Mr Justice Picken:
Introduction
- This judgment is concerned with two main applications: an application by the Defendant ('Munich Re') to strike out the claims against it and/or to have them determined summarily against the Claimant ('FTL'); and an application by FTL to amend its Claim Form and Particulars of Claim.
- There is also an application by FTL to rely upon two additional witness statements. Although Munich Re objected to this, I am unpersuaded that Munich Re has suffered any relevant prejudice in FTL relying upon the additional witness statements. As such, that is an application which I consider should be allowed.
- As to the two main applications, FTL's position is that it should be permitted to amend, and the strike-out application should be dismissed. Munich Re's position, in contrast, is that FTL's claims (including those covered by the proposed amendments) are hopeless, in that they have no sustainable legal or factual foundation, and as such ought not to be allowed to be maintained. As Mr Swainston KC, on Munich Re's behalf, put it in his oral submissions, there are "contract claims without a contract and restitution claims without enrichment, without unjust enrichment".
- The proceedings relate to two sets of claims by FTL against Munich Re: the 'Services Claim' and the 'Transactional Claims'.
Background – and how FTL puts its case
- FTL is incorporated and registered in Delaware and holds itself out as a business providing bespoke finance solutions for innovative technology companies. It is a small operation. Munich Re is well-known as one of the world's leading reinsurance companies and is incorporated and registered in Germany.
- The parties' relationship began in July 2013 within the context of a project known as Project Aerion. The parties signed a 'Mutual Nondisclosure Agreement' on 23 July 2013, which provided that Confidential Information included any information designated as "Confidential", "Proprietary" or similar and included information disclosed to a disclosing party by third parties, and applied to all communications between the parties until written notice was given that subsequent communications would not be so governed.
- It is FTL's case that, from mid-2013 onwards, the parties discussed working together to develop new business using FTL's business connections (especially in Silicon Valley) and knowhow, and Munich Re's insurance and/or re-insurance capacity and/or investment capital to generate new business for the mutual benefit of both FTL and Munich Re.
- Specifically, in the course of those discussions, in October 2014, Munich Re provided FTL with a document referred to as the 'CIP/FTL Collaborative Venture Briefing' document (the 'October 2014 Briefing'), which was presented to Munich Re's senior management as a summary of the basis on which FTL and Munich Re would work together to identify and exploit joint business opportunities including but not limited to bespoke insurance solutions. Mr Blackwood KC, on FTL's behalf, pointed out that it is accepted by Munich Re in its Defence that this document was produced following a review and contributions by FTL, and so (at least by inference) that it was a document that reflected their joint understanding. He submitted that, in the circumstances, the October 2014 Briefing envisaged that Munich Re would be making equity investments and/or receiving equity in companies, in exchange for contingent capital loans which would then be shared with FTL, but without Munich Re holding such investments directly.
- This was followed by a further document, the 'CIP/FTL Collaboration Venture Briefing' document in December 2014 (the 'December 2014 Briefing') which again was the product of the input of both Munich Re and FTL. Again, Mr Blackwood observed, the parties understood that the ultimate purpose of the relationship was to develop 'upside' opportunities, and that 'upside' meant equity. In this regard, he highlighted that FTL's responsibility was described (in a section headed "Collaborative Venture") as being focussed on "client acquisition and management, the development of equity (upside) opportunities", and that, in a section headed "Summation", FTL noted that the Collaborative Venture "would provide strong upside potential …":
"Substantial upside potential via equity or share in turnover stake. This is the value pricing the business plan can achieve that is not possible in the traditional insurance market".
- On 24 December 2014, Dr Giarrusso of FTL did some editing of what he described as the "CV document" but which was the December 2014 Briefing, and sent it to Mr Sirr of Munich Re who then made his own edits to the remuneration section as follows:
"The objective of the CV is for CIP to be remunerated on a value-pricing basis for its insurance policy. Therefore, the remuneration will be the insurance premium and, potentially, a portion of the equity residual upside, with the "residual" being that amount of value after any liquidation of equity that is used for claims payments.
The CV will receive a ceding commission from the insurance that will essentially pay for the Management Company fees, which cover the CV's expenses.
For FTL, its only remuneration is a portion of the equity residual upside, which means it is only paid if the CV is profitable."
- Accordingly, Mr Blackwood submitted, Munich Re knew that the premise of the relationship was that FTL was seeking its remuneration through 'upside' and that this meant equity.
- Furthermore, it is FTL's case that on or around 30 December 2014, during a call with Munich Re, Munich Re represented (through a senior Director and member of Munich Re's Board of Management) that Munich Re wished to proceed with a joint venture in the terms based on the principles contained in the December 2014 Briefing.
- Munich Re accepts that there was a call on that date, and that Mr Blunck of Munich Re "expressed a wish for the parties to work together", but denies that he indicated that Munich Re wished to proceed in terms contained in the December 2014 Briefing. Mr Blackwood submitted that the inference to be drawn from this is that FTL's case is correct: if Munich Re had not agreed to proceed with FTL, there would be documentary evidence of the same and it would be highly unlikely that FTL would have carried on with Munich Re. (It should be noted in this connection that, although in his oral submissions Mr Swainston drew attention to paragraph 22 of the Particulars of Claim, where the conversation on 31 December 2014 is pleaded, and suggested that the allegation made by FTL is that the representation made by Munich Re was by reference to a later document prepared in June 2015, as referred to in paragraph 23, rather than the December 2014 Briefing, in support of a submission that accordingly the plea makes no sense, that is not right since paragraph 22 clearly refers to the earlier document, not the later one).
- Subsequently, in February 2015, FTL introduced Equidate to Munich Re, and later that year, in June 2015, Munich Re (Jeffrey Sirr and Michael Berger of the CIP Emerging Strategies Department) prepared a document (as mentioned above and pleaded in paragraph 23 of the Particulars of Claim) entitled the 'CIP/FTL Partnership' (the 'CIP/FTL Partnership Document') which was then sent to FTL. FTL's case is that this document reflected the existing arrangement between the parties. Specifically, Mr Blackwood submitted that in this document the parties considered that there were two (separate but complementary) strands to their relationship: a collaboration venture and a transactional relationship, paragraph 4 stating as follows:
"The partnership consists of two parts:
A Collaboration Venture (CV).
Transactional Relationship: CIP/FTL working together to create and enter into innovative transactions as well as enhancing business assumption and activities with certain, important, current clients."
- Mr Blackwood went on to observe that the two parts were symbiotic: as the CIP/FTL Partnership document set out, again in paragraph 4:
"The CV is about enhancing the skill sets of CIP to create value-added solutions. With its successful implementation, this leads into the second part of the partnership (Transactional Relationship), which is being better equipped to create and successfully enter into innovative transactions…".
The stated purpose of the collaboration venture, Mr Blackwood noted, was to provide a framework allowing Munich Re to "rethink core aspects of the business" (paragraph 5).
- Furthermore, Mr Blackwood highlighted how the price for one year of "providing training, client access, support in marketing, office space and intellectual property" was US$3 million (reflecting the US$750,000 payment per quarter under the Collaboration Agreement). This was set out in a separate section to 'FTL Remuneration' which was in a section headed "Part 2: Transactional Relationship" and was on a wholly different basis. The obvious inference, Mr Blackwood suggested, is that the parties understood that work done and payment under the collaboration venture was separate and distinct from the transactional relationship.
- Mr Blackwood noted that there were various deliverables in relation to the collaboration venture aspect. He explained that these were subsequently set out at Annex 1 to the Collaboration Agreement entered into on 8 July 2015 but which ran from 1 June 2015 until 1 June 2016 (and was subsequently, in June 2016, extended until 30 September 2016 by an Extension Agreement).
