Matrix Receivables Limited v Musst Holdings Limited

Chapter number Subject Paragraph numbers I Introduction 1-7 II Background to the issues 8-16 III The issues 17-18 IV The evidence 19-21 V Background facts 22-50 VI The approaches to The Observatory and LGT 51-79 VII Is the unjust enrichment by reference to services or end-product? 80-91 VIII The rate of remuneration: fixed fee or commission? 92-97 IX Limitation: are the claims wholly or in part statute barred? 98-123 X The action to recover commission relating to the management fees in respect of The Observatory/2B and LBT/Crown 124-134 XI The action to recover commission relating to the performance fees in respect of The Observatory/2B and LBT/Crown 135-170 XII Counter-restitution 171-184 XIII Alternative analysis about the value of any benefit received at the expense of Matrix in respect of a share of performance fees 185-187 XIV The wrong party defences 188-192 XV Wrong party first point: the assignment fails because any services were performed by MAAM or a Matrix entity other than MMM 193-207 XVI Wrong party second point: the claim was transferred to LGBR or some other entity so that the assignment of MMM to MRL was ineffective 208-218 XVII Disposal 219-229 MR JUSTICE FREEDMAN: I Introduction

1. This action is a sequel to an action between Musst Holdings Limited (“Musst”) and Astra ( “Musst v Astra” ). In that action, it was found among many other things that Musst introduced the investments of two clients, namely The Observatory/2B and LGT/Crown, who had both invested in accounts managed by Astra LLP on behalf of Octave. It was found that Astra took over the management of funds in place of Octave. The contractual issues were far more complicated than is necessary for the purpose of this introduction.

2. One of the issues in Musst v Astra was whether the introductions were not those of Musst, but those of a company known as Matrix Money Management Limited (“MMM”). There has in the lead up to trial in this action been added an issue by Musst by re-amendment that it was an associated company of MMM rather than MMM which made the introductions, and in particular Matrix Alternative Asset Management Limited or limited partnership Matrix Alternative Asset Management LLP and/or its associated company Matrix Money Management Limited (“MMM”) (together “Matrix”). There was evidence led in this regard of Mr Saleem Siddiqi of Musst, his wife, Ms Alexandra Galligan (of Matrix and thereafter of Musst), Mr Luke Reeves, head of retail and institutional business at Matrix and Mr Anish Mathur of Astra.

3. I gave judgment in that action neutral citation number [2021] EWHC 3432 (Ch) on 17 December 2021 in which I found that within the contract made between Octave and Musst and thereafter novated so that Astra became a party, Musst introduced the investments of The Observatory/2B and LGT/Crown. In the alternative, if it were the case that a part of the introduction was that of Matrix, then it sufficed that the introduction was a joint introduction of Musst and Matrix. The result was a contractual entitlement of Musst to a share of management fees (being in respect of management of the fund charged on a periodic basis) and performance fees (being dependent upon a successful investment and only charged at the point of success) received by Octave at first and then Astra. A subsequent appeal was dismissed.

4. As the Claimants have acknowledged, whilst that judgment does not give rise to any form of res judicata or issue estoppel as between the present parties and the findings are not strictly admissible at trial (see Secretary of State for Trade v Bairstow [2003] EWCA Civ 321 ), neither party has sought to argue that the Court should depart significantly from the conclusions reached in that case.

5. The instant action is brought by Matrix Receivables Limited (“MRL”) as assignees of MMM in unjust enrichment against Musst for a share of the moneys which it has received or is due to receive from Astra in respect of the share of the fees received in respect of The Observatory/2B and LGT/Crown investments.

6. The action had been brought in a broader compass because it had been alleged that there was an express contract, and if not an express contract, then an implied contract between Matrix and MMM (“the contractual claim”). In the alternative, it has been alleged that there is a claim in unjust enrichment for the benefit received by Musst from Astra at the expense of Matrix.

7. There had been an application for reverse summary judgment and/or strike out made by Musst seeking to strike out the contractual claims, which I heard. Summary judgment and/or strike out was also sought in respect of the unjust enrichment claim, limited to the sole ground that it was statute barred. The Court refused to give summary judgment or to strike out refusing to decide summarily that the case in unjust enrichment was statute barred. In respect of the contractual claims, whilst recognising how weak they appeared to be, I also refused to give summary judgment or to strike out, being concerned that something would emerge in the unjust enrichment claim. The judgment was reported at neutral citation number [2024] EWHC 149 (Ch) on 17 June 2024. In the event, MRL has now abandoned the contractual claim. Another area where the issues have narrowed is that whilst limitation remains in issue, MRL no longer alleges concealment if there is a limitation defence. II Background to the issues

8. The claim was pleaded in contract in the Particulars of Claim as originally pleaded and was supported by a Statement of Truth of Mr Reeves. The contractual claim was that there was an express agreement made in or about February 2012 between Musst and a Matrix company that Musst would share the amounts which it received from Octave/Astra 80% for Matrix and 20% for Musst. If there was no express agreement, there was an agreement to share a reasonable amount to reflect their respective contributions. It is not apparent how it is the case that Mr Reeves made a contractual claim in the name of the Matrix entity which he could not support at trial.

9. In the event, Mr Reeves has supported a restitutionary claim which, as with the contractual claim, would have had no value or very limited value if Astra had succeeded in its defence of the claim of Musst. Yet, despite this, Mr Reeves gave evidence in Musst v Astra not for Musst, but for Astra. His evidence was intended to support the following position of Astra. Astra accepted that in April 2013, it had entered into a written agreement that it would pay to Musst a 2% management fee for each year in respect of work introduced, but its case was as follows: (1) there was a voluntary arrangement in November 2012 agreed between Mr Mathur, Mr Siddiqi and Ms Galligan under which all introductions made up to 21 November 2012 (including those of The Observatory/2B and LGT/Crown) would be subject to a 20% revenue share for three years from the date of The Observatory/2B and LGT/Crown investments, and nothing thereafter; (2) any binding agreement would only be agreed in respect of work done and introductions effected from 21 November 2012 onwards; (3) this did not apply to The Observatory/2B and LGT/Crown where the introductions had occurred as a result of activities before 21 November 2012 and where in any event the introductions were by Matrix; (4) if the introduction was due to Musst whether by themselves or with Matrix, there was no entitlement in the nature of a binding legal obligation (since it was prior to 21 November 2012), and it was in any event limited to three years in duration; (5) the bulk of the fees claimed were in the nature of a share of performance fees which were not received by Octave/Astra within the three year period, and therefore there was no entitlement to the same or even voluntary arrangement in respect of the same; (6) there was a Matrix Arrangement under which Mr Mathur agreed to pay to Matrix 20% of its fees for its introductions for three years; (7) there was a Siddiqi Understanding under which Mr Mathur agreed to pay Mr Siddiqi 25% of its management fees over a three-year period on investments which he introduced directly without assistance from Matrix.

