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

Fecha: 13-Oct-2025

The claimant’s claims

27.

In this section of the judgment, I try to summarise what I understand to be the claimant’s claims and proposed claims, adopting counsel’s thematic approach.

28.

By the POC, the claimant claims that, in April or May 2012, a constructive trust of the CDO Money Commitment arose of which the LLP (not the first defendant) was a trustee.

29.

By the APOC, in contrast, the claimant proposes to plead, as alternatives, as follows in relation to the CDO Money Commitment; namely, that:

the first defendant “constituted himself as bare trustee on an express trust of C’s right to receive 15% of the CDO Monies and/or of 15% of the CDO Monies for the benefit of C” (i.e. of the claimant’s (alleged) pre-existing rights comprised in the CDO Money Commitment);

ii)

the first defendant voluntarily undertook fiduciary duties to the claimant (by promising the CDO Money Commitment to the claimant) and that, on any receipt by the first defendant of the performance fees (the CDO monies), a constructive trust arose of the CDO Money Commitment because it would be “unconscionable” to deny the claimant’s entitlement to the CDO Money Commitment;

iii)

a common intention constructive trust of the CDO Money Commitment has arisen to which the claimant and the first defendant are parties;

iv)

the claimant is entitled to the CDO Money Commitment under a Pallant v. Morgan equity;

the first defendant is estopped, by way of proprietary estoppel, from contending that the claimant is not entitled to the CDO Money Commitment;

vi)

there has existed a contract between the claimant and the first defendant by which the first defendant committed to pay the claimant the 15% himself (not a sum equivalent to that amount) or to ensure that the claimant would be paid the 15%;

vii)

as Holding’s agent or the LLP’s sub-agent, the first defendant undertook a personal responsibility for the payment by the LLP of the 15%.

30.

The claimant proposes to plead by the APOC that, by his conduct during the First Period and/or by thereby bringing about the claimant’s resignation as an LLP member on 18 July 2012, the first defendant caused the claimant:

to receive a lower profit share under the LLP agreement than he would otherwise have done;

ii)

to lose the 15%, which, on his case, he would have got had he remained an LLP member until 2017;

iii)

“serious psychiatric injury in the form of stress, anxiety and emotional disturbance” such that he was unable to work for the following year;

iv)

a loss of income for that period.

31.

The claimant claims that the first defendant’s conduct was a breach of cl.5.2 of the LLP agreement and (by a proposed amendment) that, on the proper construction of cl.5.2(F) of the LLP agreement or by implication, there has been “a duty on each [LLP] member…to every other member…of good faith and honesty”.

32.

The claimant also proposes to plead by the APOC that:

the first defendant promised him a bonus in 2011 of £200,000 but the claimant only received a bonus of £40,000;

ii)

this was a breach of an (alleged) implied term of the LLP agreement (pleaded as well in the POC) that Holding’s clause 12.1 discretion was not to be exercised irrationally or unreasonably or that this was otherwise wrongful as a result of the (alleged) conduct of the first defendant (part, but not all of which, is pleaded only in the APOC).

It is not obvious, on the face of the APOC, that the claimant is actually making any money claim in relation to this allegation (and, if he does not, that is perhaps a reflection of the concern I have already expressed about the coherence of the APOC).

33.

In relation to the intervening period, the claimant proposes to make the following new claim in the APOC.

34.

Relying on the fact that, by the deed of adherence, the claimant covenanted to observe and perform the terms and conditions of the LLP agreement on terms that he became a member of the LLP with effect from 18 July 2012, he proposes to claim, by implication, to be entitled to a profit share under clause 12.1 for the period from 18 July 2012 to 10 December 2015, which he seeks to recover not on the basis of a breach of some obligation but on the ground that the clause 12.1 discretion has not been exercised yet.

35.

Finally, the claimant claims, or proposes to claim, as follows in relation to the second period.

36.

