CL-2022-000367 - [2025] EWHC 2877 (Comm)

Both parties provided expert reports: that of Mr Ellis for CVS and that of Mr Joel Franks for Aaqua and Mr Bonnier, along with a Joint Memorandum. Mr Franks notified the court on 18 September 2025 that he would not attend court due to the Defendants’ non-payment of his fees. As events unfolded, following the Debarring Order, he could not have been called as a witness anyway. Whilst I read the Joint Memorandum, it follows that I had no regard to the views expressed by Mr Franks, save (i) that it assisted me to know where he agreed with Mr Ellis and (ii) that I was able to consider the reasons given by him where he disagreed with Mr Ellis, even though I gave no weight to Mr Franks’ support for those reasons.

I was referred to McGregor on Damages (22^nd ed), §50-001: the correct measure of damages in deceit is an award which puts the claimant into the position he would have been in if the representation had not been made. CVS argued that damages therefore should be assessed on the basis of the value of the Audioboom Shares on 15 February 2021, less the value of the AAA shares for which CVS exchanged its shares in Aaqua.

I accept that this is the correct basis on which to quantify CVS’s damages. In particular, I accept that CVS entered into the AAA Subscription Agreement, by which it exchanged its shares in Aaqua for 56,250,000 shares in AAA, in direct consequence of its earlier investment in Aaqua, pursuant to the Three Agreements. It follows that the shares in AAA fall to be valued as at 13 October 2021, or very shortly thereafter.

Prior to the Debarring Order, the parties’ experts agreed that the value of the Audioboom Shares, as of 15 February 2021, was £5,737,500.

The value of the AAA shares was disputed. Mr Ellis valued the AAA shares exchanged for the shares in Aaqua as of 4 November 2021 at €1,294,400, or £1,113,581.

The Defendants said that the correct valuation is of the 56,250,000 shares received in the share swap plus a further 50,000,000 shares that CVS received for no consideration, on the basis that this formed part of the same transaction. Their case was that the AAA Shares received by the Claimant were worth between £13,432,000 (applying the price allegedly offered by Mirador for those Shares) and £20,500,000 (applying the price of the counter-offer made by CVS on 12 July 2022).

While it seems that CVS received an additional 50,000,000 AAA shares in October 2021, it is not apparent that this occurred as part of the same transaction by which CVS gave up its shares in Aaqua. The AAA Subscription Agreement refers to only 56,250,000 shares in AAA.

Accordingly, I proceed on the basis that the relevant sum is that of the 56,250,000 AAA shares, as determined by Mr Ellis – i.e., £1,113.581.

The difference between this sum and the value of the Audioboom Shares on 15 February 2021 is £4,623,919.