"...the Jurisdictional Challenge ought to be heard alongside the Amendment Application .... with the SO/SJ Application to follow, to the extent required in light of the outcome of the Jurisdictional Challenge and Amendment Application. "
".... unless it can be seen that a claim has no realprospect of succeeding, its merits should be determined at a full trial. The warnings against mini-trials apply with just as much force to applications to amend as they do to summary judgment or jurisdiction disputes."
"The new case set out in the proposed pleading must have a real prospect of success .... The approach to be taken is to consider those prospects in the same way as for summary judgment namely whether there is a real as opposed to a fanciful prospect of the claim or defence being raised succeeding. It would clearly be pointless to allow an amendment if the claim or defence being raised would be defeated by a summary judgment application. However, at the stage of considering a proposed amendment that test imposes a comparatively low burden and the question is whether it is clear that the new claim or defence has no prospect of success. The court is not to engage in a mini-trial when considering a summary judgment application and even less is it to do so when considering whether or not to permit an amendment."
"The test is comprehensibility and not elegance. The drafting of almost any pleading could be improved with hindsight and the task for the judge in assessing whether this precondition has been satisfied is not to assess the stylistic qualities of the draft but to see if it sets out the amending party's case in such a way that the other party knows the allegations it has to meet."
"46. Lateness of an amendment is a relevant factor which should be weighed in the balance. Lateness is a relative concept; an amendment is late if it could have been advanced earlier, or involves the duplication of cost and effort, or if it requires the opposing party to revisit any of the significant steps in the litigation (e.g. disclosure, witness statements and expert reports) - see CIP Properties at [19(a)]. Even if an amendment is merely 'late' rather than 'very late' there is a 'heavy burden' on the claimant to justify – see Nesbit Law Group v Acasta European Insurance[2018] EWCA Civ 268 at [41]. 47. An application to make substantive amendments to a statement of case in the immediate lead up to a trial is, at the very least, a late amendment, and if it threatens the trial date itself it is a very late amendment (this is so even if, in contrast to the present case, the trial is still some way off). 48. A useful statement of the applicable principles in this regard was set out by Coulson J (as he then was) in CIP Properties, supra, in which Coulson J stated at [19] as follows: (a) … An amendment is late if it could have been advanced earlier, or involves the duplication of cost and effort, or if it requires the resisting party to revisit any of the significant steps in the litigation (such as disclosure or the provision of witness statements and expert's reports) … (b) An amendment can be regarded as 'very late' if permission to amend threatens the trial date, even if the application is made some months before the trial is due to start. Parties have a legitimate expectation that trial dates will be met and not adjourned without good reason. (c) The history of the amendment, together with an explanation for its lateness, is a matter for the amending party and is an important factor in the necessary balancing exercise. In essence, there must be a good reason for the delay … (e) The prejudice to the resisting parties if the amendments are allowed will incorporate, at one end of the spectrum, the simple fact of being 'mucked around', to the disruption of and additional pressure on their lawyers in the run-up to trial and the duplication of cost and effort at the other. If allowing the amendments would necessitate the adjournment of the trial, that may be an overwhelming reasonto refuse the amendments. (f) Prejudice to the amending party if the amendments are not allowed will, obviously, include its inability to advance its amended case, but that is just one factor to be considered. Moreover, if that prejudice has come about by the amending party's own conduct, then it is a much less important element of the balancing exercise." (a) … An amendment is late if it could have been advanced earlier, or involves the duplication of cost and effort, or if it requires the resisting party to revisit any of the significant steps in the litigation (such as disclosure or the provision of witness statements and expert's reports) … (b) An amendment can be regarded as 'very late' if permission to amend threatens the trial date, even if the application is made some months before the trial is due to start. Parties have a legitimate expectation that trial dates will be met and not adjourned without good reason. (c) The history of the amendment, together with an explanation for its lateness, is a matter for the amending party and is an important factor in the necessary balancing exercise. In essence, there must be a good reason for the delay … (e) The prejudice to the resisting parties if the amendments are allowed will incorporate, at one end of the spectrum, the simple fact of being 'mucked around', to the disruption of and additional pressure on their lawyers in the run-up to trial and the duplication of cost and effort at the other. If allowing the amendments would necessitate the adjournment of the trial, that may be an overwhelming reasonto refuse the amendments. (f) Prejudice to the amending party if the amendments are not allowed will, obviously, include its inability to advance its amended case, but that is just one factor to be considered. Moreover, if that prejudice has come about by the amending party's own conduct, then it is a much less important element of the balancing exercise."
"(2) The court may order a person to be added as a new party if– (a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or (b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue." (a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or (b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue."
"The Court has no jurisdiction to try the claims advanced against Titan Wealth Holdings because .... the claims against Titan Wealth Holdings in the DADCC have no real prospect of success."
"To ask the court to strike out the claim on the basis that it has no real prospect of success .... is to ask the court to adjudicate the substance of the claim. .... The suggestion that one may dispute the jurisdiction of the court, already establish by service without permission, on the ground that the claim is bound to fail is, it is submitted, nonsense .... it is an application for a quick and conclusive decision on the merits; it is not, strictly or in any other way, a challenge to the jurisdiction of the court."
"C reserves the right to apply to strike out and/or for summary judgment in relation to the existing claims."
"The basic attribute or quality which must be shown to attach to the information for it to be treated as confidential is inaccessibility; the information cannot be treated as confidential if it is common knowledge or generally accessible and in the public domain"
"Contract and Equity 335. Confidentiality obligations can arise as a result of contractual agreement, or because of equitable principles. Contractual obligations and equitable duties may co-exist: the one does not necessarily trump, exclude or extinguish the other. Where the parties have specified the information to be treated as confidential and/or the extent and duration of the obligations in respect of it, the court will not ordinarily superimpose additional or more extensive equitable obligations. Where, however,the use of certain information would 'plainly excite and offend a reasonable man's conscience', an equitable duty not to use the information would be recognised, even if that went further than the definition, duration or restraint prescribed by the contract: See CF Partners, paragraphs [130] – [134]."
