CL-2023-000396 - [2025] EWHC 1904 (Comm)

I have arrived at the same conclusion in respect of the ‘Transactional Claims’: that they should not be struck out.

Mr Swainston noted in this context that, despite FTL and Munich Re beginning from 2013/2014 onwards to explore a potential business relationship, in the event there was no agreement on a joint venture or collaboration venture or partnership or, as he put it, “anything else similarly exotic”. Instead, the agreement that came into being, the Collaboration Agreement, entered into in July 2015 was, as Mr Swainston characterised it, “far more modest and prosaic”, providing as it did merely for FTL to provide services to Munich Re (principally introductions to Silicon Valley clients and training in Silicon Valley culture, and office accommodation for some Munich Re personnel) in return for a quarterly fee of US$750,000.

Mr Swainston highlighted, in particular, how the Collaboration Agreement (which, to repeat, was extended by an Extension Agreement in June 2016 for a period of 3 months) stipulated in Clause 4.1 that FTL accepted that in respect of the introductions that it made it was not entitled to any remuneration beyond brokerage on related insurance policies issued by Munich Re, specifically that “Unless otherwise specifically discussed and approved in writing, FTL is not entitled to any other compensation for the Services …”. He drew attention also to the fact that Clause 8.2 provided that extensions of the duration of the Collaboration Agreement were to be “in writing” and that Clause 12.3 stated that “any additional agreements, changes or additions to this agreement shall not be valid unless made in writing”.

It was Mr Swainston’s submission that the Collaboration Agreement covered insurance introductions which FTL had already made, including its introduction of Munich Re to Equidate in February 2015, and that it was for this reason, an insurance policy being issued to Equidate, that FTL submitted invoices in respect of the Equidate introduction, which invoices were paid by Munich Re. The Collaboration Agreement, as extended, having then come to an end on 30 September 2016, Mr Swainston pointed out that it was after this (in November 2018 and then in October 2019 and May 2020) that MRV made the investments that it did in Equidate. This, Mr Swainston emphasised, was long after the expiry of the Collaboration Agreement - the only contract, as he put it, that ever existed as between Munich Re and FTL. Moreover, Mr Swainston pointed out, FTL was not involved in the investments in any way since MRV used its own money to buy the relevant shares and it did so separately from any insurance arrangement. Specifically, Mr Swainston noted, the aggregate cost of the shares purchased by MRV was US$14,118,898 and that, under the relevant IPO agreement, the shares bought were subject to a lock-up period of 180 days following the closing of a merger which formed part of the IPO. At the end of the lock-up, Mr Swainston explained, the shares were worth less than their purchase price, meaning that MRV suffered a loss.

It was Mr Swainston’s submission, in such circumstances, that there is no legal foundation for such claims: in particular, that there is no basis for supposing that some kind of partnership agreement came into being or anything resembling a partnership or, indeed, any agreement of any sort after the expiry of the extension of the Collaboration Agreement. That is the case, Mr Swainston submitted, notwithstanding that from time to time FTL tried to negotiate more comprehensive arrangements than the Collaboration Agreement for provision of services at a fixed fee since those attempts came to nothing - as recognised, Mr Swainston suggested, by FTL which understood that any such joint venture/partnership would require approvals from Munich Re and conclusion of a formal agreement between FTL and Munich Re.

In this respect, Mr Swainston referred to an email sent by Mr Sirr to Dr Giarrusso (and a colleague called Ray) on 17 January 2015 and the attached ‘CIP/FTL Collaboration Venture Work Streams’ document, which detailed the steps necessary for execution, as follows:

“Execution:

 Business plan outlining structure of CV, processes, roles and responsibilities

 Confirmation from Central units that CV qualifies under necessary compliance and agreement to CV structure

 Confirmation from GURC to Risk Appetite Case (see Work Stream 3)

 Working capital / Loan document

 Liquidity facility document

 Formal agreement to CV executed by MR/FTL”.

Mr Swainston highlighted how this document set out what was anticipated in terms of progress to take matters forward, including entry into a formal agreement between Munich Re and FTL. His submission was simple: that none of these things were accomplished, in part because Munich Re was concerned about taking equity as premium and in part also because there was no agreement as to how to split the ‘upside’.