10. Musst’s case which prevailed in the Musst v Astra action was as follows: (1) the introduction agreement which it made with Octave in April 2013 and subsequently by novations with Astra entities, applied to introductions made either by Musst or by Musst together with a Matrix entity whether before or after November 2012. (It is not necessary for this judgment to refer each time to the subsequent novations, and so for the purpose of shorthand only, the agreement between Musst and Octave and the subsequent novations may be referred to as the agreement of Musst with “Octave/Astra”). (2) the agreement was not limited to a share of revenue for three years, but to all revenue attributable to the introduction; (3) there was no separate Matrix arrangement and Siddiqi understanding. There was one agreement between Musst and Octave, and thereafter novated with Astra companies; (4) as recorded at para. 82(2) of the judgment in Musst v Astra , “Musst says that an agreement would be made between Mr Mathur/Octave and Mr Siddiqi/MUSST and a separate agreement between MUSST and Matrix to pay a part of the moneys received from MUSST”. It was further stated at para. 84 in the same judgment: “Musst says that there was no agreement or arrangement between Mr Mathur or his vehicle and Matrix, but that it was intended at all times that there would be one binding agreement between Musst and Mr Mathur or his vehicle: separately, Matrix would look to Musst/Mr Siddiqi for payment for its efforts out of moneys received by Musst/Mr Siddiqi from Mr Mathur or his vehicle.” Musst’s submissions prevailed in this regard; (5) in the event, no agreement was made between Musst and Matrix: Matrix went into administration on 6 November 2012, as a result of which it ceased to carry out any introduction work prior to the contracts being made with The Observatory/2B and LGT/Crown respectively (which were not entered into until 2013).

11. It is to be noted that if the evidence of Mr Reeves in support of Astra had been accepted, all or most of the moneys received by Octave/Astra from The Observatory/2B and LGT/Crown would not have been subject to an obligation to pay any part to Musst. This is because any introductions prior to November 2012 would have been excluded from an obligation to pay any percentage to Musst, and, in any event, they would only have applied to moneys received in the three-year period. One would have expected in these circumstances that Mr Reeves would have supported the position of Musst against Astra in order to maximise the recovery of the relevant Matrix entity. It was not suggested that there was a co-extensive arrangement of the relevant Matrix entity against Astra such as would have given to it a share of the large performance fees received after the three-year period from The Observatory/2B and LGT/Crown.

12. In the event, the evidence of Mr Reeves was rejected (as was the evidence of Mr Mathur, whose case he purported to corroborate). The evidence of Mr Reeves was regarded as unsatisfactory: see the judgment of 17 December 2021 especially at paras. 52 and 210 and see more generally paras. 186-233. It was therefore the case that the evidence of Mr Reeves opposed Musst’s case against Astra by joining together with Mr Mathur. By acting as such, he was a barrier to the ability of Musst to make the recovery contended for in this action which depended upon Musst being entitled to money and recovering money from Astra.

13. Yet Mr Reeves has given evidence in the instant action to make a claim different from the basis of the evidence in the Musst v Astra claim. Having now abandoned a contractual claim, he has given evidence that the work carried out (by whichever Matrix entity) was in anticipation of an agreement being made to share moneys as between Matrix and Musst.

14. A yet further curiosity is as follows. As would have been known to Astra, and probably also to Mr Reeves, it would have been very difficult for Musst to pursue the claim against Astra. There was a matter of security for costs and also litigation funding. The result of the latter has been that any recoveries have been very substantially reduced to make payment to the funders.

15. This has given rise to an issue about counter-restitution. Musst says that the amount of the recovery should be by reference to the net sum recovered after taking into account the payment to the funders. The recovery was made possible by the funding. Matrix says that just as the amount paid to the funders is not recoverable in costs between the parties, so too it should be disregarded for the purpose of counter-restitution. The curiosity is then that Mr Reeves, having joined in a defence to the action, which has caused Musst to require funding, now says that Musst should bear the costs of funding and make a payment to the relevant Matrix entity by reference to the gross sums received without any allowance for the funding and insurance costs.

16. A further curiosity in this case is the time that it has taken for this claim to be made. On one view, the failure of basis was that after the conclusion of an agreement on 18 April 2013 between Musst and Octave/Astra, there was no agreement concluded between Musst and Matrix. This continued even after 19 November 2013 when there was the first receipt of Musst from Octave/Astra. The action was not commenced until 4 September 2020. This has led to a limitation defence, but it raises questions of delay which are or might be relevant to the merits of the underlying claim. III The issues

17. The issues which now arise are as follows: (1) is Musst liable in unjust enrichment in respect of (a) management fees charged to Crown and the percentage received by Musst, (b) management fees charged to 2B and the percentage received by Musst, (c) performance fees charged to Crown and the percentage received by Musst, and (d) performance fees charged to 2B and the percentage received by Musst. (2) if so, is the claim statute barred in whole or in part; (3) does the claim fail because it was not assigned in that the assignment relied upon was by MMM to MRL whereas it was not MMM’s claim to assign but that of Matrix Alternative Asset Management Limited (“MAAM”) or the limited liability partnership Matrix Alternative Asset Management LLP (“MAAM LLP”); (4) does the claim fail because whatever rights remained in the relevant Matrix entity, they were transferred to LGBR Capital Limited LLP (or Bermuda Global Limited or Mr Reeves) and not to MRL; (5) what is the value of the unjust enrichment, and in particular: (i) is it a claim for a fixed fee or a retainer confined to its sales marketing and sales organisation work with Matrix dropping out on insolvency; (ii) if it is a claim for a percentage, what percentage is appropriate bearing in mind the expectations in negotiations, who brought each of 2B and Crown to the fund, the work done by Mr Siddiqi and by the representatives of Matrix prior to the insolvency of Matrix and the work done after insolvency. (6) to what extent is MRL liable to make counter-restitution and in what sums?

18. Although these will be the subjects covered, the order will be different. This judgment will consider the following, namely: (1) the facts generally relating to the commercial relationships of Mr Mathur and Octave/Astra, Mr Siddiqi and Tapestry/Musst, and Mr Reeves and the Matrix group of companies; (2) whether remuneration in this case is by reference to services or end-product; (3) whether or to what extent the claims or any of them are barred by limitation; (4) to the extent, if any, that they are not barred by limitation, is Musst liable in unjust enrichment in respect of (a) management fees charged to Crown and the percentage received by Musst, (b) management fees charged to 2B and the percentage received by Musst? (5) to the extent, if any, that it is not barred by limitation, is Musst liable in unjust enrichment in respect of (a) performance fees charged to Crown and the percentage received by Musst, (b) performance fees charged to 2B and the percentage received by Musst? (6) what is the value of the unjust enrichment, and in particular: (i) is it a claim for a fixed fee or a retainer confined to its sales marketing and sales organisation work with Matrix dropping out on insolvency; (ii) if it is a claim for a percentage, what percentage is appropriate bearing in mind the expectations in negotiations, who brought each of The Observatory/2B and LGT/Crown to the fund, the work done by Mr Siddiqi and by the representatives of Matrix prior to the insolvency of Matrix and the work done after insolvency? (7) to what extent is MRL liable to make counter-restitution and in what sums? (8) does the claim fail because it was not assigned to Musst in that the assignment ought to have been by MAM to MRL rather than as was the case by MMM to MRL; (9) does the claim fail because whatever rights remained in the relevant Matrix entity, they were transferred to LGBR (or BGL or Mr Reeves) and not to MRL? IV The evidence

19. The witnesses of fact in this case were Mr Reeves for MRL and Ms Galligan and Mr Siddiqi for Musst. In the judgment in Musst v Astra , I treated Ms Galligan and Mr Siddiqi as being “credible and reliable witnesses”. There were certain qualifications, notably their attempt to characterise Matrix as providing an administrative and secretarial service only, which I rejected. I continue to have misgivings about their evidence in that they still understate the extent of the assistance provided by Matrix, and in the case of Mr Siddiqi overstate the extent of his connection with or knowledge of Mr Septon. Subject to those misgivings, I accept the tenor of their evidence.

