Ron Hoffman & Anor v Finalto Group Limited & Anor [2026] EWHC 1702 (Comm)

[2026] EWHC 1702 (Comm)Case No CL-2023-000385 andCL-2023-000428
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 06/07/2026
Before
MR JUSTICE BUTCHER
Between
RON HOFFMANClaimantsLIRON GREENBAUMClaimant(1) FINALTO GROUP LIMITEDDefendant(2) GOPHER INVESTMENTSDefendantAnd between:FINALTO (IOM) LIMITEDClaimantRON HOFFMANDefendant
Edward Brown KC and Edward Mordaunt (instructed by Mishcon de Reya) for Claimants and Defendant in the Second ActionCraig Morrison KC, William Hooper and Yanni Goutzamannis (instructed by Hogan Lovells) for Defendants / Claimant in the Second ActionHearing Hearing date: 3 July 2026
Approved JudgmentThis judgment was handed down remotely at 14:30pm on 06 July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

RULING ON CONSEQUENTIAL MATTERS

[1]A number of issues arise consequential on my judgment dated 21 April 2026 ([2026] EWHC 921 (Comm)) (‘the judgment’).

Late Disclosure

[2]The first issue relates to a matter of late disclosure. On the morning of the day originally fixed for this Consequentials hearing, 4 June 2026, the Defendants disclosed a further version of GI’s 2024 Financial Statements (dated 12 November 2025). At trial there had been reference to a previous version of these Financial Statements dated 17 October 2025. The Defendants accepted that these accounts should have been disclosed earlier, made an apology, and agreed to pay the costs of the adjournment of the Consequentials hearing on an indemnity basis.[3]The Claimants now seek Permission to Appeal (‘PTA’) in relation to this matter, by a new Ground 4A, and alternatively seek an order that there should be a re-hearing before me based on the new evidence.[4]I do not consider that it is appropriate or necessary either to grant PTA or to order a re-hearing. This is for these reasons:(1) The issues involved are canvassed at paragraphs 102-105 of the judgment. Paragraph 103 states that I preferred the valuation of Ms Richards, which was based on a number of types of evidence, which were reasonable exercises, competently performed, and on which Ms Richards had not been cross-examined. That was the principal and a sufficient reason for finding the valuation of FGL to have been US$150-160 million. It was independent of the value attributed to FGL in the 2024 accounts, which Ms Richards had not seen when this valuation was produced, and is not affected by the late disclosure.(2) In paragraphs 104-105, I do make reference to the Financial Statements for the Year Ended 31 December 2024. This was for the purpose of indicating that, if the 2024 Financial Statements showed a lower figure, that would cast some doubt on the degree to which the 2023 Financial Statements could be relied on for the purposes of a valuation as at 11 July 2024. The 2024 Financial Statements in both the October and November versions do show a lower valuation, and so this point remains valid. The point made in paragraph 105 is a reference to a question raised by Mr Martin as to whether the valuation of FGL had been revalued at the amount stated by Ms Richards. The 2024 Financial Statements show that it had. What the new disclosure indicates is that in making this revaluation the directors took into account Ms Richards’ valuation. That does not affect the accuracy of what is said in paragraph 105, which in any event, and as I have said, is an ancillary point to that made in paragraph 103.(3) Mr Brown KC made a somewhat broader submission that, had there been disclosure of the November version of the 2024 Financial Statements, it would have permitted different lines of enquiry and cross-examination, including of Mr Scoular. I do not consider that this is realistic or well-founded. It did not appear that any cross-examination of Ms Richards which the Claimants might conduct would be of use to them, in circumstances where the 2024 Financial Statements adopted her valuation. The same applies to the suggestion, made at the hearing, that there might have been cross-examination of Mr Scoular: it is difficult to see what cross-examination there could have been which would have been of assistance to the Claimants, given that the directors did adopt Ms Richards’ valuation, the accounts were audited, and it has not been suggested that there would be any impropriety in the directors having regard to the valuation of Ms Richards.(4) In these circumstances, I do not consider that the new Ground of Appeal 4A stands a realistic prospect of success.(5) I also refuse the application myself to rehear this issue. In Liqwd Inc v L’Oreal Ltd [2018] EWHC 1845 (Pat), Birss J said that, in considering whether to revisit a judgment on the basis of fresh evidence, an obvious factor is the strength of the case of the party seeking this course, taking into account the new evidence ([60]-[61]). In that case the new evidence did not give that party a ‘knock out point’, but would only ‘plug one hole’ in its case, and that was taken into account in the dismissal of the application. Here, the highest it could properly be put is that the new evidence might, although it might not, have been of some assistance on one part of the argument in relation to valuation. That does not appear to me to be adequate justification to order a rehearing, or further hearing, in relation to this issue. I consider that it would be contrary to the overriding objective, and the importance of finality of judgments, to do so.