As to the latter in particular, Mr Swainston drew attention to some slides which were sent by Dr Giarrusso to Mr Wettemann by email on 10 November 2016, after the expiry of the extension to the Collaboration Agreement (on 30 September 2016), in which reference was made (at internal page 28) to three different approaches “to calculating value sharing” and to these each having “its advantages and disadvantages”. Mr Swainston submitted that the very fact that FTL was here canvassing different options demonstrates that there cannot have been any concluded contract of the sort now alleged by that stage.

Mr Swainston highlighted also how even the Collaboration Agreement with its flat fee payable to FTL came under review by Group Audit and Group Legal at Munich Re, only for Group Audit at Munich Re to reject this and demand clarity on value for money. Thus, in an internal Munich Re email on 10 January 2017 from Geraldine Kearney to Felix Montjoie, this was stated:

“… the best way to ensure that we get ‘value for money’ under the contract with FTL is to make the remuneration success-based (e.g. by way of broker fees and/or contingency fees, as discussed).

If, however, the business owner still wishes to maintain a basic or flat fee element to the remuneration, then I would strongly recommend that the description of the ‘Services’ be amended/tightened up in such a manner as to include easily identifiable/enforceable legal obligations with definite deliverables …”.

This was made known to FTL by Munich Re in an email the same day from Mr Wettemann to Dr Giarrusso, to which he attached an email from Mr Montjoie referring to a meeting that he had had the previous day with “Legal and Procurement” (it seems this was Ms Kearney) and in which Mr Wettemann said this:

“The key issue seems to be the flat fee component and the precise description of the service in return. I think in order to move this forward we need to come up with a detailed & concrete draft proposal that describes the services, the subject matter and some KPI’s, so we can enter into a concrete discussion with CP and GL”.

Mr Swainston submitted that this shows that Mr Wettemann and Munich Re were being entirely open with FTL about the internal issues that any proposed agreement would face.

Mr Swainston highlighted, furthermore, that in January 2017 FTL put forward further proposals in the FTL/CIP Strategic Alliance Document with suggestions on how the value of deals could be assessed using a scorecard on a case-by-case basis on the sharing of profit. This, however, too, as Mr Swainston put it, failed to gain traction with Munich Re, with Mr Wettemann reporting to Dr Giarrusso in an email on 16 March 2017 as follows:

“From what I read it is obvious that GL has still very serious issues particularly with the ‘flat fee component’. I need to talk to them to find out if there is a chance to overcome these issues, at all, or if the only support a solution that works without this component”.

The following month, in an email on 13 April 2017, Mr Wettemann explained to Dr Giarrusso that Munich Re was not prepared to conclude an overall agreement but would work with FTL on a case-by-case basis:

“… we had several internal discussions on different levels about our future collaboration. We very much like to continue to work with you and your colleagues whenever there will emerge specific opportunities where we can create and share value together. The number of these cases has been limited and will most probably not grow significantly short term. That will allow us to think and discuss the individual procedure on a case by case basis. The attempt to find an upfront agreement to anticipate and share value that hasn't materialised yet turned out to be so cumbersome that it kind of hindered us to concentrate on deals. So, we reached the conclusion to discontinue our discussion about a reissue of the CV and get back to the initial idea to concentrate on deals.”

Discussions continued, with FTL seeking more money. Thus, in an email on 4 May 2017 Dr Giarrusso wrote to Mr Wettemann saying this:

“This situation has placed us in the position of having provided significant work to MR over the past few months, out of the good faith anticipation that we would reach an agreement. Since that is no longer on the table, we need to determine how to cleanly terminate the CV relationship and transition to a deal-based approach, as you propose. …

To that end, here is what we need to do:

1.

We must establish proper brokerage on the Equidate deal. When we initially set up the Equidate insurance, we allowed Munich Re to take all of the premium, on the assumption and understanding that FTL would be deriving its economics from the CV. Since that is not happening, and since we are incurring significant ongoing costs associated with Equidate, we must now establish proper brokerage

2.

… We are not seeking any sort of ‘future profit’”.