- The Collaboration Agreement required FTL to provide the 'Services' (as defined in Appendix 1). These 'Services' included: (i) sales and marketing support for Munich Re's existing efforts; (ii) supporting Munich Re's existing product range, starting with cyber risk; (iii) training and education through internal workshops and client workshops; (iv) creating new products for new and existing risks which could be positioned and sold at a higher level within the client organisation (i.e. products for a market, rather than bespoke products for a particular client; (v) basing select Munich Re employees with FTL in Silicon Valley; (vi) FTL acting as a guide ('docent') and conduit for Munich Re employees to become steeped in Silicon Valley culture; and (vii) advantaged access with Munich Re having "first look at FTL-generated deals. This provides [Munich Re] with advantaged access, and the ability to participate on a most-favored basis".
- Coming back to the CIP/FTL Partnership Document, FTL's remuneration in respect of the transactional relationship was described at paragraph 13 as follows:
"The partnership is about enhancing the skill sets of CIP to create value added capabilities through the CV. With the CV's successful implementation, it will lead to the second part of the partnership (Transactional Relationship) and being better equipped to create and successfully enter into innovative transactions; thereby, growing CIP's business profitability and moving away from the product commoditization environment of the traditional corporate insurance market. Furthermore, FTL views itself in a similar manner to the other companies within its Silicon Valley environment where the 'real' remuneration/profit is in the upside/economic benefit created by successful transactions.
Therefore, FTL is neither a broker nor a consultant where remuneration/profit is achieved through payments of commissions and fees regardless of the outcomes of transactions, etc. Instead, FTL makes its profit through the successful outcome of transactions that CIP agrees to undertake.
…
Transactional Relationship:
As previously stated, this is not a traditional broker or consultant relationship. Transactions will be value pricing based with FTL sharing in the upside/economic benefit gained, which would not come to fruition if the transaction is not successful. FTL will not be paid fees or commissions in the traditional insurance manner. In effect, it is sharing in the risk of the transaction because its remuneration is based on the transaction's successful outcome to CIP.
There will be no upfront payments to FTL for this part of the Partnership. Consequently, it will share in the upside/economic benefits of a transaction (given sufficient remuneration for CIP's risk capital provided) provided it is successful. The amount of upside/economic benefit FTL will participate in will be decided on a transaction by transaction basis."
- Mr Blackwood submitted that the collaboration venture was (and was intended to be) separate from the transactional relationship. Accordingly, it was his submission that, whilst one of the premises of the transactional relationship was to provide Munich Re with a first look at FTL-generated deals, and that was a 'Service' under the Collaboration Agreement, any transaction and work on such transaction thereby generated was not a 'Service' within Appendix 1 of the Collaboration Agreement. There was nothing in that agreement, he added, by which FTL agreed to work on bespoke products and/or transactions in exchange for payment by Munich Re. Indeed, Mr Blackwood submitted, that would have been inconsistent with the whole premise of the parties' relationship as described in the documents above: the implementation of the collaboration venture was to lead to the transactional relationship, which is where both parties always intended that the real 'upside' and economic benefit would be generated and FTL would share in the proceeds of such 'upside'.
- Mr Blackwood went on to observe that, as the last paragraph of paragraph 13 in the CIP/FTL Partnership Document indicates (as set out above), the amount of 'upside'/economic benefit was to be decided on a transaction-by-transaction basis. That was further addressed, Mr Blackwood pointed out, in a document entitled FTL/CIP Strategic Alliance (the 'FTL/CIP Strategic Alliance Document') from February 2017, which, although expressed to be a draft, FTL contends reflected FTL and Munich Re's understanding of the existing relationship between them, in particular as to remuneration for 'upside' transactions. The FTL/CIP Strategic Alliance Document stated as follows (under the heading "Sharing Value"):
"The Parties will endeavor to share the value created on each deal. This sharing will be determined on a project by-project basis when the project is evaluated using the Balanced Scorecard. The value may be determined as an estimate of future value, or a final, realized, actual value received. Whether the sharing is based on future projected or estimated value, or actual value realized, will be determined by the Parties at the time.
Based on the calculated value, and the Parties preferences, the Parties will agree to appropriate transfer payments between them Parties, if any is required, so as to effect an appropriate sharing of the value created.
If value is created and to be shared, the Parties will first determine any outstanding costs associated with the project and those costs will be paid to each Party before value is determined and shared.
…
Examples
The following examples of past deals serve to illustrate how the Alliance is intended to operate.
Deals generated by CIP, with FTL assistance, and with value accruing solely to CIP
Examples include GSK, Bosch, BAE, etc.
As these are CIP deals, and FTL does not participate in the value being created, the Parties will estimate the value being created and determine an appropriate way to share that value, commensurate with the value contribution. This may be through a fixed fee to FTL, or some other manner that is mutually agreeable.
Deals generated by FTL, with value accruing solely or primarily to CIP
Examples include: Equidate, Reterro
As these are FTL-generated deals, but FTL does not participate in the value being created, the Parties will estimate the value being created and determine an appropriate way to share that value.
Absent any other agreement, the value will be shared equally between the two Parties when it is paid to CIP. For purposes here, value creation does not include the direct underwriting cost of a policy, but does include any desired return to shareholders (ie profit)".
- It is against this background that, as previously noted, FTL brings two sets of claims: the 'Services Claim' and the 'Transactional Claims'.
- The Services Claim is concerned with the period after 30 September 2016, when the Collaboration Agreement extension had come to an end, FTL's case being that Munich Re continued to request services and FTL agreed – through conduct - to provide services until 13 April 2017, when Mr Wettemann of Munich Re stated that Munich Re had reached the conclusion "to discontinue our discussion about a reissue of the CV". On that basis, monies are said to be due either on the basis of an implied agreement arising through the parties' conduct on the same terms of the Collaboration Agreement, or by way of quantum meruit.
- As for the Transactional Claims, these are said by FTL to arise out of the CIP/FTL Partnership Document as supplemented by a document that FTL put forward in January 2017 and which was modified in February 2017 by the FTL/CIP Strategic Alliance Document as reflecting FTL and Munich Re's understanding of the existing relationship between them, and the conduct of the parties when working with, inter alia, Equidate. FTL contends that the CIP/FTL Partnership Document contained binding contractual terms between FTL and Munich Re, alternatively that Munich Re accepted and/or became bound to the terms of the CIP/FTL Partnership Document by conduct, including in respect of the 'upside' transactions, on the basis that it worked together with FTL on Equidate and at least one further 'upside' transaction, namely the Reterro transaction.
- FTL's case is that a "successful transaction" (the phrase used in the CIP/FTL Partnership Document) which triggered FTL's share in any 'upside' fell to be construed as including a transaction in which the company went public in an IPO, with the IPO date constituting a "successful transaction". FTL maintains that the provision of its skills, effort and knowhow in designing and redesigning Equidate policies allowed Munich Re to gain access to substantial amounts of Equidate Confidential Information, in particular its quarterly transaction reports, which gave (for an insurer) unparalleled access into the otherwise confidential financial position of a private company such as Equidate as well as details about its trajectory.
- Mr Blackwood highlighted in this connection the emails attaching the quarterly transactions which came from Equidate to FTL Risk Innovations which were then passed on to Munich Re. The quarterly transaction reports listed by name each transaction that took place on Equidate's secondary market (its business being the sale of shares in companies which would otherwise not be available or were restricted in some way). That, FTL says, allowed Munich Re to decide whether to make investments into a target company such as Equidate, which was the purpose of the relationship between the parties.