"The parties may by contract agree and identify specified information that is, or is as between the parties to be treated as, confidential, or protected under the terms of their agreement; or they may simply agree that information may not be used whether or not otherwise it would have the quality of confidentiality."
"However, where the parties have specified the information to be treated as confidential and/or the extent and duration of the obligations in respect of it, the court will not ordinarily superimpose additional or more extensive equitable obligations: and see per Sales J in Vercoe and Pratt v Rutland Fund Management Ltd[2010] EWHC 424 (Ch) who found in that case that the duty of confidence was confirmed and defined by the contract, and observed (at [329]): 'Where parties to a contract have negotiated and agreed the terms governing how confidential information may be used, their respective rights and obligations are then governed by the contract and in the ordinary case there is no wider set of obligations imposed by the general law of confidence: See e.g. Coco v Clark at 419.' 132. Nevertheless, that does not preclude wider equitable duties of confidence in circumstances that are not ordinary. For example, as it seems to me, a circumstance could arise where the obligations of the parties in respect of information with the quality of confidentiality are not clearly prescribed or governed by the contractual terms but where the use of certain information would plainly excite and offend a reasonable man's conscience. In such circumstances, as it seems to me, an equitable duty not to use the information having that quality would be recognised, even if that went further than the definition, duration or restraint prescribed by the contract. 133. Put another way, whilst it will not usually be unconscionable to use information in conformity with, or in a manner that does not offend, the terms consensually agreed, and the contract will shape the commitment, contract does not necessarily assuage conscience, and equity may yet give force to conscience: See per Simon Brown LJ (as he then was) in R v Department of Health, Ex p Source Informatics Ltd[2001] QB 424 at [31]; see also the emphasis on conscience as being the basis of both the duty and any action for its enforcement or vindication per Lord Neuberger of Abbotsbury PSC in Vestergaard Fraudsen A/S v Bestnet Europe Ltd and others[2013] UKSC 31 ;[2013] 1 WLR 1556 . 134. Furthermore, and again by reference to the roots of the equitable duty in conscience, it seems to me that there may be equitable reasons for declining to regard the equitable obligation as confined by a contractual restriction. An example might be if it is shown that the restriction relied on by one party as confining its equitable obligations was agreed by the other party in ignorance of a fact which, had it been disclosed, would either have caused that other party to withdraw altogether or insist upon the removal, or at least fundamental recasting, of the restriction. (I return to this aspect when considering whether in this case Barclays was in a position of conflict which it failed to disclose when the IVC/Barclays Confidentiality Agreement was made: See especially paragraphs 417 to 467 below.). 135. It is not a defence to a claim for breach of the duty of confidence that the defendant could have obtained the information elsewhere, if he did not in fact do so: See per Lewison LJ in Force India Formula One Team Limited v Aerolab SRL and another[2013] EWCA Civ 780 ."
".... it was not sufficient, without more, to show thatthe defendant was 'galvanised' by that knowledge into acting more speedily to use information that had not the quality ofconfidentiality, where by the time of that use the claimant's rival bid was public knowledge, and was not shown to havebeen adversely affected by the defendant's use of that knowledge."
"WHO MAY SUE? The person to whom a duty of confidence is owed 60-001. As a general principle, the person suing must be someone to whom the relevant duty of confidence is owed. In Fraser v Evans, the plaintiff prepared a confidential report for the Greek Government. A copy of the report was leaked to a newspaper and the plaintiff sought an injunction to prevent publication or use of its contents. It was held that the plaintiff had no standing to complain. Lord Denning MR said: 'The jurisdiction is based not so much on property or on contract as on the duty to be of good faith .... But the party complaining must be the person who is entitled to the confidence and to have it respected. He must be a person to whom the duty of good faith is owed .... There is no doubt that Mr Fraser himself was under an obligation of confidence to the Greek Government .... The Greek Government entered into no contract with Mr Fraser to keep it secret .... They were the people to say aye or no whether it should be communicated elsewhere or to be published generally. It follows that they alone had any standing to complain if anyone obtained the information surreptitiously or proposes to publish it." "
".... [T]here may be significant value to a person in being able to claim confidentiality despite some loss or lack of secrecy"). Cross-J said in Franchi v Franchi: "
"Much information which is technically available to the public is not generally known and may in fact be known only to a handful of people. For example the back files of a local newspaper may, if properly and assiduously searched, yield a good deal of information not generally known about a person who spent his early life in the area -- his family and educational background, his business connections, his political beliefs and his personal and social problems. Perhaps they show that he was the centre of an unfortunate affair at his school, that he attempted to take his own life, that he took part in a political demonstration in favour of an unpopular cause, that he associated in his business or private life with someone later convicted of grave crimes against society or even that he 'helped the police' with their inquiries into an offence with which he was never charged. These facts will, of course, be known to and remembered by those who were directly involved, but if the publication took place a long time ago it is quite possible that nobody now knows or remembers solely by reason of the publication in the local newspaper. If the person concerned subsequently discloses any of these facts in confidence to another in the course of a relationship in which absolute frankness is essential, is it right that the person who accepts the confidence should be able, solely on the ground that the facts are technically accessible to the public, to disclose them to others in breach of his duty of confidence?"