Form of Order as to Management Equity Claims

[5]The second issue which it was considered would arise was as to the form of order in relation to Management Equity Claims. In the event, the Defendants did not contest that there should be an award of nominal damages (£2), to reflect the fact that the ETS contained binding obligations, had been repudiated, but no loss had been established.

Interest

[6]The third issue is as to pre-judgment interest in relation to the sums which were awarded to Mr Hoffman. There are issues both as to period and rate.[7]As to rate, Mr Hoffman contends that the award should be at base + 5%. It is said that that is in line with recent Commercial Court authority concerning borrowing rates for private individuals. For the Defendants it is said that such a rate would be too high. Mr Hoffman was a highly paid CEO. For someone in his position, a rate of base + 2.5% would be appropriate.[8]I was referred to Henderson & Jones Limited v Salica Investments Limited [2025] EWHC 838 (Comm). In that case, Calver J helpfully brought together a number of cases which have set out the proper approach to issues of pre-judgment interest, as follows: ‘[7] The relevant principles concerning the exercise of this court’s discretion in determining the interest rate were summarised by the Court of Appeal in Carrasco v Johnson [2018] EWCA Civ 87 at [17] as follows: “17. The guidance to be derived from these cases includes the following:(1) Interest is awarded to compensate claimants for being kept out of money which ought to have been paid to them rather than as compensation for damage done or to deprive defendants of profit they may have made from the use of the money.(2) This is a question to be approached broadly. The court will consider the position of persons with the claimants' general attributes, but will not have regard to claimants' particular attributes or any special position in which they may have been.(3) In relation to commercial claimants the general presumption will be that they would have borrowed less and so the court will have regard to the rate at which persons with the general attributes of the claimant could have borrowed. This is likely to be a percentage over base rate and may be higher for small businesses than for first class borrowers.(4) In relation to personal injury claimants the general presumption will be that the appropriate rate of interest is the investment rate.(5) Many claimants will not fall clearly into a category of those who would have borrowed or those who would have put money on deposit and a fair rate for them may often fall somewhere between those two rates.” [8] In Challinorv Bellis [2013] EWHC 620 (Ch) at [21], reciting the claimant’s submissions, Hildyard J referred to the fact that: “(2) … the Court adopts a broad brush. For practical reasons it will not make an enquiry into the claimant's actual loss; nor will it enquire or speculate as to what the claimant would have done with the money had he not been deprived of it. The Court almost invariably adopts as its measure what it would have cost a person in broadly the same position as the claimant to borrow the money of which he was deprived. Thus, to quote Steyn J in Banque Keyser Ullman again, the aim is to establish the rate(s) at which “a person in the position of the claimant would have had to pay to borrow the money” over the period for which interest is awarded… …(6) Moreover, there is also a consistent line of authority supporting rates above the Commercial Court rate where the claimant is a small business or (as in this case) a group of individuals. Thus: (a) In Jaura v Ahmed [2002] EWCA Civ 210, the “real costs of borrowing incurred by…small businessmen” were fixed at 3% over base, Rix LJ observing (at paragraph 26) that “The law should be prepared to recognise, as I suspect evidence might well reveal, that the borrowing costs generally incurred by them are well removed from the conventional rate of 1% above base (and sometimes even less) available to first class borrowers”. [9] In Reinhard v Ondra [2015] EWHC 2943 (Ch), Warren J cited Andrew Smith J in Fiona Trust and Holding Corporation [2011] EWHC 664 at [9] where he said this: “The relevant principles are not contentious. The rate of interest is at the discretion of the court. Secondly the purpose of an award of interest is fairly to compensate the recipient for being deprived of money that he should have received. Thirdly a “broad brush” approach is taken to determine what rate of interest is just and appropriate. As Andrew Smith J put it in Fiona Trust and Holding Corporation and Others v Yuri Privalov and Others [2011] EWHC 664 (Com) at para. 16: “… it would neither be practical nor proportionate (even in a caseinvolving as large sums as these) to attempt a minute assessment of whatwill precisely compensate the recipient. In particular, the courts do nothave regard to the rate at which a particular recipient of compensationmight have borrowed funds. This policy is adopted in order to controlthe extent of the enquiry to ascertain an appropriate rate: see BanqueKeyser … the court will, however, consider the general characteristics ofthe recipient in order to decide whether to assess interest at a rate that ishigher or lower than is conventional. So, for example, in Jaura v Ahmed[2002] EWCA Civ 2010, Rix LJ awarded interest at the base rate plus3% to reflect that “small businessmen” had been kept out of their moneyand in recognition of the “real cost of borrowing incurred by such a classof businessmen”. Thus, the court will examine what has been called “aquestion of categorisation of the plaintiff in an objective sense” (see theBanque case Allman case) … recognise relevant characteristics of theparty who was awarded interest and reflect them when determining thefair and appropriate rate. …” [10] The Claimant also relies upon the case of Attrill v Dresdner Kleinwort & Commerzbank [2012] EWHC 1468 (QB), in which this Court awarded interest at 5% above base rate to the claimants based upon Bank of England effective interest rates on unsecured loans during the relevant period. As that case concerned a claim brought by private individuals against their former employer, there was nothing to suggest the claimants could have borrowed at the rates available to a commercial entity. Consequently, Owen J concluded that the appropriate interest rate was the cost of unsecured borrowing by individuals.’ “17. The guidance to be derived from these cases includes the following: (1) Interest is awarded to compensate claimants for being kept out of money which ought to have been paid to them rather than as compensation for damage done or to deprive defendants of profit they may have made from the use of the money. (2) This is a question to be approached broadly. The court will consider the position of persons with the claimants' general attributes, but will not have regard to claimants' particular attributes or any special position in which they may have been. (3) In relation to commercial claimants the general presumption will be that they would have borrowed less and so the court will have regard to the rate at which persons with the general attributes of the claimant could have borrowed. This is likely to be a percentage over base rate and may be higher for small businesses than for first class borrowers. (4) In relation to personal injury claimants the general presumption will be that the appropriate rate of interest is the investment rate. (5) Many claimants will not fall clearly into a category of those who would have borrowed or those who would have put money on deposit and a fair rate for them may often fall somewhere between those two rates.” “(2) … the Court adopts a broad brush. For practical reasons it will not make an enquiry into the claimant's actual loss; nor will it enquire or speculate as to what the claimant would have done with the money had he not been deprived of it. The Court almost invariably adopts as its measure what it would have cost a person in broadly the same position as the claimant to borrow the money of which he was deprived. Thus, to quote Steyn J in Banque Keyser Ullman again, the aim is to establish the rate(s) at which “a person in the position of the claimant would have had to pay to borrow the money” over the period for which interest is awarded… … (6) Moreover, there is also a consistent line of authority supporting rates above the Commercial Court rate where the claimant is a small business or (as in this case) a group of individuals. Thus: (a) In Jaura v Ahmed [2002] EWCA Civ 210, the “real costs of borrowing incurred by…small businessmen” were fixed at 3% over base, Rix LJ observing (at paragraph 26) that “The law should be prepared to recognise, as I suspect evidence might well reveal, that the borrowing costs generally incurred by them are well removed from the conventional rate of 1% above base (and sometimes even less) available to first class borrowers”. “The relevant principles are not contentious. The rate of interest is at the discretion of the court. Secondly the purpose of an award of interest is fairly to compensate the recipient for being deprived of money that he should have received. Thirdly a “broad brush” approach is taken to determine what rate of interest is just and appropriate. As Andrew Smith J put it in Fiona Trust and Holding Corporation and Others v Yuri Privalov and Others [2011] EWHC 664 (Com) at para. 16: “… it would neither be practical nor proportionate (even in a caseinvolving as large sums as these) to attempt a minute assessment of whatwill precisely compensate the recipient. In particular, the courts do nothave regard to the rate at which a particular recipient of compensationmight have borrowed funds. This policy is adopted in order to controlthe extent of the enquiry to ascertain an appropriate rate: see BanqueKeyser … the court will, however, consider the general characteristics ofthe recipient in order to decide whether to assess interest at a rate that ishigher or lower than is conventional. So, for example, in Jaura v Ahmed[2002] EWCA Civ 2010, Rix LJ awarded interest at the base rate plus3% to reflect that “small businessmen” had been kept out of their moneyand in recognition of the “real cost of borrowing incurred by such a classof businessmen”. Thus, the court will examine what has been called “aquestion of categorisation of the plaintiff in an objective sense” (see theBanque case Allman case) … recognise relevant characteristics of theparty who was awarded interest and reflect them when determining thefair and appropriate rate. …”[9]In that case, Calver J concluded that, in light of the material which had been put before him, and taking a broad-brush approach, a rate of 5% above base was appropriate (see [13]).[10]From these cases it is apparent that, for reasons of practicality and proportionality, the court does not look for or at evidence of the individual claimant’s particular attributes or position. What is considered is the borrowing costs for someone with the claimant’s general characteristics.[11]The evidence put before me was from the Bank of England’s database, showing the monthly average of UK resident banks’ sterling weighted average interest for ‘other loans, new advances to individuals and individual trusts’. That indicates figures for the period between November 2022 and April 2026 between about 8% and somewhat over 9%.[12]For the Defendants it was said that, if those figures are analysed to see what the delta was between the rates included on that database and Bank of England base rate, the result, for the period I have mentioned, was, on average, 4.15%. That, moreover, was for the whole class of private individuals, while Mr Hoffman was a wealthy individual. A lower rate than 5% over base was accordingly justified. The Defendants drew attention to cases involving interest awarded to individuals, including Kitcatt v MMS UK Holdings Ltd [2017] EWHC 786 (Comm) at [6] and Carrasco v Johnson [2018] EWCA Civ 87, in which lower rates, either of 2% over base or 2.5-2.75% over base, had been awarded to individuals.[13]On the material before me, applying a broad brush approach, and making some allowance for the likelihood that someone with Mr Hoffman’s characteristics, in terms of salary levels, would not be at the top of the range which is included in the Bank of England’s average database, I consider that the appropriate rate is base + 4%.[14]There was a further issue as to the period for which Mr Hoffman should receive pre-judgment interest. The Claimants claim interest for the entire pre-judgment period. The Defendants say that interest should not run after the expiry of the Part 36 offer, which is considered further below in the context of costs, ie should not run after 30 September 2025.[15]In my judgment, while the offer may have consequences in relation to costs, it should not have an effect in relation to the period for which interest is awarded. The position is that the sum to which Mr Hoffman has been found entitled should have been paid to him at the termination of his employment; he has not had that money throughout; and instead the Defendants have had the value of that money throughout. In those circumstances, it appears to me appropriate that interest should run for the entire pre-judgment period.

