Segulah Medical Acceleration AB & Ors v Akhilesh Shailendra Tripathi & Anor

On an application to amend a statement of case, the proposed claim must have a real, rather than fanciful, prospect of success and carry some degree of conviction. Whether words or conduct convey an implied representation is an objective, fact-sensitive question. The court must assess the words and conduct in their full context, including the surrounding dealings between the parties. At the amendment stage, it should not conduct a mini-trial or finally resolve difficult factual or legal issues. The court left open whether necessity or obviousness is an absolute requirement for an implied representation, observing that the authorities did not establish either requirement as indispensable.

The claimant sought permission to amend its deceit claim to allege that, during a telephone call concerning a company fundraising, the first defendant impliedly represented that money he proposed to invest had been obtained legitimately and was subject to an indefeasible title. The first defendant argued that the proposed implied representations could not reasonably be inferred from the words alleged, and advanced a further argument based on necessity or obviousness. The issue was whether the proposed amendment had a real prospect of success.

1. Application allowed. The claimant was permitted to make the proposed amendments, subject to correction of identified typographical and numbering errors.
2. The applicable test for a contested amendment was whether the proposed claim had a real, as opposed to fanciful, prospect of success, with some degree of conviction: CNM Estates (Tolworth Tower) Ltd v Carvill-Biggs [2023] 1 W.L.R. 4335, relying on Elite Property Holdings Ltd v Barclays Bank Plc [2019] EWCA Civ 204.
3. Applying the objective approach stated in Geest v Fyffes [1999] 1 All E.R. (Comm) 672, IFE Fund S.A. v Goldman Sachs International [2007] 1 Lloyd's Rep 264 and Loreley Financing (Jersey) No. 30 Ltd v Credit Suisse (Europe) Ltd & Ors [2023] EWHC 2759 (Comm), the question was whether a reasonable person in the representee’s position, with known characteristics, would infer the alleged representation from the words and conduct in their context.
4. The court had concerns about the vagueness, elasticity and possible reverse-engineering of the proposed representations. However, the surrounding dealings and the telephone call required assessment at trial. The existing evidence did not justify ruling out the representations after what would effectively be a mini-trial.
5. The court declined to decide whether necessity or obviousness was an absolute requirement. The authorities did not state that either was indispensable, and the argument raised a complex issue better considered at or after trial. The amendment threshold was nevertheless satisfied.