20. At para. 52 of the judgment in Musst v Astra , I found that Mr Reeves gave evidence in that trial which was unsatisfactory. At one point, he said that he had agreed a commission with Mr Mathur, but in cross-examination he said that he did not have a positive recollection. He supported the case of Mr Mathur of Octave/Astra about a tripartite November arrangement, which I rejected. The position is now more stark and even more unsatisfactory. As related above, his evidence has changed with the wind. He has in this case sought to give evidence in support of a contractual case at odds with his evidence in Musst v Astra . He is relied upon to support the case in unjust enrichment. He has given no or no adequate explanation for his changes of position. Whilst allowance has to be made for the difficulty of recollection of events of many years ago, he frequently retreated into answers about not having a good recollection. Whilst that was not surprising in view of how many years ago the events in question were, it appeared to show a lack of engagement with the issues in the case. That lack of engagement was evidenced when Mr Reeves said that he had not read the witness statements of Musst. This is difficult to understand and it does not reflect well on his evidence. I have found his evidence wholly unreliable unless it is supported by reliable corroborative evidence or by the inherent probabilities.

21. There were experts who gave evidence. They comprised of Mr Nigel Sillitoe and Ms Charlotte Rogers. Their evidence was not especially divergent. It has assisted the Court in considering whether the services in this case are to be paid depending on end-result, and the related question, as to whether they are to be paid on a commission or a fixed fee basis. Their evidence is limited in value in any of the more specific questions that they were asked because, as is recognised by both parties, this case is dependent upon a close inspection of the facts to which this judgment now turns. V The facts (a) Background facts

22. I shall start the analysis by repeating the section on background from the judgment on the summary judgment/strike out application. This read as follows: “10. The sole director of MRL is Mr Luke Reeves ("Mr Reeves"). He was formerly a director of MMM until 1 February 2011, which company entered a members' voluntary liquidation on 3 December 2012, and remains in liquidation. There was a group of companies known as the Matrix group which comprised financial services businesses and is said to have managed over £3 billion of assets with 230 professionals employed in four divisions including asset management and specialist finance. Ms Alexandra Galligan ("Ms Galligan") was employed by Matrix Securities Limited from 1 December 2008 as institutional business development manager, reporting to Mr Reeves. She was and is married to Mr Saleem Siddiqi ("Mr Siddiqi"), who is the beneficial owner of Musst.

11. MMM and another company in the group traded as Matrix Asset Management ("MAM") and were in the business of finding investors to invest in hedge funds in return for fees paid by the managers of those funds. MAM had a network of relationships with potential investors.

12. Mr Reeves first met Mr Siddiqi in 2008 or 2009 through Ms Galligan. His [Mr Siddiqi’s] expertise was to advise pension funds and other investment entities in relation to their selection of hedge funds into which to invest. Mr Reeves wanted MMM or Matrix to be introduced to managers of high-quality hedge funds to which Mr Siddiqi had access. Musst says that it successfully introduced Matrix to about nine different hedge funds from about 2009 to 2012.

13. In 2009 or 2010 (Matrix says in 2011), Mr Reeves discussed with Mr Siddiqi and Ms Galligan a concept under which MMM or Matrix would provide for reward office space and legal and administrative services to new hedge funds. In about January 2012, Mr Siddiqi introduced Mr Reeves to Mr Mathur, then of Deutsche Bank, who was about to set up his own hedge fund business. In 2012, Mr Siddiqi was working for Tapestry Asset Management Limited ("Tapestry"), and during the year, he acquired Tapestry and by the end of the year, he operated through various Musst entities. From November 2012, he was joined by Ms Galligan.

14. It is unnecessary in this summary to refer to the numerous meetings involving Mr Siddiqi and/or Mr Reeves and/or Mr Mathur. Mr Mathur had an investment strategy focussing on synthetic asset-based securities which were trading at low sums and was expected to increase substantially. There is controversy between the parties as to what then occurred about the level of remuneration between the parties. In the course of emails (particularly 15 and 16 February 2012), there was reference to Mr Reeves expecting that 25% should be paid to Musst of which the salespeople including Matrix would expect 80%. Mr Reeves in a statement had said that there was an 80/20 sharing arrangement that was made, but Mr Siddiqi denies that this was ever agreed, and says further that the emails do not evidence any such understanding.

15. Musst accepts that the role of Matrix would be to act on behalf of Musst by (a) suggesting potential investors to Musst, (b) making initial contact with potential investors when Mr Siddiqi agreed to this, (c) helping set up meetings and to attend those meetings if Musst wished, and (d) providing administrative and operational support. Since the findings in the Astra Judgment (paras. 88-90), Musst now accepts that the role of MMM went beyond being an administrator or secretary. Musst says that no agreement was made as to fees with Mr Mathur until after agreement in principle between Musst and Octave in November 2012 resulting in an Introduction Agreement on 13 April 2013 between Musst and Octave. Musst's case is that thereafter there was no concluded agreement between Musst and Mr Reeves for sharing of Musst's fees.

16. Mr Reeves gave evidence in the Musst v Astra action. The case then pursued by Astra was that there was a tripartite agreement made in November 2012, a part of which was that there would be a sharing of the sums received by Musst whereby Mr Reeves/Matrix would receive 80% on the basis of Musst receiving 25% of the fees on introductions, the sharing was said to be 80% Matrix and 20% Musst. The Judgment contained critical remarks about Mr Reeves' evidence which was rejected as "not satisfactory" . It was said that it "lacked precision about what agreement there was as regards Commission at any stage and between whom". The instant claims were not brought in the Musst v Astra action, and the case of Musst is that it is an abuse of process amounting to a challenge on the Judgment in that action for the instant claims to be brought in this action.

17. The principal fees which form the subject of MRL's claim are fees received by Musst from two customers, namely 2B and Crown. It was principally by reference to these fees that Musst sued Astra in the Musst v Astra action for fees from these introductions. Musst succeeded in its claim, and the Astra Judgment was dated 17 December 2021, and an order was made for an interim payment of US$3,826,952.20 on 18 March 2022. The claims made in this action are for a share of 80% of that sum or some other percentage which was to be agreed or for a restitutionary sum by reference to the value of the services rendered by MMM.”

23. In my judgment, starting with the contemporaneous evidence, this shows that Matrix was more than an administrator or a secretary. This is for the following reasons. First, it had a bank of contacts itself to whom it could reach out. Second, it made contact with potential investors which indicates much more than an administrative role. Third, Ms Galligan in particular presented as a person with 'the gift of the gab' and the charm that the best salespersons have. Until October/November 2012, she was acting for Matrix and not for Musst, despite her being married to Mr Siddiqi. In that capacity, she was doing more than simply administrative tasks. Fourth, when Mr Elliott reached out to LGT (without the prior approval of Mr Siddiqi), he was doing more than being an administrator, but seeking to get the business of a prospective investor.

24. The following is the history between 2011 and 2012 and is taken in part from the judgment in the Musst v Astra judgment, whilst taking into account the evidence received in this action. It is an extensively documented case.

25. In 2011, Mr Siddiqi was introduced to Mr Mathur by Dr Chander, who was a mutual acquaintance. At the time, Mr Mathur was working for Deutsche Bank as head of Winchester Capital Principal Finance, where he managed a portfolio of cash and synthetic ABS, which was a multi-billion dollar pool of ABS consisting of various different types of ABS.

26. Mr Siddiqi was a partner in Tapestry Asset Management LLP, a hedge fund adviser focussing on institutional clients, with a reputation for “seeding” (providing initial finance to hedge fund managers), and he managed the London side of the business.

27. Mr Siddiqi and Mr Mathur got along well and there were discussions about Mr Siddiqi helping Mr Mathur in a new business which would trade in synthetic ABS. Mr Mathur would come round to Mr Siddiqi’s home, where he lived with his wife Alexandra Galligan, and they would discuss business plans, strategy and how to present the opportunity to potential investors. The first such visit appears from the documents to have been on 25 October 2011.