Mr Swainston submitted that this entailed FTL recognising that there would be no further flat fee or partnership contract, instead seeking more brokerage and being at pains to make it clear that it was not claiming “any sort of future profit”, something that Dr Giarrusso reiterated on 15 May 2017 when he emailed Mr Wettemann saying that:

“FTL’s invoice for the period from October 1, 2016, through March 21, 2017 … reflects solely the cost to FTL of supporting CIP after September 30, 2017, as requested by CIP; it does not represent any sort of ‘future profits’ …

As we had discussed moving to a deal-based/fixed-fee hybrid approach, we would be satisfied applying the Equidate brokerage retroactively … .”

Mr Swainston noted that Munich Re rejected these demands, explaining in an email to Dr Giarrusso from Mr Wettemann on 19 May 2017 that Munich Re was open to brokerage on future deals but not those already closed. Specifically, Mr Wettemann said this:

“As I already explained in my previous email our decision to discontinue our discussions about a reissue of the CV is completely independent from the reports we got from you about Jeffrey and our decision is solely based on the rationale stated in that email.

We appreciate very much that you understand our position and Claudia told me after her meeting with you that FTL and Munich Re remain optimistic about joint business opportunities.

Our consulting contract as respects the biotech strategy is completely unrelated to the CV. I'm sorry about any mixed messages, I'm not aware of. I can assure you, Munich Re will continue to honor the obligations according to the agreement and we are still excited to participate in this great project.

Turning on the matter of the CV itself it is clear that the agreement automatically expired at the end of September 2016. In view of this the lump sum payments you received under the CV ceased at the time of expiry. Despite this and the absence of terms for your remuneration we will consider FTL's reasonable fees and expenses for the services requested by us and provided by FTL after 30 September 2016. In this regard, please let me have an itemized list detailing services requested (including when and by whom) and what has been provided. With respect to expenses for ‘Rent / Facilities/Utilities/Insurance’ please provide us with the original invoices- Here I’m guessing this is a typo and should read $12,000.

Finally, while I also agree that we need to establish a brokerage scheme for deals to come any deals that have been closed during the duration of the CV are not subject to any additional (retroactive or future) brokerage. Thus, our understanding is that any support FTL provided and will provide for the current Equidate deal is included in and compensated by the $4 million we paid to FTL.”

Mr Swainston, accordingly, submitted that FTL should be taken as having accepted that the Collaboration Agreement was the only contract made, that it had expired and that there would be a transition to a case-by-case approach in relation to new business with Munich Re. As he put it in his oral submissions, “FTL has pressed for its exotic structures to do something broader and bigger, to take equity within deals” but “None of that came to pass, so there is nothing that looks like a contract”.

The same applies, Mr Swainston submitted, to the exchanges that ensued in April 2018 when FTL again asked Munich Re to be paid since what this involved was FTL seeking quarterly payments on the model of the expired Collaboration Agreement for the 6-month period after September 2016. Again, Mr Swainston submitted, this was FTL acknowledging that its only contract with Munich Re was the Collaboration Agreement (as extended).

It was Mr Swainston’s submission that, in the circumstances, the exchanges between the parties (and, indeed, within Munich Re) preclude any claim by FTL for an ‘uplift’ under a joint venture or a collaboration or a partnership agreement since no such agreement ever came about. The suggestion that an agreement was concluded by conduct is, Mr Swainston submitted, hopeless given that there was no agreement even between those involved in producing the relevant documents on fundamental aspects of them. For example, he observed, the draft FTL/CIP Strategic Alliance Document relied upon by FTL included a reduced quarterly payment of US$250,000, but this reduction was not accepted by FTL (and, indeed, FTL’s current claims are not on the basis of that reduced amount). Furthermore, Mr Swainston submitted, conduct cannot turn draft documents into a contract where there is no agreement on essential parts of the relevant documents, and all the more so given that FTL was aware that any new agreement would require approvals from Munich Re departments in Munich and that the relevant approvals were refused.

Mr Swainston added that FTL’s restitution claim and Pallant v Morgan constructive trust claims must also fail, not least because MRV made a loss having paid for the shares in Equidate with its own money and with no contribution from FTL. In addition, Mr Swainston submitted, since the introduction was covered by, and paid for, under the Collaboration Agreement which limited its related remuneration for introductions at Clause 4.1, the claims cannot succeed on the basis that a restitutionary-type case cannot contradict a contract that covers the same ground: see Barton v Morris [2023] UKSC 3.

