BGC Brokers LP & Ors v Tradition (UK) Ltd & Ors

Permission to amend a statement of case should be granted where the proposed claim has a real prospect of success. The court must assess whether the claim has an absence of reality, applying the summary judgment standard, but must not conduct a mini-trial. It may reject evidence that is inherently implausible, contradicted or unsupported by contemporaneous documents.

On an application supported by disputed and incomplete evidence, the court should assess the pleaded case as a whole. It should not isolate and dismiss individual evidential elements where their combined effect may support the pleaded inference. A new party should be joined where the issues are connected with the existing dispute or where joinder is desirable for the court to resolve all matters in dispute.

The claimants, interdealer brokers within the BGC group, brought breach of confidence proceedings against Tradition, an employee and others. They alleged that confidential information concerning individual brokers’ revenues had been obtained and used by Tradition.

The claimants applied to add Michael Anderson, Tradition’s joint chief executive officer, as a defendant and to amend the claim to allege his direct and vicarious liability. The proposed amendments relied on evidence concerning the transmission and possible use of confidential information, including in recruitment discussions. The existing defendants opposed the application on the grounds that the claims had no real prospect of success, joinder was unnecessary, and the application was an abuse of process.

1. Application granted. The claimants were permitted to add Michael Anderson as a defendant and amend their claim.
2. Under CPR 17.1(2)(b), the relevant question was whether the proposed claim had no real prospect of success. This was the summary judgment test. It required an absence of reality rather than an assessment of probability. The court had to avoid conducting a mini-trial, although it could reject evidence that was inherently implausible, contradicted or unsupported by contemporaneous documents.
3. The proposed claim had to be assessed as a whole. It was inappropriate to “salami slice” the pleading by examining each factual element in isolation. Individual matters might have limited significance alone but greater significance when considered together. The evidence disclosed substantial disputes concerning credibility, the meaning of communications, the significance of chronology and the possible use of confidential information. Those disputes were suitable for determination at trial.
4. The incomplete state of disclosure was also material. The absence of direct documentary proof did not establish that the alleged request or use of information had not occurred, particularly where relevant communications might have taken place in face-to-face meetings. The claimants were entitled to develop their case on loss after disclosure.
5. The pleading did not require striking out under CPR PD16, paragraph 8.2. The proposed joinder satisfied both limbs of CPR 19.2(2): the issues involving Mr Anderson were connected with the matters in dispute, and joinder was desirable to enable the court to resolve the dispute consistently and avoid separate proceedings and inconsistent findings.
6. The abuse of process objection also failed. A collateral purpose constituted an abuse only where it was the sole purpose of the proceedings. Whether there were ulterior motives, whether they were exclusive, and whether they amounted to abuse were themselves matters unsuitable for summary determination.