£10,000 (under para.105.3 of the APOC) by way of profit share which the claimant claims he was liable to be paid under clause 12.1 for the one month’s notice period (set in the deed of adherence), covered by the LLP agreement, following the service of a valid notice of termination under cl.20.1 of the LLP agreement. This claim is said to arise out of the first defendant’s conduct before the notice of termination. (This claim is made both in the POC and proposed to be made in the APOC).

37.

A profit share, under clause 12.1, from January 2017 to date (or, at least, until the LLP’s dissolution) on the basis that the notice of termination has been invalid. The claim that the notice of termination has been invalid is made for the first time in the APOC (see para.105.2 of the APOC).

38.

The 15% (or an equivalent sum) (under para.105.5 of the APOC) which the claimant claims he ought to have received on the basis that the notice of termination has been invalid. Ms Gleyze accepted at the hearing that this claim stands or falls with (or, perhaps more accurately is part and parcel of) the claim to a profit share from January 2017 to date which, in turn, is based on the assumption that the notice of termination has not been valid. (Strictly, on the language of the proposed plea, it may be that this claim is also made under the Re-Joining Contract (which pre-dates the deed of adherence and under which only in the APOC does the claimant claim the first defendant has a personal liability) whether or not the notice of termination has been invalid).

39.

£18,000 (under para.105.1 of the APOC) by way of profit share for the period before the notice of termination which the claimant claims (even in the POC) he has not been paid:

in breach of the (alleged) implied term of the LLP agreement (pleaded as well in the POC) that Holding’s clause 12.1 discretion was not to be exercised irrationally or unreasonably (for which the claimant proposes to claim, by the APOC, the first defendant accepted a personal liability);

ii)

in breach of a promise (referred to as “the Re-Joining Contract”) said to have been (i) made by the first defendant to persuade the claimant to return to the business and (ii) collateral to the deed of adherence (see para.78 of the APOC) which, in the POC, the claimant claims was made by the first defendant as Holdings’ agent and in respect of which the claimant proposes to claim, alternatively, in the APOC the first defendant accepted a personal liability.

40.

Damages for loss of income (under para.105.4 of the APOC) arising from what is said to have been:

a breach of a term implied into Holding’s discretion to serve a notice of termination under cl.20.1 of the LLP agreement, that such a notice would not be served unreasonably or irrationally (in respect of which implied term, for the first time in the APOC, the claimant contends the first defendant accepted a personal liability);

ii)

a breach of the Re-Joining Contract, in respect of which, as I have explained, for the first time in the APOC the claimant claims that the first defendant accepted a personal liability.

41.

An important distinction between the POC and the APOC is as follows.

42.

In the former, where the claimant claims that there has been a breach by the first defendant of the LLP agreement and/or of what he claims the first defendant bound Holdings, as managing member, to do under the LLP agreement, he claims that the first defendant so conducted himself as agent (or sub-agent), or delegate, for Holdings and, in turn, on behalf of the LLP. So, for example, in para.17.3 of the POC, the claimant pleads:

“D1’s conduct in his capacity as the delegate of the Managing Member’s powers are binding on both the Holding Company and the LLP as an agent of the Holding Company.”

Similarly, for example, the claimant pleads:

in para.19.3:

“D1’s…conduct in his capacity as the delegate of the Managing Member’s powers and obligations are attributable to the Holding Company”;

ii)

in para.37:

“The CDO Monies Commitment by D1 was in exercise of [his] discretion on behalf of the Managing Member, on behalf of the LLP, under the Profit Allocation Clause of the LLP agreement”;

(see also para.60 of the POC).

Consistently with this is the claimant’s claim that, as I have set out, the LLP was the trustee of CDO Money Commitment.

43.

Generally, an agent is not personally liable under a contract between his principal and a third party. As Bowstead & Reynolds on Agency (23^rd ed) explains:

“9-001 In the absence of other indications, when an agent makes a contract, purporting to act solely on behalf of a disclosed principal, whether identified or unidentified, the agent is not liable to the third party on it. Nor can the agent sue the third party on it.
9-002 …the reason why the agent is not liable or entitled, when this is so, is that the objective interpretation of the dealings between the between the parties indicate a contract between principal and third party only…”

44.

