Cosimo Borrelli & Ors v Mutaz Otaibi & Ors

Mr Justice Butcher :

1. This is an application by the Part 20 Defendant (‘ Mr Wang ’) to strike out a contribution claim brought against him by the First to Third, Seventh and Twenty-Fifth Defendants, who have, together, been referred to as ‘the Floreat Defendants’, or for summary judgment. There is also before me a responsive application by the Floreat Defendants for permission to amend their Particulars of Additional Claim. The Background

2. I take the background largely from the witness statement of Caroline Phipps. What follows is intended to be uncontroversial and is not designed to decide any matter in dispute in the proceedings.

3. Mr Wang came to know the First to Third Defendants, who have been called ‘the Floreat Principals’ in 2014, and engaged them as investment professionals. On their advice he invested a significant sum in four investment funds, incorporated in the Cayman Islands and the BVI.

4. The fund which is most directly relevant to the present applications is Principal Investing Fund I Limited (‘ PIF ’). At the material times Mr Wang was the ultimate beneficial owner of 100% of the participating shares in PIF. Mr Wang had no voting rights, and the fund was managed by companies controlled by the First Defendant.

5. The relationship between Mr Wang and the Floreat Principals broke down in or about 2020. This led to Mr Wang’s nominees pursuing just and equitable winding up petitions in respect of all four funds. After a trial in the Cayman Islands relating to the funds which were Cayman funds, those funds were ordered to be wound up. The First and Second Claimants were appointed Joint Liquidators of the other fund by the Eastern Caribbean Court of the BVI in 2024.

6. The current proceedings were commenced in 2022. In it the Claimants, who include the liquidators of the four funds, make a number of different claims. They claim that the Floreat Defendants abused their positions and acted unlawfully by systematically using the funds for their own enrichment and benefit; and that the driving force behind the unlawful use of the funds was the First to Third Defendants.

7. The claim which is of most relevance for present purposes is that the Floreat Defendants used a subsidiary of PIF, Shanti, to acquire and hold art for their personal use using monies belonging to the fund, and that such purchase was a bad investment for PIF and for Shanti.

8. The Part 20 Claim which the Floreat Defendants have brought is against Mr Wang, who, as I have said, was the 100% ultimate beneficial owner of PIF. That claim was very briefly put in the original Particulars of Additional Claim (‘ POAC ’). I consider it correct that that pleading was, as Mr Wang submits, defective, and I did not understand the Floreat Defendants to seek to resist the application for strike out of that original POAC, save on the basis that it could be amended.

9. The focus of the argument was accordingly as to whether in the draft Amended Particulars of Additional Claim (‘ APOAC ’) the Floreat Defendants have pleaded a case which discloses reasonable grounds for bringing the claim and which is not frivolous, vexatious or an abuse of the process of the court. If the APOAC does that, then permission to amend should be given and the application to strike out or for summary judgment should be dismissed. If it does not, then permission to amend should be refused and the application for strike out or summary judgment should be successful.

10. The APOAC makes claims against Mr Wang in unlawful means conspiracy, dishonest assistance, inducing a breach of contract, knowing receipt and negligence. Mr Wang contends that none of these claims is coherent or adequately pleaded.

11. The evidence which has been adduced on the present applications is a witness statement of Caroline Phipps dated 22 April 2025, a statement of the Second Defendant dated 29 July 2025 (‘ Otaibi I ’), and a statement of Mr Wang dated 3 October 2025 (‘ Wang I ’). Applicable principles

12. The legal principles applicable on an application such as this were not significantly in dispute.

13. Thus, the court may strike out a statement of case under CPR 3.4(2) if it appears to the court that it discloses no reasonable grounds for bringing the claim or that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings. Statements of case in the first category include those that are incoherent and make no sense, or where the facts alleged, even if true, do not disclose a legally recognisable claim. A claim may fall within the second category if it is vexatious, scurrilous or obviously ill-founded.

