George Kounis v Critchlow and Associates Limited

In a professional and commercial context, the ordinary and natural meaning of words used in an exchange of emails must be respected. An indication that a party has no objection in principle to an extension ordinarily shows that further details remain to be agreed and does not itself create a concluded agreement.

Subsequent conduct may assist in identifying the terms actually agreed, or may give rise to a variation or estoppel, but it cannot ordinarily be used to reinterpret the language used when the agreement was made. Where a cause of action has been equitably assigned, the assignor cannot maintain proceedings in the assignor’s own name without joining the assignee. The proper response to a defective claim is ordinarily to allow an opportunity to join the assignee before striking out.

The claimant brought a professional negligence claim against his former solicitors. Under a settlement agreement, he had assigned causes of action to Amtrust Europe Limited, which later assigned them back to him subject to a deadline for issuing proceedings.

The defendant applied to strike out the claim or obtain summary judgment, arguing that the deadline had expired before proceedings were issued and that the cause of action had therefore reverted to Amtrust. Master Gidden dismissed the application on 8 April 2025, finding that emails exchanged on 15 May 2023 arguably extended the deadline to the end of that year. The claimant also relied on later October 2023 correspondence as supporting estoppel, waiver or variation.

The central issues were whether the May emails created a concluded agreement and, if not, what procedural consequence followed from the resulting assignment to Amtrust.

1. Appeal allowed. The Master was wrong to conclude that the 15 May 2023 emails created, or arguably created, an agreement extending the deadline under clause 3E.

2. Whether an agreement was formed was a question of law assessed objectively. The court had to consider the language used in its contractual and factual context. In a professional and commercial setting, the phrase in principle had its ordinary meaning. It indicated that there was no complete consensus and that further details remained to be agreed. Mr Kounis had not made a specific proposal, so no concluded agreement was reached.

3. The October 2023 emails could not be used to interpret the meaning of the May exchange. Subsequent conduct might be relevant to identifying the terms actually agreed, or might create a variation or estoppel, but it did not alter the meaning of the language used at the earlier date.

4. The October correspondence did not provide an alternative basis for maintaining the claim. Estoppel did not create new substantive rights and could not operate as a shield for the defendant against a later claim by Amtrust. Nor was there an arguable agreement varying the existing arrangements, since the parties were acting on the mistaken assumption that no reassignment had occurred.

5. The cause of action had therefore vested in Amtrust. Applying the principle in Three Rivers DC v Bank of England [1996] Q.B. 292, an assignor suing in respect of an equitably assigned cause of action had to join the assignee. There could be no additional qualification based on the presently remote risk of double jeopardy.

6. The appropriate order was not immediate strike-out. Mr Kounis was to be given a defined period to apply to join Amtrust. If he failed to do so, the claim would be struck out. The court did not prejudge the joinder application and invited the parties to draw up a suitable order.

• High Court (King’s Bench Division): appeal from Master Gidden’s order dated 8 April 2025 allowed. The Master’s order was set aside and directions were to be drawn up allowing the claimant time to apply to join Amtrust.