"Information imparted in the course of a confidential relationship It would be impossible to compile a list of all relationships likely to give rise to duties of confidentiality. They would include agents, trustees, partners, directors and employees; joint venturers; professional people; holders of public and private offices; people in close personal relationships; and many others. The common thread is that a reasonable person would understand them as involving an obligation of confidentiality. In a commercial context, as Megarry J said in Coco v AN Clarke (Engineers) Ltd: 'In particular, when information of commercial or industrial value is given on a business-like basis and with some avowed common object in mind, such as a joint venture or the manufacture of articles by one party for the other, I would regard the recipient as carrying a heavy burden if he seeks to repel a contention that he was bound by an obligation of confidence.' In Printers & Finishers Limited v Holloway [[1965] 1 W.L.R. 1;[1965] R.P.C. 239 at [256]], Cross J said that the law would defeat its own object if it sought to enforce standards which would be rejected by the ordinary man. Conversely, it would be defective if it failed to protect information imparted in trust in the course of a relationship which a reasonable person would regard as involving an obligation of confidentiality. Such a relationship may be enduring or may be limited to a single transaction or may arise where parties are in pre-contractual negotiations. Where information is objectively confidential a court will more readily infer that it was communicated in circumstances importing an obligation of confidence: the starting point is the nature of the information communicated rather than the manner of communication."
"91. There is a further significant criticism of Goal's witness statements. As I have noted, they came from Ms Simpson, who claims no first-hand knowledge of the underlying events, and Mr Everard (only) of Goal. But Mr Everard, so far as I can see (provisionally) at this stage, does not appear to have had any very substantial day-to-day role either, as regards many of the matters that will or may be relevant. This being a summary judgment application, not a mini-trial, it is not necessarily a difficulty for Goal that I do not have separate witness statements from others at Goal who were more closely involved in the detailed facts. But I agree with Mr Goldsmith QC that it is necessary to approach with very real caution any suggestion that the facts are clear, or that the issues raised by the summary judgment application should not have the benefit of normal pre-trial procedures and a full trial, if it requires the court to take at face value evidence it is not clear Mr Everard is in a position to give from his own knowledge but for which no other source is identified."
"153E. Following and pursuant to the OMA, Tavistock AM communicated information necessary to implement the Tavistock MPS to Titan AM. Such information formed part of the MPS as described at paragraph 41 above, within the Tavistock MPS as described in paragraph 40A above. This information included instructions as to which investments were to be onboarded for the Tavistock MPS (the 'Investment Information'). This included, by way of example only, instructions contained within: (i) emails sent by David Chandler, a Senior Portfolio Analyst of Titan AM, dated13 June 2024 and27 August 2024 , and two emails dated20 September 2024 ), and (ii) email exchanges between third parties and James Peel, a portfolio manager of Titan AM in July-August 2023 and July 2024 (the 'Investment Emails'). The Investment Emails are attached at Annex 4. 153F. On a date unknown to the Defendants but believed to be in or around January 2023, Titan AM launched its own Model Portfolio Service (the 'Titan MPS'). The Titan MPS was, and was intended to be, a rival to the Tavistock MPS. (1) Copyright infringement 153G. From at least June 2020 Tavistock AM created and published factsheets with updated information about each MP offered, as referred to at paragraph 41.1 above (the 'Tavistock Factsheets'). The Tavistock Factsheets were published online on a monthly basis for financial advisers to use with their clients and in order to satisfy regulatory requirements. 153H. The content of each Tavistock Factsheet was based on that of a previous Tavistock Factsheet such that its content had been created over time by an iterative process. Accordingly each Tavistock Factsheet incorporated a combination of original content and pre-existing content from earlier Tavistock Factsheets, including in each case the following: 153H.1. text (the 'Tavistock Factsheet Text'), which is a literary work within the meaning ofsection 3(1) of the Copyright, Designs and Patents Act 1988 (the '1988 Act'); and 153H.2. design and layout, including the arrangement of sections of text and charts of data in the form of line graphs and pie charts (the 'Tavistock Factsheet Design'), which is an artistic work and a graphic work within the meaning of sections 4(1)(a) and 4(2) of the 1988 Act. 153I. Copyright subsists in the Tavistock Factsheet Text and the Tavistock Factsheet Design, and is owned by Tavistock Plc. 153I.1. Each iteration of each Tavistock Factsheet was created by BSR, Gregor Preston and SMM and was a work of joint authorship within the meaning ofsection 10 of the 1988 Act . Each of the Tavistock Factsheet Text and the Tavistock Factsheet Design in each iteration of each Tavistock Factsheet was original in that it was its authors’ own intellectual creation. 153I.2. At the time of creation of each Tavistock Factsheet each of BSR, Gregor Preston and SMM was an employee of Tavistock Plc. Tavistock Plc was the first owner of any copyright in each Tavistock Factsheet by operation ofsection 11(2) of the 1988 Act . 