14. The test for summary judgment is whether the claim has a real prospect of success. The principles were summarised in Easyair Ltd (t/a Openair) v Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15]. The following may be noted, in particular: (1) a claim with a realistic, as opposed to a fanciful, prospect of success is one which carries some degree of conviction and is more than merely arguable; (2) the court must not be drawn into conducting a mini-trial; but (3) it is not obliged to take at face value and without analysis everything that a claimant says.

15. Essentially the same merits test applies on an application for permission to amend. Here, it is the applicant which bears the burden of showing that the amendments have a realistic prospect of success.

16. A claim for contribution under s. 1 of the Civil Liability (Contribution) Act 1978 lies where the defendant and the third party are liable to the claimant in respect of the same damage. Analysis General points

17. As was submitted on behalf of Mr Wang, the claim made in the APOAC is, at least at first sight, a somewhat surprising one, given that he was the ultimate beneficial owner of PIF and of Shanti, and thus that it might seem improbable that he was involved in wrongdoing the nature and effect of which was to damage PIF. I have not relied on this point as, in itself, providing the answer to any part of the applications, but it has caused me to look with particular care at the APOAC, bearing in mind the possibility that any deficiencies in the pleading may derive from a lack of reality of a contribution claim rather than any lack of skill or care on the part of the pleader.

18. In looking at the allegations sought to be made, I have considered an overarching point made by Mr Jones KC on behalf of the Floreat Defendants. This was that there is nothing in principle objectionable in a defendant contending that it was not liable to the claimant, but if it were, then another person is liable to the claimant as well; and that in such cases it may be difficult for the defendant to particularise its case against the Part 20 defendant, because of its denial of the claimants’ case. I accept those points in general terms, but they do not obviate the need to look at whether the Floreat Defendants have put forward a properly pleaded case against Mr Wang. If a defendant is able to say that it is a necessary part of the claimant’s case that a third person is also liable, then that may mean that a Part 20 claim can be put succinctly. If the defendant contends that there is a liability on the Part 20 defendant which arises from facts or matters which are not part of the claim pleaded by the claimant against the defendant, those matters must be properly pleaded. I would add that in the present case, given the nature of the dealings between the Floreat Defendants and Mr Wang, the, or at least most of the, relevant facts would appear to be within the knowledge of the Floreat Defendants. Unlawful means conspiracy

19. The first claim pleaded is in unlawful means conspiracy. There was no dispute before me that a claim in unlawful means conspiracy involves the following elements: (1) A combination or agreement between two or more individuals to use unlawful means; (2) An intent to injure; (3) Pursuant to which combination or agreement and with that intention certain acts were carried out; (4) Resulting loss and damage to the claimant.

20. Taking the first of those elements, there was also no dispute that it must be shown that the two or more individuals combined with a common intention to achieve a common end. The conspirators must share the same object, for otherwise there is no conspiracy.

21. I agree with the submission on behalf of Mr Wang that there is no proper or adequate plea of a combination or agreement involving Mr Wang, because there are no facts pleaded capable of supporting such an allegation. The plea at paragraph 57 of the APOAC is that if the Claimants’ claim of a conspiracy involving the Floreat Defendants succeeds, which the Floreat Defendants deny it should, ‘then Mr Wang was a party to any such conspiracy’. The Claimants do not, however, plead that Mr Wang was a party to the conspiracy. The way in which the Amended Particulars of Claim (‘ APOC ’) pleads the basis of the conspiracy is that ‘the true motivation behind the Shanti Artwork purchases was the Otaibis’ and Floreat Principals’ wish to purchase art they liked for their personal use using Fund money and with no regard to the best interests of PIF and Shanti’ (paragraph 77A). That is a motivation which it is unlikely that Mr Wang shared, and the Claimants do not plead that he did.