Costs

[16]The fourth issue is as to costs. The two sides have very different positions as to what should be the order as to the costs of the proceedings. The Claimants’ position is that they should have all the costs, subject to perhaps a 5% discount to reflect the failure of Mr Greenbaum’s employment claim; and should be awarded those costs on an indemnity basis. The Defendants, on the other hand, seek an order that the Claimants pay their costs from 30 September 2025, and 20% of their costs for the period up to 30 September 2025, on the standard basis.[17]The general principles on which costs are to be ordered are well-known. They are largely set out in CPR r. 44.2, which provides: ‘44.2(1) The court has discretion as to – (a) whether costs are payable by one party to another; (b) the amount of those costs; and (c) when they are to be paid.(2) If the court decides to make an order about costs – (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but (b) the court may make a different order.(3) The general rule does not apply to the following proceedings – (a) proceedings in the Court of Appeal on an application or appeal made in connection with proceedings in the Family Division; or (b) proceedings in the Court of Appeal from a judgment, direction, decision or order given or made in probate proceedings or family proceedings.(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including – (a) the conduct of all the parties; (b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and (c) any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply.(5) The conduct of the parties includes – (a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol; (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (c) the manner in which a party has pursued or defended its case or a particular allegation or issue; (d) whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim; and (e)whether a party failed to comply with an order for alternative dispute resolution, or unreasonably failed to engage in alternative dispute resolution.(6) The orders which the court may make under this rule include an order that a party must pay – (a) a proportion of another party’s costs; (b) a stated amount in respect of another party’s costs; (c) costs from or until a certain date only; (d) costs incurred before proceedings have begun; (e) costs relating to particular steps taken in the proceedings; (f) costs relating only to a distinct part of the proceedings; and (g) interest on costs from or until a certain date, including a date before judgment.(7) Before the court considers making an order under paragraph (6)(f), it will consider whether it is practicable to make an order under paragraph (6)(a) or (c) instead.(8) Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so.’ (a) whether costs are payable by one party to another; (b) the amount of those costs; and (c) when they are to be paid. (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but (b) the court may make a different order. (a) proceedings in the Court of Appeal on an application or appeal made in connection with proceedings in the Family Division; or (b) proceedings in the Court of Appeal from a judgment, direction, decision or order given or made in probate proceedings or family proceedings. (a) the conduct of all the parties; (b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and (c) any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply. (a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol; (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (c) the manner in which a party has pursued or defended its case or a particular allegation or issue; (d) whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim; and (e)whether a party failed to comply with an order for alternative dispute resolution, or unreasonably failed to engage in alternative dispute resolution. (a) a proportion of another party’s costs; (b) a stated amount in respect of another party’s costs; (c) costs from or until a certain date only; (d) costs incurred before proceedings have begun; (e) costs relating to particular steps taken in the proceedings; (f) costs relating only to a distinct part of the proceedings; and (g) interest on costs from or until a certain date, including a date before judgment.[18]The identification of the ‘successful party’ is a matter which often gives rise to argument. The guidance of Sir Thomas Bingham MR in Roache v News Group Newspapers Limited and Others [1998] EMLR 161, at 168-9, is often cited. What was there said was that, as a general matter:
