Iryna Gordiy v Jekaterina Dorofejeva & Anor

On an application to amend, the proposed case must be arguable, coherent, properly particularised and supported by evidence establishing a factual basis. The court should avoid conducting a mini-trial and should generally accept factual averments unless they are demonstrably untrue or unsupportable. An amendment may nevertheless be refused where the pleaded account is inherently implausible, self-contradictory or unsupported by contemporaneous documents.

For an interlocutory allegation of fraud, the pleaded primary facts must justify an inference that dishonesty is more likely than innocence or negligence. The court is concerned with the adequacy of the pleaded case, not whether the evidence will ultimately prove fraud. Where the necessary factual allegations have no realistic prospect of success, permission to amend and permission to serve out may be refused.

The claimant, acting initially in person, sought to amend her claims against the first defendant and to obtain permission to serve the amended claim against the second defendant out of the jurisdiction.

The proposed claims arose from the failed sale of the claimant’s payment-services company. They alleged deceit, causing loss by unlawful means and unlawful means conspiracy, based principally on alleged concealment of a subsequent transaction, misleading regulatory notices, withholding of funding information and coordination between the defendants.

The applications followed an earlier judgment, [2023] EWHC 3036 (Comm), but the court considered the applications afresh in light of fuller evidence and translations. The central issue was whether the proposed factual allegations had a realistic prospect of supporting the pleaded causes of action.

1. Outcome. Permission to amend the claim and permission to serve the amended claim against the second defendant out of the jurisdiction were refused. The claim was dismissed.
2. The court applied the principles governing amendments under CPR 17.1(2)(b). The proposed amendment had to be arguable, carry a degree of conviction, be coherent, be properly particularised and be supported by evidence establishing a factual basis. The court should not conduct a mini-trial, but could reject allegations that were inherently implausible, self-contradictory or unsupported by contemporaneous documentation.
3. The fuller documentary and witness evidence showed no realistic prospect of proving that the first defendant had concealed completion of the later transaction or represented that the original sale remained on track. Communications instead indicated that the claimant knew the later transaction had completed, subject to registration issues, and that the original transaction would not proceed only after funding was refused.
4. The regulatory notices were prepared on the basis of the structure then recorded at Companies House, following the claimant’s own proposed approach, with an intention to update them. The evidence did not support an inference that the notices were designed to mislead or cause the claimant loss. Nor did the timing of the Companies House update support deliberate delay, since the first defendant had not promptly learned that stamp duty had been received and the relevant update was made before the contractual longstop date.
5. There was consequently no arguable factual basis for deceit, causing loss by unlawful means or unlawful means conspiracy. It was unnecessary to determine the defendants’ further objections concerning legal defects, pleading particularity or procedural obstacles.

The judgment describes earlier procedural hearings concerning service on the second defendant and the viability of the claim against the first defendant. The court’s earlier judgment is reported at [2023] EWHC 3036 (Comm). The present applications were considered on a standalone basis after further evidence and translations had been provided.