- FTL alleges that Munich Re made investments in Equidate in 2018 and 2019 using FTL's knowhow without accounting to FTL for its share of the 'upside'. Munich Re admits that it made investments through Munich Re Ventures LLC ('MRV', a wholly owned subsidiary of Munich Re) in 2018, 2019 and 2020. In March 2022, Equidate completed a successful IPO. FTL's case is that Munich Re's (or MRV's) investment into Equidate was, as a result, a "successful transaction" at the IPO date, and so that FTL was entitled to a share in the 'upside' arising out of that successful transaction.
- Accordingly, FTL alleges that: (i) Munich Re was obliged to transfer or direct the transfer of FTL's 50% share of the 'upside' to FTL by Equidate's IPO date at the latest and/or could or should have realised FTL's 50% share on the day that Equidate became subject to the IPO, with FTL giving credit for Munich Re's initial capital investment, and/or that Munich Re's failure to do so caused FTL loss and damage; (ii) Munich Re holds 50% of the 'upside' (whether as a monetary sum or shares or the traceable proceeds thereof) on trust for FTL and Munich Re has either failed to account to FTL in respect of this, and/or FTL is entitled to an order that Munich Re convey the trust property and/or the traceable proceeds thereof to FTL; (iii) that FTL is entitled to a quantum meruit for the Equidate transaction; and (iv) that Munich Re is liable for trade secret misappropriation under California law.
Strike-out/summary judgment: applicable principles
- The principles applicable to strike-out and summary judgment are well-known: see Easyair v Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15]. In this regard, factual averments made in support of the claim should be accepted unless, exceptionally, they are demonstrably untrue or unsupportable: see Okpabi v Royal Dutch Shell Plc [2021] UKSC 3, [2021] 1 WLR 1294 at [107] per Lord Hamblen. Even "very powerful cross-examination ammunition" cannot be equated with a "knock-out blow": see Mentmore International Ltd v Abbey Healthcare (Festival) Ltd [2010] EWCA Civ 761 at [23] per Carnwath LJ (as he then was). Furthermore, where pleading points are taken on strike out/summary judgment, the Court will usually give a party an opportunity to amend a legally deficient statement of case if it appears that the deficiency can be remedied without injustice to another party: see Soo Kim v Young [2011] EWHC 1781 (QB) at [37]-[41] per Tugendhat J. As to this, proposed amendments must be arguable, carry a degree of conviction, be coherent, be properly particularised, and be supported by evidence that establishes a factual basis for the allegation: see Kawasaki Kisen Kaisha Ltd v James Kemball Ltd [2021] EWCA Civ 33; [2021] 1 CLC 284 at [18] per Popplewell LJ.
- The 'real prospect of success' test is the same one as applicable to a summary judgment application. A claim does not have such a prospect where (a) it is possible to say with confidence that the factual basis for the claim is fanciful because it is entirely without substance; (b) the claimant does not have material to support at least a prima facie case that the allegations are correct; and/or (c) the claimant has pleaded insufficient facts in support of their case to entitle the court to draw the necessary inferences: Elite Property Holdings Ltd v Barclays Bank plc [2019] EWCA Civ 204 at [41] per Asplin LJ.
- Where it is reasonably arguable that a relevant limitation period has expired before an amendment is made, the burden is on the applicant to show that the amendment falls within the provisions of CPR r.17.4. The Court has affirmed a four-stage test as set out in Geo-Minerals GT Ltd v Downing [2023] EWCA Civ 648 at [25] per Males LJ. Nonetheless, if a new cause of action is arguably outside the applicable limitation period and does not arise out of the same or substantially the same facts as the existing claim, it is still permissible for the Court to grant permission for the proposed amendment by way of the 'Mastercard approach' discussed in Advanced Control Systems Inc v Efacec Engenharia e Sistemas S.A. [2021] EWHC 914 (TCC) and revisited later in this judgment when considering the proposed California law claim.
The 'Services Claim'
- It is with these principles in mind that I turn, first, to the 'Services Claim'.
- I have concluded that this is a claim which ought not to be struck out notwithstanding Munich Re's position that there is no relevant liability since, when the parties wished to extend the Collaboration Agreement until 30 September 2016, they concluded an express written agreement to do so (the Extension Agreement), and so they should be taken as not having intended that Munich Re would have to pay thereafter.
- I say this for a number of reasons. However, in short and having regard to the appropriate approach to be adopted on applications such as the present, in my view, the 'real prospect of success' test is satisfied in relation to the 'Services Claim' in that it is not possible to say with confidence that the factual basis for the claim is fanciful because it is entirely without substance or that FTL does not have material to support at least a prima facie case that the allegations are correct or that FTL has pleaded insufficient facts in support of their case to entitle the court to draw the necessary inferences.
- First, although issue has been taken on Munich Re's behalf by Mr Taylor, Munich Re's solicitor, with the list of services relied upon by FTL (as set out in the third witness statement of Mr Frangeskides, FTL's solicitor), that is not a dispute which it is appropriate to determine on an application such as the present since to do so would involve a mini-trial. This is not a case where FTL's contentions are self-evidently unsupportable. In particular, it is not the case, notwithstanding what is suggested on Munich Re's behalf (through Mr Taylor), that there is no evidence that any of the services referred to were requested by Munich Re. There is at least a reasonable prospect that FTL will be able to establish at trial that the services it provided were requested by Munich Re and that they extended beyond the services in relation to BAE Systems and Bosch in respect of which Munich Re has paid US$46,800.
- Secondly, although Mr Swainston submitted that the 'Services Claim' is inconsistent with Clause 12.3 of the Collaboration Agreement, it seems to me - again - that it is at least arguable (and I am inclined to think rather than merely arguable) that Clause 12.3 has nothing to do with the 'Services Claim'.
- Clause 12.3 provides as follows:
"Any additional agreements, changes or additions to this agreement shall not be valid unless made in writing. Any waiver of this formal requirement must also be in writing to be valid. An electronic signature shall not constitute a replacement for the written form."
- The argument that Clause 12.3 is confined to the continued existence of the contract and does not include within its scope the entry into a new contract by informal means might well prove to be right, especially given that there are other provisions in the Collaboration Agreement, which expressly state that they are to apply after termination. Thus, by way of example, Clauses 8.6 and 8.7 say this:
"8.6 In case of a termination of this agreement, Munich Re shall pay FTL for all previously unpaid but earned fees or, as the case may be, FTL shall repay Munich Re for all previously paid but unearned fees for Services rendered up to the date the termination takes effect. For the purpose of this clause and repayment, all fees shall be deemed earned on a pro rata basis.
8.7 Upon termination, each Party undertakes to cooperate with the other Party to ensure that the relationship is terminated in an orderly manner."
- Moreover, Clause 12.2 is in these terms:
"Neither Party shall, even after termination of the contract, cite the other Party as a client for reference purposes or otherwise name the other Party in the context of publications or promotional measures without the latter's prior written consent, such consent being revocable at any time. The same shall apply to the use of the other Party's logo."
If Clause 12.3, the very next clause, had been intended to apply after the expiry or termination of the Collaboration Agreement, this could very easily have been stated as was done in Clause 12.2 (and Clauses 8.6 and 8.7).
- I consider it also to be arguable that the reference in Clause 12.3 to "any additional agreements, changes or additions to this agreement" indicates that what is intended to be caught by Clause 12.3 is confined to the situation where the Collaboration Agreement continues in existence since the wording presupposes just this – and not the situation where the Collaboration Agreement has come to an end. If that is right, and I consider it arguable that it is, then, because the effect of Clause 8.1 of the Extension Agreement is that the previous Collaboration Agreement expired on 30 September 2016, it would follow that Clause 12.3 has no application to any matter after 30 September 2016. As such, there would be no need for any implied contract to be made in writing.
