he said:
“you are using as guideline the, the, as I said, the last, the last price of a share that was paid by someone when they invest in Ebury , which is 17.8.”
In re-examination, he said that the option allows someone to purchase a share which has “equal economic rise to the shares that have been bought from that company”.[88]Mr Lobato’s evidence was entirely consistent with this at the trial before me. He told me that A and B shares have the same value and economic rights and that A and B shares have been sold the same way and at the same price throughout the history of the company. I found his evidence to be convincing. Ms Ajayi did not point me to any evidence in order to demonstrate that it was wrong, let alone consciously and deliberately false. I find that Mr Lobato has always considered, and correctly considered, that A and B shares have the same economic value and that he genuinely understood and believed that the 3,000 shares over which Ms Ajayi was granted options were worth £17.80 each. This belief was borne out by the fact that, in subsequent investment rounds, employees who had EMI options exercised them and sold the shares at the same price as A shares.[89]Further, I find that neither Ms Ajayi nor Henshaw J were misled. Ms Ajayi was fully aware at the time of the November 2013 Agreement and the Original Trial that investors had purchased A shares (rather than B shares) in 2013: the EMI 2 letters which she submitted to HMRC, which were before the Court, made this clear. Ms Ajayi included a table in her written closing submissions at the Original Trial comparing EMI B shares with “External Investor A Ordinary shares”, and in her oral closings she stated that she was aware of 45 different sales in Ebury’s shares. If she had considered that the point was key and/or that Ebury had misled the Court in its submissions, she could and should have raised that argument before Henshaw J. Henshaw J was not misled and was aware of the distinction between A and B shares. Referring to EMI 1, in response to a specific question from Henshaw J during her cross-examination, Ms Ajayi said that the shares sold to investors were A shares whereas under the EMI scheme she took options over B shares at a 90 per cent discount. 2 The Value Representation[90]Ebury accepts it made the Value Representation, but it says that this was true because the option shares were worth £17.80 each. It submits that Ms Ajayi is confusing the ‘market value’ as agreed with SAV (which is defined for the purposes of Schedule 5 of ITEPA 2003), and the ‘share price’ (in the sense of what investors paid for the shares) which Ebury used to calculate the number of options. This distinction between ‘share price’ and ‘market value’ or AMV/UMV was part of Ebury’s argument at the Original Trial. Ms Ajayi relied upon admissions that were made in an Admissions Document filed with the Court. This does not, however, advance matters. Ebury here admitted that the market value of the shares was £1.78 but did not admit that this was the price of the shares.[91]Ebury did not shy away from the fact that there can be a difference between the share price and the ‘market value’ as agreed with SAV specifically for the purposes of the EMI legislation. Indeed, this is borne out by the evidence upon which Ms Ajayi herself seeks to rely. Ms Ajayi’s report from Mr Lee dated 10 March 2020 states:
“I believe £17.80 is what GA means by “company share price” as mentioned at 2.1 above, but this has no particular significance in terms of the EMI legislation. It would not normally (and certainly not in the present instance) represent “market value” for the purposes of the EMI legislation.”
