Iryna Gordiy v Jekaterina Dorofejeva & Anor

This was a first-instance application to amend the Claimant's pleadings and for permission to serve the amended claim out of the jurisdiction. The court applied the principles for amendment under CPR 17.1(2)(b): the proposed amendment must be arguable, coherent, properly particularised and supported by evidence; the court should not conduct a mini-trial; and allegations of fraud require primary facts that make an inference of dishonesty more likely than innocence (see JSC Bank of Moscow v Kekhman and Three Rivers). The claim related to alleged misconduct in relation to a share purchase agreement (the SPA), FCA notification obligations under s.178 FSMA and various Companies Act and related offences.

The judge found that, on the contemporaneous documents and verified translations, the Claimant had no realistic prospect of proving the factual foundation for deceit, unlawful means tort or unlawful means conspiracy. Key subsidiary findings were that the Claimant had been aware of the progress of the separate Fintech BV transaction, that communications with the First Defendant were consistent with the Claimant's decision to file s.178 notices in accordance with the Companies House register with a view to updating them, and that there was no evidence of deliberate concealment or coordinated plan with the Second Defendant. Permission to amend and to serve out of the jurisdiction was refused and the claim was dismissed.

Background and parties: The Claimant, formerly sole shareholder and director of Remeeta Ltd (an FCA-authorised payment institution), issued proceedings against the First Defendant (a counterparty in an SPA) and the Second Defendant (Target Global Early Stage Fund II LP). The SPA provided that completion was conditional on FCA approval under s.178 FSMA within a specified longstop date. A separate transaction by which Finadvant was acquired by Fintech BV was completed contemporaneously.

Nature of the application: The Claimant sought permission to amend her particulars of claim (proposed causes of action: deceit against the First Defendant; unlawful means tort against the First Defendant and Target relying on alleged offences under FSMA and the Companies Act; and unlawful means conspiracy against all defendants) and permission to serve the amended claim out of the jurisdiction.

Procedural posture: The matter had previously been the subject of an earlier hearing and judgment in November 2023 ([2023] EWHC 3036 (Comm)) in which the judge allowed the Claimant time to seek pro bono representation. The current hearing proceeded with pro bono counsel and certified translations and additional witness material provided.

Issues framed:

• Whether the proposed amendments were arguable and supported by primary facts sufficient to justify allegations of deceit and dishonest conduct;
• Whether there was any realistic prospect of establishing the alleged unlawful means (including alleged breaches of s.178 FSMA and specified Companies Act offences);
• Whether permission should be granted to amend and to serve out of the jurisdiction.

Court's reasoning and findings: The court applied established amendment principles (CPR 17.1(2)(b); authorities cited include Kawasaki Kisen, Okpabi, Collier and JSC Bank of Moscow). On the factual matrix disclosed by full translations and additional witness evidence, the judge found: the Claimant had been aware that the Fintech BV transaction had progressed; the First Defendant had warned that disclosure of the Fintech BV transaction to the FCA risked withdrawal of approval; the parties opted to prepare s.178 notices on the basis of the Companies House register and to update them if required; the First Defendant only became aware that funding would not be provided around 20 January 2023; Companies House and stamp duty timing did not support an inference of deliberate concealment; and there was no evidential basis to tie Target into a coordinated plan. Given the absence of a realistic prospect of proving the primary facts necessary for fraud or unlawful means, the amendments were refused and the application to serve out of the jurisdiction was refused.

Outcome: Permission to amend and to serve out of the jurisdiction refused; the claim dismissed.

This is a first-instance judgment. The court refused permission to amend the pleadings and refused permission to serve the amended claim out of the jurisdiction. The Claimant's claim is dismissed. The rationale was that the proposed amendments lacked a realistic prospect of success: the contemporaneous documents and evidence did not support the necessary primary facts to justify allegations of deceit or unlawful means (including alleged offences under s.178 FSMA and the Companies Act), and there was no arguable case of a coordinated plan involving Target.

The judgment is first instance in the High Court (Commercial Court). The judge referred to an earlier interlocutory hearing and judgment in which he had challenged the original in person claim and gave the Claimant an opportunity to obtain pro bono representation; that earlier judgment is reported at [2023] EWHC 3036 (Comm).