- Thirdly, whilst Mr Swainston submitted that there was no suggestion or expectation that FTL would continue to receive the same quarterly fee under any new agreement or that other terms would be the same, taking issue with Mr Frangeskides' contention in his third witness statement that "There was no suggestion or expectation during this period that FTL would be providing those services free of charge ... FTL was accordingly entitled to payment for those services, at the rate specified under the Collaboration Agreement, i.e. US$750,000 per quarter as pro-rated and an implied contract arose between the parties to that effect", this, again, is not sufficiently free from doubt as to justify an order striking out the 'Services Claim'.
- As Mr Blackwood noted and as made clear by Hamblen J (as he then was) in Brown v InnovatorOne plc [2012] EWHC 1321 (Comm) at [1014]-[1016], when considering whether an implied contract arises, the central question is whether the conduct of the parties is consistent only with an implied contract. In a summary judgment application context, the question is whether FTL has a realistic prospect of establishing that an implied contract arose on the same terms as the Collaboration Agreement after 30 September 2016 and in that regard the existence of conduct that might appear inconsistent is not determinative against FTL's contention: see, by way of example and in a different (implied retainer) context Naibu Global International Co. Plc. v Daniel Stewart & Co Plc [2020] EWHC 2719 (Ch), [2021] PNLR 4 at [30] per Bacon J. In my view, taking into account the totality of the evidence currently before the Court, there is such a realistic prospect.
- As to this, Mr Swainston pointed to an email from Mr Wettemann to FTL on 7 October 2016 proposing a reduced fee of US$250,000 per quarter (and various other significant amendments), observing that this was a proposal which was not agreed. He submitted that, accordingly, it is not correct for FTL to contend, as Mr Frangeskides does in his third witness statement, that "No agreement was reached to reduce the quarterly rate, but there was no suggestion that the Collaboration Agreement would not continue". Mr Swainston submitted that Munich Re had clearly indicated in this email that the terms in the Collaboration Agreement would not continue and no alternative terms were agreed. The contemporaneous correspondence (as well as later correspondence such as a letter from Mr Jerry Flaxman of FTL to Mr Andre Knoerchen dated 16 April 2018), he submitted, clearly indicates that both parties recognised that no agreement had been reached either to continue the Collaboration Agreement or to constitute some kind of joint venture or partnership. FTL's contemporaneous position was not that the parties had reached any agreement but instead that FTL had provided work to Munich Re "out of the good faith anticipation that we would reach an agreement" (as it was put in FTL's email which Dr Giarrusso sent to Mr Wettemann on 4 May 2017, to which I come on to refer).
- I agree with Mr Blackwood, however, that it is arguable that, whilst a replacement Collaboration Agreement was being negotiated, the parties conducted themselves on the basis that the terms of the expired Collaboration Agreement nonetheless continued to apply to their work. Munich Re, after all, continued to request, and FTL continued to provide, services that fell within the scope of the Services in the expired Collaboration Agreement, without any apparent change in process or substance notwithstanding the fact that the Collaboration Agreement had expired. These were valuable services, which, on the face of it, FTL would have been unlikely to have been prepared to provide for free, given that they had previously been providing the same services for US$750,000 a quarter.
- Furthermore, in the 7 October 2016 email Mr Wettemann stated that "Although our CV has already expired on paper, there is no need for any rush from our perspective". There is some force in Mr Blackwood's submission that this is consistent with Munich Re continuing to request services after 30 September 2016 and treating itself as being required to pay for them at the rate that had prevailed under the Collaboration Agreement. Mr Swainston took issue with this, noting that in the first paragraph of the email Mr Wettemann referred to certain "sad news" concerning the health of somebody apparently close to Dr Giarrusso, suggesting that this explains the reference to there being "no rush". Whether Mr Swainston is right about this is, however, impossible to determine at this juncture: it might prove to be the case that he is right but it might also, however, prove to be the case that he is wrong. As Mr Blackwood put it, if Munich Re's stance had been that FTL was not going to be paid for the services which it was providing, it might be thought that there would be something of a "rush" to clear any confusion up and resolve the matter. It is, for this reason, feasible that Munich Re's reassurance is explained by the parties considering that the terms of an implied Collaboration Agreement applied. Whether that was, in fact, the case can only realistically be decided after a trial.
- Fourthly, as to the quantum meruit aspect of the 'Services Claim', Mr Swainston observed that, whilst it was open to FTL (as an experienced commercial party) to seek an agreement in relation to payment for any modest services requested after 30 September 2016, it chose not to do that - apparently in the hope that a further agreement would be concluded. He noted, furthermore, that there was precedent for FTL providing services at its own cost in order to build and encourage a relationship with Munich Re, with the CIP/FTL Partnership Document referring in 2015 to the fact that "Over the past year, FTL has already provided support to CIP … and has done so for no compensation in the spirit of building a long-term relationship with CIP". There is, in such circumstances, Mr Swainston suggested, no injustice which would justify a quantum meruit entitlement, FTL having produced no evidence to demonstrate "free acceptance" of benefits on any shared basis that payment would follow.
- In this respect, Mr Swainston cited H&P Advisory Limited v Barrick Gold (Holdings) Limited [2025] EWHC 562 (Ch), in which Mr Simon Gleeson (sitting as a Deputy High Court Judge) said this at [208]:
"… Lord Burrows is clearly correct that the idea that mere receipt of a benefit creates a restitutionary liability unless there is a positive act of rejection by the recipient in advance of or during the receipt, is incompatible with English law."
He went on at [209] to add:
"You cannot begin by assuming the expectation of payment. Services may be supplied in the expectation of payment, or merely in the hope of payment, but there must be some ground for this hope or expectation – it cannot be conjured out of nothing."
He continued at [211]:
"… freedom of contract necessarily implies the freedom not to contract. If a man decides not to contract with another, that other cannot, by unilaterally acting so as to confer a benefit on him, require him to pay for that benefit."
At [213] he said this:
"The third ground is that the action with which we are involved here is an action in restitutionary quantum meruit. As Birks points out, the action in quantum meruit is a development of the old action of assumpsit, which is based on a non-contractual promise to pay (Birks, Unjust Enrichment, 2nd Ed. at p. 288). The essence of quantum meruit is that where a person has induced another to confer a benefit on him through a non-contractual promise, and that non-contractual promise is not fulfilled, the courts may provide a remedy. It would be strange if that requirement for a non-contractual promise had evaporated completely."
Mr Swainston suggested that this echoes the approach adopted in Benedetti v Sawiris [2013] UKSC 50, [2014] AC 938 at [9]-[10] and [17] per Lord Clarke and [99]-[100] per Lord Reed, as well as AMP Advisory & Management Partners A.G. v Force India Formula One Team Limited (in liquidation) [2019] EWHC 2426 (Comm) at [195]-[202] per Moulder J, specifically at [195] where the point was made that an obligation to pay will "Undoubtedly … be imposed only if justice requires it or, which comes to much the same thing, if it would be unconscionable for the plaintiff not to be recompensed".
- Mr Swainston also cited Moorgate Capital (Corporate Finance) v H.I.G. European Capital Partners LLP [2019] EWHC 1421, at [87]-[102] per HHJ Keyser KC and in particular the observations: at [88] that "a convenient starting point, all too easily overlooked, is to remember that there was no contract for payment" and that "proper justification is required for conferring an entitlement to payment on a party who has not contracted to receive payment" since "It is not the role of the law of unjust enrichment to create for the parties contracts that they never made"; at [90] that the authorities do not establish any "general right to payment for requested services in the absence of a contract"; at [92] that it is not enough that the claimant had a non-gratuitous intent since the defendant must also have known of that intent; and at [98] that "the courts ought not to be quick to suppose that commercial parties who are well able to make contracts with each other expect payment to be made in the absence of a contract".