‘… the judge must look closely at the facts of the particular case before him and ask: who, as a matter of substance and reality, has won? Has the plaintiff won anything of value which he could not have won without fighting the action through to a finish? Has the defendant substantially denied the plaintiff the prize which the plaintiff fought the action to win?’
[19]Manifestly the result of the present case, in the judgment, is a mixed one. Mr Hoffman succeeded, in part but not in whole, on his employment claims. Mr Greenbaum failed on his employment claims. Each Claimant obtained only nominal damages in respect of his management equity claims, notwithstanding that they had been claimed in the sum of (the equivalent of) £22.8 million. The Claimants succeeded in entirely defeating the counterclaim, which, on the basis of the pleaded case and Ms Richards’ valuation of FGL, was for some US$90-US$ 100 million.[20]Putting aside, for the moment, the issue of the Defendants’ offer, I would have concluded, not without some hesitation, that the Claimants should be regarded as the ‘successful party’. They had won something of value which could not have been won without fighting the action. While it could be said that they had not won most of the prize which they had fought the action to win, it was to them that a cheque would be written, and, at least in the case of Mr Hoffman, for a significant sum. I would, however, have regarded the case as one where there should be a significant discount in the proportion of the costs which they were entitled to recover to take account of the number and nature of the issues on which they had not succeeded.[21]The Defendants did, however, make an offer to settle the whole proceedings for £3.5 million on 27 August 2025. The offer was made as a Part 36 Defendant’s offer. It was expressed to expire on 29 September 2025. That offer was in fact withdrawn, after trial, namely on 11 February 2026. The Defendants therefore accept that that offer does not have the automatic consequences of a Part 36 offer. Nevertheless, it appears to me that it was a ‘without prejudice save as to costs’ offer, which can, as is specified in CPR 44.2(4)(c), be taken into account in deciding on the appropriate order as to costs.[22]In my judgment, in this case, that offer has considerable importance. Had it been accepted, the Claimants would have recovered significantly more than they actually recovered under the judgment. Acceptance of that offer would also have meant the withdrawal of the counterclaim. It is true that there would not have been the detailed rejection of the counterclaim as happened in the judgment, but acceptance of the offer would have allowed the Claimants to state publicly that the counterclaims had been withdrawn. In my judgment it was unreasonable to carry on with the litigation, when that offer had been made.[23]I do not, however, consider that the justice of the case requires that after the date of expiry of the offer, the Claimants should pay the Defendants’ costs. The fact remains that the Claimants, in pursuing the action, established that the ETS was binding, and that it had been repudiated, that Mr Hoffman was entitled to some employment-related payments, and that the counterclaim failed. In my judgment the appropriate order as from 30 September 2025 is that there should be no order as to costs.[24]In relation to the period up to 30 September 2025, there should be an order for costs in favour of the Claimants. It should, however, be only for a proportion of the Claimants’ costs, to allow for the points on which they did not eventually succeed, but which were always a significant part of the case. Making an assessment of the appropriate proportion is not straightforward. I have decided that the Claimants should be awarded 2/3 of their costs, and on the standard basis. In coming to that conclusion, I have taken into account issues as to conduct. These include that there were some aspects of the conduct of the case by the Defendants, and in particular as to the counterclaims, which might be said to be unsatisfactory, and which could have merited an order for indemnity costs at least in respect of certain issues. But they include also the issues as to the Claimants’ conduct, and in particular the deletion of the Claimants’ WhatsApp messages. In my view the best way of reflecting all these issues, as well as issues of relative success, is by the order I have described.[25]I will make an order for a payment on account of the costs which I have ordered should be paid by the Defendants to the Claimants of 60% of (2/3 of) the costs claimed in respect of the relevant period. I will, if necessary, receive written submissions as to what that amount should be.

