CL-2024-000271 - [2025] EWHC 2162 (Comm)

Fecha: 15-Ago-2025

Were the claims pleaded assigned by the Second DoA?

Were the claims pleaded assigned by the Second DoA?

53.

The Third Defendant argued that the claims pleaded by the Claimant (both at stage 1 and stage 2) were not assigned by Second DoA.

54.

The relevant provision of the second DoA read as follows:

“2.
ASSIGNMENT
2.1
The Company (acting by the Office Holders) assigns to the Purchaser, with no title guarantee, such rights, title, interest and benefit in as it may have in and to the Proposed Claims (if any) with effect from the Effective Date (the Assignment).”

55.

The Proposed Claims were then defined in Schedule 1 to the Second DoA as including

“Any and all claims (whether in law or equity) that the Company may have in relation to the purchase of the shares and assets of Gold Medal International Limited from 2007 to 2014, against: (i) the former directors and/or shareholders of Gold Medal International Limited and its subsidiaries and associated companies; and/or (ii) Atticus Legal LLP now known as By Corporate LLP, in particular:
1.
Mr Kenneth Townley;
2.
Mr Stephen Bacon;
3.
Mr Terry Steven Fisher;
4.
Mr Kevin Philbin;
5.
Atticus Legal LLP now known as By Corporate LLP (with company number OC322305);
and
6.
Mr David Robinson.
(each a Potential Defendant and together, the Potential Defendants), and each Potential Defendant’s assigns, connected parties or associates (as defined by sections 249 and 435 of the Insolvency Act 1986). Such claims shall include, but not be limited to, claims for breach of contract, breach of duty at common law, breach of fiduciary, statutory or other or equitable duty, claims in fraud (whether common law or equity), and/or any claim under the Companies Act 2006.”

56.

In this respect, the Claimant argued as follows:

The meaning of ‘in relation to’ is ‘in the context of or in connection with’ and the only reason why TCR was purchasing the Seller Consideration Shares at all was because that purchase was necessary to complete the acquisition of GMI.

The temporal scope of the definition (which includes the period through to 2014) can only refer to TCR’s acquisition of the Sale Consideration Shares which took place subsequent to TCI’s initial acquisition of all the shares in GMI. As a matter of fact, no other acquisitions took place post initial completion. That temporal element cannot simply be ignored. The definition must be read as a whole.

57.

The Third Defendant, for his part, contended as follows:

The definition of “Proposed Claims” is the same as under the First DoA, such that the “Stage II” claims alleged were not, as a matter of construction of the Second DoA, assigned, for the same reasons that those claims were not assigned under the First DoA, namely that the definition of ‘Proposed Claims’ does not encompass the alleged “Stage II” claims concerning TCR’s purchase of Mr Townsley’s TCI Sale Consideration Shares.

TCR had no (actionable) loss, such that TCR had no “Stage I” claims to assign in respect of the “Stage I” conspiracy alleged, in the light of the rule against reflective loss.

58.

In my judgment, the second of these points is that with which I have already dealt.

59.

The first point raises a question of the construction of the assignment agreement. In oral submissions, the Third Defendant expanded upon his submissions, as follows:

First, there was the relevant factual matrix, in that the Third Defendant had pointed out that the First DoA did not operate to assign the “Stage II” claims, and yet the Second DoA was couched in exactly the same terms. This militated strongly against the valid transfer of the “Stage II” claims via the second DoA.

Secondly, the Oxford English Dictionary definition of “in relation to”, namely how one thing was related to another, was relied on. The Defendant argued that, linguistically, this phrase was not broad enough to include the “Stage II” claims.

Thirdly, the definition of ‘Proposed Claims’ encompasses the GMI share purchase but not the “Stage II” TCI share purchase.

Lastly, there was no indication that there was any intention to obtain a further Second DoA from TCR, and indeed the terms of the assignment (and in particular clause 3(1)(b)) indicated that the assignor did not wish to be troubled again in relation to this matter.

60.

The Claimant, in oral submissions, argued that the important consideration was the wording of the deed, and that the Court must conclude that there was no relevant factual matrix. It reiterated that the only reason for including the period until 2014 was to ensure that the claims in relation to what had been termed stage 2 were indeed validly assigned by reason of the Second DoA.