JDK Holdings Corp v Marc Bourgade & Anor

Neutral Citation Number: [2026] EWHC 1072 (Ch) Case No: BL-2024-000345 IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES BUSINESS LIST Royal Courts of Justice, Rolls Building Fetter Lane, London, EC4A 1NL Date: 13/05/2026 Before : MASTER KAYE – – – – – – – – – – – – – – – – – – – – – Between : JDK HOLDINGS CORP Claimant – and – (1) MARC BOURGADE (2) ASLUMA AERO HOLDINGS Defendants – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – Edward Cumming KC and Francis Hornyold-Strickland (instructed by Reynolds Porter Chamberlain LLP (“RPC”)) for the Claimant Nicholas Craig KC and Hannah Glover (instructed by Watson Farley & Williams LLP (“WFW”)) for the First Defendant The Second Defendant was not represented and did not appear Hearing dates: 14 October 2026 and 28 January 2026 Written submissions 4 February 2026, 11 February 2026 and 13 February 2026 – – – – – – – – – – – – – – – – – – – – – Approved Judgment This judgment was handed down remotely at 10.30am on 13 May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ……………………….. MASTER KAYE Master Kaye :

1. On 28 January 2026, I permitted the claimant to amend their particulars of claim in the form advanced in their amendment application dated 4 November 2025 subject to some further minor amendments, which have now been made (the “Final Amendment Application” and the “Final APOC”).

2. I have had the benefit of written and oral submissions from both Mr Cumming KC on behalf of the claimant on 28 January 2026 and Mr Hornyold-Strickland on behalf of the claimant on 14 October 2025. Mr Craig KC made written and oral submissions for the First Defendant (“Mr Bourgade” or “the defendant”). I have considered those submissions and read and considered the evidence and documents to which I have been referred even if I have not referred to every argument or document in these reasons. I had also had the benefit of written and oral submissions from both Mr Hornyold-Strickland and Mr Craig on 6 May 2025 covering the same ground and several confidential notes relating to the without prejudice issue addressed below.

3. Mr Bourgade and the Second Defendant (“Asluma”) had applied to strike out parts the original particulars of claim (“POC”) on 19 December 2024 (the “FSOA”). Control of Asluma passed from Mr Bourgade to the claimant in February 2025. Mr Bourgade issued a second strike out application in relation to further paragraphs of the POC on 25 April 2025 (the “SSOA”) which was parasitic on the FSOA. Both strike out applications in substance concerned what Mr Bourgade considered to be a failure to adequately or coherently plead the terms of the joint venture agreement on which the claimant relied whether in the POC or the various proposed amendments advanced by the claimant.

4. For the same reasons that I have given the claimant permission to advance the Final APOC, the earlier POC was inadequate and failed to set out the claimant’s claim with the clarity and coherence that would have been needed for a recognisable claim in relation to the joint venture supported by evidence. That appears to be tacitly accepted by the claimant given the extensive amendments that have been made across the several iterations of the draft APOC before the claimant arrived at the Final APOC. I am satisfied that the FSOA and the SSOA which sought to strike out numerous paragraphs of the POC should be allowed.

5. I determined that the claimant pay Mr Bourgade’s costs of the FSOA and the SSOA. I also ordered the claimant to pay Mr Bourgade’s costs of the Final Amendment Application in the events that have occurred as is clear from the transcript despite the claimant’s subsequent submissions.

6. These are my reasons for giving the claimant permission to advance their claim on the basis of the Final APOC but also allowing the FSOA and the SSOA and my reasons for making the costs orders and my determinations in relation to those costs.

7. This dispute concerns the shares in an Italian airline, Aeroitalia SRL (“Aeroitalia”) all of which are currently held by the Mr Bourgade. The substance of the claimant’s case is that Mr Bourgade and the claimant, through its agent Mr Efromovich, entered into a joint venture agreement the effect of which was that the claimant would ultimately hold 95% of the shares in Aeroitalia with Mr Bourgade holding 5% (“the joint venture”). The claimant’s position is that Mr Bourgade held his interest in Aeroitalia on trust for Asluma and that the claimant had the right to acquire 95% of the issued share capital of Asluma thus giving it control over Aeroitalia. The claim is said to have a value of in excess of £40m.

8. By its claim, the claimant sought specific performance of the joint venture and declarations all intended to achieve that outcome together with a claim for damages. That has been the substance of the claimant’s claim since it was issued on 6 March 2024.

9. Although the claimant has always sought specific performance of the joint venture, declarations and damages such that it would end up with its 95% share of Aeroitalia, it had struggled to set out with sufficient clarity how it expressed, particularised or intended to evidence the terms of the underlying joint venture.

10. The reason for the apparent difficulty in pleading the joint venture was that it was not recorded in a single document which clearly set out all the terms that the parties were said to have agreed but was rather derived from meetings/discussions, emails and other documents which are said to evidence the development of the proposed joint venture between July 2021 and January 2022.

11. The Final APOC now does set out a clear framework for the joint venture supported by witness evidence from two of the participants in the negotiations and discussions, Mr Efromovich (agent for the claimant) and Mr Restrepo (a Colombian advocate who describes himself as legal advisor to both Mr Efromovich and the claimant), which are said to give rise to the joint venture on which the claimant relies. In addition, there is documentary evidence which tends to support the terms of the joint venture advanced by the claimant albeit that part of the documentary evidence is said to be sham agreements intended to conceal that the claimant was the ultimate source of the funding for the acquisition of Aeroitalia.

12. Although the Final APOC advances substantially the same claim as the POC and seeks the same relief it now does so in a manner that is coherent and adequately particularised such that I am satisfied it meets the merits test for amendment and is not fanciful. It is not the most elegant piece of drafting, but I am satisfied that it does what it needs to do and I should exercise my discretion to allow the amendments in the form of the Final APOC.

13. Mr Bourgade does not accept that there was any such a joint venture at all but rather maintains that he founded and owns Aeroitalia in its entirety. In relation to the sham agreements, he says they were not shams at all but reflected other genuine agreements that he had entered into unconnected with the purported joint venture. Legal Principles:

14. The court has a broad discretion whether to grant permission to amend: CPR r.17.3. In the exercise of that discretion, the court will apply well-established principles, which were recently summarised by Nicklin J in Amersi v Leslie [2023] EWHC 1368 (KB), at [140] to [142].

15. The threshold or merits test is the same as that applied in summary judgment applications (see for example Elite Property Holdings Ltd -v- Barclays Bank plc [2019] EWCA Civ 204 [40]-[42] per Asplin LJ). The merits test imposes a relatively low bar; amendments can be weak or improbable but still not fanciful, particularly where there are issues of contested factual evidence and or questions of mixed fact and law. The burden of satisfying the court that the amendment meets the merits test is on the applicant.

16. Kawasaki Kisen Kaisha Ltd v James Kemball Ltd [2021] EWCA Civ 33 at [18] emphasised the need for any proposed amendment to be arguable, carry a degree of conviction, be coherent, properly particularised and supported by evidence which establishes a factual basis for the allegation. See also Elite Property Holdings Ltd -v- Barclays Bank plc at [42].

17. Bryan J reviewed many of the same authorities more recently in respect of amendments generally and late amendments in Invest Bank PSC v Ahmad Mohammad El-Husseini [2024] EWHC 1235 (Comm) at [24] to [55].