153I.3. Each iteration of each Tavistock Factsheet was first published in the United Kingdom or in a country to which the relevant provisions of Part I of the 1988 Act extend. Accordingly, the Tavistock Factsheet Text and the Tavistock Factsheet Design in each iteration of each Tavistock Factsheet qualify for copyright protection for the purposes of sections 153(1)(b) and 155 of the 1988 Act. 153J. As part of the Titan MPS, Titan AM created or authorised the creation of monthly factsheets about each MP within the Titan MPS (the 'Titan Factsheets'). To the best of the knowledge and belief of Tavistock Plc, each of the Titan Factsheets is a copy of a substantial part of the Tavistock Factsheet Text and of the Tavistock Factsheet Design in a corresponding Tavistock Factsheet. 153K. Pending disclosure, further information and/or evidence Tavistock Plc relies upon examples of Titan Factsheets as attached at Annex 5. Each of these Titan Factsheets is a copy of a substantial part of the Tavistock Factsheet Text and the Tavistock Factsheet Design as set out in one or more of the Tavistock Factsheets, examples of which are also attached at Annex 6. As to the similarities between the relevant Titan Factsheets and Tavistock Factsheets, Tavistock AM relies on the matters set out in Annex 7. 153L. In the premises Titan AM has infringed Tavistock Plc’s copyright in the Tavistock Factsheet Text and the Tavistock Factsheet Design by doing or authorising another to do the following acts without the licence of Tavistock Plc: 153L.1. copying and/or authorising another to copy in breach of sections 16(1)(a), 16(2) and/or 17 of the 1988 Act, including by storing in any medium by electronic means; 153L.2. Issuing and/or authorising another to issue copies to the public in breach of sections 16(1)(b), 16(2) and/or 18 of the 1988 Act; and/or 153L.3. Communicating and/or authorising another to communicate to the public in breach of sections 16(1)(d), 16(2) and/or 20 of the 1988 Act. (2) Breach of confidence and breach of contract 153M. In creating the Titan MPS, Titan AM used or authorised the use of confidential information and/or trade secrets created and owned by Tavistock AM. Such use was unauthorised by Tavistock AM and was to the detriment of Tavistock AM. Tavistock AM is not presently aware of all such acts of use but will seek relief for all such uses as are proven at trial. 153N. In light of the commercial sensitivity and value of each and all of the Investment Information, the MPs and the Tavistock MPS and of the context in which and purpose for which they were created, each part of the Tavistock MPS Information was inherently confidential, save in so far as that information was deliberately published by Tavistock Plc or Tavistock AM. That confidential information is referred to hereafter as the 'Tavistock MPS Information'. 153O. Further, Tavistock AM took reasonable steps to keep the Tavistock MPS Information secret. 153P. The Tavistock MPS Information had commercial value because it was secret. This was reflected by the decision of Tavistock AM and Titan AM to enter into the OMA notwithstanding that Titan AM had declined the opportunity to purchase the Tavistock MPS: paragraph 36 above is repeated. 153Q. Each part of the Tavistock MPS Information was imparted to Titan AM in circumstances importing an obligation of confidence on Titan AM: 153Q.1. All such information was confidential information within the definition in clause 1.1 of the OMA and was supplied to Titan AM subject to the terms of the OMA, including in particular clause 5 concerning confidentiality. 153Q.2. All such information was subject to an equitable duty of confidence including because in the circumstances of the OMA and of the commercial and market context Titan AM had implicit notice that it was confidential. 153R. In the premises Titan AM owed a contractual and/or equitable obligation of confidence to Tavistock AM not to disclose the Tavistock MPS Information or to use it for any purpose other than complying with its obligations under theOMA. 153S. In all the premises, at all material times each part of the Tavistock MPS Information comprised a trade secret for the purposes of Regulation 2 of the Trade Secrets Regulations, in that: 153S.1. It was secret in the sense that it was not, as a body or in the precise configuration and assembly of its components, generally known among, or readily accessible to, persons within the circles that normally deal with the kind of information in question; 153S.2. It had commercial value because it was secret; and 153S.3. It had been subject to reasonable steps by the person lawfully in control of the information to keep it secret. 153T. Tavistock AM was the trade secret holder in respect of each part of the Tavistock MPS Information. 153U. It is to be inferred that Titan AM used the Tavistock MPS Information in creating and administering the Titan MPS. The precise nature and scope of use is outside the knowledge of Tavistock AM but pending disclosure, further information and/or evidence Tavistock AM pleads as follows. 153U.1. When Titan AM was discharging its obligations under the OMA to undertake the work of onboarding new investments for the Tavistock MPS, it also onboarded the same investments for Titan AM. This is demonstrated in the Investment Emails. 153U.2. Titan AM’s use of the Tavistock MPS Information is further to be inferred from the similarities of (i) the factsheets for relevant Titan MPS profiles compared to the equivalent factsheets for Tavistock MPS profiles, and (ii) the underlying investments described in those factsheets, examples of which are set out in Annex 8." … Copying of Tavistock MPS "162B. As a result of the matters set out in paragraphs 153E to 153V above, Titan AM has profited at the expense of Tavistock, which made substantial investments in creating the Tavistock MPS from which Titan has been able to unjustly profit, and as a result of which Tavistock AM has suffered loss. In particular: 162B.1. Titan was able to formulate its own competing MPS without requiring the same investment as was made by Tavistock or appropriately compensating Tavistock for receipt of such benefit, and/or "162B.2. It is to be inferred from the publication of client-facing information about the Titan MPS that the Titan MPS was operational, such that Titan has received both Discretionary Management Fees (currently 0.25%) and Synthetic Ongoing