Culina Group Limited & Ors v Thomas Van Mourik & Ors

On an amendment application, the court should permit a proposed pleading where the point is arguable and its proper determination depends on the full factual analysis at trial. An unsettled issue of principle should not ordinarily be decided summarily at a case management stage, particularly where allowing the pleading adds little material burden to the trial. However, a proposed allegation should be refused where it has no arguable legal foundation. A service company does not acquire fiduciary duties merely because it provides a professional to perform a role which may itself carry fiduciary duties.

This was a case management hearing in substantial commercial proceedings brought by nine claimant companies against twenty-one defendants. The claimants sought permission to make a range of amendments to their pleaded case. The court considered the proposed amendments by reference to rows in the claimants’ amendment table, including allegations concerning fiduciary duties, liabilities to account and increases in the value of shareholdings. The central issues were whether the amendments were arguable and suitable for determination at trial, and what consequential case-management directions should follow.

1. Amendments. The proposed amendments were allowed subject to limited exceptions and conditions. For Row 13, concerning paragraph 330, the appropriate pleading was in principle to cross-refer to a capitalised term Schedule of Loss, defined as the current schedule or any schedule subsequently amended. That ruling remained subject to review after consideration of criticisms of the schedule.
2. For Row 3, concerning paragraph 89, the claimants were required to distil concise additional particulars from the factual evidence rather than merely cross-refer to witness-statement paragraphs. The defendants were to have an opportunity to agree or object to the formulation, with any objection dealt with on paper when the order was drawn up.
3. Permission was refused for Row 2, concerning proposed paragraph 59B. The allegation that a service company owed fiduciary duties because it provided a professional to perform a role which itself involved fiduciary duties had no arguable foundation. The pleaded case relied only on the engagement of Mr Stairs by the service company, and that was insufficient.
4. Rows 10–12 raised an arguable claim concerning liability to account for an increase in the value of a shareholding. Gwembe Valley [2003] EWCA Civ 1048, at [137]–[138], provided arguable support. The issue remained unsettled and its resolution would depend heavily on the full factual analysis at trial. It was therefore inappropriate to determine the governing principle summarily.
5. The trial was directed to start on 28 February 2028. Extended disclosure was to be completed by 30 April 2027 and factual witness statements exchanged by 23 July 2027. Expert evidence was to be confined, so far as ultimately required, within the Michaelmas term of 2027, with a further case management conference to address expert evidence and other directions.

First-instance case management ruling. No earlier decision or appeal was stated in the judgment.