These are all submissions that might well ultimately - at trial - meet with success. They are not however, in my view, submissions which, applying the appropriate approach to applications such as the present, mean that the Transactional Claims should be struck out. I say this for a number of reasons, whilst noting importantly at the outset that, as made clear by Males LJ in Smit Salvage BV v Luster Marine Maritime SA [2024] EWCA Civ 260, [2024] 2 Lloyd’s Rep 86 at [19]-[20], when deciding whether parties have concluded a legally binding contract even though they recognise that some matters are still to be agreed requires consideration of “the whole course of the parties’ negotiations” and it is possible for parties to conclude a binding contract even though it is understood or agreed that a formal document will follow which may include terms which have not yet been agreed. Whether this is what the parties intend to do must be determined by an objective appraisal of their words and conduct.

First, applying the approach just described, I find it impossible to rule out the possibility that, as FTL contends, the basis of the relationship between the parties, as expressed in the documents relied upon by FTL, was that FTL and Munich Re would have two elements to their relationship: a collaboration venture and a transactional relationship, with the former being the premise for the latter, but operating in parallel – with the purpose of that arrangement being for both parties to be able to make outsize returns, through equity, by using innovative solutions to address business risk. I have in mind, in particular, in this context not only the October 2014 Briefing, but also, by way of further example, after the expiry of the Collaboration Agreement, the attachment to an email that was sent by Mr Berger of Munich Re to Dr Giarrusso and Mr Flaxman on 25 October 2016 headed ‘FTL-Munich Re Project Overview’, which listed various entities (or, presumably, projects), including Equidate and Reterro. As to Equidate in particular, in a column headed “Description of deliverable”, the following was stated:

“Equidate FTL deal (see small NPP).

1.

Insurance product.

2.

Upside opportunity.”

Two columns later, headed “Deliverables by FTL”, this was stated:

“Client relationship management.

Support team in development of insurance product.”

Other documents produced at about the same time, to which I was taken by Mr Blackwood, during the course of the hearing, appear to support FTL’s case that Munich Re and FTL were, indeed, looking to engage in equity investments that were unrelated (at least principally) to insurance arrangements. These include an email on 26 December 2016, in which Dr Giarrusso informed Mr Berger that he had “had a great call with Hari at the end of the week, and they have recently closed significant new business”, adding that “I think they are ready to discuss restructuring the policy to potentially include some upside opportunity for Munich Re”. Mr Blackwood explained that the reference here to “Hari” was to a senior executive at Equidate, submitting that, as such, this email provides further support for FTL’s case as to what was agreed between FTL and Munich Re concerning equity transactions.

I find it impossible also, in the circumstances, to rule out the possibility that, again as FTL contends, FTL made it clear, and Munich Re understood, that the remuneration for the collaboration venture and the transactional relationship were separate and distinct. I do not need to decide, for these purposes, once and for all, whether it would, as Mr Blackwood submitted, be “commercially nonsensical” for FTL to have been working on transactions which were anticipated to generate potentially large sums and providing services which did not fall within the scope of the Collaboration Agreement for no payment whatsoever. I do nonetheless consider that whether that is the case is a matter which needs to be investigated at trial rather than rejected at this summary stage.

Mr Blackwood pointed in this regard to FTL working on, and Munich Re requesting that FTL perform, substantial work on, inter alia, Equidate and Reterro, and to such work not being referable to the Collaboration Agreement. He suggested that Munich Re has no apparent explanation as to why such work would be conducted in return for no payment, observing furthermore that the work was carried out against a background where FTL had made clear the basis on which it expected to be remunerated in relation to transactional relationships in return for a share of the ‘upside’, either to be agreed or calculated on a deal-by-deal basis or (in default of these things) for 50% of the ‘upside’, and that FTL provided those services. I agree with him, in such circumstances, that it is at least arguable that Munich Re accepted and/or became bound by conduct to the terms of the CIP/FTL Partnership Document, as updated by the FTL/CIP Strategic Alliance Document, and so an agreement which entailed Munich Re continuing to request and use FTL’s services in relation to FTL-introduced and produced transactions such as Equidate and Reterro, knowing the terms on which FTL had indicated that it was prepared to provide those services.