Charges (currently 0.63%). Loss suffered by Tavistock AM 162C. As regards Titan’s formulation of its own competing MPS, Tavistock has suffered loss in the amount of the sum that Titan would have been required to pay in order to obtain legitimate access to that information by acquiring the Tavistock MPS at the time of the SPA. 162D. Further, Tavistock AM and/or Tavistock Plc will have suffered loss as a result of any diversion of business from the Tavistock MPS to the Titan MPS. Pending disclosure, the Defendants are unable to plead further on this head of loss. Profits 162E. Further or alternatively Titan AM is liable to account to Tavistock AM in respect of all the profits it has made by using the Tavistock MPS Information otherwise than for the purpose for which it was communicated to it. Additional damages 162F. Tavistock Plc is entitled to and claims damages (including additional damages pursuant tosection 97(2) of the 1988 Act ), alternatively an account of profits (at their election) for Titan AM’s infringement of Tavistock Plc’s copyright. Further or alternatively, Tavistock Plc is entitled to damages pursuant to regulation 3 of theIntellectual Property (Enforcement, etc.) Regulations 2006 SI 2006/1028. Pending disclosure, evidence and/or further information Tavistock Plc is unaware of all relevant facts including those demonstrating the infringement to be flagrant and/or the benefit accruing to Titan AM but will rely at trial upon all such matters. Pending such Tavistock Plc will rely upon the following particulars of flagrancy: 162F.1. Titan AM’s infringement of Tavistock Plc’s copyright was flagrant for the purposes ofsection 97(2) of the 1988 Act , involving systematic and repeated infringement over a period of time: Paragraphs 153G, 153J and 153K above are repeated. "162F.2. Benefit accrued to Titan AM by reason of the infringement of Tavistock Plc’s copyright for the purposes ofsection 97(2) of the 1988 Act : Paragraph 162B above is repeated. The benefit that accrued to Titan AM included the saving in cost of producing its own factsheet text and design or of licensing the Tavistock Factsheet Text and/or Tavistock Factsheet Design. 162F.3. Tavistock Plc has suffered actual prejudice as a result of the infringement for the purposes of regulation 3 of theIntellectual Property (Enforcement, etc.) Regulations 2006 /1028: Paragraph 162B above is repeated. 162G. Further, Titan AM knew or ought to have known that unlawful use or disclosure of a trade secret was being engaged in. Accordingly Tavistock Plc is entitled to and claims damages pursuant to Regulation 17 of the Trade Secrets Regulations appropriate to the actual prejudice suffered as a result of the unlawful use or disclosure of the Tavistock MPS Information. Pending disclosure, evidence and/or further information Tavistock Plc pleads as follows: 162G.1. Tavistock Plc has suffered negative economic consequences as a result of the unlawful use or disclosure of trade secrets: Paragraphs 153M and 162B above are repeated. 162G.1. Titan AM has made unfair profits as a result of the unlawful use or disclosure of trade secrets: Paragraph 162B above is repeated. 162G.1. Tavistock Plc also relies upon the moral prejudice caused by the unlawful use of trade secrets, in circumstances where Titan AM exploited the privileged relationship between the Titan and Tavistock groups to create a competing product with the Tavistock MPS: Paragraphs 5 and 153E to 153F above are repeated. (2) Quantum 163. On the basis of the information available to it at the date of this Defence and Counterclaim, Tavistock Plc estimates that if the level of subscriptions had remained flat and the performance of the Acumen Funds had matched its performance in the 12 month period after the Completion Date, it would be entitled to additional sums in respect of Deferred Consideration of£8,993,000 . 164. Tavistock Plc would also have earned Additional Consideration during the earn out period of the SPA which is estimated in the sum of£3,075,000 . 165. If Tavistock Plc had acquired LEBC it would have earned a higher sum in respect of Additional Consideration during the lifetime of the parties’ relationship, estimated in the sum of£6,629,000 . 166. Tavistock Plc has also suffered a loss of approximately£7,000,000 on the value of its shareholding in LEBC as a result of Titan’s wrongful Aspira Acquisition. 167. Further, Tavistock Plc has lost the continued profits that it would have generated from Hummingbird had the LEBC acquisition proceeded, which are estimated to be£1m per annum, and approximately£8,000,000 until end of the earn outperiod under the SPA. 168. Accordingly, Tavistock Plc claims the following sums as damages: (a) The sum of£8,993,000 in respect of Deferred Consideration; (b) The sum of£6,629,000 (alternatively£3,075,000 ) in respect of Additional Consideration; (c) The sum of£7,000,000 in respect of the value of its shareholding in LEBC; and (d) The sum of£8,000,000 in lost profits from Hummingbird. 169. Tavistock Plc reserves the right to plead further as to the quantum of its losses following disclosure and, if necessary, the exchange of expert evidence. 169A. As to the loss suffered by Tavistock AM described in paragraph 162B above, pending disclosure and expert evidence, Tavistock estimates that sum to be at least£3.51 million , based on the Discretionary Fund Management fee of 0.29%, the assets under management as at31 January 2023 (in excess of£200 million ) and the annual revenue of the Tavistock MPS (being£585,000 ). In reaching this estimate Tavistock has applied a conservative multiplier of 6x annual revenue (being lower than the 8x multiplier which applied to other aspects of the SPA). 169B. Tavistock AM also seeks damages in respect of any losses arising from the diversion of business as set out in paragraph 162C above, which it is unable to quantify pending disclosure."
"Our clients are nevertheless conscious of the need for parties to seek, at all times, to help the Court to comply with the Overriding Objective, including by acting cooperatively and by seeking to save the Court’s resources, where possible."