18. Mr Craig and Mr Cumming relied on different paragraphs Invest Bank to support their respective positions. Mr Cumming relied on [35] which has some importance for this case: “Amendments should be “properly formulated” (i.e. appropriately particularised and not an abuse of process) and “clearly formulated” (i.e. readily understandable) (see VALC at [15(2)] and CIP Properties v Galliford Try Infrastructure Ltd [2015] EWHC 1345 at [19(d)]). However as was said in Rose at [50]: “The test is comprehensibility and not elegance. The drafting of almost any pleading could be improved with hindsight and the task for the judge in assessing whether this precondition has been satisfied is not to assess the stylistic qualities of the draft but to see if it sets out the amending party's case in such a way that the other party knows the allegations it has to meet”. Where the particulars of the plea are “just adequate” but could be further developed, the Court may allow an amendment but on the condition that further particulars are provided (see VALC at [15(c)]).” (my emphasis)

19. At [41] when referring to Scott v Singh [2020] EWHC 1714 (Comm) at [19] Bryan J emphasised that the court must not engage in a mini trial as was also emphasised in CNM Estates v Carvill -Biggs [2023] 1 WLR 4335.

20. In Duke of Sussex v NGN [2023] EMLR 21 Fancourt J considered that the nature of the evidence required to support an amendment must be credible (or “sufficiently plausible”) but at the amendment stage the court should not be weighing the competing evidence. This would risk tipping over into conducting a mini trial: “…A claimant with some cogent, plausible evidence does not cease to have a properly arguable case because the defendant adduces contrary evidence, however many witnesses are proffered. But the problem with the Duke's pleaded case is that there is nothing other than his rather vague and limited evidence to support it: there is no documentary evidence that supports a case about 2012 and his reliance; there is no evidence from those acting for the Royal Family at the time who might have been expected to support his account, if it is correct; and his own previously pleaded case and evidence in other cases are inconsistent with it.

21. Where an amendment is said to be a late amendment that is a factor that has to be weighed in the balance when considering whether to exercise discretion to permit an amendment. But it is about striking a balance between the injustice to the applicant if the amendment is not allowed and any injustice to the respondent if the amendment is allowed. Lateness has long been recognised to be a relative concept. The principles were set out by Coulson J in CIP Properties (AIPT) v Galliford Try Infrastructure [2015] EWHC 1345 (TCC) at [19]. See also Quah v Goldman Sachs [2015] EWHC 759 (Comm) at [38] and Invest Bank.

22. As Bryan J commented in Invest Bank at [51], when considering a late amendment there is a need for the court to be satisfied with the level of particularity to avoid further delay, disruption and consequent prejudice to the responding party: “…The reason for this is obvious. Quite apart from the need for matters to be properly and sufficiently pleaded in the first place, any need for further elucidation would itself give rise to (further) delay, and actual or potential prejudice to the other party. That a defective pleading can be cured later is misguided in the case of late amendments.”

23. Many of the complaints raised about the POC concerned how the joint venture was articulated particularly in relation to those terms which were based on oral discussions. Cockerill J in King v Stiefel [2021] EWHC 1045 (Comm), identified the threefold purpose of a statement of case as including that it (a) enables the other side to know the case it has to meet; (b) ensures that the parties can properly prepare for trial, that unnecessary costs are not expended and court time not wasted chasing points which are not in issue or which lead nowhere; and (c) operates as a critical audit for the claimant and its legal team that it has a complete cause of action. CPR 16 PD 7.4 provides that “Where a claim is based upon an oral agreement, the particulars of claim should set out the contractual words used and state by whom, to whom, when and where they were spoken.”

24. In Cifal Groupe SA v Meridien Securities (UK) Ltd [2013] EWHC 3553 (Comm) Males J was considering both a jurisdiction challenge and an amendment application. He explained: “…If a claimant adduces apparently plausible evidence in support of its case, it is likely to be fruitless for a defendant to adduce substantial contrary evidence, unless it can identify some "killer point” to show even at this early stage why the claimant's evidence has no real prospect of being accepted at trial. That said, however, the burden remains on the claimant to establish by evidence that its claim has a real prospect of success. ”

25. He continued at [11]: “a defendant should not be required to …defend a case which is inherently weak and not supported by proper evidence merely because a claimant was able to conceal that weakness within a complicated story.” And he then set out at [12] what he considered would be the expected minimum requirement for a claimant seeking to advance such an oral agreement concluding that: “An application which cannot even do this much may find itself struggling to clear even the relatively undemanding hurdle of establishing a real prospect of success. Similarly, where a claimant has failed without explanation to adduce such evidence, it is hard to conclude that there are reasonable grounds for thinking that the claimant would be in a better position to prove its case after a trial.”

26. Finally in relation to both the proposed amendments and the FSOA and SSOA the defendant also relied on Ashraf v Lester Dominic Solicitors[2023] EWHC 2800 (Ch) in which Joanna Smith J considered the jurisdiction to strike out statements of case as an abuse of process where they are unreasonably vague or incoherent or where a party blows hot and cold. In Ashraf in 7½ years the claimant had not reached a landing on how to frame his case – it had been endlessly mutable see for example [70] to [80]. However, as Chief Master Marsh identified in Nekoti v Univilla Ltd [2016] EWHC 556 (Ch) at [74] there are cases where a party may be “genuinely mistaken about a version of events, particular facts or how best to put forward its case.” It is right that the Chief Master records that in that case the claimant’s case had developed to meet the difficulties identified by the defendant and he further noted that two years after the claim was issued it was still being developed by the claimant. But it is not the case that every time a party proposes amendments to meet complaints raised in a strike out application that those amendments are abusive. There has to be something more. The Procedural Background

27. The claim was issued on 6 March 2024. The original Particulars of Claim (“POC”) are dated 20 March 2024 and were signed with a statement of truth by Ms Klepacz, a director of the claimant and the daughter of Mr Efromovich.

28. Initially, Mr Bourgade and Asluma were both represented by Pinelli Schifani & Caronia because Mr Bourgade held 100% of the shares in Asluma. The defence is dated 18 April 2024, and the reply is dated 4 July 2024. On 19 July 2024, the defendants made a request for further information which the claimant responded to on 25 July 2024. This was also signed by Ms Klepacz (“RRFI”). On 29 July 2024, the claimant made a request for further information in relation to the defendants’ defence.

29. On 12 August 2024, the claimant applied for a proprietary injunction. The application was supported by two affidavits from Mr Efromovich, and one from Mr Restrepo and a witness statement from their then solicitor, Mr Brentnall (“Efromovich 1” and “Efromovich 2”, and “Restrepo 1”). The evidence in response was provided by a witness statement from Mr Bourgade and one from Mr Fidoe, of WFW (who had by then replaced Pinelli Schifani & Caronia) (“Bourgade 1” and “Fidoe 1”).

30. The injunction application was dismissed by HHJ Cadwallader on 6 September 2024. The claimant was ordered to pay the defendants costs subject to detailed assessment but with an interim payment on account of £90,000. This was paid.

31. The defendants were not satisfied with the RRFI and sought further and better particulars. The claimant instead proposed to amend the POC. On 31 October 2024, the claimant provided its first amendments to the POC (“POC r1”). The defendants intended to advance an amended defence but did not want to do so until the claim was better particularised. That has remained the position since October 2024.

32. The FSOA was issued on 19 December 2024 supported by the third witness statement of Mr Fidoe (“Fidoe 3”). Mr Fidoe set out what the defendants considered to be the defects in the POC both as matters of substance and drafting. This included their complaints about the lack of clarity about how and when the joint venture was negotiated and its terms and a lack of clarity in pleading oral agreements. At the same time the defendants applied for Security for Costs (the “SFC Application”).

33. On 7 January 2025, the claimant provided a further draft amended POC (“POC r2”). The defendants did not consider that it addressed the concerns they had raised in the FSOA. The CCMC on 17 January 2025 was ineffective. The claimant was ordered to pay the costs thrown away by the adjournment to be assessed if not agreed and was ordered to make an interim payment on account of £15,000 which was paid.