In short, FTL’s case is sufficiently arguable so as to mean that it is appropriate that there be a trial.

This is sufficient to dispose of Munich Re’s application. However, secondly, as to Munich Re’s contention that there was no ‘upside’ because at the end of the lock-up period (on 23 September 2022), the value of the shares held by MRV in Equidate was US$7.7 million, far lower than the amount said to have been invested (alleged by Munich Re in its Defence to have been US$14.1 million in shares and a convertible promissory note), this overlooks the fact that FTL’s case is that Munich Re was required to transfer 50% of the ‘upside’ when a successful transaction occurred and that, for these purposes, so FTL contends, it was Equidate’s IPO that was the relevant successful transaction. If FTL is right about this, then, the obligation alleged arose as at that date and not at the end of the lock-up period.

In this regard, as Mr Blackwood pointed out, it is also FTL’s case that that obligation was not qualified by restraints on transfer to FTL that Munich Re itself voluntarily chose to agree to, in that (so FTL maintains) Munich Re (through MRV) did not have to agree to lock up its own shares in Equidate with the consequence that it could not transfer part of its shares to FTL. If FTL is right about this, then it supports FTL’s contention that the time when the ‘upside’ should be calculated was not when the lock-up period on the shares ended but when the transaction constituted a successful transaction.

Furthermore, FTL’s case also entails it being alleged that: (i) it was possible to transfer shares to FTL without restriction prior to the IPO date (indeed, creating a secondary market in pre-IPO private shares was Equidate’s very business); (ii) the relevant lock-up provisions permitted a transfer to FTL during the lock-up period; (iii) there was no reason in principle that FTL itself could not have sold or transferred shares for value transferred to it on the basis that the third party itself was a permitted transferee, and so FTL could thereby have realised substantial value in the shares during the lock-up period; (iv) there was no reason why FTL itself could not have been listed or agreed as a permitted transferee by MRV and Equidate’s board of directors would have been unlikely to object in circumstances where FTL had introduced Munich Re to Equidate; and (v) Munich Re or MRV could have purchased shares in the open market. These are all matters which can only sensibly (and appropriately) be addressed at trial; they are not suitable for summary determination.

The same applies to Munich Re’s argument that locked-up shares have a different value from shares available on the open market. As Mr Blackwood explained, the value of MRV’s shares in Equidate at the IPO (if not subject to a lock-up) was US$224 million at the initial IPO price, US$602 million by the end of the IPO day and US$965 million a week or so later. These amounts are substantially more than the US$14.1 million said by Munich Re to have been invested by MRV, making it somewhat difficult for it to be concluded at this stage (ahead of trial) that the value of MRV’s locked-up shares was so low as to mean that FTL does not have an at least arguable claim. No evidence has been advanced by Munich Re as to the value of the locked-up shares. In any event, this is an area where expert evidence is going to be required and, for that reason, a trial will be necessary.

My conclusion, therefore, is that (as with the ‘Services Claim’) in relation to the ‘Transactional Claims’ it is not possible to say with confidence that the factual basis for the claims is fanciful because they are entirely without substance or that FTL does not have material to support at least a prima facie case that the allegations are correct or that FTL has pleaded insufficient facts in support of their case to entitle the court to draw the necessary inferences. It follows that FTL has a real prospect of success in respect of the ‘Transactional Claims’ and that they should not be struck out.

It is neither necessary nor desirable, in the circumstances, to take up time considering the viability of FTL’s alternative Pallant v Morgan constructive trust and quantum meruit claims since it is sensibly not suggested that, were the Court to conclude that the Transactional Claims should proceed to trial based on the primary way in which they are put, nonetheless these alternative claims should be struck out. I consider it appropriate, given that the Transactional Claims are to proceed to trial based on the primary way in which those claims are brought, that they should be permitted to be pursued on this alternative basis also.

This brings me, lastly, to the claim under Californian law that is sought to be introduced by way of amendment.