[92]I find that Ebury honestly believed (and still believes) that the market value approved by SAV and share price at which investors acquired shares were different (and could be different) for the following reasons.(1) First, the market value (£1.78 AMV/UMV) approved for EMI 2 was lower than £17.80 because, (1) as the EMI 2 application had stated, the B shares had ‘bad leaver’ clawback provisions, were illiquid and had no voting rights. This is supported by two transactions in which B shares were transacted at par because of the ‘Bad Leaver’ provisions;(2) as the “start-up company A” and “Rosalind Ltd” examples in HMRC’s SVM110050 demonstrate, the market value of minority shares with restrictions may be assessed at a discount to the share price agreed with investors in a recent investment round;(3) at the relevant time, Ebury was an early-stage company whose outcome was very uncertain and its shares could become worthless; and(4) shares that represent a minority shareholding have a discount applied to reflect the minority shareholder’s inability to control or influence what the company does. (2) Secondly, the share price (£17.80) was higher than the AMV/UMV approved by SAV (£1.78) because: (1) as occurred in private investment rounds, purchases of EMI shares by external investors were carried out in batches. Shareholders will receive their percentage of the company’s total value without a discount. This is to be contrasted with the sale of a minority shareholding on an open market basis which invariably will attract a discount; and (2) as Ms Ajayi had conceded, upon removal of the restrictions applying to B shares, such as upon the departure of an employee as a “Good Leaver”, “the value of the Class B shares increases to equal the value of the A shares.” Ms Ajayi further pleaded that “This shows that Good Leaver B shares i.e. B shares without restrictions are valued the same as A shares”. In other words, when the B shares were purchased by external investors (who were not employees or consultants), the impact of the Leaver restrictions fell away.[93]Mr Lloyd’s evidence at the Original Trial was that Ebury’s EMI scheme was “perfectly standard” and “applying these discounts is completely common practice and accepted by HMRC in principle”. This was not successfully challenged in cross-examination. Mr Lobato’s evidence, which I accept, is that he never viewed A and B shares as economically different and that he considered there to be a single share price that could be achieved in any investment round.[94]Further, I am satisfied that Ms Ajayi knew about the various share transactions that took place between 2011 and 2016 and the share price they each involved. She was responsible for Ebury’s application to SAV for the AMV/UMV in each of EMI 1, EMI 2 and EMI 3. Ms Ajayi knew Ebury applied for a discount of 90% on the previous funding round share price. Ms Ajayi also knew that Basekit’s ordinary shares had been valued at an 85% discount to the price of preference shares.[95]Ms Ajayi cannot realistically claim to have been misled by D. On the contrary, she agreed that the AMV of the options would be set as a significant discount on the value of the shares. For example: (1) On 21 June 2013, Ms Ajayi emailed Mr Garcia asking (in advance of EMI 1):
“I need to get a valuation agreed with HMRC i.e. a price per share to offer the the [sic] EMI to staff. I think we should go for a discount factor of 85% to 90% on the price for the last investment round £8.19. So I would be going for a share price of £1 per share and if we have to negotiate, go up to £1.25 or £1.50. Do you agree? If the price at the next round is like [sic] to be higher then we should go for this valuation now.” (2) Ms Ajayi pleaded in her Amended Reply at the Original Trial when referring to the AMV agreed with SAV (which she called the “EMI share price”) that: “… 7.1 The EMI share price is different from the share price of the company or the value of the shares… 7.2 Mr Lobato gave the Claimant the normal share price because the EMI share price is derived from the share price at 10% of the share price… 7.3 Therefore it is admitted that the Claimant thought that the value of the shares was £17.80 but denied that this is the same as the EMI option price…” 7.2 Mr Lobato gave the Claimant the normal share price because the EMI share price is derived from the share price at 10% of the share price… 7.3 Therefore it is admitted that the Claimant thought that the value of the shares was £17.80 but denied that this is the same as the EMI option price…” (3) At the Original Trial, Ms Ajayi stated in her witness statement that “… [a]t the time the Defendant and I made the agreement, it was known that the EMI AMV was the share price discounted at 90% …” (4) Ms Ajayi’s counsel at the Original Trial referred repeatedly to a discount from the “face value of the share”. (5) Ms Ajayi’s written opening stated “… Specifically, the agreement operated on the basis that it would provide the Claimant with the opportunity to make a considerable uplift on the value of the shares by providing those shares to her at a significant discount” and “later sell them at face value” and “the share price at the time of the agreement regarding the Claimant’s remuneration was indeed £17.80 …” (6) At the PTA hearing before Henshaw J, Ms Ajayi’s counsel stated “no one disputes the fact the share price is £17.58 [sic]. That, that is absolutely clear but that’s got nothing to do with what the parties were agreeing.” (7) At the Original Trial, Ms Ajayi herself pleaded, and her expert also opined, that her B shares were worth £78.05 each between November 2015 and October 2017.This is the same value as the A shares and was equivalent at the time to the share price of £17.80 in 2014. Para 12 of the list of common ground and issues stated that the value of Ebury’s shares on 31 January 2016 and 30 November 2016 was £78.05 per share. In paragraph 40.4 of her Amended Reply at the Original Trial, Ms Ajayi pleaded that “There is no difference in the value to be ascribed to A or B or any other shares, the Articles providing that all shares have the same value.”
