LM-2024-000238 - [2025] EWHC 1441 (Comm)

Jefferies seeks permission to amend the claim form and the particulars of claim in two material respects. The first, which does not go to the substance of the matter, relates to the particular iterations of the Terms of Business. The nature of the proposed amendment is shown in the text quoted in paragraph 21 above.

The second proposed amendment is responsive to Ashenden’s contention that it acted not as principal but only as intermediary. The two key paragraphs in the proposed amended particulars of claim are the following:

“18A. For the avoidance of doubt, the Claimant contends that the Defendant entered into the Trade as principal, and not as agent for or any other type of representative of any Principal (as defined in the TOBs).”

“30A. Further or alternatively, if and insofar as the Defendant contends that it entered into the Trade as agent for or other type of representative of any third party, then:

(1)

Any such contention will be denied on grounds including, but not necessarily limited to, that the Defendant was not acting in any such capacity and/or failed to give timely notice to the Claimant that it was acting in that capacity.

(2)

Alternatively, even if the Defendant was acting in such capacity and gave timely notice to the Claimant of the same, then:

(a)

the Defendant was and remains obliged under clause 5.3.6 of the TOBs to ‘procure the performance by the Principal of all obligations and liabilities arising under or by virtue of these Terms’;

(b)

the Defendant will have failed to procure that any Principal pay the agreed purchase price of the Notes, that being an obligation arising under or by virtue of the TOBs;

(c)

the Defendant will be liable to the Claimant in damages for breach of clause 5.3.6 of the TOBs; and

(d)

the measure of such damages will be the amount of the purchase price of the Notes, which would have been received by the Claimant had the Defendant complied with its obligation to procure payment by any Principal.”

Insofar as Ashenden opposes the Amendment Application on the basis of its submissions on the Incorporation Issue and the Agency Issue, the basis of the opposition falls away in the light of my conclusions on those issues.

Ashenden opposes the grant of permission for the proposed amendment in paragraph 30A(2) of the particulars of claim on the grounds that Jefferies has no realistic prospect of establishing that Ashenden is in breach of clause 5.3.6. Mr Mukherjee’s argument, in short, was to this effect. It is a basic principle of interpretation that “when you find a particular situation dealt with in special terms, and later in the same document you find general words used which could be said to encompass and deal differently with that particular situation, the general words will not, in the absence of an indication of a definite intention to do so, be held to undermine or abrogate the effect of the special words which were used to deal with the particular situation”: per Foxton J in Capita Business Services Ltd v IBM UK Ltd [2023] EWHC 2623 (Comm) at [23]. In this case, clause 5.3.6 is a general and generic provision, while clause 5.8 is a specific provision, which deals with default by the Principal. Thus in the event of such default the obligations of the agent/intermediary are specifically those in clause 5.8 and no other. Ashenden has discharged its obligations under clause 5.8 by bringing proceedings against Hyposwiss in Geneva and procuring for Jefferies an opportunity (which Jefferies has declined) to intervene in those proceedings.

I reject that argument. First, the Geneva proceedings are not directed at rectifying a default under the contract with Jefferies; they are to achieve performance of the contract between Ashenden and Hyposwiss. This remains the case, even if Ashenden intends to pass on any proceeds of the litigation to Jefferies. Secondly, clause 5.8 imposes an obligation to assist Jefferies to procure performance from the Principal. Clause 5.3.6, by contrast, is a freestanding and unqualified warranty and undertaking to procure performance by the Principal of all its contractual obligations. The two provisions work in conjunction, making provision both for the intermediary’s own liability and for steps to promote the efficacy of the Principal’s obligations.

As the case advanced by the proposed amendments has a realistic prospect of success, I give permission for the amendments.