The detail of this claim is set out in the revised draft Amended Particulars of Claim at paragraphs 22A-L, 24 and 90A-C. That detail need not be set out here. Suffice to say that FTL’s proposed case is that Munich Re deliberately misused FTL’s confidential information concerning Equidate in the context of an investment in Equidate made by Munich Re’s subsidiary, MRV, contrary to California law, specifically the California Civil Code at Civ paragraph 3426.1(d) (which defines “Trade Secret”) and paragraph 3426.3 (which entitles a claim to be brought where there has been wilful and malicious misappropriation). In this context, FTL relies on a Non-Disclosure Agreement (‘NDA’) between FTL and Munich Re that is governed by California law.

Mr Swainston submitted that there are fundamental problems with this new claim. First, he pointed out that the relevant information about Equidate was Equidate’s own information and was supplied to Munich Re by Equidate itself, not by FTL, in circumstances where Equidate was in direct contact with Munich Re inviting Munich Re to invest during the currency of the Collaboration Agreement and FTL was fully aware of that. Secondly, Mr Swainston noted that the information from Equidate had nothing to do with Confidential Information under the relevant NDA since Clause 1 of that NDA shows that it concerned information provided by FTL in connection with its own business proposals to Munich Re rather than information provided by an insurance client under an insurance policy. Thirdly, Mr Swainston submitted that, since the claim raises new allegations of deliberate misuse of indeterminate confidential information belonging to FTL, it cannot be said to arise out of the same or substantially the same facts as are already in issue and, as such, is time-barred as a matter of California law.

I am unpersuaded that it would be appropriate to disallow the intended amendment by reference to the first and second of these points. I have in mind, in particular, that the case as pleaded in the revised draft Amended Particulars of Claim includes this at paragraphs 22D-22J:

“22D In or around February 2015, FTL introduced Equidate to MR as a potential target company.

22E As set out at paragraphs 27 to 32 below, FTL provided substantial skill, effort and know-how in designing (jointly with MR) and re-designing the Equidate policy.

22F As a result of FTL's introduction and provision of skills, effort and know-how in designing and redesigning the Equidate policy, and pursuant to the terms of the Equidate policy so designed, which calculated the premium payable by reference to a quarterly transaction report which Equidate was obliged to furnish to MR, MR was provided with large amounts of confidential information as contained inter alia in the quarterly transaction reports.

22G The information contained therein about the Equidate business constituted Confidential Information (the ‘Equidate Confidential Information’ for the purposes of the NDA and MR was not entitled to use such Confidential Information for its own purposes outside the scope of the limitations provided by the NDA as pleaded at paragraphs 11.1-1.2 without the prior permission and/or agreement of FTL.

22H The Equidate Confidential Information provided by Equidate was only provided as a result of FTL’s introduction of Equidate and its design and redesign of the Equidate policy and constituted an indirect provision of confidential information by FTL under the terms of the NDA. The purpose of FTL’s method, technique, or process, as described above, as was known to MR, was to allow MR to gain access to such confidential information for the purpose of deciding whether to make an investment into a target company such as Equidate and thereby realise an Upside from the transaction.

22I At all material times, MR knew and were aware that the Equidate Confidential Information was being provided to it for the sole and limited purpose for permitting, evaluating and engaging in negotiations, discussions and consultations with personnel or authorised representatives between FTL and MR to explore business opportunities of mutual interest, such as an investment in Equidate to realise an Upside.

22J MR received and/or obtained the Equidate Confidential Information knowing the limited purpose for which it was communicated and/or received. Together with the obligations and duties to FTL imposed on it by the NDA, MR assumed duties towards FTL to keep confidential information received from FTL as secret and confidential. The Equidate Confidential Information provided by FTL to MR during their dealings together had the necessary quality of confidence and was provided to MR in circumstances importing an obligation of confidence. Accordingly, MR (and/or any of its employees, nominees, representatives and/or group companies with whom it shared the Equidate Confidential Information) came and continued to be at all material times under an equitable duty of confidence towards FTL in respect of the Equidate Confidential Information and each part thereof.

22K FTL understands that Munich Re Ventures LLC (‘MRV’) invested in Equidate. MRV is a wholly owned subsidiary of MR and controlled by it. MRV could only have received the Equidate Confidential Information, which it is to be inferred formed the basis of its decision to invest in Equidate, from MR itself.