34. The FSOA was listed on 6 May 2025 and the adjourned CCMC was relisted for 7 July 2025.

35. The SFC Application was resolved by consent on 7 February 2025. The claimant would make a payment into court £375,784.08 by way of security for costs up to the conclusion of the FSOA but with permission to restore the SFC Application thereafter. The payment in was made.

36. On 7 March 2025, the Claimant issued an application to amend the POC (the “First Amendment Application”) which was listed to be heard together with the FSOA on 6 May 2025. It was supported by the second witness statement of Simon Hart of WFW (“Hart 2”) and was accompanied by a further draft amended particulars of claim “POC r.3” or “APOC d.1”.

37. Further evidence was filed in relation to both applications: Fidoe 4 (7 April 2025) and Hart 3 and Efromovich 3 (22 April 2025).

38. On 25 February 2025 Mr Bourgade transferred 95% of the Asluma shares to the claimant pursuant to the JDK Option executed by him on 11 November 2021(see below) and resigned as a director leaving Mr Efromovich as the sole director of Asluma. Despite the change of control, it was not until 11 April 2025 that the defendants’ solicitors ceased to act for Asluma.

39. Asluma was now unrepresented but controlled by the claimant. By order dated 30 April 2025 Asluma consented to the First Amendment Application and withdrew the FSOA so far as it related to Asluma.

40. On 25 April 2025 Mr Bourgade made the SSOA. It was listed to be heard on 6 May 2025.

41. On 6 May 2025 I was not satisfied that APOC d.1 adequately addressed the pleading issues raised by Mr Bourgade. I considered that the complaints about how the joint venture had been pleaded had considerable force. It was unclear what the claimant said its terms were, when or how those terms were agreed and when it was said to have been finalised and/or come into existence. The POC was drafted in an unconventional way requiring the reader to jump backwards and forwards between different sections to try to work out what it was that the claimant was saying its pleaded case was which did not help when seeking to tease out the substance of the joint venture relied on. There were other elements of the APOC d.1 which could have been improved to provide greater clarity, or which did not need to be in the APOC d.1 at all but fundamentally the claimant needed to have another go. Although the general story arc/case was just about discernible that of itself was not sufficient for the purposes of advancing the claim. Mr Bourgade maintained that the claim should be struck out not merely on technical grounds but also on substantive grounds.

42. However, the court uses its powers to strike out sparingly and although I was not satisfied with the amendments as advanced on 6 May I was prepared to provide the claimant with an opportunity to revisit APOC d.1/POC r.3 on terms.

43. I directed that the claimant provide any revised draft POC (APOC d.2/POC r.4) to Mr Bourgade by 20 May 2025. If the amendments were not agreed the claimant had to issue an application which would be heard at the adjourned hearing which was then listed to take place on 14 October 2025.

44. I directed that the claimant was to pay the costs of and occasioned by the adjournment of the three applications to be assessed if not agreed but with an interim payment on account of £55,000. The Claimant paid those costs. The relisted CCMC on 7 July was vacated.

45. The claimant provided Mr Bourgade with a further revised draft POC (“POC r.4”) and the Second Amendment Application was issued on 13 June 2025 supported by Hart 4 and APOC d.2/POC r.4. Hart 4 explained that the amendments were intended to address the issues raised by me at the hearing on 6 May 2025 and the matters raised in the earlier request for further information.

46. Unfortunately, the claimant did not take the opportunity to revisit the particulars of claim with a critical eye and consider whether some of the criticisms of the POC raised by Mr Bourgade needed to be addressed. Instead, it appeared tolerably clear that all that had been done was to pour over the transcript of the hearing on 6 May 2025 and addressed only those matters that had been specifically discussed at the hearing and then to insert those amendments into the existing structure. It is not for the court to give drafting advice or to frame the claim for the claimant. The FSOA and SSOA had identified numerous concerns/defects.

47. The evidence in response to the Second Amendment Application was provided by Fidoe 6 on 1 July 2025 and the evidence in reply by Hart 5 on 14 July 2025. Again, a critical review of the evidence in response might have provided an opportunity to avoid the position that the claimant was to then find itself in on 14 October 2025.

48. The APOC d.2 still did not adequately address the terms of the joint venture. Whilst the claimant had alighted on 30 January 2022 as the date by which it said all the terms of the joint venture had crystallised and/or it had come into existence, it remained poorly constructed making it very difficult to follow what were said to be the key terms of the joint venture or when or how they were agreed. In the face of fierce resistance from Mr Bourgade’s legal team I was ultimately persuaded to give the claimant a further final opportunity to reflect on and revise their proposed amended POC. This time the terms on which the claimant was given more time were more onerous than in May 2025.

49. It was clear that neither the First nor Second Amendment Applications had any prospect of being successful – the proposed amendments did not address the shortcomings in the way in which the POC set out the joint venture sufficiently. I dismissed the First and Second Amendment Applications. I ordered the claimant to pay Mr Bourgade’s costs of an occasioned by the Second Amendment Application which I summarily assessed at £80,000. Those costs were paid.

50. In light of the considerable additional costs that Mr Bourgade had incurred I also required the claimant to increase the security for costs they had given in February 2025 by £124,215.92, bringing the total sum paid into court to £500,000.

51. I heard the submissions in relation to the FSOA and the SSOA and indicated that I would give a decision in relation to those applications at the further hearing.

52. This really was the final opportunity for the claimant to get its house in order. Whilst the substance of its claim had been consistent throughout, it had to date failed to set it out in a coherent manner the terms of the joint venture it relied on and when and how they were agreed. I gave directions on an unless basis for the claimant to issue a further application for permission to amend by 4 November 2025.

53. The claimant had now paid the defendant adverse costs of £70,000 on account in relation to the 17 January 2025 and 6 May 2025 hearings and £80,000 in respect of the Second Amendment Application together with the further payment into court of £124,219.92 for its failure to properly engage with the shortcomings in the POC. Of course, in addition it was liable to meet its own costs in relation to each of those cost events.

54. On 4 November 2025, the claimant issued the Final Amendment Application relying on APOC d.3/POC r.6. This was supported by the fourth witness statement of Mario Restrepo, “Restrepo 4” and the fourth witness statement of German Efromovich, “Efromovich 4” both dated 4 November 2025 and additional supporting documents. Mr Fidoe responded on 18 November with Fidoe 7, and Mr Hart replied on 25 November 2025 with Hart

6.

55. The adjourned hearing and the Final Amendment Application were listed for hearing on 28 January 2026. The Final APOC

56. APOC d.3 had been restructured and now sets out in roughly chronological order the negotiations said to have resulted in the joint venture. These took place between approximately July 2021 and 31 January 2022. The core terms were developed and agreed by about the end of October 2021 involving primarily discussions between Mr Bourgade, Mr Efromovich and Mr Restrepo. Thereafter there were further discussions focussed on the funding/performance aspects of the joint venture culminating in the claimant pleading that all the terms of the joint venture including those relating to how it was to be funded were finalised by 31 January 2022.