28. Mr Mathur intended in due course to leave Deutsche Bank and set up a new company which ran a hedge fund focussing on synthetic ABS, and in which clients would subscribe for shares in return for capital contributions. Mr Mathur would manage the company and charge management fees and performance fees.

29. On 26 October 2011, Mr Mathur sent to Mr Siddiqi a “Draft Proposed New Regulatory/Special Situation Funds” document which set out the rationale of the proposed fund and a short power point presentation. As a result of the 2008 banking crisis, banks were under pressure to get rid of credit instruments such as synthetic ABS. This created an opportunity in that the assets were complicated and unlikely to mature for some time. Mr Mathur knew from his experience in the market where to acquire them cheap with a view to holding them for a few years, and selling them at a substantial profit on maturity, by which time it was expected that the market would have recovered.

30. Musst, was incorporated in the BVI by Mr Siddiqi on 2 February 2012, when he decided to leave Tapestry and devote himself to his own business. Mr Siddiqi is the ultimate beneficial owner of Musst and it is a vehicle through which he (and since she left Matrix in October/November 2012, his wife Alexandra) conducts business. Musst was a part of a business group of companies through which Mr Siddiqi operated.

31. The business planned by Mr Mathur was referred to as “AMCo” (standing for Anish Mathur Company, and then latterly Astra Management Company). On 16 January 2012 and 8 February 2012 Mr Siddiqi introduced Mr Reeves of Matrix to Mr Mathur. He knew Mr Reeves because his wife Ms Galligan worked for Matrix and Mr Reeves was her line manager. Subsequently, Mr Siddiqi and Mr Mathur presented the proposed AMCO business strategy to the Matrix sales team. As a result, Ms Galligan and other members of the Matrix sales team started speaking to potential investors about the proposed AMCO business in March and April 2012.

32. In the trial in Musst v Astra , there was a dispute between Mr Siddiqi and Ms Galligan on the one hand, and Mr Mathur and Mr Reeves on the other, as to what happened in the period between January 2012 and October 2012, as to how much, if at all, the introductions of prospective investors was by Matrix, and the basis on which the parties were operating.

33. Mr Siddiqi wanted to involve Mr Reeves in discussions as to how to take things forward. Mr Reeves was keen to be involved in them as was apparent from a number of emails between 16 January 2012 and 18 January 2012.

34. In an email of 16 January 2012, Mr Siddiqi wrote to Mr Reeves as follows: “So, I had a two hour meeting with Anish and laid down a gauntlet. The net result is he will work with Musst Investments and understands how we operate. The specifics of a deal have not been decided, but the essence of the deal has been transmitted, and I think he gets it…. Hence, it is time to morph his pitch book and move the story forward. I have suggested a meeting with the three of us. I have told him, I will write his pitch book, but before that I will ascertain his competition. One of them, who is EU focused is [gives website address] and as it happens is advised by Radosh. The other is [gives website address]. I will get meetings with both of them and ascertain what they do. Will give me ideas for our pitch.”

35. There were encouraging emails between Mr Siddiqi and Mr Mathur including on 17 and 18 January 2012 in the following terms: “i. 17 January 2012 from Mr Siddiqi: “It was really good talking yday, Anish, and I am happy that you are comfortable involving me. From my side, let me assure you … as I mentioned to you yesterday, I would never put my name on anything that I did not completely believe in nor had an interest in. …. Most importantly, I am happy that you feel comfortable trusting me and vice versa. Looking forward to building a big business that is successful and has long term legs”. ii. 18 January 2012 from Mr Mathur: “As usual, I am quite amazed with your network and ability to connect dots. I hope we are able to take this forward. Not only am I pleased that you’re keen to be involved, I am actually very happy that you believe in the opportunity and my abilities to capitalized it [sic] for all of us.”

36. After a meeting with Mr Siddiqi, Ms Galligan, Mr Mathur and Mr Shamil Chandaria on 8 February 2012, Mr Reeves sent an email on 9 February 2012 setting out what he believed needed to be done, which involved, amongst other things, creating a “pitch book” , a “product structure” , and working out which clients to target. He also gave a few initial thoughts on a sales strategy. At a further meeting the next day, Mr Siddiqi, Mr Mathur and Mr Reeves spent a few hours working on the “pitch”, which resulted in Mr Siddiqi coming up with a “one pager”. Matrix would have more people to do this work than Mr Siddiqi who was a one person team, and whose forte was to present the technical intricacies of the product to persons who were interested. Matrix would find potential customers and have a sales strategy.

37. In emails in February 2012 and March 2012, Mr Reeves suggested various terms which could apply as between MUSST and Matrix in relation to Mr Mathur’s project, and also on another deal, which involved raising money for an equity fund backed by Mr Shamil Chandaria and run by Octave. He noted that terms needed to be agreed between MUSST and Mr Mathur before agreement could be reached between Musst and Matrix.

38. More particularly, on 15 February 2012, there was an email from Mr Reeves to Mr Siddiqi and Ms Galligan as follows: “MUST should go for full global distribution requiring min of eg 25% fees. Must could take an override via 2 methods 1) Take 25% mandate and then pay 80% to "sales people" 2) Negotiate a higher mandate eg 30% and receive the 5% spread. 3) Equity component. If not palatable then x% for x around of sales. Sales people defined as Matrix, Rahul etc etc Next stages: 1) Question is how all split at MUST level? 2) Contracts need to be completed for both Must and the manager and then between Must and the sales people - I have templates 3) Timescales 4) Who negotiates contracts? Let me know what u think L Luke Reeves Director - Head of Retail and Institutional Business Development” (emphasis added)

39. Mr Siddiqi responded stating “These are exactly the type of questions I too am thinking about” and Mr Reeves replied stating “ Money conversations are good, after all it’s the point of all this…”

40. On 6 March 2012 (and another on 21 March 2012), there was an email from Mr Reeves to Mr Siddiqi stating: “We need to start moving with below as the prospectus will take circa 8 to 10 weeks and should only be commenced once the pitch book and indicative terms are ready.” The e-mail then set out an 11-point list of things to do. It referred to “MUST (sic) Fee agreement (SS to complete once completed then MUST (sic) to complete with Matrix).” This appears to indicate that there should be a fee agreement first between Musst and Octave and then between Musst and Matrix.

41. On 12 March 2012, Mr Siddiqi and Ms Galligan had a brainstorming session together about their contacts including the Observatory (who eventually invested through 2B). LGT Capital Partners (“LGT”) (who eventually invested through Crown). Although this was not documented, I found as a fact in my judgment in Musst v Astra that this took place. It does not follow from the fact that it took place that the instigation of the contacts with the Observatory and LGT respectively was that of Mr Siddiqi. The evidence was that whilst there was not a great deal of knowledge of The Observatory, that of Ms Galligan was greater than that of Mr Siddiqi who struggled in cross-examination to mention anything other than a chance encounter at a conference or two without any detailed recollection. Mr Siddiqi had greater knowledge of LGT, but it was still very limited, and Matrix also had had contact with LGT.

42. On 11 April 2012, Mr Mathur gave a presentation to the Matrix sales team about his proposed fund, along with Mr Siddiqi. This sales team included Mr Christopher Elliott and Mr Ben Fox, as well as Mr Reeves and Ms Galligan.

43. By about mid-April 2012, Mr Mathur had decided to trade under Octave’s regulatory umbrella (he had to have some umbrella until his vehicle obtained the relevant authority to trade in its own right from the (then) Financial Services Authority). He was still at the time with Deutsche Bank.