22. The APOAC pleads, at paragraph 58, a number of matters ‘to establish the relevant combination and concerted action’. These are ‘Mr Wang’s knowledge … participation in, and sanctioning of … (a) the structure and ownership of Shanti as set out above; (b) Shanti’s investment strategy as set out above; (c) acquisitions by Shanti as set out above; and (d) the use of artworks by Shanti as set out above.’ As to these: (1) The plea that Mr Wang knew of the structure and ownership of Shanti is a plea that he knew of the matters pleaded in paragraphs 20-24 of the APOAC. Those matters do not support an allegation that he was a party to a combination of the sort alleged by the Claimants. (2) The plea that Mr Wang knew of Shanti’s investment strategy is a plea that he knew of the matters pleaded in paragraphs 25-28 of the APOAC. These plead that Shanti had an investment strategy, which was set out in an Investment Strategy Document. The strategy pleaded by the Floreat Defendants is not alleged by the Claimants to be anything other than legitimate; the Claimants’ complaint is rather that there was no investment strategy. Knowledge by Mr Wang of the strategy pleaded by the Floreat Defendants does not support a case that he was a party to the conspiracy pleaded by the Claimants. (3) The plea that Mr Wang knew of acquisitions by Shanti appears to be a reference to paragraphs 33-37 of the APOAC. There are no allegations of his knowledge of any specific acquisitions other than those he introduced himself. Mr Wang’s evidence is that he was not aware of other acquisitions which were used by the Floreat Defendants, and this is not contradicted by any plea or pleaded facts, save the matter considered next, which does not provide a proper basis for a case that he was. (4) The plea that Mr Wang knew of the use of artworks by Shanti is a reference to paragraphs 38-41 of the APOAC. Those paragraphs plead (at 38-39) that Mr Wang had various of Shanti’s pieces of art at his home; and (at 40) that Shanti Artwork was displayed at the offices and residences used by Floreat Principals. At paragraph 41 it is pleaded that ‘By his knowledge, awareness and sanctioning of the use of the Shanti Artwork at his own residence as pleaded above, Mr Wang either expressly or impliedly knew, was aware of, and sanctioned the use of the Shanti Artwork by the Floreat Defendants as set out in the preceding paragraph.’ That is, in my judgment, a demonstrable non sequitur : knowledge that he himself had the use of some of the Shanti Artwork does not indicate that he knew that the Floreat Principals were using it themselves.

23. These pleaded matters do not support a case which carries any conviction that Mr Wang was party to the conspiracy alleged by the Claimants. Furthermore, they do not support a case that Mr Wang knew all the facts which made the means used unlawful, which is necessary for a person to be liable in unlawful means conspiracy: see Racing Partnership Ltd v Sports Information Services Ltd [2020] EWCA Civ 1300 , [2021] Ch 233 , at [126], [141].

24. Turning to the second element, intention to injure, the test was stated by Lords Hoffmann and Nicholls in OBG Ltd v Allan [2008] 1 AC 1 , and is helpfully summarised by Calver J in ED&F Man Capital Markets Ltd v Come Harvest Holdings Ltd [2022] EWHC 229 (Comm) at [487]-[489] as follows: ‘487. It follows that in OBG, Lords Hoffmann and Nicholls considered that it is necessary to distinguish between: (i) ends; (ii) means; and (iii) consequences. In summary: a) Ends : If harm to the claimant is the end sought by the defendant (e.g. because of some animus ) then the requisite intention is made out. In such cases intention to injure the claimant will also almost always be the “predominant purpose” of the defendant ( category 1 ). b) Means : If harm to the claimant is the means by which the defendant seeks to secure his/her end (usually to secure a benefit for himself/herself) then the requisite intention is made out (even if the defendant would have rather secured the end without causing loss to the claimant (i.e. without malice) ( category 2 ). c) Consequences : If harm is neither the end nor the means but merely a foreseeable consequence, the requisite intention is not made out. This could, perhaps, also be conceptualised as a statement that “ recklessness ” will not suffice – a person is considered reckless in relation to a particular consequence of their conduct if they realise that their conduct may have a particular consequence (i.e. it is a “foreseeable consequence”) but they go ahead anyway ( category 3 ).