57. The defendant complains that some of the conversations and emails relied on in APOC d.3 were different to those the claimant had previously relied on but that does not mean that they cannot form part of the chronological development of the joint venture over a period of months particularly when supported by witness evidence of two of the parties, Mr Restrepo and Mr Efromovich, who were directly involved in many of those discussions and supported by documentary evidence and emails which appeared to be consistent with the version of events now advanced by the claimant. Whilst the claimant should have undertaken this exercise ideally before they even issued the claim that does not mean that that evidence and those documents do not support the version of events that they now put forward in setting out the terms and timeline of the joint venture. (Invest Bank at [35] and Nekoti ) Background

58. I keep in mind the legal principles set out above when considering the nature of the claim advanced by the claimant.

59. The claimant was a Panamanian company whose three directors are Ms Klepacz who signed the original statement of truth on the POC, Ms Mayo and Ms Mroz. They are said to own the claimant in equal shares. They are the daughters of Mr Efromovich. It is Mr Efromovich and Mr Restrepo who are said to have negotiated the terms of the joint venture with Mr Bourgade. Mr Efromovich and Mr Bourgade had known each other for several years and had worked together before.

60. The claimant initially pleaded that Mr Efromovich was an agent of and acted for the claimant. Mr Bourgade sought clarity about what this meant. The claimant subsequently located and now relies on a board authorisation dated 8 May 2009 by which Mr Efromovich was authorised by the directors to manage, negotiate and sign contracts and to source funding for the claimant.

61. The defendant complains about this change in the explanation of the basis of Mr Efromovich’s authority but a document purporting to be a board minute of that date has been provided and any dispute about its authenticity or why the claimant had not recalled its existence when originally pleading the POC is something to be addressed at trial.

62. The claimant says that the terms of the joint venture were to the effect that the claimant and Mr Bourgade would procure the incorporation of: (i) Aeroitalia; and (ii) Asluma. This was to be arranged by Mr Bourgade (Final APOC [12.1] and [12.2]). The claimant would be the source of the capital that would be required to set up the structure and for Aeroitalia to operate as an airline, in a sum of more than US$6 million represented by transfers of €500,000 and €5,500,000 (Final APOC [7.8], [7.10], and [11]). To avoid potential regulatory and other complications Mr Bourgade would act as a conduit for the provision of that capital. The claimant pleads that the transfer of the capital was concealed by the use of sham agreements referred to in the Final APOC as the First and Second Consultancy Agreement.

63. For this purpose, Mr Bourgade and Mr Efromovich devised a way to make it appear that the claimant was not funding the acquisition. Mr Bourgade’s company “Flying Solutions” would act as the conduit for the transfer of the €500,000 by entering into the First Consultancy Agreement which was executed on 25 November 2021 but back dated to 7 October 2021 and purported to be a consultancy agreement between the claimant and Flying Solutions relating to an oil and gas deal in Niger.

64. The Second Consultancy Agreement was for the sum of €5,500,000 and also involved Flying Solutions and an apparent oil and gas deal in Niger. It was backdated to 15 January 2022. The claimant says that they have now determined that the final date for the joint venture is 31 January 2022 as they have determined that the Second Consultancy Agreement was in fact executed on 31 January 2022 not 30 January 2022.

65. The background to these consultancy agreements and the agreement reached between Mr Efromovich and Mr Bourgade including the use of both Flying Solutions and SEOG, a company owned by Mr Efromovich, are convoluted but there is some documentary evidence and witness evidence to support the version of events advanced by the claimant including from Mr Restrepo whose evidence is that he agreed some of these arrangements with Mr Bourgade. He has produced emails which appear to support that version of events.

66. Whilst the defendant says that the First and Second Consultancy Agreements are not shams but were indeed related to oil and gas deals in Niger, I cannot determine those contested factual issues now. Again, this is a matter for trial.

67. The claimant says it was agreed that Mr Bourgade would initially hold 100% of the issued share capital of both Aeroitalia and Asluma and that in recognition of the ultimate source of the funding he would grant an option to the claimant (i) to allow the claimant to acquire 95% of the issued share capital of Asluma, and (ii) pending exercise of the option, to allow Mr Efromovich to exercise full financial and managerial control over the affairs of Asluma (“the JDK Option”). Consequently, the claimant, acting through Mr Efromovich, would have the right to require Mr Bourgade to transfer 100% of the issued share capital of Aeroitalia to Asluma and immediately upon its exercise the claimant, acting through Mr Efromovich as its agent, could effectively control Aeroitalia as its sole shareholder. (Final APOC [12.3] and [12.5]).

68. Mr Bourgade was therefore entitled to a 5% shareholding and in addition remuneration of €10,000 per month (Final APOC [12.6]). Again, there is a dispute about what this sum represents but there are documents which support the claimant’s version of events even if Mr Bourgade says there is another explanation.

69. The claimant says that consistent with their pleaded case as to the terms and effect of the joint venture, Mr Bourgade arranged the incorporation of Aeroitalia and Asluma and he initially held 100% of their issued share capital. The claimant provided the proposed capital for Aeroitalia in the sum of more than US$6 million and was granted the JDK Option in respect of the affairs and shares of Asluma. The JDK Option was executed by Mr Bourgade on 11 November 2021. Later, the claimant exercised the option but despite the claimant requesting that Mr Bourgade transfer the shares that he held in Aeroitalia to Asluma, the claimant says he refused to do so. There is a dispute about this and the reason for the delay in effecting the transfer. He eventually transferred the shares in Asluma to the claimant in February 2025. However, as Asluma do not hold the shares in Aeroitalia because they remained held by Mr Bourgade that has not resolved the dispute.

70. The claimant also pleads various implied terms, and that Mr Bourgade owed fiduciary duties to the claimant in relation to the implementation of the joint venture (see Final APOC [14] and [15]).

71. The Final APOC [16] then sets out in 23 sub paragraphs what the claimant relies on to evidence the performance of the joint venture including the various payments made to fund it.

72. The chronological section of the Final APOC sets out the key parts of the discussions and exchanges between Mr Bourgade, Mr Efromovich and Mr Restrepo relied on by the claimant and when they occurred (Final APOC [7], [10] and[11]) including references to documents as appropriate which includes the JDK Option.

73. Mr Cumming submitted that the joint venture had developed through the discussions across the period from July 2021 to January 2022. He submits that what can be seen from the documents and evidence relied on is a refining of the terms as time passed and matters developed. This evolved into a binding agreement and then continued to evolve such that all the terms were finally agreed on 31 January 2022. This he says is in part the explanation for the difficulty the claimant had experienced in pinning down which were the core terms and when and how they were agreed despite the claimant always being clear about the substance of what had been agreed. The core thrust of the claim has not changed.

74. The defendant submits that change from 30 January 2022 to 31 January 2022 to be significant. The defendant complains that the claimant’s position on when the joint venture was agreed is contradictory having said for example that it was agreed on 29 October 2021 in earlier drafts. However, it does remain the claimant’s case that many of the key terms were agreed on 29 October 2021. It is just that not all the terms had yet been agreed as they continued to be developed over the following months.

75. The claimant says the reason for the change is explained by the date on which the backdated Second Consultancy Agreement was executed – 31 January 2022. Mr Cumming categorises this as the updating of a recollection. Mr Craig submits that the plea that joint venture was agreed by 31 January 2022 is fundamentally deficient since it does not set out what event occurred on 31 January 2022 to explain how the joint venture came to be agreed on that date. That was to misunderstand the Final APOC and the claimant’s case on the evolution of the joint venture. There could have been other ways in which to plead the joint venture and other dates chosen as suggested by Mr Craig (and indeed previously advanced by the claimant) such that certain events were instead treated as either conditions precedent or subsequent but that is not the approach the claimant has taken. They have chosen to plead all the events over an extended period of time which they say came to fruition on 31 January 2022. They say this because the Second Consultancy Agreement – the final piece in the puzzle – was executed on that date. They have now set out at [12] the terms they rely on more clearly and set out the documents, conversations and meetings which give rise to the terms they rely on culminating in the execution of the Second Consultancy Agreement at [7] and then the performance at [16] (see Invest Bank at [35] and also Duke of Sussex at [21]).

