Arcadia (Alta) v Bosworth (amendment)

Hearing date: 7 October 2025 Draft judgment circulated to parties: 17 October 2025

Approved Judgment

(A) INTRODUCTION

This judgment relates to an application by the Claimants to strike out certain allegations of dishonesty made by the active Defendants in an Inquiry into damages, and applications by the Defendants for permission to amend their statements of case in the Inquiry.

Following a ten-week trial, I handed down judgment on 22 January 2025, dismissing the Claimants' claims that the Defendants had committed a substantial and sustained fraud in connection with 144 crude oil purchase and sale transactions between April 2007 and May 2013 relating to oil originating in West Africa ( Alta Trading UK (formerly known as Arcadia Petroleum Limited) v Bosworth [2025] EWHC 91 (Comm) (“ the 22 January judgment”)). In the same judgment I upheld certain counterclaims made by the First Defendant (“ D1”) and the Second Defendant (“ D2”).

At the hearing of consequential matters on 10 February 2025, I made an order directing that the Claimants' undertakings in damages, in connection with a worldwide freezing order which had been in place since February 2015, be enforced and that there be an Inquiry into damages (“ the Inquiry”), to be heard at a 2-week trial not before March 2026. Damages are sought by D1, D2 and the Fifth Defendant (“ D5”). For convenience I shall from now on refer to those three parties as “ the Defendants”.

The Claimants applied to strike out allegations made by the Defendants, in D1/D2's Particulars of Loss and Damage in the Inquiry (“ D1/2 Particulars”) and in D5's Inquiry Points of Claim (“ D5 Points of Claim”), that the Claimants had obtained and maintained the worldwide freezing order dishonestly. Following a hearing on 27 June 2025, I handed down judgment on 18 July 2025 ( [2025] EWHC 1837 (Comm)) (“ the 18 July judgment”) concluding that the dishonesty allegations may at least be relevant to certain matters concerning causation which the Defendants sought to advance, and that the strike-out application must be adjourned in order to give the Defendants an opportunity properly to plead those matters and the Claimants an opportunity to respond to them.

The Defendants then served draft Amended Replies to the Claimants' Defences to the Defendants' claims in the Inquiry. The Claimants opposed the applications for permission to amend and maintained their application to strike-out. The applications were then the subject of further written and oral submissions at a hearing on 7 October 2025. I also heard applications by the Defendants for Further Information in relation to matters relevant to the dishonestly allegations if allowed to remain.

The outcome of the amendment and strike-out applications has a bearing on the scope of the parties' disclosure and witness evidence in the Inquiry, and a case management conference is listed for 24 October 2025. It has therefore been necessary to produce this judgment in fairly short order, in order not to delay the smooth progress of the Inquiry.

For the reasons given below, I have concluded that the Defendants' applications to amend should, in the main, be allowed and the strike-out application dismissed. In addition, the Defendants' applications for Further Information should be allowed in part, as detailed in section (F) below.

(B) BASIS OF THE APPLICATIONS TO AMEND

As indicated in the 18 July judgment, a worldwide freezing order was granted on 12 February 2015 by Teare J, in respect of the Defendants' assets of up to US$335 million, and remained in place until I discharged it in February 2025.

The D1/D2 Particulars, served on 14 March 2025, seek compensation for loss of the oil trading business they say they would, but for the freezing order and its effects, have established, and which they alleged would have made profits of the order of US$500 million. Alternatively, they claim for lost job opportunities, from which they say they would have earned of the order of US$113 million. D1/D2 also seek compensation for lost investment opportunities and lost investment gains on assets they had to sell; together with injury to reputation, distress and invasion of personal liberty, for which they claim aggravated damages.

As part of the Particulars, D1/D2 allege that allegations which the Claimants made in support of the freezing order were false and were, when made, known to be false (through, in particular, Mr Fredriksen, Mr Trøim, Mr Hannas and/or Mr Adams, all of whose knowledge is said to be attributable to the Claimants).

The D5 Points of Claim, also served on 14 March 2025, seek compensation on two main bases. D5 alleges that, but for the freezing order and its effects on Attock Dubai (in which he had a 50% interest), he would have received substantial sums from Attock Dubai in his capacity as trader/employee, director and ultimate 50% shareholder. Further or alternatively, he alleges that, but for the effect of the freezing order, he would have become a senior employee of Vitol Dubai or another comparable oil company and would have received substantial sums by way of a sign-on bonus, annual salary, annual bonus and share scheme participation. He also claims for lost investment opportunities and lost investment gains on assets he had to sell, together with upset, stress and loss of reputation.

Like D1/D2, D5 alleges in his Points of Claim that allegations that the Claimants made in support of the freezing order were false and were, when made, known by the Claimants to be false.

As part of their Defences to those claims, the Claimants dispute that any losses were caused by the freezing order, as distinct from the fraud claims made against the Defendants in the underlying proceedings: see, e.g., Claimants' Defence to D1/D2 Particulars §§ 4, 57(2), (4) and (5), 59(3), 65(1), 66 and 81; Claimants' Defence to D5 Points of Claim §§ 38(1) and (2) and 44(2)). I shall refer to this as the Claimants' “ causation defence”. The Claimants thus rely on the principle established by the High Court of Australia's judgment in Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd [1981] HCA 75; 146 CLR 249 (“ Air Express”), and followed in various subsequent English cases.

By their draft Amended Replies, the Defendants seek to contend that, in addition to the causation defence being wrong in point of fact, the Claimants should not be entitled to rely on it in circumstances where the Claimants' fraud claims in the underlying proceedings were advanced dishonestly. The core of D1/D2's proposed amended plea is as follows:-

“28A. Further or alternatively, it is denied that the Claimants' allegations of fraud in the underlying proceedings would (absent the Freezing Order) have prevented the Oil Trading Business from being established, and/or that the Claimants are entitled to rely on those allegations of fraud, for the reasons set out in paragraphs 28B – 28G below.

28B. The Freezing Order caused damage to the commercial standing of Mr Bosworth and Mr Hurley, so as to have a preventive and/or coercive effect that restricted their ability to do business with, and/or obtain finance from, third parties, including banks and potential investors in the Oil Trading Business. The damage to Mr Bosworth and Mr Hurley's commercial standing caused by the Freezing Order was significant and went beyond any damage caused by the fact of the proceedings. Pending disclosure and evidence, Mr Bosworth and Mr Hurley rely on the facts and matters set out in paras 65 and 67–70 of the First Witness Statement of Christopher Main. In the premises, the Freezing Order caused and/or was an effective cause of the failure to establish the Oil Trading Business.

28C. Further or alternatively, the allegations that were central to the Claimants' case in the underlying proceedings were also central to the evidence that the Claimants adduced to obtain and maintain the Freezing Order: see the judgment dated 18 July 2025 ( [2025] EWHC...