44. From mid-April 2012, the following is to be noted from the contemporaneous documents: (1) Mr Siddiqi was working very intensely on the preparation of the presentations e.g. “OK team - I spent 10 hours on this today … and will probably do the same again tomorrow. I have locked myself up until this gets done … but I would like us to have a wrap on it for Friday … I have started initiating contacts with ADIC, EIA already and will need to send them something for Sunday …. The heat is on!” (Mr Siddiqi, 18 April 2012); (2) “Anish came over this morning and we spent some hours on the document. I attach its most updated incarnation including comments we discussed this am. …” (Mr Siddiqi, 23 April 2012); (3) “Looks like another long night for Mr Siddiqi. Please see attached version 7 draft” (Mr Mathur, 27 April 2012); (4) “The goal is to keep evolving this document as we get closer to launch and as we get more intelligence from our sales process, Hence, please keep shooting me comments as and when we get them … Well played team and thank you everyone! S” (Mr Siddiqi, 27 April 2012).

45. At about this time, there was an email from Mr Reeves to Mr Siddiqi, copying Ms Galligan, saying “As I understand it we are outstanding the following: 1) agreements between Musst and Matrix on Anish and Octave. This needs to include how Matrix can get paid on certain institutional clients... I understand this will be a lower rate...”

46. The Matrix sales team became involved in assisting Mr Siddiqi and Mr Mathur to prepare the presentations for the fund to send to prospective investors as is apparent from emails in the second half of April 2012 especially. They were also making the initial contact with investors in many cases and going on road trips with Mr Siddiqi and Mr Mathur either locally or abroad e.g. 12 April 2012 planning European trips, 8-9 May 2012 two presentations in the UK offices of Matrix in London with 12 investors at each, 14-17 May 2012 referring to a trip to Switzerland, 30 May 2012– 1 June 2012 trip to Sweden. The Matrix team assisted Mr Siddiqi and Mr Mathur in drawing up the prospectus and the “due diligence questionnaire” (the “DDQ”) for Octave to send out to prospective investors about the fund (especially in late June 2012 and July 2012).

47. Mr Reeves continued to suggest that agreements needed to be reached between Musst and (now) Octave, and between MUSST and Matrix. Mr Siddiqi chased Mr Mathur to finalise the agreement which he said they had reached, given that “the AMCo/Octave marriage is now in place and hence we need to draw up T&C’s between us” (25 June 2012).

48. When challenged by Mr Mathur as to whether he was seeking to revisit their agreement, Mr Siddiqi responded: “No revision, just finalisation. Want to put it down on paper. There have been some changes at your end, that affect me and now that you have clarity, we need to noterise (sic) it. I need to have that for Musst/Matrix too … they need to see that I have a written up deal with AMCo …” [Emphasis added]

49. By early July 2012, Simmons & Simmons had drawn up a “Summary of Principal Fund Terms” for what was now called “AMCO Special Situations Credit Fund Ltd” , which noted that the fund was to pay the “Investment Manager” (i.e. Octave as then expected) 20% of net realised appreciation on investments and a 2% management fee. They had also started work, with Mr Siddiqi’s assistance, on the proposed offering memorandum. Octave sent a rough draft of the first prospectus to Mr Reeves, Ms Galligan and Mr Siddiqi.

50. On 25 September 2012, there was a Matrix trip to Stockholm and on 16/17 October 2012 a further Matrix roadshow in Switzerland. On 9 October 2012, another one was fixed for 9 December 2012. VI The approaches to The Observatory and LGT

51. First, in this period, the first approaches were made to the two investors whose investments form the main subject matter of this claim, i.e. The Observatory (who eventually invested through 2B) and LGT Capital Partners (“LGT”) (who eventually invested through Crown). (a) The Observatory/2B

52. In the judgment of 17 December 2021 in Musst v Astra , having heard the same witnesses as in this case, namely Mr Reeves, Ms Galligan and Mr Siddiqi (and other witnesses who were not called in this case), I made the following findings of fact, namely: “(e) The facts relating to the introduction of 2B

261. There was a brainstorming session between Mr Siddiqi and Ms Galligan in March 2012 which led to a list of target customers being compiled. Among them, Mr Siddiqi for Musst suggested to Ms Galligan that Matrix should contact the Observatory as a potential investor. Ms Galligan had known Mr Issac Septon and others at The Observatory since around 2010.

262. As a result, Ms Galligan and other members of the Matrix sales team in March and April 2012 started speaking to potential investors about the proposed AMCO business. This then enabled direct contact with customers by Mr Mathur and Mr Siddiqi. Mr Siddiqi had technical know-how of the credit instruments relating to synthetic ABS which enabled him to make detailed presentations of the product, which was particularly important for a sophisticated investor including 2B and Crown.

263. In about June 2012, Ms Galligan organised a conference call between Mr Siddiqi (of Musst), Mr Mathur, and Mr Septon of the Observatory at Musst's offices, and a call then took place between the three of them on 2 July 2012. On the same day, Ms Galligan emailed Mr Septon an “AMCO” marketing presentation. On 20 September 2012, Ms Galligan, still at Matrix, and Mr Mathur, still at Deutsche Bank, met Mr Septon in New York. Subsequently, in October 2012, Ms Galligan left Matrix (which shortly afterwards went into insolvency) and joined Musst. She was made redundant by Matrix on 6 November 2012. There was a meeting on 13 November 2012 in New York with Mr Septon to which reference has been made above. Mr Mathur did not know if Ms Galligan had been there, and Ms Galligan accepted that she was not there if that was what Mr Mathur said.

264. In December 2012, Mr Septon came to London to do his and The Observatory's first (or first proper) due diligence on the proposed business on behalf of 2B (or at least in anticipation of an investment by 2B or a vehicle such as 2B). At Ms Galligan's instigation (now of Musst having left Matrix since its insolvency), he attended a long meeting on 4 December 2012 with herself, Mr Siddiqi, and Mr Mathur (now of Octave) at Octave LLP’s offices at 23 Ironmonger Lane, London EC2V 8EY, at which he said he wanted to invest in the proposed AMCO fund, as he confirmed by email later that day to Musst. At that meeting, Mr Septon not only carried out operational due diligence, but enquired into the underlying strategy, and what types of trade would be carried out, and what underlying collateral there was for the synthetic ABS and what there would be in the portfolio if he were to invest.

265. Subsequently, on 11 February 2013, at Mr Septon’s or The Observatory’s direction, 2B entered into a contract with Octave LLP (“the 2B Contract”), under which it agreed to invest and thereafter invested (at least) US$20 million in “cash and synthetic asset-backed securities” and their derivatives, and other “structured credit products” controlled by Octave. 2B agreed to pay (a) a management fee assessed (to put it simply) by reference to the net asset value of the fund invested; and (b) a “Performance Fee” on net profits it received from the fund.

266. After Musst and Octave entered into the Octave Contract on 18 April 2013, Ms Galligan, by an email exchange on 19 and 22 April 2013, asked Mr Michael Holdom (of Octave LLP) when Musst’s share of revenue thereunder would be paid to it; to which Mr Holdom, in reply, sent on Octave LLP’s March 2013 invoice to 2B, and asked Ms Galligan in turn to send him Musst’s invoices to Octave (i.e. for this agreed 20% share).

267. Accordingly, from this point on, Musst invoiced Octave in relation to 2B, and Octave duly paid in accordance with the Octave Contract (until the novation to Astra LLP mentioned below), save that the first payment of US$10,000, was paid by Astra LLP on 13 May 2013. The total sum paid by Octave to Musst in relation to 2B (including the said first payment of US$10,000) was US$221,974.78.”