76. Mr Craig also complains that not everything set out in [7] has then been pleaded as an express term in [12] and that discussions that had previously been pleaded have not made the cut in the Final APOC, even though as part of the FSOA and SSOA he had sought to strike out some of those parts of the previous versions of the particulars for not setting out the terms of the joint venture in a coherent way.

77. Mr Craig was critical of the reliance on new telephone calls which he says have not previously been pleaded. However, Mr Restrepo explains that he has provided Restrepo 4 to clarify the circumstances surrounding the formation of the joint venture and to correct minor errors in dates. Any complaint about that would be a matter for cross examination. Where, as here, there are at least some documents that support the version of events advanced by the claimant in the Final APOC and the evidence of Mr Restrepo and Mr Efromovich who were party to those discussions, that is enough to overcome the low bar.

78. It cannot therefore be said that the further particularisation and reliance on phone calls is hopeless and fanciful. Mr Craig complains about Mr Restrepo’s recollection of discussions in telephone conversations in November 2021 which relate to the creation of the sham agreements which had not previously been relied on. Mr Cumming was able to direct me to an email dated 25 November 2021 which appears to be supportive of Mr Restrepo’s evidence and the claimant’s case. It refers to a conversation a few minutes ago and refers to a document which is attached which appears to be the First Consultancy Agreement. That evidence cannot be rejected at this stage nor can a plea based on it.

79. In the Final APOC the claimant has sought to extract out of the long running negotiations those conversations, discussions, meetings and documents which it says provide evidence of what it says were the agreed terms of the joint venture. It is quite evidently not all the communications between the parties over the relevant period. That some of the terms are recorded in or supported by documents and some are recorded only in witness evidence does not mean that the Final APOC is defective. Mr Cumming submits that given the claimant’s case on the sham agreements and the evidence of substantial transfers of money, he says it is not fanciful to suggest that it would not all be written down. The Final APOC is not only supported by Mr Restrepo and Mr Efromovich’s evidence, but as I say Mr Cumming was able to direct me to documents which the claimant says supports the terms of the joint venture advanced by it and supported the evidence from Mr Efromovich and Mr Restrepo.

80. Mr Cumming argues there is nothing wrong with the way in which the Final APOC approaches the terms by reference to the particulars in [7] since what [12] pleads is the express terms relied on and derived from the various meetings and documents set out in [7]. Not everything discussed in the meetings and discussions recorded in [7] is then an express term which is relied on. Again, it seems to me that the focus should be on the claim that is now pleaded. The express terms derived from the facts and matters set out in [7] are pleaded at [12]. Those are the express terms relied on by the claimant as giving rise to obligations on the defendant which are then coupled with the implied terms at [14]. The Final APOC deals with performance of the joint venture and funding at [16]. [15] then pleads a further or alternative fiduciary relationship.In [13] they make it clear that the combination of [12] and [7] amounted to a contract – the joint venture. That is their case. – that the full terms of the joint venture were agreed by 31 January 2022. It is inelegant but comprehensible.

81. I did ask the claimant to revisit and amend some of its signposting and cross referencing so that the Final APOC was easier to follow for example, by making it clear in Final APOC [12] which of the events pleaded in [7] gave rise to the terms pleaded in [12]. Further, although [16] addressed the funding/performance of the joint venture that too needed to be linked back to [12] to make it clear which element of the funding/performance was said to be linked to which of the terms. This is the Final APOC. Some of Mr Craig’s complaints were addressed by the lack of linking of the Final APOC [7] events to the Final APOC [12] terms and the performance and funding in [16] which then caused him to raise an issue about [13].

82. However, these further minor tweaks mean that in so far as there remained any ambiguity about which particular terms were said to be derived from particular conversations or documents – the event and the term were now linked more clearly in the Final APOC.

83. Any complaint about the quality of the evidence or the choice of terms the claimant have relied on and/or which they have now decided are not central to the joint venture are trial issues.

84. Mr Cumming submits that the Final APOC now sets out a coherent cause of action which Mr Bourgade can understand and properly address in any amended defence. He relies on the Fidoe 7 and Mr Craig’s submissions in support of his contention that the defendant does understand the claim being advanced and is well able to address it.

85. Although not a complete answer to the complaints raised by the defendant – there was some force in his submission that if the Final APOC had been advanced as the POC that the defendant would have struggled to advance a credible strike out or summary judgment application. He accepts that the claim could have been advanced in its current form earlier and notwithstanding what he says is the ultimate simplicity, and force, of the thrust of the claim – the proceedings have had a protracted and unfortunate procedural history and a lack of clarity in the way that counsel’s drafting had expressed matters relating to the underlying agreement.

86. The Final APOC represented a recognition of the previous shortcomings in the POC and the earlier drafts. Mr Craig’s submission that the changes had no evidential support did not stand up to scrutiny. As set out above Mr Cumming had taken me to a number of the documents now relied on to support the amendments some of which Mr Bourgade was a party to. That Mr Bourgade has a different explanation for the documents, emails or discussions does not mean that the claimant has not pleaded a coherent claim that is not fanciful.

87. It appeared to me that Mr Bourgade did protest a little too much in relation to the Final APOC coupled as it was with documents to support it and evidence from Mr Restrepo and Mr Efromovich.

88. Mr Craig also complains that whilst the Reply pleads that Asluma was intended to be for the purpose not only of holding Aeroitalia but also other airlines, there is no mention of those other airlines in the Final APOC and the connection and purpose is unexplained. Whilst there is no mention of the other airlines referred to in the Reply that does not undermine the Final APOC. It is not necessary to plead every feature or justify and explain every fact in a statement of case – that is not their purpose – and would have left the claimant open to a different type of criticism. But in any event the Reply is not inconsistent with the Final APOC as the point is addressed at [5]. Lateness

89. Mr Craig argues that the delay in getting to this point is a factor which both weighs against permitting the amendments at all but also goes to his broader abuse point. He says that the delay and its impact on the defendant and other court users is Ashraf abusive such that the amendments should not be allowed and the claim should be struck out. Mr Cumming submits that whilst the claim could have been advanced in this form earlier, it is not late in any real sense. The claim has not advanced beyond the statements of case stage. The time over the last year has been taken up not only with the proposed amendments (in respect of which the claimant has already paid adverse costs) but with the FSOA and SSOA. In this case on the facts the prejudice to the defendant of being mucked around and delayed in the progress of the claim has, at least to some considerable extent, been addressed by the adverse costs orders which have been made and paid and the increased security.

90. That is not a complete answer to the issue of whether there has been a delay and whether that delay is such that this can be considered a late amendment in respect of which the court should not exercise its discretion. Yes, the claim has been stalled for about a year as a consequence of these applications, but the claim is consequently at a very early stage, and the parties have not even agreed to any relisting of the CCMC. There has never been a trial date at all and the current delay in relisting the CCMC is caused by the defendant. And whilst any amendment could be treated as late if it could have been made earlier, I do not consider that the proposal to amend was late in any real sense it has just taken a long time to resolve the issue.

91. This case does not come close to the Ashraf in terms of conduct. This is not a blowing hot and cold case or one where the claim itself is endlessly mutable but rather it is one of those cases which fall within the category of cases described by Chief Master Marsh in Nekoti as a “how best to put forward the case” category. This is not the claimant advancing a new claim but working out how best to present the claim it has always advanced. It would have been better if it had done so before it issued the claim and/or at least once the difficulties with how it had set out its claim were identified instead of seeking to maintain the original POC.