- In the present case, Mr Swainston submitted, there was no promise to pay, and FTL has not alleged (still less, proven) a shared expectation that it would be paid for services provided after expiration of the Collaboration Agreement or any indication from Munich Re that payment would be made if contractual negotiations failed. As before, however, although it may be that at trial these submissions will prevail, I consider it impossible at this stage to be sufficiently confident that this will be the case as to mean that there should be the strike-out that Munich Re seeks. On the contrary, it seems to me at least arguable that neither party would have contemplated it as realistic to proceed on the basis that, there being no contract in existence, FTL was providing valuable services for no apparent consideration. These were services which were being provided at Munich Re's request in a context where FTL had been providing similar services (and being paid for those services) for a period of some 16 months previously. Nor can it really be said that FTL was taking the risk of not being paid unless a contract was concluded given that, in Mr Wettemann's e-mail on 19 May 2017, what was proposed by Munich Re was that Munich Re would "consider FTL's reasonable fees and expenses for the services requested by us and provided by FTL after 30 September 2016".
- It follows that I decline to strike out the 'Services Claim'.
The 'Transactional Claims'
- I have arrived at the same conclusion in respect of the 'Transactional Claims': that they should not be struck out.
- Mr Swainston noted in this context that, despite FTL and Munich Re beginning from 2013/2014 onwards to explore a potential business relationship, in the event there was no agreement on a joint venture or collaboration venture or partnership or, as he put it, "anything else similarly exotic". Instead, the agreement that came into being, the Collaboration Agreement, entered into in July 2015 was, as Mr Swainston characterised it, "far more modest and prosaic", providing as it did merely for FTL to provide services to Munich Re (principally introductions to Silicon Valley clients and training in Silicon Valley culture, and office accommodation for some Munich Re personnel) in return for a quarterly fee of US$750,000.
- Mr Swainston highlighted, in particular, how the Collaboration Agreement (which, to repeat, was extended by an Extension Agreement in June 2016 for a period of 3 months) stipulated in Clause 4.1 that FTL accepted that in respect of the introductions that it made it was not entitled to any remuneration beyond brokerage on related insurance policies issued by Munich Re, specifically that "Unless otherwise specifically discussed and approved in writing, FTL is not entitled to any other compensation for the Services …". He drew attention also to the fact that Clause 8.2 provided that extensions of the duration of the Collaboration Agreement were to be "in writing" and that Clause 12.3 stated that "any additional agreements, changes or additions to this agreement shall not be valid unless made in writing".
- It was Mr Swainston's submission that the Collaboration Agreement covered insurance introductions which FTL had already made, including its introduction of Munich Re to Equidate in February 2015, and that it was for this reason, an insurance policy being issued to Equidate, that FTL submitted invoices in respect of the Equidate introduction, which invoices were paid by Munich Re. The Collaboration Agreement, as extended, having then come to an end on 30 September 2016, Mr Swainston pointed out that it was after this (in November 2018 and then in October 2019 and May 2020) that MRV made the investments that it did in Equidate. This, Mr Swainston emphasised, was long after the expiry of the Collaboration Agreement - the only contract, as he put it, that ever existed as between Munich Re and FTL. Moreover, Mr Swainston pointed out, FTL was not involved in the investments in any way since MRV used its own money to buy the relevant shares and it did so separately from any insurance arrangement. Specifically, Mr Swainston noted, the aggregate cost of the shares purchased by MRV was US$14,118,898 and that, under the relevant IPO agreement, the shares bought were subject to a lock-up period of 180 days following the closing of a merger which formed part of the IPO. At the end of the lock-up, Mr Swainston explained, the shares were worth less than their purchase price, meaning that MRV suffered a loss.
- It was Mr Swainston's submission, in such circumstances, that there is no legal foundation for such claims: in particular, that there is no basis for supposing that some kind of partnership agreement came into being or anything resembling a partnership or, indeed, any agreement of any sort after the expiry of the extension of the Collaboration Agreement. That is the case, Mr Swainston submitted, notwithstanding that from time to time FTL tried to negotiate more comprehensive arrangements than the Collaboration Agreement for provision of services at a fixed fee since those attempts came to nothing - as recognised, Mr Swainston suggested, by FTL which understood that any such joint venture/partnership would require approvals from Munich Re and conclusion of a formal agreement between FTL and Munich Re.
- In this respect, Mr Swainston referred to an email sent by Mr Sirr to Dr Giarrusso (and a colleague called Ray) on 17 January 2015 and the attached 'CIP/FTL Collaboration Venture Work Streams' document, which detailed the steps necessary for execution, as follows:
"Execution:
▪ Business plan outlining structure of CV, processes, roles and responsibilities
▪ Confirmation from Central units that CV qualifies under necessary compliance and agreement to CV structure
▪ Confirmation from GURC to Risk Appetite Case (see Work Stream 3)
▪ Working capital / Loan document
▪ Liquidity facility document
▪ Formal agreement to CV executed by MR/FTL".
Mr Swainston highlighted how this document set out what was anticipated in terms of progress to take matters forward, including entry into a formal agreement between Munich Re and FTL. His submission was simple: that none of these things were accomplished, in part because Munich Re was concerned about taking equity as premium and in part also because there was no agreement as to how to split the 'upside'.
- As to the latter in particular, Mr Swainston drew attention to some slides which were sent by Dr Giarrusso to Mr Wettemann by email on 10 November 2016, after the expiry of the extension to the Collaboration Agreement (on 30 September 2016), in which reference was made (at internal page 28) to three different approaches "to calculating value sharing" and to these each having "its advantages and disadvantages". Mr Swainston submitted that the very fact that FTL was here canvassing different options demonstrates that there cannot have been any concluded contract of the sort now alleged by that stage.
- Mr Swainston highlighted also how even the Collaboration Agreement with its flat fee payable to FTL came under review by Group Audit and Group Legal at Munich Re, only for Group Audit at Munich Re to reject this and demand clarity on value for money. Thus, in an internal Munich Re email on 10 January 2017 from Geraldine Kearney to Felix Montjoie, this was stated:
"… the best way to ensure that we get 'value for money' under the contract with FTL is to make the remuneration success-based (e.g. by way of broker fees and/or contingency fees, as discussed).
If, however, the business owner still wishes to maintain a basic or flat fee element to the remuneration, then I would strongly recommend that the description of the 'Services' be amended/tightened up in such a manner as to include easily identifiable/enforceable legal obligations with definite deliverables …".
This was made known to FTL by Munich Re in an email the same day from Mr Wettemann to Dr Giarrusso, to which he attached an email from Mr Montjoie referring to a meeting that he had had the previous day with "Legal and Procurement" (it seems this was Ms Kearney) and in which Mr Wettemann said this:
"The key issue seems to be the flat fee component and the precise description of the service in return. I think in order to move this forward we need to come up with a detailed & concrete draft proposal that describes the services, the subject matter and some KPI's, so we can enter into a concrete discussion with CP and GL".
Mr Swainston submitted that this shows that Mr Wettemann and Munich Re were being entirely open with FTL about the internal issues that any proposed agreement would face.
- Mr Swainston highlighted, furthermore, that in January 2017 FTL put forward further proposals in the FTL/CIP Strategic Alliance Document with suggestions on how the value of deals could be assessed using a scorecard on a case-by-case basis on the sharing of profit. This, however, too, as Mr Swainston put it, failed to gain traction with Munich Re, with Mr Wettemann reporting to Dr Giarrusso in an email on 16 March 2017 as follows:
"From what I read it is obvious that GL has still very serious issues particularly with the 'flat fee component'. I need to talk to them to find out if there is a chance to overcome these issues, at all, or if the only support a solution that works without this component".