[96]Ms Ajayi’s argument at the Original Trial was that there were two distinct numbers, the share price at £17.80 and the discounted EMI price at £1.78, and that she should have been given options by dividing £40,000 by the EMI price. Ms Ajayi’s counsel cross-examined Ebury’s witnesses on this basis but failed to extract any concessions. Mr Lobato’s evidence was clear: Ms Ajayi decided to be paid £40,000’s worth of shares and then the separate question was whether to allocate by EMI (which was tax efficient) or just to give Ms Ajayi the shares. Ebury chose the former. The next step was to agree a good AMV with HMRC, which in turn provided the strike price at which employees exercise their options. The number of share options to be granted was independent of the final discount (here 90%), especially as the discount might change in future. Ms Ajayi re-amended her pleading during the Original Trial. Had she instead wanted to run an argument that the number of options was to be calculated by reference to £1.78 because that was the value of B shares there was an opportunity for her to do so. Ebury submits this would, however, have undermined her case on loss which treated the value of all shares as the same. Ms Ajayi would/should have already been aware of the argument she runs now at the Original Trial effectively, that the market value cannot be both £17.80 and £1.78. 3 The 90% Discount Representation[97]I am satisfied that Ebury did not make the alleged 90% Discount Representation. I find that Mr Lobato was referring to a 90% discount on the share price previously obtained in an investment round, not the value for B shares (for which the AMV of £1.78 was subsequently agreed). Mr Lobato knew that Ebury had applied for the 90% discount on the price at which shares had been sold to investors. However, in Ebury’s view, any distinction between A and B shares was one without a difference as Mr Lobato correctly understood that all shares, both A and B, were worth the same. In effect, therefore, HMRC had approved a 90% discount on what he understood to be the share price of all shares, irrespective of whether they were A or B shares.[98]Ebury’s EMI 2 application, submitted by Ms Ajayi, applied for a 90% discount on the “share price achieved at the last 2013 fundraising round”. Further, at the Original Trial Ms Ajayi asserted that HMRC’s SAV team usually calculated the AMV by applying a 90% deduction to the share price and in cross-examination Ms Ajayi repeatedly stated that in practice under the EMI scheme, the AMV was calculated by applying a 90% discount to the share price at which investors may acquire shares, which in November 2013 was £17.80. Ms Ajayi also referred to A and B shares in the context of their value, and accepted that the share price was correct but argued that the EMI “share price” was 10% of that. Further, the evidence given at the Original Trial by Mr Lee, was that “the discount of 90% to the most recent share price is not unusual in my opinion, and it appears to have been readily accepted by SAV”. And in her written closings at the Original Trial Ms Ajayi referred to the “face value of the share price at the time” (being £17.80), and the fact that the EMI scheme allowed Ms Ajayi to be granted options over shares at a substantial discount to the share price and later to sell the shares “at face value” making a profit. 4 The Tax Advantage Representation[99]Ebury admits having made the Tax Advantage Representation but says that it was true. Both Parties agree that if the exercise price is set at the AMV, no income tax or National Insurance contributions will be due. In that case, the only tax which arises is capital gains tax upon sale of the shares on the difference between the base cost (the AMV) and the share sale price. In the 2014 Option Agreement the strike price was set at the approved AMV and therefore Ms Ajayi’s alleged tax charge does not arise.[100]Ebury submits that Ms Ajayi’s argument on the Tax Advantage Representation is essentially a re-run of her unsuccessful argument at the Original Trial. First, Ms Ajayi submits that if the “true market value” of the B shares was £17.80, income tax and NI will apply on the difference between £1.78 and £17.80. This argument is flawed for the same reason as the Value Representation; the AMV that had been agreed with SAV - as distinct from the share price - was never £17.80. Ms Ajayi tried to run this argument in her reply closing submissions at the Original Trial. Secondly, Ms Ajayi argues that as she sacrificed £40,000 for the payment of the exercise price, she should have paid income tax on the £40,000 and therefore there was no tax benefit. Aside from it not being clear where this argument goes Ebury submits that it is based on a false premise that there was a ‘salary sacrifice’ scheme, that it is internally inconsistent as Ms Ajayi would have needed to pay the alleged £40,000 strike price from net salary rather than gross salary, which on her case she did not; and that this is another argument she put before Henshaw J at the Original Trial. Henshaw J disagreed with Ms Ajayi and said that if he she had paid income tax on a purported salary of £40,000 then she may need to speak to her tax adviser about adjusting it. Ms Ajayi has since confirmed that she has not paid any additional tax. Ebury has confirmed that it did not use or register any tax avoidance scheme, Ms Ajayi has no evidence for it being a tax avoidance scheme and Mr Lloyd’s evidence was that his understanding of EMI schemes and the overview of the tax treatment that he gave at the Original Trial remains the same today and he would not alter the evidence he previously gave.