488. So far as category 3 is concerned, in OBG at [167] Lord Nicholls added a further explanatory gloss: Other side of the coin : “I add one explanatory gloss to the above. Take a case where a defendant seeks to advance his own business by pursuing a course of conduct which he knows will, in the very nature of things, necessarily be injurious to the claimant. In other words, a case where loss to the claimant is the obverse side of the coin from gain to the defendant. The defendant’s gain and the claimant’s loss are, to the defendant's knowledge, inseparably linked. The defendant cannot obtain the one without bringing about the other . If the defendant goes ahead in such a case in order to obtain the gain he seeks, his state of mind will satisfy the mental ingredient of the unlawful interference tort.” (emphasis added)

489. In other words, if harm to the claimant was the necessary consequence (i.e. obverse side of the coin) of the defendant’s actions and the defendant knew this then although the purpose of the defendant’s action was not to harm the claimant, he/she will be considered as having intended to harm the claimant ( category 4 ).’

25. I add that I agree with what Calver J observed at [519]-[522] as to what was said in the Supreme Court in JSC BTA Bank v Ablyazov [2018] UKSC 19 and as to Canada Cement LaFarge Ltd v BC Lightweight Aggregate Ltd [1983] 1 SCR 452.

26. The conspiracy to injure alleged by the Claimants is to injure and/or defraud PIF. Particularly given that he was the 100% ultimate beneficial owner of PIF, a pleading that Mr Wang had the relevant intention would have to be clear and distinctly and adequately particularised. In my judgment the matters pleaded do not arguably establish the requisite intention to harm PIF.

27. Those matters are identified in paragraphs 52 and 59 of the APOAC. In paragraph 52, there is an allegation that ‘harm to PIF was the means by which the Ulterior Motive was carried out, alternatively [Mr Wang] was recklessly indifferent to whether harm to PIF was a foreseeable consequence.’ The ‘Ulterior Motive’ is defined in paragraph 51, and, as defined, involved the setting up of a fund which was at ‘“arm’s length”, ie which had the illusion of distance between Mr Wang and his assets…’ and ‘which could be used as a money-box to fund his personal and lifestyle expenses and his lifestyle’. It is difficult to see, and is not intelligibly pleaded, why Mr Wang intended harm to a fund of which he was the ultimate beneficial owner because of an Ulterior Motive which was, in essence, to benefit himself and have a ‘money box’. The allegation as to recklessness is not, in my judgment, a plea of a sufficient intention to injure for the purposes of a conspiracy to injure. Dishonest Assistance

28. The second claim is one in dishonest assistance. It was not in dispute on this application that the elements of this tort are that: (a) there should have been a breach of trust or fiduciary obligation owed to the claimant; (b) in which the defendant has assisted or which he or she has procured; (c) the defendant has acted dishonestly; and (d) there is resulting loss to the claimant.

29. Mr Wang objects that there is no proper allegation of the assistance in a breach of trust or duty which it is alleged Mr Wang gave. I agree. (1) The relevant alleged breaches of fiduciary duty are those referred to in the draft APOAC at paragraph 62, which refer to the Claimants’ case that the Floreat Defendants abused their position to enjoy the Shanti Artwork for their own purposes. (2) The allegations of assistance are pleaded in paragraph 65. The first two are that assistance was provided by his knowledge, participation in and sanctioning of (i) the structure and ownership of Shanti ‘as set out above’, and (ii) Shanti’s investment strategy ‘as set out above’. Knowledge, participation in or sanctioning of those matters cannot sensibly be said to be assistance in the breaches of fiduciary duty alleged. (3) The third is Mr Wang’s knowledge, participation in and sanctioning of Shanti’s acquisitions ‘as set out above’. That is a reference back to paragraphs 29-35 of the APOAC. Those paragraphs do not, however, allege that Mr Wang had any involvement in valuation processes or in the First Defendant’s decision to sanction acquisitions without proper valuations, which are the breaches of fiduciary duty alleged in respect of acquisitions of art (see paragraph 85 of the APOC). (4) The fourth is Mr Wang’s knowledge, participation in and sanctioning of ‘the use of artworks by Shanti as set out above.’ That is a reference back to paragraphs 38-41 of the APOAC. Insofar as there is in those paragraphs reference to Mr Wang’s use of artwork himself, it is arguable that that amounted to assistance. However, his use of artworks does not imply that he knew of or sanctioned the use of artwork by the Floreat Defendants, and no proper plea of such knowledge/sanction is made. Nor is there evidence of this in Otaibi I.