53. The Court is not bound by those facts. Considering the matter afresh, there is no reason to depart from those findings. In the judgment of 17 December 2021 in Musst v Astra, I made the following further findings of fact. (b) LGT/Crown “(g) The facts relating to the introduction of Crown

289. Mr Siddiqi knew various members of LGT's investment team, including Albertus Rigter (whom he has known since 2006) and Ralph Plotke. In a brainstorming conversation with Ms Galligan on 12 March 2012, Mr Siddiqi on behalf of Musst suggested to Ms Galligan that she should contact Mr Rigter and Mr Plotke of LGT as a potential investor. Although the introductions were supposed to be coordinated through Mr Siddiqi, Mr Christopher Elliott of Matrix sent AMCO marketing documents to Mr Plotke of LGT without prior reference to Mr Siddiqi. Subsequently, Mr Elliott contacted LGT and set up a meeting on 15 May 2012 in Pfaffikon, Switzerland, between Mr Siddiqi of Musst, Ms Galligan, Mr Reeves and Mr Elliott of Matrix, Mr Mathur (still at Deutsche Bank), and Mr Plotke of LGT.

290. Thereafter LGT acted on behalf of Crown using Crown as the vehicle to consider and ultimately make the investment. On 13 November 2012 Mr Siddiqi, with Mr Elliott of Matrix and Messrs Plotke and Rigter of LGT, attended a meeting at Octave’s offices. At this meeting, Mr Plotke and Mr Rigter had a conference call with Mr Mathur (who was in New York)

291. After the Effective Date (i.e. 21 November 2012), Mr Siddiqi, or Ms Galligan, for Musst arranged the following meetings or conversations for Octave with LGT: (1) a meeting in Pfaffikon Switzerland on 22 January 2013 organised by Mr Elliott and attended by Mr Siddiqi, Mr Mathur, Mr Plotke and Mr Rigter; (2) a due diligence meeting on 4 April 2013 at Octave’s offices with the same attendees as the 22 January 2013 meeting, together with Dr Adler (for Octave) and with Ms Galligan and (for LGT) Mr Raymond Seeholzer; (3) conference calls on 22 and 26 April 2013 to discuss fees, attended by Mr Siddiqi and Ms Galligan (of Musst), Mr Rigter (of LGT), and (in the earlier call) Mr Thomas and Dr Adler for Octave. These calls took place after Musst had provided further information to LGT on Mr Mathur by email of 12 April 2013, and in a telephone conference (Mr Siddiqi and Ms Galligan) with Mr Seeholzer and Mr Rigter on 17 April 2013; (4) a conference call between Mr Jan Friedhof (of LGT), Mr Siddiqi and Mr Mathur on 30 April 2013, in which LGT carried out operational due diligence; (5) a further conference call between Mr Plotke of LGT, Mr Siddiqi, and Mr Mathur on 7 May 2013.

292. Crown entered into a 'Trading Advisory agreement' dated 13 June 2013, (i.e the Crown Contract), by which it agreed to invest US$40 million into a fund which dealt in synthetic ABS controlled by Octave for Octave to manage. In return, Crown agreed to pay Octave: (1) an “Advisory Fee” - i.e. a management fee - of the lesser of (i) US$650,000 and (ii) 2% a year of the value of the funds under management, if their value was less than US$86.67 million, but if their value was US$ 86.67 million or more, 0.75% a year of the value of those funds; and (2) a “Success Fee” - i.e. a performance fee - of 20% of the net profits made by the fund, subject to certain deductions.

293. On 13 June 2013, Octave sent an unsigned form of this Crown Contract to Musst, and a signed contract was sent to Musst on 23 July 2013. Crown invested about US$35 million in November 2013 in a fund of synthetic ABS managed by Octave LLP, which sent invoices to Crown for its services. As in the case of 2B’s investment, investment advisory services were provided on Octave LLP's behalf by Astra LLP as its appointed representative. From this point on, Octave sent to Musst its invoices to Crown (albeit not in relation to all quarters); Musst invoiced Octave for its 20% share of the revenue which Octave said it had received from Crown; and Octave paid those invoices without complaint in accordance with the Octave Contract until the novation to Astra LLP. The total amount paid by Octave in relation to Crown to Musst was US$103,690.19.”

54. The Court does not need to follow these findings, but having heard the new evidence, there is no reason to depart from them. (c) What do these findings tell the Court about the part of Matrix in connection with the introduction of the contracts with The Observatory/2B and LGT/Crown? (i) Introduction of the Observatory/2B

55. I find that although neither Ms Galligan nor Mr Siddiqi had done business with Mr Isaac Septon of the Observatory, Ms Galligan had known him since around 2010. This enabled her to make contact with him on 24 April 2012. In June 2012, she organised a call of Mr Mathur, Mr Siddiqi and herself with Mr Septon for 2 July 2012 and on that day to send to him an “AMCO” presentation. On 18-21 September 2012, Ms Galligan, still at Matrix, and Mr Mathur went to the US to visit Mr Septon without Mr Siddiqi. In October 2012, whilst still at Matrix, Ms Galligan organised that a meeting would take place with Mr Septon in London in early December 2012.

56. In my judgment, Ms Galligan, then of Matrix, was involved in the introduction of Mr Septon. Despite that, prior to the demise of Matrix on 6 November 2012, there was also a significant participation of Mr Siddiqi on behalf of Tapestry/Musst in procuring the business of Mr Septon. This was in the following respects, namely: (1) Mr Siddiqi's role in coordinating the distribution activity, preparing technical literature and other documentation; (2) Mr Siddiqi’s critical role in making technical presentations to clients which he did on 2 July 2012 to Mr Septon on the call on that date; (3) Whilst Ms Galligan was a talented sales person, it was this expertise of Mr Siddiqi which was of crucial importance. He knew the product from all of his sessions with Mr Mathur and he had worked exhaustively so as to be able to explain the product in a way which made Mr Mathur decide to contract specifically with Musst through Mr Siddiqi.

57. Despite the significant role of Matrix, it ended by at the latest 6 November 2012. Whilst by that stage, there were the beginnings of the planned meeting for December 2012, it was not a formality that the investment would then take place. This was a major due diligence meeting as described above with Mr Siddiqi having the leading role. As noted above, Mr Septon enquired into the underlying strategy and what types of trade would be carried out. Insofar as Ms Galligan was involved at this stage, she was now working for Musst.

58. The agreement for the investment was on 11 February 2013. This did not unlock the money because it was necessary for Musst to obtain an agreement with Octave/Astra which occurred on 18 April 2013. It involved considerable negotiation in order to get Mr Mathur to sign. It was a sign of how significant Mr Mathur regarded the role of Mr Siddiqi that the agreement was with Musst and not with Matrix. There shall be described below the steps taken by Musst to obtain the money representing the performance fees referable to the Observatory/2B and LGT/Crown.