There is no express plea in the POC of the facts which are said to give rise to an acceptance, by the first defendant, of a personal liability as agent (or sub-agent), as I believe there would need to be in order for the claimant to pursue a claim that the first defendant has been personally liable as an agent (or sub-agent) (see CPR 16.4(1)(a)).

45.

In the APOC, the claimant does propose to claim expressly that the first defendant accepted a personal liability for his conduct as agent or sub-agent (as I have indicated). Para.13.3.3 of the APOC says:

“At all material times, D1 exercised the functions, powers and discretion of the Managing Member himself, and he took personal responsibility for the manner in which he exercised these…”

(see also, e.g., para.17.3 of the APOC).

46.

The claimant gives only limited particulars of this claim in para.13.3.3 of the APOC itself. He pleads there:

“Far from purporting to act as an agent of the Holding Company and/or on behalf of the Holding Company, D1 frequently and expressly stated, both to C and to his colleagues, that he was himself personally in control, personally taking all relevant decisions and at all material times exercising his personal discretion;
b.
To the extent to which D1 exercised functions, powers and discretion which nominally belonged to the Managing Member in matters which concerned C, D1 would always refer to himself in his private capacity and deal with C as a private individual who called the shots and took responsibility for his own decisions, as opposed to acting as an agent for the Managing Member or for anyone else;
c.
In particular, in respect of decisions on the allocation of profits, D1 had always given the impression to C, both by express words and by conduct, that D1 was exercising his discretion/powers personally (as member and founder of the Business) and that D1 took personal responsibility for the decisions so made.”

47.

To similar effect, the claimant said as follows in the witness statements filed in relation to the applications:

“I am claiming that Mr Pucci is personally liable to me, otherwise he would not be a party to this claim. He did make all the promises, commitments and representations set out in the Particulars of Claim both personally and on behalf of the various companies involved. I very clearly understood him to be taking personal responsibility for paying me the 15% and holding those monies for me when he received them.”
“…I am seeking to amend…to set out, beyond any doubt, the basis on which Mr Pucci is personally liable to me, namely for breaches under the LLP Agreement and under the collateral contracts he has made with me. In short, it is because Mr Pucci has undertaken a personal liability, both expressly and by conduct…”

48.

In relation to the claims relating to the CDO Monies Commitment, the claimant may give further particulars, of his claim that the first defendant accepted a personal liability, in the APOC; e.g. in para.36.6, where he proposes to plead:

“At various times…, D1 reiterated to C that C “would be allocated 15% of the performance fees”, that D1 would give and/or pay C the money (“I’ll give you the CDO money”; “I am going to pay you the CDO money”) and that C had an absolute entitlement to 15% of the CDO Monies.”

49.

It is also convenient to make the following further point here.

50.

It has been important to keep in mind what the claimant alleges about the receipt of the performance fees, about which he pleads as follows:

“The CDO Monies [(i.e. the performance fees)] of €9,889,976.80 came into the LLP’s possession on 9 August 2017…
…
On 6 September 2017,…the NatWest Account owned by the LLP had a balance of £7,003,306.04. That same day a transfer of £7,000,016.79 (the “Transfer”) was debited from the NatWest Account…
It is averred that the Transfer from the NatWest Account amounted to a misappropriation…to the Holding Company.
…
The Holding Company is owned wholly by the Maltese Company, which recorded a dividend income of €7,113,699 for the 2017 financial year in its Annual Report and Financial Statements dated 31 December 2018. In 2017, the Maltese Company declared a dividend of €6,000,000 at €28.33 per share. At that time Forteq were listed as owning 211,799 ordinary shares and D1 was listed as owning 1 ordinary share. D1 waved his right to a dividend, leaving €6,000,000 to be paid to Forteq.”

51.

Ms Gleyze confirmed to me that there is no express plea in either statement of case that the defendants themselves actually received any part of the performance fees.