30. Mr Wang also contends that there is no proper pleading of his dishonesty in relation to the assistance which he is said to have provided. As I have found that the only arguable assistance pleaded is Mr Wang’s use of Shanti Artwork himself, the focus is on whether there is a proper plea of dishonesty in relation to that. A plea of dishonesty must include all the specific facts and circumstances supporting the inference of dishonesty: see Ivy Technology v Martin [2019] EWHC 2510 (Comm) at [12(iv)]. In the strike out context, the test is ‘whether or not, on the basis of the primary facts pleaded, an inference of dishonesty is more likely than one of innocence or negligence’: JSC Bank of Moscow v Kekhman [2015] EWHC 3073 (Comm) at [20] per Flaux J. A plea of personal use of artwork acquired by an entity of which he was the ultimate beneficial owner, does not make an inference of dishonesty more likely than one of innocence or negligence. Inducing a Breach of Contract

31. The third claim is for inducing a breach of contract. It was not in dispute that liability for inducing a breach of contract depends, as one of its elements, on the inducer’s conduct having ‘operated on the will’ of the contract maker, so as to have a sufficient causal connexion with the breach to give rise to accessory liability. Reference was made to Kawasaki Kisen Kaisha Ltd v James Kemball Ltd [2021] EWCA Civ 33 , [2021] 3 All ER 978 at [33]. In my judgment there is no proper plea of what Mr Wang did which operated on the will of the Fifth, Fifteenth and Seventh Defendants, or how it so operated. Paragraph 72 of the APOAC pleads only that Mr Wang knew, participated in or sanctioned, the ‘structure and ownership’ of Shanti, its ‘investment strategy’, acquisitions by Shanti and the use of artworks by Shanti ‘as set out above’. It does not plead what Mr Wang is said to have done to induce the relevant Defendants to fail to obtain independent valuations, or to ensure that consideration was given to Shanti and/or PIF for the use of its artworks, which are the relevant breaches of contract said to have been induced.

32. In addition, I agree with Mr Sheehan KC’s submission that there is no adequate plea that Mr Wang was aware of the contracts allegedly breached. While it is the case that knowledge of a contract can be inferred, there would have to be facts pleaded which supported such an inference. No such facts are pleaded. Knowledge of the matters referred to in paragraph 72 of the APOAC would not give rise to such an inference. Knowing Receipt

33. The fourth claim pleaded in the draft is one in relation to knowing receipt. That claim is no longer pursued in light of the Claimants’ clarification that the property in question is funds in the amount of US$204,382 paid by Shanti to the Second Defendant for the sale of a set of artworks formerly owned by the Second Defendant, known as the ‘Chapman Works’. Negligence

34. The fifth claim pleaded is one in negligence. Once again, given the fact that Mr Wang was the sole investor in PIF, a claim that he was in breach of a duty to exercise reasonable care and skill in advice to PIF is one which demands scrutiny.

35. In my judgment the claim is inadequately pleaded, and in any event carries no degree of conviction.

36. In the first place, there are no pleaded facts to support the existence of the duty of care alleged. It is said to arise ‘by reason of [Mr Wang’s] position as art advisor to [the Seventh Defendant]’. There are no facts pleaded which support the allegation that Mr Wang was an ‘advisor’ to the Seventh Defendant; and Mr Wang denies it. Further, there are no facts pleaded which would support the existence of a duty to exercise reasonable skill and care. There is, in particular, no allegation that he was exercising some special knowledge or skill and that his advice would be relied on. Nor is there any proper plea as to how, even if Mr Wang was an ‘art advisor’ to the Seventh Defendant, he owed a duty of care to PIF.

