Claim No: BL-2022-002046 - [2025] EWHC 2534 (Ch)

I consider, first, the claimant’s claim to a one month profit share under cl.20.1 of the LLP agreement to which he claims to be entitled following the service of a valid notice of termination (see para.36 above).

I am afraid I do not see how any (pleaded) prior conduct of the first defendant caused the claimant’s failure to receive a profit share payment for the month following the notice of his termination. This claim would therefore have no prospect of success and ought to be dismissed. However, although not articulated in this way in the statements of case, it may be that the claimant seeks to make a claim in respect of this profit share on the same basis as he claims a profit share for the period before the notice of termination (see para.39 above). If that is so, the outcome of the applications in respect of both claims might (arguably) be the same. More importantly, Mr Kokelaar’s submissions proceeded on the basis that both the claim for the whole of the “post-termination” one month profit share (see para.36 above) and the claim for a profit share for the period before the notice of termination (see para.39 above) should be determined in the same way. I will therefore adopt that approach (i.e. I will determine the applications in relation to the “post-termination” one month profit share in the same way as I determine the applications so far as they relate to the claim for the earlier period (as to which, see further below)).

I consider now the claimant’s claim to a profit share, under clause 12.1, for the period from January 2017 to date (or, at least, until the LLP’s dissolution) (see para.37 above). This claim cannot succeed. The claimant does not allege in the APOC, as far as I can see, that a decision not to allocate him a profit share for this period has been attributable to the first defendant. Rather, his complaint seems to be that Holdings simply did not allocate him a profit share when he was a member (on the hypothesis that the notice of termination has been invalid). Holdings had a discretion to allocate a profit share under clause 12.1 as I have said. The claimant does not plead that there has been some default in the exercise of that discretion by Holdings. His proposed plea is no more than simply, he was in fact an LLP member after December 2016 and he has not been allocated a profit share.

I turn next to the claimant’s proposed claim to the 15% (or an equivalent sum) (see para.38 above) which the claimant claims he ought to have received on the basis that the notice of termination has been invalid. As Ms Gleyze accepted at the hearing that this claim stands or falls with (or, perhaps more accurately is part and parcel of) the claim which I have just been considering and which I have found cannot succeed, this claim cannot be permitted either. In any event, the proposed claim is wholly unclear. If, as the claimant proposes to plead, this claim arises only if he is not otherwise entitled to the CDO Monies Commitment, there is no explicable basis on the face of the APOC for the claimant being entitled to the 15% or an equivalent sum. This claim appears to be no more than a claim that, if the claimant remained an LLP member for the relevant period, Holdings would have been “obliged” to exercise its clause 12.1 discretion to allocate to him the 15% or an equivalent sum. However, Holdings has not been “obliged” to allocate any particular profit share to the claimant (contrary to the proposed pleading) because it had a discretion.

On the language of the proposed plea, it may be that this claim is also made under the Re-Joining Contract whether or not the notice of termination has been invalid. Such a claim cannot succeed because it is caught by the contractual estoppel relating to the entire agreement clause which I have already discussed.

I turn finally to consider the claims to an £18,000 profit share (see para.39 above) and the claimant’s claim for damages for loss of income (see para.40 above).

As I have set out, both claims depend, in one alternative, on the Re-Joining Contract and, in both alternatives, on a plea, only proposed in the APOC, that the first defendant has accepted a personal responsibility for the exercise of Holding’s discretions.

To the extent that the claims are based on the Re-Joining Contract, they cannot succeed, because the Re-Joining Contract is caught by the contractual estoppel relating to the entire agreement clause which I have already discussed, the Re-Joining Contract being said to be a contract collateral to the deed of adherence (see, in this context, per Lord Sumption in MWB Business Exchange Centres Ltd v. Rock Advertising Ltd [2019] AC 119 at [14]).

Nor can either claim succeed to the extent that they are based on the first defendant’s (alleged) acceptance of a personal liability unless I permit amendments to allow such an assertion to be made, because, on my reading of the POC, no such allegation (of the first defendant’s acceptance of personal liability) is already pleaded as it should have been, as I have said.

As I have already noted, to permit such amendments I must be satisfied that they “carry some degree of conviction…and [are] properly particularised”. Neither of these requirements is met by the claimant at the moment. The claimant’s allegation that the first defendant accepted a personal liability is made in circumstances where (i) in his 2017 letter of claim (eight years ago), no such allegation was apparently made and (ii) where his witness statements made in the applications contains no more than bare assertions to that effect. Further, para.13.3.3 of the APOC, the principal source of the claimant’s proposed plea, is insufficiently particularised. It is not appropriate therefore for me to permit the proposed amendments. (In any event, it would not be consistent with the overriding objective or otherwise appropriate to permit the proposed amendments in their current form, in the light of the conclusions I have already reached about the rest of the claim, because what would be left of the permitted APOC would be incoherent).

As I have said, the claims I am now considering cannot succeed, at least on the basis of the pleas in the POC. However, I have not been persuaded, so far, that it would be proportionate to summarily dispose of them (at least so far as they are not based on the Re-Joining Contract), because the claimant has demonstrated that, in relation to the CDO Monies Commitment at least, he is able to give further particulars to support his claim that the first defendant accepted a personal liability. In relation to these two claims (and the claim for a post-termination one month profit share, as I have said), I wish to hear further from counsel about the consequences which should flow from this.

Save to the extent I have just explained, as to which, as I have also just explained, I wish to hear further from the counsel, the claim as pleaded in the POC, and the proposed amendments in the APOC, cannot proceed.