Permission to Appeal

[26]The final issue is as to PTA.[27]Permission is sought by the Claimants in relation to 6 issues. Having considered them carefully, I refuse permission in relation to all of them, on the basis that I do not consider that any stands a realistic prospect of success. I will give my reasons briefly.[28]Ground 1 is an alleged error of approach to the restructuring counterfactual. The Ground is premised on the assertion that the Court focused exclusively on whether there had in fact been an agreed or concluded transfer of the Loans prior to repudiation, and did not address what would probably have happened. That, however, is a mischaracterisation. The Claimants’ case on the pleadings and at trial did not draw as clearly as is now suggested a distinction between what was agreed and intended on the one hand and what would probably have happened on the other. The judgment does address the factual case put forward by the Claimants as to what had happened and thus addresses the indicia as to what would have happened in the absence of repudiation. Specifically, the judgment finds, on the facts, that there was no evidence that GI said or indicated that the Loans would be transferred, that there was no agreement on the part of GI or its representatives to the revised Action Plan, and that there was no agreement by Mr Scoular. The judgment also finds that GI had a commercial rationale for not agreeing the transfer of the Loans to Holdco. And it finds that relations then broke down. Because of those matters, it is clear that it was not likely that there would in fact have been any transfer of the Loans to Holdco. Any appeal on this point thus stands no realistic prospect of success.[29]I should add that, in any event, I doubt that the test which it is suggested should be applied is correct. If there was no contractual obligation under the ETS for the Loans to be transferred the Claimants are seeking to recover damages for the Defendants’ failure to do something which they had no obligation to do.[30]Ground 2 is a contention that the Court failed to engage with material expert evidence in relation to the valuation issue. What is said is that the Court failed to address or give reasons for rejecting the acceptance by the Defendants’ expert that the Loans functioned as working capital, that a bona fide third party acquirer would acquire the equity and the Loans together and that the requirement under clause 3.2 was to be assessed by reference to sale to a willing third party.[31]The expert evidence identified was not material and was beside the relevant point(s). The Loans can have functioned as ‘working capital’ without that dictating that they should be acquired by Holdco. There was never an issue that a buyer of the business would wish to acquire both the shares and the Loans, but that does not show that both would have to be acquired from Holdco as opposed to the shares from Holdco and the Loans from GI.[32]The construction of clause 3.2 was a matter for the Court not for expert evidence. It is considered at paragraphs 94-95 of the judgment, where it is found that none of the bases as to ‘Market Value’ was applicable, and that the Claimants had pleaded that clause 3.2 had no application to the assessment of damages. The Court was, however, prepared to look at the expert evidence of market value, which included evidence that the value of the Holdco equity would depend on whether the Loans were or were not transferred.[33]Ground 3 is a contention that in construing the ETS the Court failed to consider the ETS as a whole, and failed to give effect to a number of provisions. The agreement was considered both in detail and as a whole in the judgment. I do not consider that an appeal stands a realistic prospect of success.[34]Ground 4 is an argument that there was procedural unfairness in the Court’s relying on GI’s 2024 Financial Statements. Those Statements were, however, put before the Court. There was no objection by the Claimants to the Court looking at them. Nor did the Claimants apply, for example, to recall Mr Martin to deal with them in more detail. The Court was entitled, indeed obliged, to have regard to material which had been adduced, insofar as it was of relevance.[35]There is also a suggestion that there was a failure to provide adequate reasons for rejecting the Claimants’ valuation expert’s evidence. I do not consider that this has any merit. Reasons were given.[36]I have already referred to the new Ground 4A above, and have given my reasons for refusing permission to appeal in respect of it.[37]Ground 5 is an argument that there should have been an assessment of whether Mr Hoffman would have been paid a bonus, not as a matter of entitlement, but as a matter of discretion. This was not pleaded and not articulated at trial.[38]Ground 6 is that there was an error in the Court’s concluding that Mr Greenbaum had not become an employee of FGL prior to termination. That conclusion was, however, in accordance with the contemporary documents and Mr Greenbaum’s own evidence.[39]I would be grateful if the parties could now draw up an order reflecting the decisions set out above.