59. I have concluded that whilst the business of the Observatory/2B was secured through contributions of both Musst and Matrix, those of Musst were the greater. The reasons for this are as follows: (1) the fact that Mr Siddiqi coordinated the distribution activity, compiling names of potential investors, attending meetings and speaking with and writing to them; (2) the critical role of Mr Siddiqi in preparing technical literature and other documentation; (3) Mr Siddiqi made technical presentations to clients with his detailed appreciation of the technical details of the product, and his ability to address the concerns of the prospective client. Mr Mathur recognised his importance in being able to make accessible to the prospective client the details of the investment and hence was willing to collaborate with Mr Siddiqi in the way in which he did. Otherwise, he would have contracted directly with Matrix; (4) Likewise, after she ceased to act for Matrix, Ms Galligan immediately continued her distribution role, but this time for Musst; (5) Mr Siddiqi's technical expertise more than salesmanship was responsible for instigating the business from the Observatory; (6) the direct participation of Mr Siddiqi at the meeting of 2 July 2012 with Mr Septon, Mr Mathur and Ms Siddiqi was the kickstart of the relationship; (7) Mr Siddiqi was unable to attend the meeting in New York over 18-21 September 2012 due to visa complications. However, the crucial meeting was on 4 December 2012 when Mr Septon came to London to do due diligence, and Mr Siddiqi had a leading role. As noted above, he there not only carried out operational due diligence, but enquired into the underlying strategy and what types of trade would be carried out. Whilst it is right that Mr Septon would have been very interested in proceeding, because otherwise he would not have come to London, this meeting was not a formality, and Mr Siddiqi played a major role in getting him over the line. It is to be noted that by this stage and for about a month before, Matrix had gone into administration and had ceased to take a part. Further, from leaving Matrix in late October 2012, Ms Galligan was now acting on behalf of Musst and not Matrix. This then led to Mr Septon saying that he would proceed, and the contract was entered into on 11 February 2013; (8) The agreement for the investment did not unlock the money because it was necessary for Musst to obtain an agreement with Octave/Astra which occurred on 18 April 2013. It involved considerable negotiation in order to get Mr Mathur to sign. It was a sign of how significant Mr Mathur regarded the role of Mr Siddiqi that the agreement was with Musst and not with Matrix.

60. It has been suggested that Mr Septon’s willingness to attend London is evidence that he had decided to purchase subject to anything unexpected arising on the due diligence. Mr Septon did not give evidence, but the inference is that this was a critical stage in his decision making process. Mr Septon would not have come to London unless he was seriously interested in proceeding, but in respect of such a large investment, the inference is that in order to commit, he needed to have a thorough due diligence. Mr Siddiqi had a leading role in winning over Mr Septon in the due diligence meeting by his mastery of the technical details.

61. This is not to say that Matrix did not also play a significant role in the introduction. Ms Galligan, who was with Matrix up to October 2012, in anticipation of the insolvency process on 6 November 2012, had a significant role, but after the first approach, and in particular as follows: (1) Ms Galligan had known the Observatory family office Mr Septon since early 2010. According to an email of July 2013, she had had previous contact with the Observatory family office regarding an SMA for an Asian L/A hedge fund. In that regard, there was a document in August 2010 when Ms Galligan was asked to pass on information to Mr Septon of the Observatory with a brief description and contact details of Mr Septon in an email in August. The Observatory was listed as one of Matrix’s clients in an unsigned Diapson contract. There is no evidence from this of a working relationship with the Observatory, but whatever contract there was, it appears to have been greater than that of Mr Siddiqi. That is confirmed by an email of Mr Siddiqi to Mr Septon on 26 November 2012 in advance of their meeting who said “I look forward to making your acquaintance in person”; (2) although the name of Mr Septon arose at the brainstorming discussion of 12 March 2012, it seems unlikely from the evidence that this was from Mr Siddiqi, and it seems more likely that it was from Ms Galligan. In any event, the first approach to the Observatory and to Mr Septon was by Ms Galligan. On 26 April 2012, Ms Galligan then of Matrix set up a meeting with Mr Septon of The Observatory at first to take place on 14 May 2012.

62. According to a diary entry, Ms Galligan set up a call with Mr Septon to take place on 21 May 2012. That was a call with Mr Septon of Mr Siddiqi, Mr Mathur and herself, and she said that they were working on some trade examples. There was then a further teleconference with him which eventually took place on 2 July 2012 between the same persons. This was followed by an email of the same date from Ms Galligan attaching a presentation and trade examples for AMCO. MRL attach importance to the fact that Mr Siddiqi was not copied into these emails. That was a matter of form: the substance was that the technical presentations were not the province of Ms Galligan, but that of Mr Siddiqi and Mr Mathur. The evidence is that Mr Siddiqi took Mr Septon through the trade and he became sufficiently interested for there to be a follow up “as discussed” of the presentation and the trade examples being sent to him. Thereafter, there were several conversations between Mr Septon and Mr Siddiqi regarding hedge funds and the industry.

63. On 4 September 2012, Ms Galligan sent a further version of the presentation to Mr Septon. Ms Galligan met up with Mr Septon (and Mr Mathur) in New York on 18-21 September 2012. Even if she only attended because of the Visa difficulties of Mr Siddiqi, the fact is that she attended.

64. Ms Galligan, still working for Matrix, was involved in setting up the due diligence meeting of Mr Septon for early December 2012. There was an indication as to how interested Mr Septon was in that in saying that he could not attend what was discussed as “the first launch”, Ms Galligan wrote saying “He can act pretty quickly after this meeting but couldn’t get to London sooner.” Shortly, thereafter her participation was on behalf of Musst in anticipation of the cessation of trading of Matrix.

65. Although Ms Galligan did not have the technical expertise of Mr Siddiqi, she came over in the Musst v Astra trial and again in the instant trial as an engaging salesperson, and so her contact was significant. (ii) Introduction of LGT/Crown

66. The dominant contribution was that of Musst through Mr Siddiqi, but there was a contribution of Matrix through Mr Elliott prior to the cessation of trading of Matrix.

67. As for the contribution of Mr Siddiqi, although he had some limited pre-existing contact with LGT, the first to the fifth of the eight numbered points listed in respect of the Observatory apply. In addition to that, there should also be noted specific to LGT the following: (1) Mr Siddiqi had a previous knowledge of LGT and mentioned LGT at the brainstorming session on 12 March 2012, but it is to be noted that LGT was also a contact of Matrix; (2) on 15 May 2012, Mr Siddiqi attended a meeting in Pfaffikon, Switzerland, between Mr Siddiqi of Musst, Ms Galligan, Mr Reeves and Mr Elliott of Matrix, Mr Mathur (still at Deutsche Bank), and Mr Plotke of LGT; (3) on 13 November 2012 Mr Siddiqi, with Mr Elliott (formerly of Matrix in that by this stage Matrix had ceased to trade) and Messrs Plotke and Rigter of LGT, attended a meeting at Octave’s offices, and there was a call to Mr Mathur who was in New York; (4) on 22 January 2013, a meeting in Pfaffikon and a further meeting at Octave on 4 April 2013 as noted in para. 291 of the judgment in Musst v Astra quoted above and involving especially Mr Siddiqi; (5) telephone calls on 17, 22, 26 and 30 April and on 7 May 2013 all involving Mr Siddiqi and as noted at para. 291 of the judgment in Musst v Astra .

68. MRL emphasises the significance of the role of Mr Christopher Elliott. Mr Elliott had had contact with LGT in 2011 with Mr Frisson of LGT and LGT was a listed contact of Matrix on the unsigned Diapason contract of 2011. Without reference to Mr Siddiqi, Mr Elliott of Matrix set up a call with Mr Plotke of LGT for 12 April 2012 and sent an email on 26 April 2012 to Mr Rigter, copied to Mr Plotke referring to that call. Mr Elliott sent AMCO marketing documents to Mr Plotke and then set up a meeting on 15 May 2012 in Pfaffikon, Switzerland, between Mr Siddiqi of Musst, Ms Galligan, Mr Reeves and Mr Elliott of Matrix, Mr Mathur (still at Deutsche Bank), and Mr Plotke of LGT.