- The following month, in an email on 13 April 2017, Mr Wettemann explained to Dr Giarrusso that Munich Re was not prepared to conclude an overall agreement but would work with FTL on a case-by-case basis:
"… we had several internal discussions on different levels about our future collaboration. We very much like to continue to work with you and your colleagues whenever there will emerge specific opportunities where we can create and share value together. The number of these cases has been limited and will most probably not grow significantly short term. That will allow us to think and discuss the individual procedure on a case by case basis. The attempt to find an upfront agreement to anticipate and share value that hasn't materialised yet turned out to be so cumbersome that it kind of hindered us to concentrate on deals. So, we reached the conclusion to discontinue our discussion about a reissue of the CV and get back to the initial idea to concentrate on deals."
- Discussions continued, with FTL seeking more money. Thus, in an email on 4 May 2017 Dr Giarrusso wrote to Mr Wettemann saying this:
"This situation has placed us in the position of having provided significant work to MR over the past few months, out of the good faith anticipation that we would reach an agreement. Since that is no longer on the table, we need to determine how to cleanly terminate the CV relationship and transition to a deal-based approach, as you propose. …
To that end, here is what we need to do:
1. We must establish proper brokerage on the Equidate deal. When we initially set up the Equidate insurance, we allowed Munich Re to take all of the premium, on the assumption and understanding that FTL would be deriving its economics from the CV. Since that is not happening, and since we are incurring significant ongoing costs associated with Equidate, we must now establish proper brokerage
2. … We are not seeking any sort of 'future profit'".
- Mr Swainston submitted that this entailed FTL recognising that there would be no further flat fee or partnership contract, instead seeking more brokerage and being at pains to make it clear that it was not claiming "any sort of future profit", something that Dr Giarrusso reiterated on 15 May 2017 when he emailed Mr Wettemann saying that:
"FTL's invoice for the period from October 1, 2016, through March 21, 2017 … reflects solely the cost to FTL of supporting CIP after September 30, 2017, as requested by CIP; it does not represent any sort of 'future profits' …
As we had discussed moving to a deal-based/fixed-fee hybrid approach, we would be satisfied applying the Equidate brokerage retroactively … ."
- Mr Swainston noted that Munich Re rejected these demands, explaining in an email to Dr Giarrusso from Mr Wettemann on 19 May 2017 that Munich Re was open to brokerage on future deals but not those already closed. Specifically, Mr Wettemann said this:
"As I already explained in my previous email our decision to discontinue our discussions about a reissue of the CV is completely independent from the reports we got from you about Jeffrey and our decision is solely based on the rationale stated in that email.
We appreciate very much that you understand our position and Claudia told me after her meeting with you that FTL and Munich Re remain optimistic about joint business opportunities.
Our consulting contract as respects the biotech strategy is completely unrelated to the CV. I'm sorry about any mixed messages, I'm not aware of. I can assure you, Munich Re will continue to honor the obligations according to the agreement and we are still excited to participate in this great project.
Turning on the matter of the CV itself it is clear that the agreement automatically expired at the end of September 2016. In view of this the lump sum payments you received under the CV ceased at the time of expiry. Despite this and the absence of terms for your remuneration we will consider FTL's reasonable fees and expenses for the services requested by us and provided by FTL after 30 September 2016. In this regard, please let me have an itemized list detailing services requested (including when and by whom) and what has been provided. With respect to expenses for 'Rent / Facilities/Utilities/Insurance' please provide us with the original invoices - Here I'm guessing this is a typo and should read $12,000.
Finally, while I also agree that we need to establish a brokerage scheme for deals to come any deals that have been closed during the duration of the CV are not subject to any additional (retroactive or future) brokerage. Thus, our understanding is that any support FTL provided and will provide for the current Equidate deal is included in and compensated by the $4 million we paid to FTL."
- Mr Swainston, accordingly, submitted that FTL should be taken as having accepted that the Collaboration Agreement was the only contract made, that it had expired and that there would be a transition to a case-by-case approach in relation to new business with Munich Re. As he put it in his oral submissions, "FTL has pressed for its exotic structures to do something broader and bigger, to take equity within deals" but "None of that came to pass, so there is nothing that looks like a contract".
- The same applies, Mr Swainston submitted, to the exchanges that ensued in April 2018 when FTL again asked Munich Re to be paid since what this involved was FTL seeking quarterly payments on the model of the expired Collaboration Agreement for the 6-month period after September 2016. Again, Mr Swainston submitted, this was FTL acknowledging that its only contract with Munich Re was the Collaboration Agreement (as extended).
- It was Mr Swainston's submission that, in the circumstances, the exchanges between the parties (and, indeed, within Munich Re) preclude any claim by FTL for an 'uplift' under a joint venture or a collaboration or a partnership agreement since no such agreement ever came about. The suggestion that an agreement was concluded by conduct is, Mr Swainston submitted, hopeless given that there was no agreement even between those involved in producing the relevant documents on fundamental aspects of them. For example, he observed, the draft FTL/CIP Strategic Alliance Document relied upon by FTL included a reduced quarterly payment of US$250,000, but this reduction was not accepted by FTL (and, indeed, FTL's current claims are not on the basis of that reduced amount). Furthermore, Mr Swainston submitted, conduct cannot turn draft documents into a contract where there is no agreement on essential parts of the relevant documents, and all the more so given that FTL was aware that any new agreement would require approvals from Munich Re departments in Munich and that the relevant approvals were refused.
- Mr Swainston added that FTL's restitution claim and Pallant v Morgan constructive trust claims must also fail, not least because MRV made a loss having paid for the shares in Equidate with its own money and with no contribution from FTL. In addition, Mr Swainston submitted, since the introduction was covered by, and paid for, under the Collaboration Agreement which limited its related remuneration for introductions at Clause 4.1, the claims cannot succeed on the basis that a restitutionary-type case cannot contradict a contract that covers the same ground: see Barton v Morris [2023] UKSC 3.
- These are all submissions that might well ultimately - at trial - meet with success. They are not however, in my view, submissions which, applying the appropriate approach to applications such as the present, mean that the Transactional Claims should be struck out. I say this for a number of reasons, whilst noting importantly at the outset that, as made clear by Males LJ in Smit Salvage BV v Luster Marine Maritime SA [2024] EWCA Civ 260, [2024] 2 Lloyd's Rep 86 at [19]-[20], when deciding whether parties have concluded a legally binding contract even though they recognise that some matters are still to be agreed requires consideration of "the whole course of the parties' negotiations" and it is possible for parties to conclude a binding contract even though it is understood or agreed that a formal document will follow which may include terms which have not yet been agreed. Whether this is what the parties intend to do must be determined by an objective appraisal of their words and conduct.
- First, applying the approach just described, I find it impossible to rule out the possibility that, as FTL contends, the basis of the relationship between the parties, as expressed in the documents relied upon by FTL, was that FTL and Munich Re would have two elements to their relationship: a collaboration venture and a transactional relationship, with the former being the premise for the latter, but operating in parallel – with the purpose of that arrangement being for both parties to be able to make outsize returns, through equity, by using innovative solutions to address business risk. I have in mind, in particular, in this context not only the October 2014 Briefing, but also, by way of further example, after the expiry of the Collaboration Agreement, the attachment to an email that was sent by Mr Berger of Munich Re to Dr Giarrusso and Mr Flaxman on 25 October 2016 headed 'FTL-Munich Re Project Overview', which listed various entities (or, presumably, projects), including Equidate and Reterro. As to Equidate in particular, in a column headed "Description of deliverable", the following was stated:
"Equidate FTL deal (see small NPP).