22L Accordingly, MR was not entitled to use the Equidate Confidential information (nor share it with anyone, including its nominees and/or other group companies) without the prior consent of FTL for any purpose other than the purpose identified in the NDA as pleaded at paragraphs 11.1-11.2 above. Investing in Equidate without transferring or directing the transfer of FTL's share to FTL at the latest by or on the IPO date was not a permitted purpose under the NDA.”

In such circumstances, although ultimately Munich Re might prove to be right when it maintains that the relevant information cannot amount to a “Trade Secret” either because it was not supplied to Munich Re by FTL or because it concerned information provided by FTL in connection with its own business proposals to Munich Re, these are aspects which cannot be determined one way nor the other on a summary basis.

The position in relation to the third point concerning limitation is similar in the sense that, as Mr Swainston indeed acknowledged, it cannot be resolved now, but different in the sense that, where a proposed claim might be time-barred and it is not clearly established that it arises from the same or substantially the same facts as have already been pleaded, the right course is to refuse permission to amend.

That the limitation point cannot be resolved at this stage is clear. It is common ground between the California law experts instructed by each side (Mr David Almeling on behalf of Munich Re and Professor Sandeen on FTL’s behalf) that trade secret misappropriation has a limitation period of 3 years from when the misappropriation is discovered or by the exercise of reasonable diligence should have been discovered, the cause of action accruing when “the wrongful act is done, or the wrongful result occurs, and the consequently liability arises”.

As previously noted, FTL’s case is that the cause of action accrued in March 2022, on the date of Equidate’s IPO because that is when it became a successful transaction, which triggered the latest date to comply with an obligation to share ‘upside’. If that is correct, then, as Mr Blackwood observed, no limitation issue arises since the parties executed a tolling and standstill agreement on 7 February 2025 (before the expiry of the 3-year limitation period).

Munich Re’s position, in contrast and as supported by Mr Almeling, is that the limitation period expired earlier. In this respect, reliance is placed on the content of FTL’s pre-action correspondence (in particular, a 17-page Letter Before Claim dated 13 November 2019, which alleged breaches of the Collaboration Agreement, including in relation to alleged investments in Equidate) on the basis that a party’s own allegations can demonstrate knowledge sufficient to trigger the running of the statute of limitations.

Whether FTL or Munich Re is right is not an issue that can be resolved ahead of trial. The question, in these circumstances, is whether it is the case that the proposed new claim arises from the same or substantially the same facts as FTL’s existing claims: see CPR 17.4(2).

As to this, Mr Blackwood noted that the Particulars of Claim (in their current, although soon to be amended, form) contain allegations of lack of good faith and fair dealing (paragraphs 68 and 71) and capriciousness (paragraph 71) in relation to Munich Re’s dealings as regards Equidate. He submitted that this means that the CPR 17.4(2) hurdle is overcome in the present case. The difficulty with this, however, is that these are allegations that are proposed to be removed in the revised draft Amended Particulars of Claim, meaning that they are aspects which will no longer be the subject of a trial. Whether, in those circumstances, it is open to FTL to invoke CPR 17.4(2) must be open to some question.

It is, perhaps, for this reason that Mr Blackwood emphasised FTL’s willingness to agree to what he described as the ‘Mastercard approach’ (“the very obvious answer”, as Mr Blackwood put it) and to make an order similar to the one that was made by Mr Roger Ter Haar KC in Advanced Controls Systems Inc v EFACEC Enhenharia E Sistemas SA [2021] EWHC 914 (TCC) where he explained, at [43], having reviewed certain authorities, including Mastercard itself, that:

“What is clear is that there is authority … that an amendment can be allowed on the basis that it does not ‘relate back’ to a date earlier than that fixed by the court”.

Mr Blackwood, accordingly, invited the Court to order that FTL should have permission to amend so as to introduce the California law claim, but not on the basis that there is relation back to the date that the proceedings were commenced and instead by reference to the date when the amendment application was issued in October 2024.

Although Mr Swainston opposed this proposal, it seems to me that it is unobjectionable in circumstances where, on Munich Re’s case, the California law claim was already time-barred by October 2024, FTL’s case being that the three-year limitation period began not later than November 2019 when the Letter Before Claim was written. If Munich Re is right about this, then, nothing is to be lost as far as Munich Re is concerned by making the order sought by FTL: Munich Re will not lose its limitation defence.