92. The claimant should have and Mr Cumming accepted could have pleaded in the form of the Final APOC earlier. There is nothing new. Whilst that is a factor that weighs against the claimant it is also one that weighs in its favour. This is not about a change of case but about a better, more comprehensive articulation of the case. And it relies for the most part on emails, discussions and meetings which either involved Mr Bourgade or about which he was aware at the time. It is not a claim that he did not understand even if he does not accept that those meetings have the effect that the claimant says. That is a different issue and one for trial.

93. I keep in mind the balance between the parties. The defendant says this claim is hopeless but the thrust of the FSOA and SSOA application were the inability of the claimant to plead the joint venture. The claimant has now satisfied me that they have sufficiently pleaded the joint venture to meet the merits test such that there is a claim that they can advance that it not fanciful.

94. Mr Bourgade is an individual who has had this claim hanging over him for longer than ought to have been necessary before it could be progressed but that is not itself sufficient to tip the balance when considering lateness or discretion more generally. I have to balance that against the claim which the claimant considers to be very valuable and the prejudice to the claimant if they are not able to advance it.

95. The defendant’s frustration with the process is understandable as is his resistance to conceding that the claimant might finally have got there. Having had the claimant on the back foot for some time and no doubt anticipating that I would accede to the FSOA and the SSOA on this occasion it becomes difficult to stand back and view the current state of affairs objectively when a revised, and coherent Final APOC was advanced.

96. Whether ultimately the claim will succeed at trial is not the test. Whether Mr Craig, the court or even Mr Cumming would have drafted the Final APOC in this form is not the test. The test is whether the claim as now articulated overcomes the low bar for amendment such that I should permit the amendments and allow the claim to advance.

97. I balance the shortcomings in the claimant’s approach to date and any prejudice to the defendant against the fact that this is a very substantial claim which the claimant is committed to and that if the amendments are not permitted it will fall away.

98. The claimant submits that the Final APOC is now properly pleaded and carries a strong degree of conviction and establishes a proper factual basis for the allegations supported by witness evidence from two of the parties involved in the discussions around the joint venture. The claimant argues that any shortcomings in the APOC and the evidence should be tested at trial. I agree.

99. In this case, given its history, it is particularly important to be wary of the risk of falling into error and conducting a mini trial. Whilst Mr Bourgade does not accept that the claimant’s claim can possibly stand up to scrutiny, there is a real risk that in delving into the granular detail of whether the joint venture as now coherently advanced by the claimant can be sustained the court would stray the wrong side of the line.

100. This is not a case where the points are narrow or based on clear documents, but where there are competing versions of events. Much of the claim relies on oral conversations and alleged sham agreements and concealment such that even where there are documents there are competing cases about what those documents mean or refer to or were for. There would be little prospect of being able to determine the issues on a summary basis which just highlights the difficulties of the defendant’s approach to these amendments.

101. What the defendant now wants me to do with these amendments would tip over into a mini trial (see Males J in Cifal). I do not consider that I can or should try to reach a conclusion at this stage that the evidence of Mr Restrepo and Mr Efromovich as to the terms of the joint venture is so fanciful that the amendments do not overcome the low merits bar. To reject the now pleaded terms of the joint venture which are also to some extent supported by the documents would quite obviously be to embark on a mini trial and would require me to consider contested factual evidence in circumstances where only some of the evidence and documents are available.

102. The Final APOC is not pretty but I am satisfied that it does advance a coherent cause of action which is supported by the evidence from Mr Restrepo and Mr Efromovich with some documentary support. I was satisfied that the Final APOC was not fanciful however improbable the defendant might say it is and should proceed and I consider that the balance as between the parties a matter of discretion consistent with the overriding objective weighs in favour of allowing the amendments and that I should exercise my discretion accordingly.

103. Mr Craig raises a further issue which goes both to the amendments generally and was part of his Ashraf abuse argument about Ms Kelpacz who signed the statement of truth on the POC. Mr Craig submits that there has been no explanation about how Ms Kelpacz could have signed the POC or how anyone can now sign the Final APOC given the changes in the way in which the claim is advanced. Mr Cumming argues that the substance of the claim did not change only the particulars and detail. It is clear from the details of the joint venture that none of the directors are said to have been directly involved in negotiating the terms of the joint venture. Given Mr Efromovich’s role acting on behalf of the claimant I consider in the circumstances of this case that the question of the credibility of the witnesses and issues about the statement of truth on the original POC are a matter which can be dealt with at trial. The circumstances in which Mr Efromovich’s daughter Ms Klepaz came to sign the statement of truth on the original POC and any questions about the statement of truth on the Final APOC will no doubt be explored then. It is not a reason for not permitting the Final APOC now. Final APOC [17]

104. There has been a long running dispute about the Final APOC [17]. This paragraph relates to a meeting in October 2023.

105. I have permitted the claimant to leave the substance of this paragraph in the Final APOC though removing both the reference to and the appended transcript of the conversation.

106. I consider that the question of the status of the meeting in October 2023 is a matter to be determined by the trial judge in due course.

107. Mr Efromovich addressed this meeting in his evidence. He sets out what he says was discussed at the meeting (which he recorded). It is said by the claimant, and they plead, that the meeting was between Mr Bourgade and Mr Efromovich at which they discussed the joint venture but that there was no dispute about either the existence of the joint venture or the claimant’s entitlement to the 95% shareholding at the time. The claimant says the meeting supports and is consistent with what they say about the existence of and terms of the joint venture which they say were agreed between 2021 and 2022. The claimant says that at the time of the meeting there was no dispute about the events the substance of this claim.

108. The defendant says that the meeting was without prejudice and that there was already a dispute between the parties. The defendant seeks to rely on what he says is the without prejudice nature of the meeting to exclude [17] from the Final APOC. However, there is no evidence from Mr Bourgade about the meeting or why it is without prejudice and whether or how it relates to the issues actually in dispute in this claim.

109. Mr Craig says that it is not necessary for the claimant to plead the meeting as it is not a material fact for the purposes of establishing the claimant’s cause of action. He accepted that it may be said to be evidence that there was some agreement. However, he says that the court should be cautious about permitting the claimant to rely on Final APOC [17] when he says there is no need to.

110. Despite the fact that this has been a live issue for the defendant since the claim was issued, Mr Craig submits that the court cannot and should not determine the question of whether the meeting was without prejudice now.

111. Instead, he says that before that issue is determined the court should allow more time for the defendant to file evidence and there should be a hearing. There is no explanation why Mr Bourgade has not yet advanced any evidence he wanted to rely on about whether the meeting was without prejudice whether on a confidential basis or otherwise since the claim was issued.

112. At every hearing the defendant has filed a confidential supplemental skeleton all of which I have read and at least at some of the hearings Mr Craig has made some limited oral submissions including asking that I do not to read the transcript. Yet despite that he now seeks more time for Mr Bourgade to file evidence. Given the course of the amendments and the FSOA and SSOA it is only now that it is necessary to determine the issue.

113. It is not reasonable proportionate, good case management or consistent with the overriding objective including the management of court time and resources to now direct a further separate hearing or a preliminary issue trial with further evidence to determine the question of whether the meeting in October 2023 was without prejudice. Having required the transcript and translation reference to be removed from [17] the plea is what it is, and I am satisfied it meets the balance between the parties.

114. The defendant can file evidence in relation to the contents of that meeting and whether it was without prejudice in due course as can Mr Efromovich. However, it is ultimately an objective test – it is not about what Mr Efromovich or Mr Bourgade thought about the meeting.