1. Insurance product.
2. Upside opportunity."
Two columns later, headed "Deliverables by FTL", this was stated:
"Client relationship management.
Support team in development of insurance product."
Other documents produced at about the same time, to which I was taken by Mr Blackwood, during the course of the hearing, appear to support FTL's case that Munich Re and FTL were, indeed, looking to engage in equity investments that were unrelated (at least principally) to insurance arrangements. These include an email on 26 December 2016, in which Dr Giarrusso informed Mr Berger that he had "had a great call with Hari at the end of the week, and they have recently closed significant new business", adding that "I think they are ready to discuss restructuring the policy to potentially include some upside opportunity for Munich Re". Mr Blackwood explained that the reference here to "Hari" was to a senior executive at Equidate, submitting that, as such, this email provides further support for FTL's case as to what was agreed between FTL and Munich Re concerning equity transactions.
- I find it impossible also, in the circumstances, to rule out the possibility that, again as FTL contends, FTL made it clear, and Munich Re understood, that the remuneration for the collaboration venture and the transactional relationship were separate and distinct. I do not need to decide, for these purposes, once and for all, whether it would, as Mr Blackwood submitted, be "commercially nonsensical" for FTL to have been working on transactions which were anticipated to generate potentially large sums and providing services which did not fall within the scope of the Collaboration Agreement for no payment whatsoever. I do nonetheless consider that whether that is the case is a matter which needs to be investigated at trial rather than rejected at this summary stage.
- Mr Blackwood pointed in this regard to FTL working on, and Munich Re requesting that FTL perform, substantial work on, inter alia, Equidate and Reterro, and to such work not being referable to the Collaboration Agreement. He suggested that Munich Re has no apparent explanation as to why such work would be conducted in return for no payment, observing furthermore that the work was carried out against a background where FTL had made clear the basis on which it expected to be remunerated in relation to transactional relationships in return for a share of the 'upside', either to be agreed or calculated on a deal-by-deal basis or (in default of these things) for 50% of the 'upside', and that FTL provided those services. I agree with him, in such circumstances, that it is at least arguable that Munich Re accepted and/or became bound by conduct to the terms of the CIP/FTL Partnership Document, as updated by the FTL/CIP Strategic Alliance Document, and so an agreement which entailed Munich Re continuing to request and use FTL's services in relation to FTL-introduced and produced transactions such as Equidate and Reterro, knowing the terms on which FTL had indicated that it was prepared to provide those services.
- In short, FTL's case is sufficiently arguable so as to mean that it is appropriate that there be a trial.
- This is sufficient to dispose of Munich Re's application. However, secondly, as to Munich Re's contention that there was no 'upside' because at the end of the lock-up period (on 23 September 2022), the value of the shares held by MRV in Equidate was US$7.7 million, far lower than the amount said to have been invested (alleged by Munich Re in its Defence to have been US$14.1 million in shares and a convertible promissory note), this overlooks the fact that FTL's case is that Munich Re was required to transfer 50% of the 'upside' when a successful transaction occurred and that, for these purposes, so FTL contends, it was Equidate's IPO that was the relevant successful transaction. If FTL is right about this, then, the obligation alleged arose as at that date and not at the end of the lock-up period.
- In this regard, as Mr Blackwood pointed out, it is also FTL's case that that obligation was not qualified by restraints on transfer to FTL that Munich Re itself voluntarily chose to agree to, in that (so FTL maintains) Munich Re (through MRV) did not have to agree to lock up its own shares in Equidate with the consequence that it could not transfer part of its shares to FTL. If FTL is right about this, then it supports FTL's contention that the time when the 'upside' should be calculated was not when the lock-up period on the shares ended but when the transaction constituted a successful transaction.
- Furthermore, FTL's case also entails it being alleged that: (i) it was possible to transfer shares to FTL without restriction prior to the IPO date (indeed, creating a secondary market in pre-IPO private shares was Equidate's very business); (ii) the relevant lock-up provisions permitted a transfer to FTL during the lock-up period; (iii) there was no reason in principle that FTL itself could not have sold or transferred shares for value transferred to it on the basis that the third party itself was a permitted transferee, and so FTL could thereby have realised substantial value in the shares during the lock-up period; (iv) there was no reason why FTL itself could not have been listed or agreed as a permitted transferee by MRV and Equidate's board of directors would have been unlikely to object in circumstances where FTL had introduced Munich Re to Equidate; and (v) Munich Re or MRV could have purchased shares in the open market. These are all matters which can only sensibly (and appropriately) be addressed at trial; they are not suitable for summary determination.
- The same applies to Munich Re's argument that locked-up shares have a different value from shares available on the open market. As Mr Blackwood explained, the value of MRV's shares in Equidate at the IPO (if not subject to a lock-up) was US$224 million at the initial IPO price, US$602 million by the end of the IPO day and US$965 million a week or so later. These amounts are substantially more than the US$14.1 million said by Munich Re to have been invested by MRV, making it somewhat difficult for it to be concluded at this stage (ahead of trial) that the value of MRV's locked-up shares was so low as to mean that FTL does not have an at least arguable claim. No evidence has been advanced by Munich Re as to the value of the locked-up shares. In any event, this is an area where expert evidence is going to be required and, for that reason, a trial will be necessary.
- My conclusion, therefore, is that (as with the 'Services Claim') in relation to the 'Transactional Claims' it is not possible to say with confidence that the factual basis for the claims is fanciful because they are entirely without substance or that FTL does not have material to support at least a prima facie case that the allegations are correct or that FTL has pleaded insufficient facts in support of their case to entitle the court to draw the necessary inferences. It follows that FTL has a real prospect of success in respect of the 'Transactional Claims' and that they should not be struck out.
- It is neither necessary nor desirable, in the circumstances, to take up time considering the viability of FTL's alternative Pallant v Morgan constructive trust and quantum meruit claims since it is sensibly not suggested that, were the Court to conclude that the Transactional Claims should proceed to trial based on the primary way in which they are put, nonetheless these alternative claims should be struck out. I consider it appropriate, given that the Transactional Claims are to proceed to trial based on the primary way in which those claims are brought, that they should be permitted to be pursued on this alternative basis also.
- This brings me, lastly, to the claim under Californian law that is sought to be introduced by way of amendment.
- The detail of this claim is set out in the revised draft Amended Particulars of Claim at paragraphs 22A-L, 24 and 90A-C. That detail need not be set out here. Suffice to say that FTL's proposed case is that Munich Re deliberately misused FTL's confidential information concerning Equidate in the context of an investment in Equidate made by Munich Re's subsidiary, MRV, contrary to California law, specifically the California Civil Code at Civ paragraph 3426.1(d) (which defines "Trade Secret") and paragraph 3426.3 (which entitles a claim to be brought where there has been wilful and malicious misappropriation). In this context, FTL relies on a Non-Disclosure Agreement ('NDA') between FTL and Munich Re that is governed by California law.
- Mr Swainston submitted that there are fundamental problems with this new claim. First, he pointed out that the relevant information about Equidate was Equidate's own information and was supplied to Munich Re by Equidate itself, not by FTL, in circumstances where Equidate was in direct contact with Munich Re inviting Munich Re to invest during the currency of the Collaboration Agreement and FTL was fully aware of that. Secondly, Mr Swainston noted that the information from Equidate had nothing to do with Confidential Information under the relevant NDA since Clause 1 of that NDA shows that it concerned information provided by FTL in connection with its own business proposals to Munich Re rather than information provided by an insurance client under an insurance policy. Thirdly, Mr Swainston submitted that, since the claim raises new allegations of deliberate misuse of indeterminate confidential information belonging to FTL, it cannot be said to arise out of the same or substantially the same facts as are already in issue and, as such, is time-barred as a matter of California law.