".... in the spirit of cooperation, our clients are willing to provide your clients with one final opportunity to provide the necessary particulars now, by making the below Requests." (Emphasis added)
"If there is any prospect of the11 December 2025 hearing being avoided, prompt and collaborative engagement with this correspondence will be required from your clients.Accordingly, please provide your clients’ responses to the above Requests as soon as possible, and, in any event, by no later than 4pm on2 December 2025 ." (Emphasis added)
"As noted in paragraph 153M of the dAD&CC, Tavistock is currently unable to plead comprehensively as to which confidential information concerning the Tavistock MPS wasmisused by Titan as a result of Titan having refused to provide disclosure and engage constructively in pre-action correspondence on this issue. Without prejudice to the foregoing: 5.4.1 Pursuant to the definition of confidential information in clause 1.1 of the OMA (set out in full at paragraph 121A.1 of the dAD&CC), all information disclosed by Tavistock concerning the Tavistock MPS constituted confidential information if its nature or the manner of its disclosure means that it should reasonably be considered to be confidential. As pleaded in paragraph 153E of the dAD&CC, the Tavistock MPS Information included instructions as to which investments were to be onboarded for the Tavistock MPS. 5.5.1 As pleaded in paragraphs 153E, 153N, 153P and 153Q of the dAD&CC: (a) Tavistock AM communicated to Titan information which was necessary to implement the Tavistock MPS under the OMA; and (b) that information was commercially sensitive and valuable including because it gave access to real-time investment analysis and strategy which was, as Titan would have known, commercially valuable as a result of its secrecy (as reflected in the confidentiality provisions of the OMA which the parties agreed), and was intended to be used solely for the purposes of the OMA." 5.4.1 Pursuant to the definition of confidential information in clause 1.1 of the OMA (set out in full at paragraph 121A.1 of the dAD&CC), all information disclosed by Tavistock concerning the Tavistock MPS constituted confidential information if its nature or the manner of its disclosure means that it should reasonably be considered to be confidential. As pleaded in paragraph 153E of the dAD&CC, the Tavistock MPS Information included instructions as to which investments were to be onboarded for the Tavistock MPS. 5.5.1 As pleaded in paragraphs 153E, 153N, 153P and 153Q of the dAD&CC: (a) Tavistock AM communicated to Titan information which was necessary to implement the Tavistock MPS under the OMA; and (b) that information was commercially sensitive and valuable including because it gave access to real-time investment analysis and strategy which was, as Titan would have known, commercially valuable as a result of its secrecy (as reflected in the confidentiality provisions of the OMA which the parties agreed), and was intended to be used solely for the purposes of the OMA."
"153E Following and pursuant to the OMA, Tavistock AM communicated information necessary to implement the Tavistock MPS to Titan AM. Such information formed part of the MPs as described at paragraph 41 above, within the Tavistock MPS as described in paragraph 40A above. This information included instructions as to which investments were to be onboarded for the Tavistock MPS (the 'Investment Information'). This included, by way of example only instructions contained within: (i) emails sent by David Chandler, a Senior Portfolio Analyst of Titan AM, dated13 June 2024 and27 August 2024 , and two emails dated20 September 2024 ), and (ii) email exchanges between thirdparties and James Peel, a portfolio manager of Titan AM in July-August 2023 and July 2024 (the 'Investment Emails'). The Investment Emails are attached at Annex 4. 153F. On a date unknown to the Defendants but believed to be in or around January 2023, Titan AM launched its own Model Portfolio Service (the 'Titan MPS'). The Titan MPS was, and was intended to be, a rival to the Tavistock MPS."
"The Tavistock MPS is comprised of a series of different investment strategies and risk levels which can be tailored to each individual investor. In relation to each such strategy, Tavistock AM and the Tavistock group invest significanttime, expertise and resources in identifying and selecting appropriate asset classes and product types from a wide range including unit trusts, OEICs, investment trusts, structured products, Exchange Traded Funds ('ETFs'), andcommodities. As a result, the individual investor is able to invest in a broad range of products selected by Tavistock within asset classes also selected by Tavistock without the investor or their financial adviser having to conduct their own due diligence on each individual product or themselves construct an investment portfolio."
"Titan Wealth purchased the Tavistock Group’s DFM Business, but it did not purchase the Tavistock MPS which Tavistock Wealth Limited also operated. A substantial proportion of the funds invested in the Acumen Funds were invested in those funds via the Tavistock Profiles."
"The OMA falls to be construed against the relevant factual matrix including the SPA, its factual matrix (as set out in paragraph 54 above) and the wider collaboration envisaged by the parties, together with the following further facts and matters, known to both parties: "61.1 As part of the wider long-term collaboration between Tavistock Plc and Titan Wealth, certain administrative functions required for the provision and management of the Tavistock MPS would be outsourced to Titan AM and the OMA provided for this including in particular by clauses 2.3 and 2.4. "61.2 It was contemplated that the OMA would facilitate the strategic collaboration between Tavistock Plc and Titan Wealth. As a result of the Tavistock/Titan Revenue Share in the OMA, Titan AM would earn revenue regardless of whether funds were invested in Tavistock AM’s MPS or in the Acumen Funds. As revenue earned in either case would contribute to the earn-out thresholds in the SPA for the payment ofdeferred consideration to Tavistock Plc, Tavistock Plc’s and Titan Wealth’s incentives were aligned."
"The Defendants also rely on the following specific terms of the OMA: 121A.1. Clause 1.1 defined ‘confidential information’ as follows: all information (however recorded or preserved) disclosed by either Party or by its employees, officers, representatives, advisers or subcontractors (Representatives) to the other Party or to that Party's Representatives in connection with this agreement, which is either labelled as confidential or which should reasonably be considered confidential because of either its nature or the manner of its disclosure. 121A.2. Clause 5.1 provided that: Each Party shall keep the other Party’s Confidential Information confidential and shall not: 5.1.1. Use any Confidential Information for any purpose other than complying with its obligations under this agreement; or 5.1.2 disclose any Confidential Information to any third party except as permitted by this clause. 121A.3. Clause 5.3 provided that the confidentiality provisions in clause 5 would continue to apply after termination of the OMA."
"It is to be inferred that Titan AM used the Tavistock MPS Information in creating and administering the Titan MPS. The precise nature and scope of use is outside the knowledge of Tavistock AM but pending disclosure, further information and/or evidence Tavistock AM pleads as follows. 153U.1. When Titan AM was discharging its obligations under the OMA to undertake the work of onboarding new investments for the Tavistock MPS, it also onboarded the same investments for Titan AM. This is demonstrated in the Investment Emails. 153U.2. Titan AM’s use of the Tavistock MPS Information is further to be inferred from the similarities of (i) the factsheets for relevant Titan MPS profiles compared to the equivalent factsheets for Tavistock MPS profiles, and (ii) the underlying investments described in those factsheets, examples of which are set out in Annex 8."
