Tariq Hamoodi v Lombard Odier Asset Management (Europe) Ltd

On an interlocutory application, a claim should proceed to trial where the pleaded facts disclose a realistic case and its resolution depends on disputed evidence or fuller investigation. Summary judgment must not become a mini-trial.

An implied representation is ultimately a question of fact, assessed objectively from the parties’ words and conduct. Silence will not ordinarily imply the opposite of circumstances pointing towards possession of inside information. Fraud allegations require primary facts capable of supporting an inference of dishonesty, but the court may adopt a measured approach where relevant facts are likely to be within the defendant’s knowledge.

A pleading of unlawful means conspiracy must identify primary facts from which combination and intentional loss can properly be inferred.

The claimant alleged that the defendant sold him shares in Nanoco Group plc while members of its investment team possessed undisclosed inside information about Nanoco’s patent litigation against Samsung. He advanced claims in misrepresentation, fraud, negligence and unlawful means conspiracy, relying on the Market Abuse Regulation and the Criminal Justice Act 1993.

The defendant applied for summary judgment or strike out. The claimant sought permission to amend his Particulars of Claim. The central issues were whether the alleged implied representation was legally sustainable, whether the fraud and conspiracy allegations were adequately particularised, whether a duty of care was pleaded, and whether the evidence was sufficient to justify summary judgment.

1. Disposition. The claims in unlawful means conspiracy and negligence were struck out. The claims under section 2(1) of the Misrepresentation Act 1967 and in fraud survived. Summary judgment was refused. Permission to amend was granted insofar as the amendments related to the surviving causes of action.
2. An implied representation is assessed objectively from words and conduct, and its existence is ultimately a question of fact. Although the circumstances appeared more naturally to suggest that the defendant might possess inside information, the court should not finally determine the issue on an interlocutory application where analysis of the parties’ dealings might establish an implied representation.
3. The amended pleading of inside information, particularly the alleged advice received by Nanoco’s lawyers and experts concerning the prospects of the Samsung litigation, was capable of amounting to inside information. Other pleaded matters, including the board’s view that settlement offers were derisory, might be unsatisfactory, but striking out parts of the pleading would create confusion and was unnecessary.
4. The fraud claim was sufficiently arguable at this stage. The alleged January 2023 conversation, if proved, could support an inference that a member of the defendant’s team had shared inside information and could assist the claimant’s case concerning earlier events. The court should be cautious before imposing an excessively strict pleading requirement where the claimant was unlikely to have direct knowledge of an alleged attempt to deceive.
5. The conspiracy claim was inadequately particularised. The pleading asserted combination but identified no primary facts from which it could properly be inferred that the defendant, Mr Turcan and Mr Giles knowingly combined to withhold information and cause loss. A mere possibility of such conduct was insufficient.
6. The negligence claim failed because the pleading did not explain the facts said to give rise to a duty of care arising from silence and an implied representation.
7. The claimant’s anonymous sources did not justify strike out or summary judgment. Their anonymity might affect the weight or admissibility of the evidence at trial, but the issue did not warrant final disposal at this stage. The alleged possession of inside information also required investigation at trial and could not properly be resolved by accepting Mr Turcan’s evidence at face value.