- I am unpersuaded that it would be appropriate to disallow the intended amendment by reference to the first and second of these points. I have in mind, in particular, that the case as pleaded in the revised draft Amended Particulars of Claim includes this at paragraphs 22D-22J:
"22D In or around February 2015, FTL introduced Equidate to MR as a potential target company.
22E As set out at paragraphs 27 to 32 below, FTL provided substantial skill, effort and know-how in designing (jointly with MR) and re-designing the Equidate policy.
22F As a result of FTL's introduction and provision of skills, effort and know-how in designing and redesigning the Equidate policy, and pursuant to the terms of the Equidate policy so designed, which calculated the premium payable by reference to a quarterly transaction report which Equidate was obliged to furnish to MR, MR was provided with large amounts of confidential information as contained inter alia in the quarterly transaction reports.
22G The information contained therein about the Equidate business constituted Confidential Information (the 'Equidate Confidential Information' for the purposes of the NDA and MR was not entitled to use such Confidential Information for its own purposes outside the scope of the limitations provided by the NDA as pleaded at paragraphs 11.1-1.2 without the prior permission and/or agreement of FTL.
22H The Equidate Confidential Information provided by Equidate was only provided as a result of FTL's introduction of Equidate and its design and redesign of the Equidate policy and constituted an indirect provision of confidential information by FTL under the terms of the NDA. The purpose of FTL's method, technique, or process, as described above, as was known to MR, was to allow MR to gain access to such confidential information for the purpose of deciding whether to make an investment into a target company such as Equidate and thereby realise an Upside from the transaction.
22I At all material times, MR knew and were aware that the Equidate Confidential Information was being provided to it for the sole and limited purpose for permitting, evaluating and engaging in negotiations, discussions and consultations with personnel or authorised representatives between FTL and MR to explore business opportunities of mutual interest, such as an investment in Equidate to realise an Upside.
22J MR received and/or obtained the Equidate Confidential Information knowing the limited purpose for which it was communicated and/or received. Together with the obligations and duties to FTL imposed on it by the NDA, MR assumed duties towards FTL to keep confidential information received from FTL as secret and confidential. The Equidate Confidential Information provided by FTL to MR during their dealings together had the necessary quality of confidence and was provided to MR in circumstances importing an obligation of confidence. Accordingly, MR (and/or any of its employees, nominees, representatives and/or group companies with whom it shared the Equidate Confidential Information) came and continued to be at all material times under an equitable duty of confidence towards FTL in respect of the Equidate Confidential Information and each part thereof.
22K FTL understands that Munich Re Ventures LLC ('MRV') invested in Equidate. MRV is a wholly owned subsidiary of MR and controlled by it. MRV could only have received the Equidate Confidential Information, which it is to be inferred formed the basis of its decision to invest in Equidate, from MR itself.
22L Accordingly, MR was not entitled to use the Equidate Confidential information (nor share it with anyone, including its nominees and/or other group companies) without the prior consent of FTL for any purpose other than the purpose identified in the NDA as pleaded at paragraphs 11.1-11.2 above. Investing in Equidate without transferring or directing the transfer of FTL's share to FTL at the latest by or on the IPO date was not a permitted purpose under the NDA."
- In such circumstances, although ultimately Munich Re might prove to be right when it maintains that the relevant information cannot amount to a "Trade Secret" either because it was not supplied to Munich Re by FTL or because it concerned information provided by FTL in connection with its own business proposals to Munich Re, these are aspects which cannot be determined one way nor the other on a summary basis.
- The position in relation to the third point concerning limitation is similar in the sense that, as Mr Swainston indeed acknowledged, it cannot be resolved now, but different in the sense that, where a proposed claim might be time-barred and it is not clearly established that it arises from the same or substantially the same facts as have already been pleaded, the right course is to refuse permission to amend.
- That the limitation point cannot be resolved at this stage is clear. It is common ground between the California law experts instructed by each side (Mr David Almeling on behalf of Munich Re and Professor Sandeen on FTL's behalf) that trade secret misappropriation has a limitation period of 3 years from when the misappropriation is discovered or by the exercise of reasonable diligence should have been discovered, the cause of action accruing when "the wrongful act is done, or the wrongful result occurs, and the consequently liability arises".
- As previously noted, FTL's case is that the cause of action accrued in March 2022, on the date of Equidate's IPO because that is when it became a successful transaction, which triggered the latest date to comply with an obligation to share 'upside'. If that is correct, then, as Mr Blackwood observed, no limitation issue arises since the parties executed a tolling and standstill agreement on 7 February 2025 (before the expiry of the 3-year limitation period).
- Munich Re's position, in contrast and as supported by Mr Almeling, is that the limitation period expired earlier. In this respect, reliance is placed on the content of FTL's pre-action correspondence (in particular, a 17-page Letter Before Claim dated 13 November 2019, which alleged breaches of the Collaboration Agreement, including in relation to alleged investments in Equidate) on the basis that a party's own allegations can demonstrate knowledge sufficient to trigger the running of the statute of limitations.
- Whether FTL or Munich Re is right is not an issue that can be resolved ahead of trial. The question, in these circumstances, is whether it is the case that the proposed new claim arises from the same or substantially the same facts as FTL's existing claims: see CPR 17.4(2).
- As to this, Mr Blackwood noted that the Particulars of Claim (in their current, although soon to be amended, form) contain allegations of lack of good faith and fair dealing (paragraphs 68 and 71) and capriciousness (paragraph 71) in relation to Munich Re's dealings as regards Equidate. He submitted that this means that the CPR 17.4(2) hurdle is overcome in the present case. The difficulty with this, however, is that these are allegations that are proposed to be removed in the revised draft Amended Particulars of Claim, meaning that they are aspects which will no longer be the subject of a trial. Whether, in those circumstances, it is open to FTL to invoke CPR 17.4(2) must be open to some question.
- It is, perhaps, for this reason that Mr Blackwood emphasised FTL's willingness to agree to what he described as the 'Mastercard approach' ("the very obvious answer", as Mr Blackwood put it) and to make an order similar to the one that was made by Mr Roger Ter Haar KC in Advanced Controls Systems Inc v EFACEC Enhenharia E Sistemas SA [2021] EWHC 914 (TCC) where he explained, at [43], having reviewed certain authorities, including Mastercard itself, that:
"What is clear is that there is authority … that an amendment can be allowed on the basis that it does not 'relate back' to a date earlier than that fixed by the court".
Mr Blackwood, accordingly, invited the Court to order that FTL should have permission to amend so as to introduce the California law claim, but not on the basis that there is relation back to the date that the proceedings were commenced and instead by reference to the date when the amendment application was issued in October 2024.
- Although Mr Swainston opposed this proposal, it seems to me that it is unobjectionable in circumstances where, on Munich Re's case, the California law claim was already time-barred by October 2024, FTL's case being that the three-year limitation period began not later than November 2019 when the Letter Before Claim was written. If Munich Re is right about this, then, nothing is to be lost as far as Munich Re is concerned by making the order sought by FTL: Munich Re will not lose its limitation defence.
Conclusion
- It follows and by way of conclusion that:
(1) The application to adduce further witness evidence is allowed.
(2) Neither the 'Services Claim' nor the 'Transactional Claims' are struck out.
(3) Permission is given to FTL to bring the California law claim but on the basis that there is no relation back to the date that the proceedings were commenced but instead by reference to the date when the amendment application was issued in October 2024.
- I end by expressing my gratitude to all counsel and solicitors.