"By using the Tavistock MPS Information for purposes other than complying with its obligations under the OMA, Titan AM used confidential information and/or trade secrets without the authorisation of Tavistock AM and to the detriment of Tavistock AM in breach of its obligations of confidence to Tavistock AM and in breach of its contractual obligations under the OMA."
"Following the completion of the SPA, Tavistock appointed Titan as sub-investment manager to the Tavistock MPS in September 2021 on the terms set out in the Outsourced Management Agreement (the 'OMA'). Titan's responsibilities were to identify potential investments for inclusion in the Tavistock MPS, carry out due diligence on those funds/managers, and liaise with platforms to ensure the funds were available to Tavistock for potential inclusion in the Tavistock MPS. Contrary to what Gailani 2 states, Titan would then report to the TAM Investment Committee and the Abacus Investment & Oversight Committee each month, outlining the investment case for any potential change to the Tavistock MPS, including the addition of new funds. The TAM Investment Committee and the Abacus Investment & Oversight Committee would decide whether to accept Titan’s recommendation. If accepted, Tavistock would then implement the relevant change."
"It is to be inferred that Titan AM used the Tavistock MPS Information in creating and administering the Titan MPS. The precise nature and scope of use is outside the knowledge of Tavistock AM but pending disclosure, further information and/or evidence Tavistock AM pleads as follows."
"B. Information required for the creation or management of an MPS 29. From an external perspective, an MPS appears to be a single defined product. In fact, it is comprised of a collection of documents, agreements and investment philosophies which are built up over time into a set of strategies and related investments which are appealing to investors. 30. A party who wished to set up their own MPS would need to invest a substantial amount of time, resources, and expertise. By way of illustration only, they would need to identify and negotiate agreements with suitable fund managers, identify and investigate a range of assets which are suitable for investment, benchmark those assets in relation to risk (both individually and in aggregate), determine appropriate asset allocation, and establish mechanisms to monitor and update the investments over time. Furthermore, they would need to create public-facing documents (factsheets) which are attractive to investors and which contain various key information (both from a regulatory perspective and in terms of what investors/IFAs expect to see). 31. A relatively small proportion of the information relating to an MPS is initially public. For example, in relation to Tavistock, I would expect information relating to live strategy or future investments to be kept strictly confidential. However, we also publish factsheets which specify some limited detail, for example the top 5 investment holdings. In this way, some limited information that would initially be confidential may later become public. This is important because it is not generally advisable to copy a party's historic investment decisions, but as I have explained above, access to their real time strategy decisions could be very valuable. 32. Tavistock alleges that Titan misused confidential information in order to create the Titan MPS. I understand that Titan has criticised the degree to which Tavistock has provided a list of the exact confidential information that was misused. Titan was in an advantaged position in respect of the Tavistock MPS with access to its core workings including live information regarding future investments and strategy. Prior to disclosure by Titan, I am not able to say for sure what information Titan copied or misused in the creation of the Titan MPS. However, in my view, from my experience of MPS set-up and operation, the information which would have been helpful to Titan is likely to have included: 32.1 The fundamental structure of the Tavistock MPS including factors such as the way in which risk is categorised and assigned; 32.2 Information received from the TAM Investment Committee and Abacus Investment & Oversight Committee regarding matters such as investment strategy and appropriate assets to on-board; and 32.3 Information received in relation to the 'rebalancing' of holdings within each portfolio so that the proportion held is returned to the appropriate level of risk."
"Amendments sought to be made to statement of case must contain sufficient detail to enable the other party and the Court to understand the case that is being advanced, and they must disclose reasonable grounds upon which to bring or defend the claim: Habibsons Bank Ltd v Standard Chartered Bank (HK) Ltd[2011] QB 943 [23] per Moore-Bick LJ"; (2) at [140(2)(3)]: "
"A comprehensive review as to principles appear from [3] in Invest Bank PSC v El-Husseini[2024] EWHC 1235 (Comm) where Bryan J remarked how the circumstances in which amendments may be put forward are, as it has been put, "infinitely variable" and each application requires the court to take into account the particular facts of the case. "
"153G. From at least June 2020 Tavistock AM created and published factsheets with updated information about each MP offered, as referred to at paragraph 41.1 above (the 'Tavistock Factsheets'). The Tavistock Factsheets were published online on a monthly basis for financial advisers to use with their clients and in order to satisfy regulatory requirements. 153H. The content of each Tavistock Factsheet was based on that of a previous Tavistock Factsheet such that its content had been created over time by an iterative process. Accordingly each Tavistock Factsheet incorporated a combination of original content and pre-existing content from earlier Tavistock Factsheets, including in each case the following: 153H.1. Text (the 'Tavistock Factsheet Text'), which is a literary work within the meaning ofsection 3(1) of the Copyright, Designs and Patents Act 1988 (the '1988 Act'); and 153H.2. Design and layout, including the arrangement of sections of text and charts of data in the form of line graphs and pie charts (the 'Tavistock Factsheet Design'), which is an artistic work and a graphic work within the meaning of sections 4(1)(a) and 4(2) of the 1988 Act. 153I. Copyright subsists in the Tavistock Factsheet Text and the Tavistock Factsheet Design, and is owned by Tavistock Plc. 153I.1. Each iteration of each Tavistock Factsheet was created by BSR, Gregor Preston and SMM and was a work of joint authorship within the meaning ofsection 10 of the 1988 Act . Each of the Tavistock Factsheet Text and the Tavistock Factsheet Design in each iteration of each Tavistock Factsheet was original in that it was its authors’ own intellectual creation. 