115. The trial judge can consider the true nature of the meeting objectively with the benefit of witness evidence and so far as relevant any documents. The trial judge can consider whether and if so, what was in dispute at the meeting and whether it is the right dispute for these purposes. They can consider whether the without prejudice cloak being asserted is being used to hide an acknowledgment by the defendant of the existence of the very joint venture the claimant contends for. They can consider whether the iniquity exception applies in any event such that even if the meeting itself was without prejudice whether the defendant should be permitted to rely on it. The trial judge can consider whether the meeting was part of some wider commercial negotiation.

116. The trial judge will be well placed to consider this issue, and it is far from uncommon for these types of issues to be resolved at trial. Trial judges are well used to determining such issues at trial and can determine this one. Strike Out Applications:

117. The various submissions made by Mr Craig about the POC and subsequent proposed amendments in relation to the FSOA and SSOA on 14 October 2025 are largely reflected in the submissions he made in relation to the Final APOC. In not repeating them I mean no disrespect to Mr Craig, but I can take them shortly. Mr Hornyold-Strickland did not concede the FSOA or the SSOA on 14 October 2025 despite being given a final opportunity to amend and despite the criticisms that had been levelled against the POC by both the defendant and the court.

118. I do not set out the submissions in detail not least because having given permission to amend in the form of the Final APOC it is apparent that the original POC cannot be sustained. Even Mr Cumming for the claimant accepted that the earlier versions had not been a model of clarity. And it appears to me that in making the very substantial amendments to produce the Final APOC that the claimant too has now acknowledged the shortcomings in the original POC.

119. The defendant sought to strike out large swathes of the POC on the basis that they had not been pleaded in accordance with CPR PD 16 and did not disclose reasonable grounds for bringing the claim. In reality if the FSOA and SSOA were successful – absent the permitted amendments – the whole claim would fall away since the paragraphs the subject of the strike out were those that dealt with the joint venture.

120. Mr Craig had relied on The Front Door (UK) Limited v The Lower Mill Estate Limited [2021] EWHC 2324 (TCC) in which O’Farrell J considered that a failure to comply with the rules of pleading was a good reason not to permit amendment. Teare J in Towler v Wills [2010] EWHC 1209 (Comm) set out the purpose of a statement of case and determined that the fact that a claim might be capable of being pleaded in a compliant manner did not prevent strike out. He considered that if a claim were advanced in a vague or incoherent way a defendant would not be able to respond to it.

121. Mr Craig relied on Ashraf arguing that the original POC and the various drafts for which no permission had ever been given all pointed to a complete strike out for abuse.

122. Mr Craig submitted that the POC and many of the draft amendments remained unreasonably vague and incoherent. In short, the claimant had failed to set out the particulars or details of the joint venture. It was not possible to discern how when or where the joint venture had been agreed or precisely what its terms were. The POC did not say when the joint venture was entered into. Paragraphs [1] to [4] and [7] are not only hopelessly vague but also contradictory. These were to my mind for the most part very fair criticisms of the original POC and remained fair criticisms of the drafts advanced on 6 May 2025 and 14 October 2025.

123. However, the position was in fact worse than that, as Mr Craig submitted, since the proposed amendments even as at 14 October 2025 had substantially changed the way in which the joint venture was to be advanced such that the original POC were no longer maintained in any event and do not and never did articulate a claim which could be advanced in the form it was against the defendant.

124. Mr Hornyold-Strickland resisted the FSOA and the SSOA on the basis of the then proposed amendments – which did not resolve the defects in the POC but also on the basis that the claimant had “won” on the Asluma issue since the shares in Asluma had been transferred. There is, it is true, a dispute between the parties as to the reason for the delay in transferring the Asluma shares after the JDK Option had been exercised. That might at be said to go to the question of costs, but it cannot save the POC where the substance of the FSOA and SSOA were about the paragraphs concerning the existence of the joint venture.

125. Mr Craig says striking out the POC would not be unfair in those circumstances since the claimant has had numerous opportunities to put their house in order. I agree. Until the Final APOC the claimant had failed over a considerable period of time to set out a coherent, plausible and cogent claim in relation to the joint venture – although the core thrust of the claim was clear – the POC did not make sense. Whilst the court uses its power to strike out sparingly and only in clear and obvious cases, it will use them where a party is pursuing a claim which has no reasonable basis. I was satisfied that the paragraphs of the POC relating to the joint venture were vague and did not articulate a coherent claim as to the terms of the joint venture and therefore did not disclose any reasonable grounds for bringing the claim and that the claim in that form was bound to fail. They should be struck out.

126. If the FSOA succeeded the SSOA would follow as it sought to strike out paragraphs of the POC that were parasitic on the existence of a pleaded joint venture.

127. The claimant was well represented and had had ample opportunities to reflect on the defects in its POC and had until the Final APOC failed to do so.

128. It would be for the claimant to persuade me that it was still unjust or inappropriate to strike out the paragraphs of the POC in those circumstances in the exercise of my broad discretion. The claimant had been given so many opportunities to seek to rectify the position that the balance of discretion had swung heavily towards the defendant in the event that I was not satisfied with the Final APOC.

129. It would not have been proportionate, consistent with the overriding objective or fair on both the defendant, the court or other court users to have given the claimant yet another go if I had not been satisfied with the Final APOC.

130. Mr Craig did argue that consistent with Ashraf the claim should have been struck out as an abuse. He relied on the numerous attempts to amend and the changing shape of the joint venture over the course of those amendments and the failure in earlier versions of the amendments to address what Mr Craig says are inconsistences.

131. Mr Craig rightly made many complaints about the original POC but at its heart the complaint was that it did not set out a coherent and recognisable claim. It did not plead out the joint venture agreement setting out the terms, pleading the oral parts of it in accordance with the procedural rules. It did not articulate when or how the joint venture came into existence.

132. I was satisfied and had been satisfied since May 2025 that the original POC could not survive the strike out application even though I only finally heard the full submissions on 14 October 2025. In the events that occurred it was not appropriate to give judgment on those applications on 14 October 2025 in light of the final lifeline given to the claimant.

133. Those parts of the original POC to which the FSOA and SSOA relate should be struck out pursuant to CPR 3.4 (2) (a).

134. In the event that I am wrong about the Final APOC therefore the claimant will not be able to fall back to the POC in relation to the joint venture. However, I do not consider on the facts of this case that it is appropriate to strike out the entire claim as an abuse on the basis of Ashraf not least because of the position I have reached in relation to the Final APOC. Costs

135. At the conclusion of the hearing on 28 January, I directed that the claimant pay the defendant’s costs of the FSOA, the SSOA and as is clear from the transcript I directed that the claimant should pay the defendant’s costs of the Final Amendment Application.

136. In submissions following the hearing the claimant sought to suggest that I had only directed that they should not have their costs of the Final Amendment Application. That is not what I directed. The only reason that the defendant has been put to the costs of this entire exercise is because of the manner in which the claimant has advanced their claim to date. The defendant should not have to meet its own costs of the Final Amendment Application. Whilst it is true that I have permitted the claimant to amend in the form of the Final APOC and on one view they may seek to suggest they have therefore been the successful party – this is a case in which a different order is the only appropriate order in the exercise of my broad discretion.

