BL-2020-001417 - [2025] EWHC 2487 (Ch)

The claim was pleaded in contract in the Particulars of Claim as originally pleaded and was supported by a Statement of Truth of Mr Reeves. The contractual claim was that there was an express agreement made in or about February 2012 between Musst and a Matrix company that Musst would share the amounts which it received from Octave/Astra 80% for Matrix and 20% for Musst. If there was no express agreement, there was an agreement to share a reasonable amount to reflect their respective contributions. It is not apparent how it is the case that Mr Reeves made a contractual claim in the name of the Matrix entity which he could not support at trial.

In the event, Mr Reeves has supported a restitutionary claim which, as with the contractual claim, would have had no value or very limited value if Astra had succeeded in its defence of the claim of Musst. Yet, despite this, Mr Reeves gave evidence in Musst v Astra not for Musst, but for Astra. His evidence was intended to support the following position of Astra. Astra accepted that in April 2013, it had entered into a written agreement that it would pay to Musst a 2% management fee for each year in respect of work introduced, but its case was as follows:

Musst’s case which prevailed in the Musst v Astra action was as follows:

It is to be noted that if the evidence of Mr Reeves in support of Astra had been accepted, all or most of the moneys received by Octave/Astra from The Observatory/2B and LGT/Crown would not have been subject to an obligation to pay any part to Musst. This is because any introductions prior to November 2012 would have been excluded from an obligation to pay any percentage to Musst, and, in any event, they would only have applied to moneys received in the three-year period. One would have expected in these circumstances that Mr Reeves would have supported the position of Musst against Astra in order to maximise the recovery of the relevant Matrix entity. It was not suggested that there was a co-extensive arrangement of the relevant Matrix entity against Astra such as would have given to it a share of the large performance fees received after the three-year period from The Observatory/2B and LGT/Crown.

In the event, the evidence of Mr Reeves was rejected (as was the evidence of Mr Mathur, whose case he purported to corroborate). The evidence of Mr Reeves was regarded as unsatisfactory: see the judgment of 17 December 2021 especially at paras. 52 and 210 and see more generally paras. 186-233. It was therefore the case that the evidence of Mr Reeves opposed Musst’s case against Astra by joining together with Mr Mathur. By acting as such, he was a barrier to the ability of Musst to make the recovery contended for in this action which depended upon Musst being entitled to money and recovering money from Astra.

Yet Mr Reeves has given evidence in the instant action to make a claim different from the basis of the evidence in the Musst v Astra claim. Having now abandoned a contractual claim, he has given evidence that the work carried out (by whichever Matrix entity) was in anticipation of an agreement being made to share moneys as between Matrix and Musst.

A yet further curiosity is as follows. As would have been known to Astra, and probably also to Mr Reeves, it would have been very difficult for Musst to pursue the claim against Astra. There was a matter of security for costs and also litigation funding. The result of the latter has been that any recoveries have been very substantially reduced to make payment to the funders.

This has given rise to an issue about counter-restitution. Musst says that the amount of the recovery should be by reference to the net sum recovered after taking into account the payment to the funders. The recovery was made possible by the funding. Matrix says that just as the amount paid to the funders is not recoverable in costs between the parties, so too it should be disregarded for the purpose of counter-restitution. The curiosity is then that Mr Reeves, having joined in a defence to the action, which has caused Musst to require funding, now says that Musst should bear the costs of funding and make a payment to the relevant Matrix entity by reference to the gross sums received without any allowance for the funding and insurance costs.

A further curiosity in this case is the time that it has taken for this claim to be made. On one view, the failure of basis was that after the conclusion of an agreement on 18 April 2013 between Musst and Octave/Astra, there was no agreement concluded between Musst and Matrix. This continued even after 19 November 2013 when there was the first receipt of Musst from Octave/Astra. The action was not commenced until 4 September 2020. This has led to a limitation defence, but it raises questions of delay which are or might be relevant to the merits of the underlying claim.