[2025] EWHC 2759 (Ch)

The Court of Appeal Judgment

There are two points to draw from the Court of Appeal Judgment.

The first relates to the relevance to liability for breach of confidence of whether Mr Timol knew the key tax features of the Nemaura structure when signing it off.

Snowden LJ summarised my decision as follows in opening his judgment:

“In the instant case, the judge found that the director was not liable, because although he had received the confidential information at the outset, he had not been personally involved in the development of the tax planning structure and when he gave the go-ahead for it to be marketed, he concerned himself only with its commercial viability and not its technical features. He thus made his decision without reference to the confidential information and without being aware that others had used it in the design of the structure.” ([2]; underlining added)

In rejecting the first ground of appeal, the Court of Appeal held that the Claimant’s contention that “Mr Timol must in fact have brought some technical understanding of the key features of the Nemaura structure into this decision to sign off the marketing and implementation, and that this would therefore have amounted to a “use” by him of the confidential information that [the Claimant] had given him at the meeting on 4 February 2014” could not succeed in light of [281] of the 2023 Judgment: [59]; see also [58].

The Court of Appeal explained at [58] that my crucial finding as to Mr Timol’s actions in signing off was my finding at [281] that given that I found on the facts that Mr Timol would not have concerned himself with how the structure worked from a tax perspective, “I do not consider that he misused confidential information in signing off the structure”.

The Court of Appeal held at [61] that- while I could have put it more clearly in [282]- this point was also the key point to draw from that paragraph, namely that

“in signing off the Nemaura structure, Mr Timol was not using the information that he had been given at the 4 February 2014 meeting.”

Consistent with its analysis above, in its discussion in the course of the third ground of appeal concerning the impact of the new documents, the Court of Appeal considered the impact of a newly disclosed letter that the Claimant could have put to Mr Timol to be “that it showed (albeit in the context of an inquiry as to compliance with Shariah law) that he had a detailed understanding of the mechanics of the Nemaura structure, and of the requirements for investors to obtain tax relief”: [93]. As the Court of Appeal explained, “[t]hat additional evidence would plainly have required the Judge to adopt a more granular approach to Mr Timol’s involvement in the decision to approve the marketing and implementation of the Nemaura structure and to his state of knowledge of the basis on which it had been developed”: ibid. The Court of Appeal therefore held that it ought to be able to focus any retrial on two issues, one of which was “Mr Timol’s involvement in the process of approving the marketing and implementation of the Nemaura structure: [98].

The second point relates to the potential relevance of some of the newly disclosed documents to whether Mr Timol knew or ought to have known that the information being used was the Claimant’s confidential information. That was the other issue that the Court of Appeal considered ought to be focused on in a re-trial: [98]. It considered the most significant newly disclosed documents in this regard to be e-mails between Mr Slattery and Mr Johnston on 27, 28 and 31 October 2014, to which Mr Timol was copied: [68]-[71]. The Court considered that, had they been available at the original trial, the Claimant could have put them to Mr Timol in cross-examination “as the basis for a contention that from this time onwards, he was, at the very least, on inquiry that the Nemaura structure had been developed using [the Claimant’s] confidential information. Mr. Slattery and Mr. Johnson would also doubtless have been quizzed upon those e-mails and whether they had any further communication with Mr. Timol about Mr. Corrigan’s complaints.”: [92].

Given the “real danger that the unavailability of the New Documents influenced the outcome of the trial” and that it considered the reason why they were not put before me at the original trial to be a failure of disclosure on the part of Mr Timol (and the other defendants), it considered that the matter should be re-tried as between the Claimant and Mr Timol: [96].