153I.2. At the time of creation of each Tavistock Factsheet each of BSR, Gregor Preston and SMM was an employee of Tavistock Plc. Tavistock Plc was the first owner of any copyright in each Tavistock Factsheet by operation ofsection 11(2) of the 1988 Act . 153I.3. Each iteration of each Tavistock Factsheet was first published in the United Kingdom or in a country to which the relevant provisions of Part I of the 1988 Act extend. Accordingly, the Tavistock Factsheet Text and the Tavistock Factsheet Design in each iteration of each TavistockFactsheet qualify for copyright protection for the purposes of sections 153(1)(b) and 155 of the 1988 Act. 153J. As part of the Titan MPS, Titan AM created or authorised the creation of monthly factsheets about each MP within the Titan MPS (the 'Titan Factsheets'). To the best of the knowledge and belief of Tavistock Plc, each ofthe Titan Factsheets is a copy of a substantial part of the Tavistock Factsheet Text and of the Tavistock Factsheet Design in a corresponding Tavistock Factsheet. 153K. Pending disclosure, further information and/or evidence Tavistock Plc relies upon examples of Titan Factsheets as attached at Annex 5. Each of these Titan Factsheets is a copy of a substantial part of the Tavistock Factsheet Text and the Tavistock Factsheet Design as set out in one or more of the Tavistock Factsheets, examples of which are also attached at Annex 6. As to the similarities between the relevant Titan Factsheets and Tavistock Factsheets, Tavistock AM relies on the matters set out in Annex 7. 153L. In the premises Titan AM has infringed Tavistock Plc’s copyright in the Tavistock Factsheet Text and the Tavistock Factsheet Design by doing or authorising another to do the following acts without the licence of TavistockPlc: 153L.1. Copying and/or authorising another to copy in breach of sections 16(1)(a), 16(2) and/or 17 of the 1988 Act, including by storing in any medium by electronic means; 153L.2. Issuing and/or authorising another to issue copies to the public in breach of sections 16(1)(b), 16(2) and/or 18 of the 1988 Act; and/or 153L.3. Communicating and/or authorising another to communicate to the public in breach of sections 16(1)(d), 16(2) and/or 20 of the 1988 Act. … Additional damages 162F. Tavistock Plc is entitled to and claims damages (including additional damages pursuant tosection 97(2) of the 1988 Act ), alternatively an account of profits (at their election) for Titan AM’s infringement of Tavistock Plc’s copyright. Further or alternatively, Tavistock Plc is entitled to damages pursuant to regulation 3 of theIntellectual Property (Enforcement, etc.) Regulations 2006 SI 2006/1028. Pending disclosure, evidence and/or further information Tavistock Plc is unaware of all relevant facts including those demonstrating the infringement to be flagrant and/or the benefit accruing to Titan AM but will relyat trial upon all such matters. Pending such Tavistock Plc will rely upon the following particulars of flagrancy: 162F.1. Titan AM’s infringement of Tavistock Plc’s copyright was flagrant for the purposes ofsection 97(2) of the 1988 Act , involving systematic and repeated infringement over a period of time: Paragraphs 153G, 153J and 153K above are repeated. 162F.2. Benefit accrued to Titan AM by reason of the infringement of Tavistock Plc’s copyright for the purposes ofsection 97(2) of the 1988 Act : Paragraph 162B above is repeated. The benefit that accrued to Titan AM included the saving in cost of producing its own factsheet text and design or of licensing the Tavistock Factsheet Text and/or TavistockFactsheet Design. 162F.3. Tavistock Plc has suffered actual prejudice as a result of the infringement for the purposes of regulation 3 of theIntellectual Property (Enforcement, etc.) Regulations 2006 /1028: Paragraph 162B above is repeated."
"Titan MPS 18. The Factsheet Copyright Claim: This claim is at best historic, trivial and relates to alleged infringements which have caused no loss. It is an abuse of the Court’s process or is otherwise likely to obstruct the just disposal of the proceedings: a. No loss. The Ds have not adequately identified any actual loss that they have suffered as a consequence of the alleged Factsheet Copyright Claim and no loss can realistically be said to have been suffered from trivial similarities between the appearance or arrangement of factsheets. b. No ongoing threat. The allegation pertains to historic Factsheets produced by Titan AM between October 2023 and March 2024. c. Abuse of process. This is an intellectual property claim best suited (if brought at all) to the Small Claims Track of IPEC where it will be cost-capped and managed in an appropriate way. It is unnecessarily costly and disruptive to litigate it in the Commercial Court."
"61.– Subject to any provision made by or under this or any other Act (and in particular to any rules of court made in pursuance of subsection (2) and any order under subsection (3)), business in the High Court of any description mentioned in Schedule 1, as for the time being in force shall be distributed among the Divisions in accordance with that Schedule. "
"Subject to the rules of court, the fact that a cause or matter commenced in the High Court falls within a class of business assigned by or under this Act to a particular Division does not make it obligatory for it to be allocated or transferred to that Division."
"If the claimant succeeds in this action and is awarded a small amount of damages, it can perhaps be said that he will have achieved vindication for the damage done to his reputation in this country, but both the damage and the vindication will be minimal. The cost of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick. "
"14.1. The Company Intellectual Property: ... 14.1.2 is legally and beneficially owned by the Company alone, free from any licence, encumbrance, restriction on use or disclosure obligation or licensed to the Company, as exclusive licensee, under an Intellectual Property Agreement."
"... is legally and beneficially owned by the Company alone, free from any licence, encumbrance, restriction on use or disclosure obligation or licensed to the Company, as exclusive licensee, under an Intellectual Property Agreement." (Emphasis added)