137. Even at the hearing I only permitted the amendment to the Final APOC with some further amendments to make it more easily understood. I take into consideration the conduct of the claimant, the number attempts and drafts that the defendant has been faced with, the delay to the proceedings and the overall additional costs. However, the claimant has already been sanctioned in costs in relation to the previous two amendment applications so it may be said that the prejudice to the defendant is less. But it is nonetheless entirely consistent with the overriding objective to deal with cases justly and in weighing the position between the parties on the facts of this case for the claimant to have to pay the defendant’s costs of the Final Amendment Application as I directed at the hearing. Quantum

138. This is a claim which is said to have a value of £40m to £50m. Both parties are well represented. Although Mr Cumming submitted that the way in which the claim was now being advanced was ultimately simple – this was a claim said to derive from the alleged breach of the joint venture – the claim is anything but simple. It involves parties across multiple jurisdictions who have, on the claimant’s case, entered into complex agreements which are mainly not documented, or some are said to be sham agreements to hide or conceal the truth of their arrangements not from each other but from third parties. This is high value complex litigation despite the nature of the applications that I have been dealing with, and I approach the costs issues on that basis.

139. There is an additional wrinkle which affects at least some of these costs. Until 25 February 2025 Asluma was owned and controlled by Mr Bourgade. Thereafter it changed sides. Until 11 April 2025, the defendant’s solicitors remained on the court record for Asluma even though the shares had been transferred on 25 February 2025. Then on 30 April 2025 Asluma entered into a consent order with the claimant. It agreed to no order as to costs in respect of FSOA on an inter partes basis.

140. The defendant seeks his costs in the following amounts: i) FSOA to 25 February 2025: £22,585.73 ii) FSOA from 26 February 2025: £37,017.41 iii) SSOA:£18,038.61 iv) Final Amendment Application:£93,153.56

141. The claimant offers £28,775.71 for the FSOA as against the total of £59,603.14. It offers £14,618.84 in respect of the SSOA and has not engaged with the Final Amendment Application costs because it sought to argue that it was not to pay the defendant’s costs. The claimant’s own costs of the Final Amendment Application were £156,699.50.

142. I need to consider whether to summarily assess these costs or whether to direct that they be the subject of detailed assessment. Although the hearings to which these applications relate fall within the range of hearings where the court would normally consider summary assessment there are several reasons why I consider the proper course is to determine a reasonable sum for an interim payment on account and to direct detailed assessment.

143. Those reasons are: i) In relation to the FSOA the position of Asluma complicates the costs position. The FSOA costs to 25 February 2025 are said to have been incurred on behalf of both the defendant and Asluma. It may well be that there are either no separate costs for Asluma and/or that Mr Bourgade was liable for any costs incurred by Asluma but that does not address the effect of the subsequent consent order entered into by Asluma which provided for no order for costs in relation to the FSOA so far as it related to Asluma. I am not in a position to determine that issue and neither is it reasonable or proportionate for there to be further submissions or a hearing to deal with those costs issues now. But in reality, they are matters to be dealt with by a costs judge. ii) I have considered the FSOA, SSOA and Final Amendment Application costs schedules. Whilst a considerable amount of time and costs have been incurred in preparing them – it appears something in the region of £9.5K across the 3 schedules, there are still entries on the documents items in particular which suggest that there may be duplication or overlap between the schedules and I am not in a position to assess or determine those issues based on the information available. For example – and one can understand why- time has been charged for reviewing the amendments in relation to the FSOA and the SSOA. However, I have already also made previous costs orders relating to the two previous amendment applications. I cannot be confident that there is no overlap between those schedules, these schedules and the current Final Amendment Application. iii) As noted above there is a very significant cost across the three schedules for the costs of the costs which would need to be carefully considered.

144. Additionally, I have no submissions on the Final Amendment Application costs from the claimant. The defendant says I should allow these costs as asked. However, that it not the correct approach. I would still have to be satisfied that the costs were reasonable and proportionate. I could simply summarily assess those costs in any event taking into account the broad high level submissions made by the claimant in relation to the other schedules all of which would seem to apply equally to the Final Amendment Application costs or I could ask for more submissions, but given that I consider that all the costs of the suite of amendment and strike out applications should be considered together the more effective and efficient course is for me to direct that the costs be the subject of detailed assessment.

145. Where for some reason the judge decides not to summarily assess the costs that is not an end of the matter. CPR 44.2 (8) provides that if the court directs that costs are to be the subject of detailed assessment it will order the paying party to pay a reasonable sum on account of costs unless there is a good reason not to do so. It is mandatory unless there is a good reason not to do so.

146. I have the benefit of the defendant’s costs schedules, the claimant’s costs schedule for the Final Amendment Application and their respective submission for the purpose of assessing quantum. I will consider those submissions on quantum to assist me with determining a reasonable sum for an interim payment.

147. The claimant challenges the defendant’s rates. They have recalculated the FSOA and SSOA schedules based on the GHR. The parties’ legal teams are each charging hourly rates that substantially exceed the GHR and each are using large teams of fee earners. The rates they are each charging their own clients are not wildly different. The top Grade A rates for both firms are in the £800’s well above the GHR. This is complex high value litigation where the guidelines are just that and the court can depart from the GHR. Further, and in any event, it is not for me to fix hourly rates but rather to determine a reasonable sum for an interim payment. The costs judge in due course will hear the parties’ submissions on rates.

148. The claimant raises an issue about Asluma and as a consequence seek to either remove the whole of the first part of the FSOA costs or at least substantially reduce them. I have identified where I think there is a potential issue with Asluma and I will be cautious about setting a figure for the interim payment, but it is not appropriate to simply discount the costs entirely when it is clear that the defendant continued to pursue the FSOA successfully. In so far as the defendant’s legal team would have had to undertake the work on the FSOA in any event the fact that they do it for one client or two will make little difference – there will be generic costs that would have been incurred in any event in reasonably pursuing the FSOA. But there may be a separate issue about retainers or an agreement about apportionment. This seems unlikely given the nature of Asluma, but I cannot determine it now. It is a factor to take into account when determining the appropriate interim payment on account for that phase of the costs.

149. The claimant raises issues about the number of fee earners undertaking particular tasks – duplication – for example, the number of fee earners attending the hearings. The defendant says that having several fee earners at the hearings was reasonable and proportionate. It seems to me that the number of fee earners when there was also a transcript seems on the high side and I take that into account. It seems to me that there may be an element that should properly be treated as solicitor client costs.

150. In addition, it seems to me that I should treat the documents items with a measure of caution given my concern about potential overlap – but that also feeds into the work undertaken by counsel and the level of contact with counsel across the three schedules which has not been positively challenged. Not only are there numerous fee earners working on particular tasks but in addition there is engagement with counsel and counsel has done work on documents. It seems to me that there is a risk of duplication and overlap and I need to be cautious. The costs judge in due course will need to consider whether it is all properly recoverable inter partes.

151. I remind myself that the court should take a cautious approach to the level of the interim payment on account where the costs have not been budgeted. A reasonable sum on account will be an estimate of the likely level of recovery dependent on the circumstances and involves an element of uncertainty. The assessment is not based on an irreducible minimum. The court considers the risks of an overpayment and repayment or the risks associated with a successful challenge in relation to a say hourly rates. But these are no more than factors to take into consideration if raised. It does not preclude the making of an order for the payment of a reasonable sum on account. (Excalibur Ventures LLC v Texas Keystone Inc and ors [2015] EWHC 566 (Comm))

152. Having regard to the reasons for caution I have identified above and the submissions of the parties I consider that applying an equal % across the schedules is inappropriate and does not fairly reflect the different work involved for each of the applications or the concerns I have on particular items. Doing the best I can and considering each of the schedules separately a reasonable interim payment on account in relation to the costs schedules is as follows: i) FSOA to 25 February 2025: £12,000 ii) FSOA from 26 February 2025: £25,000 iii) SSOA:£15,000 iv) Final Amendment Application:£75,000

153. The usual period for payment should apply unless the parties agree a different time period.

154. I would ask that the parties draw up orders as appropriate to reflect the decisions made in this judgment that are not already dealt with. Any consequential issues arising will be dealt with on paper.