[101]I am satisfied that the Tax Advantage Representation was true. 5 The Share Options Representation[102]Ebury admits making the Share Options Representation but says that it was also true. It is clear from the EMI documentation that Ebury’s EMI scheme gave employees and consultants options to purchase shares. Ms Ajayi understood this at the time – on 6 July 2015 and 28 September 2015, she wrote to Mr Lobato and Mr Lloyd (respectively) saying she would like to “exercise my right to convert the options into shares now” and “Please find attached a letter officially exercising the right to convert my options to shares”. Rule 2.10 of Ebury’s EMI Rules states that no amount shall be paid by an employee for the grant of an option. Both parties agree that the consideration given by Ms Ajayi for the grant of the options was the provision of Ms Ajayi’s services. Rule 8 of Ebury’s EMI Rules states that an option holder shall exercise an option by giving a written exercise notice accompanied by a payment equal to the exercise price multiplied by the number of shares. Ms Ajayi does not challenge the EMI Rules or the 2014 Option Agreement (which incorporates the EMI Rules) in this claim save to the extent that she says she should have been awarded more shares.[103]Ebury submits Ms Ajayi’s argument is an attempt to re-argue whether the correct divisor was £17.80 or £1.78 but by a different route, i.e. by saying that she sacrificed £40,000 of salary by a formal ‘salary sacrifice’ arrangement with its consequent tax implications. Ms Ajayi says the salary sacrifice was used as consideration for the allotment of shares (i.e. including payment of the strike price), as opposed to the options being in lieu of an entitlement to £40,000 (with a requirement to pay the exercise price). So, the argument goes: Ms Ajayi was to acquire shares via the grant of options calculated by dividing £40,000 by £1.78 (being the AMV), and the exercise price of £1.78 (set as the same as the AMV) per share was paid by sacrificing her salary at the rate of £3,333 pcm. Ebury submits that there are a number of problems with this.(1) First, there was no formal salary sacrifice scheme and certainly not one in which she could have participated since Ms Ajayi – or rather her consultancy firm XP One Consultants – was engaged not as an employee but rather as a consultant. Although Henshaw J did refer to sacrificing salary, Ebury says that this was in the layman sense of giving up salary in exchange for options, rather than as a technical salary sacrifice (with consequent tax implications) whereby salary is used to pay for benefits instead of the receipt of cash. He held that Ms Ajayi had conflated the strike price paid on exercise of shares with the overall level of remuneration that an employer seeks to confer on an employee: Judgment [54];(2) Secondly, the November 2013 Agreement was not for Ebury to pay Ms Ajayi £40,000 cash from which the sums were to be deducted monthly to pay for share options: Ms Ajayi invoiced Ebury monthly through XP One Consultants for £500, and not for £3,833.33 with a deduction or credit of £3,333.33 as ‘salary sacrifice’; Ms Ajayi was not written up in the register of members as a shareholder with shares at a purchase price of £40,000. Mr Lloyd told me that the EMI scheme was not done by way of salary sacrifice;(3) Thirdly, pursuant to ITEPA 2003 Sch 5 para 37 and Ebury’s EMI Rules para 2.7, the grant of options had to be set out in a written agreement executed within 30 days of the grant stating: (i) the date of the grant; (ii) that it is made under ITEPA 2003 Sch 5; (iii) the number of shares that may be acquired; (iv) the price payable to acquire the shares; and (v) when and how the option may be exercised. The only options agreement that the Parties executed was the 2014 Option Agreement for 3,000 options. No agreement was executed for the grant of 22,472 options to be exercised by a salary sacrifice of £40,000. The arrangement Ms Ajayi asserted at the Original Trial simply did not exist.