37. Secondly, there is no proper plea as to what advice Mr Wang is supposed to have given, and how and when he is alleged to have given it. Specifically, there is no plea of what Mr Wang said or did which constituted or gave rise to advice or a representation that acquisitions were a good investment in line with PIF’s investment objectives, that the purchase price was appropriate, or that acquisitions would gain in value, which are the ‘pieces of [alleged] advice’ pleaded in paragraph 86(a) – (c) of the APOAC. Nor does Otaibi I contain evidence of particular advice or representations to such effects given by Mr Wang. There is also no plea of reliance on Mr Wang’s advice. That there should not be such a plea is consistent with the Floreat Defendants’ Defence which pleads, in paragraph 99.3, that while Mr Wang made recommendations from time to time as to artwork for Shanti to acquire, ‘Shanti made its own decisions as to whether to acquire any artwork.’ Quantum meruit, costs and expenses

38. There is a section of the APOAC entitled ‘Quantum Meruit, and Reasonable costs and expenses’ (paragraphs 81-84). I accept the submission made by Mr Sheehan KC that the Claimants’ APOC does not set out any separate causes of action for quantum meruit or reasonable costs and expenses, and these are, rather, pleaded as relief in respect of the causes of action set out in paragraphs 84-85A of the APOC; and that paragraphs 81-84 of the APOAC do not require separate consideration for the purposes of ascertaining whether there is an arguable contribution claim against Mr Wang. The Mahi Bridge Loan

39. A claim is made in the APOAC in relation to a loan made by Mahi Lending Services Ltd to GFIF of US$39 million in November 2016. This has been called ‘the Mahi Bridge Loan’. The Claimants have contended that the Mahi Bridge Loan was in breach of PIF’s investment objectives because it was not an equity or quasi-equity investment and could not result in capital appreciation.

40. The Mahi Bridge Loan was repaid, but the claim made by the Claimants against the Defendants relates to the transaction fee which was payable in respect of that loan, which was in the sum of US$175,000.

41. There is no allegation, and no suggestion, that Mr Wang knew about the Mahi Bridge Loan. The nature of the contribution case made against Mr Wang in respect of the transaction fee for the Mahi Bridge Loan is that there had, in December 2015, been a loan from Mahi Lending Services Ltd to a company of Mr Wang’s, Blue Water Ltd (‘ the Blue Water Loan ’). The Claimants make no claim in respect of the Blue Water Loan. The Floreat Defendants claim contribution from Mr Wang in respect of the transaction fee on the Mahi Bridge Loan on the basis that the Blue Water Loan was, to Mr Wang’s knowledge, not an equity or quasi-equity investment and could not result in capital appreciation, and that through his participation in the Blue Water Loan, Mr Wang is liable in unlawful means conspiracy, dishonest assistance and inducing breach of contract.

42. The only pleaded basis for this claim to contribution in respect of the transaction fee on the Mahi Bridge Loan, is Mr Wang’s participation in the Blue Water Loan. That is alleged to have meant that he consented to and sanctioned other loans, ‘such as the Mahi [Bridge] Loan’ which were made on relevantly similar commercial terms. In my judgment, without further matters alleged of which there are none, participation in one loan neither directly supports nor gives rise to the inference that Mr Wang sanctioned another loan, of which he is not said to have known. For this reason, I consider this aspect of the pleading to be deficient, and the case made demurrable.

43. Mr Jones KC, in his oral submissions described the claim in respect of the transaction fee for the Mahi Bridge Loan as being, ‘in the context of this case … worth petty cash.’ He said also, that he would not argue that, if the claims relating to Shanti were struck out or summary judgment entered in respect of them, the claim in relation to the Mahi Bridge Loan should survive. For reasons which I have already set out, I consider that both the claims relating to Shanti, and that relating to the Mahi Bridge Loan transaction fee are claims which would, if pleaded, be liable to be struck out, or in relation to which it would be appropriate to enter summary judgment, and that, for that reason, it is not appropriate to give permission to amend to plead them. Conclusion

44. For the reasons I have given, I have concluded that there is in the APOAC no properly pleaded case which stands a realistic prospect of success in relation to any of the claims made against Mr Wang. I therefore refuse to permit the amendments involved in the APOAC. I will also strike out the unamended Particulars of Additional Claim.

45. I trust that the parties can agree a form of order giving effect to the above conclusions.