(4) Fourthly, Ms Ajayi’sargument that the options were to convert to shares on a 1/12 basis per month as she sacrificed her salary means that at the time of the November 2013 Agreement, neither Ebury nor Ms Ajayi would have had any certainty as to the amount of shares Ms Ajayi would be awarded (as any conversion, on Ms Ajayi’s case in these proceedings, depends on the AMV agreed with HMRC for EMI 2). This flies in the face of the Option Agreement which stated that the number of “Option Shares” was 3,000.(5) Fifthly, Ms Ajayi tried to argue this point at the Original Trial and so she cannot now claim that she and Henshaw J were deceived. Henshaw J considered the evidence and the arguments and disagreed with Ms Ajayi. Ebury submits that this was the correct result.[104]I agree that the Share Options Representation was true. Henshaw J found that there was no salary sacrifice. Ms Ajayi was able to acquire shares worth £17.80 each for £1.78 without incurring a tax liability. 6 The Participation Representation[105]Ebury did not make the Participation Representation. Mr Lobato’s comment (which I find was selectively extracted from his cross-examination at the Original Trial on the quite separate topic of whether a contract was drafted in November 2013) does not say that Ms Ajayi paid £40,000 as a ‘membership fee’ to become part of the EMI scheme. Ms Ajayi has pointed to no other part of Ebury’s case at the Original Trial where she says this representation was made. Materiality[106]Even if Ms Ajayi could point to new evidence that demonstrated conscious and deliberate dishonesty, Ebury submits that the alleged false statements were not operative causes of the Judgment in the sense that the new evidence would have entirely changed the way in which Henshaw J came to his conclusion.[107]Ebury says that the key question for Henshaw J was this: on a proper construction of the November 2013 Agreement, what was the number of share options to which Ms Ajayi was entitled? It was common ground at the Original Trial that the relevant number was to be calculated by dividing £40,000 by one of only two values: the share price of £17.80 or the AMV subsequently approved at £1.78. Therefore, Henshaw J already had a binary choice of applicable divisors presented to him. Whether the figure of £1.78 was presented as being a 90% discount of the share price or, as Ms Ajayi now contends, as the value of B shares calculated as a 90% discount of the value of A shares is immaterial. Henshaw J decided to apply the figure of £17.80 because:(1) it was the figure expressly referred to in the November 2013 emails as the share price; and(2) the AMV was unknown at the time of the November 2013 Agreement; and(3) it was in accordance with how Ebury’s EMI schemes usually operated; and(4) it provided a proportionate and commercial outcome; Judgment [46-61].[108]It is fanciful, Ebury goes on, for Ms Ajayi to suggest that this reasoning would have been jettisoned because of a minor change in the explanation of the AMV but not in its value. That is particularly so in circumstances where Henshaw J had before him the application to SAV to approve the AMV of £1.78 which expressly referred to B shares.[109]I agree with Ebury’s submission. Ms Ajayi’s case involves nothing more than the pouring of new(ish) wine into old bottles. I am satisfied that Henshaw J would have come to exactly the same conclusion as he did in fact reach had Ms Ajayi’s new case been before him. Ms Ajayi’s new case would have had no material effect on the outcome of her claim.

Conclusions

[110]For the reasons that I have given above, I find that Ms Ajayi’s claim fails in every respect. There was no new evidence available before me that was not available at the Original Trial. But even if there was, such evidence does not show that Ebury obtained the judgment in their favour as a result of conscious or deliberate dishonesty.[111]I think that there is much to be said for Ebury’s submission in their written Closing Submissions that Ms Ajayi has “… has wrongly convinced herself that the reason she lost at the Original Trial, and on appeal, is because of a fraud. Further, in a manner also deprecated by Lord Leggatt in Finzi at [76], [Ms Ajayi] has cobbled together some additional materials and opportunistically relied on them to assert fraud as a kind of “open sesame” to relitigate her claim. It is clear that at the Original Trial, [Ms Ajayi] had available to her the evidence and information which she now claims to be new but has offered no satisfactory explanation as to why it was not deployed at trial. It is now time for the Court to “close sesame”.[112]I have decided this claim on the merits. It follows from my findings that Ms Ajayi’s applications for summary judgment must fail. Although Ms Ajayi has failed in her attempt to establish that she is entitled to 22,472 shares she has not done at all badly out of the agreement that she did conclude with Ebury. The 3,000 shares to which she became entitled after exercising her options were, I was told on the final day of the trial, probably worth about £1.5 million as at that date.