69. It is to be noted that there was a substantial presence of Matrix there comprising Mr Reeves and Ms Galligan in addition to Mr Elliott. It may have been that if Mr Elliott had not made the approach that Musst would have got there in any event because of Mr Siddiqi’s pre-existing connection with LGT. Mr Siddiqi had met various members of LGT’s investment team including Mr Rigter and Mr Plotke (the latter of whom he had met several times on the hedge fund circuit). Musst says that this was at Mr Siddiqi’s suggestion to Ms Galligan in their 12 March 2012 brainstorming session, although it could have been from Ms Galligan given the knowledge of Matrix of LGT.

70. That point is not decisive in that Mr Elliott did make the connection. Further, even if it was due to industry etiquette, the fact is that Mr Elliott remained the point of contact with LGT, so much so that he was involved after the cessation of trading of Matrix and there was some discussion about his being engaged in a personal or some other capacity thereafter. Further, it does not follow that if Mr Elliott had not been the front person that it would have been Mr Siddiqi who would have made the first approach: judging by that which occurred vis-à-vis the Observatory, there is reason to believe that it would have been Ms Galligan then employed by Matrix. Further, it is to be noted that the number of Matrix people there at the first meeting of 15 May 2012 make it unlikely that they had no role.

71. By an email of 31 August 2012, Mr Elliott reached out again to Mr Rigter copying Mr Plotke, hoping to meet again “on our next visit to Pfaffikon” . There was a meeting on 17 October 2012 between Mr Elliott, Mr Mathur and Mr Plotke and a follow up email of 18 October 2012. Mr Siddiqi and Ms Galligan were unable to attend because they were in India at the time.

72. There was then a follow up in late October 2012 regarding the prospectus, and Ms Galligan referred to Mr Elliott saying, “I think given your relationship with these clients they will know you are their point of contract without stressing further.” However, there was a problem about email addresses, evidently a reference to Matrix going out of business at the time. By 19 November 2012, with Matrix now in administration and no longer trading, Ms Galligan now working for Musst and with a Musst email address wrote to Mr Elliott at a Gmail address of his, saying that she was sorry about “the ambiguity at the moment” and that “we will make sure you are compensated fairly.” Whilst this was a recognition that Mr Elliott had had a role, it was also evidence that Matrix had ceased to be involved.

73. Despite this, there are significant distinctions between the position in respect of LGT from the position in respect of the Observatory. First, there was a greater prior connection which Mr Siddiqi had with LGT than his connection with the Observatory. First, whilst there was an important meeting on 15 May 2012 and a further meeting without Mr Siddiqi in October 2012, the majority of the meetings and telephone calls were after 6 November 2012 as set out above. Second, at the point of the insolvency of Matrix, there was far more to do in order to interest LGT in an investment. Even when there was a contract between Musst and Octave in April 2013, there was still no investment of LGT. These were not formal steps to get the investment over the line, but there was extensive contact to try to market and explain the product to LGT and ultimately to procure their investment. All these steps from after 6 November 2012 were without any involvement or contribution by Matrix.

74. Mr Siddiqi, or Ms Galligan, for Musst arranged the following meetings or conversations for Octave with LGT: (1) a meeting in Pfaffikon Switzerland on 22 January 2013 organised by Mr Elliott (but not on behalf of Matrix) and attended by Mr Siddiqi, Mr Mathur, Mr Plotke and Mr Rigter; (2) a due diligence meeting on 4 April 2013 at Octave’s offices with the same attendees as the 22 January 2013 meeting, together with Dr Adler (for Octave) and with Ms Galligan and (for LGT) Mr Raymond Seeholzer; (3) conference calls on 22 and 26 April 2013 to discuss fees, attended by Mr Siddiqi and Ms Galligan (of Musst), Mr Rigter (of LGT), and (in the earlier call) Mr Thomas and Dr Adler for Octave. These calls took place after Musst had provided further information to LGT on Mr Mathur by email of 12 April 2013, and in a telephone conference (Mr Siddiqi and Ms Galligan) with Mr Seeholzer and Mr Rigter on 17 April 2013; (4) a conference call between Mr Jan Friedhof (of LGT), Mr Siddiqi and Mr Mathur on 30 April 2013, in which LGT carried out operational due diligence; (5) a further conference call between Mr Plotke of LGT, Mr Siddiqi, and Mr Mathur on 7 May 2013; (6) On 13 June 2013, Crown entered into a 'Trading Advisory agreement'.

75. All of this crystallised in management contracts very shortly thereafter and in management fees received by Octave/Astra with percentages paid over by Octave/Astra to Musst without litigation or controversy until 2016. This is wholly different from the case of the performance fees which would not be paid without long and protracted litigation such that they would not be paid until at earliest 2022, many years after the introductions.

76. As for LGT, at some point, Mr Elliott of Matrix made the first approach to them, and also arranged a first meeting with them in Pfaffikon, Switzerland, which took place on 15 May 2012, attended by Mr Mathur, Mr Siddiqi, Mr Elliott and Ms Galligan. The fact that Musst could have got there without Mr Elliott ignores the fact that Mr Elliott arranged the first meeting. Further, there was no repudiation of this at the time.

77. Mr Siddiqi says that he had intended that he himself should make the first contact, but Mr Elliott, without his permission, jumped in and did so. Mr Siddiqi let him continue to liaise with LGT because the “industry etiquette” is that a potential investor is contacted on a specific idea by one person. Thereafter, Mr Elliott arranged the further meetings with LGT on 16/17 October 2012 in Switzerland again, and, after Matrix had ceased to trade on 13 November 2012 in London. Even after the insolvency, there were discussions for Mr Elliott’s continued involvement which shows that his involvement was valued.

78. In the Musst v Astra trial, the involvement of Matrix was said to have been merely administrative. Matrix lacked the technical know-how in the credit instruments relating to synthetic ABS, such that any investment depended on contact between Mr Mathur and/or Mr Siddiqi and the prospective investor. As was found in the judgment in the Musst v Astra trial, that did not relegate the contact of Matrix to a secretarial role. The co-ordinator was Mr Siddiqi, but the fact that there was supposed to be liaison before and after contact took place between Matrix and prospective investors does not mean that the extensive personal contact including meetings of Matrix with them was not important.

79. It does not follow from the fact that Matrix was taking a part of the distribution role that Matrix was taking the entire distribution role. I accept the evidence of Mr Siddiqi and Ms Galligan that they had a brainstorming session together on 12 March 2012 about their contacts including LGT (and The Observatory) . Mr Siddiqi did have the overall coordinating role, and this is not affected by the fact that Mr Elliott made the approach to LGT without prior reference to Mr Siddiqi. VII Is the unjust enrichment by reference to services or end-product?

80. An important issue in the case is the need to define whether the enrichment was by reference to the services provided or the end-product. More specifically, was the benefit conferred by the services provided by Matrix or by the end-product, namely the investment being made? If the latter, at what point did the cause of action in restitution accrue. Was it at the point in time when Musst became entitled to sue Astra (that is upon Astra receiving money from the investor) or was it when Musst received money from Astra whether voluntarily or upon judgment being enforced? The answer to these questions will inform both as regards the limitation issue and about the nature of the alleged unjust enrichment.

81. Where the provision of services is an issue, considerable debate can arise as to whether the enrichment is properly characterised as the services themselves or their end-product. The relevant legal principles for identifying the enrichment in the provision of services cases are considered in Goff & Jones paragraphs 5-39 – 5-42. They make the distinction between ‘pure’ services, where the provision of the services themselves constitutes the enrichment, and an ‘end-product’, where the product of the services in question constitutes the enrichment: “5-39 In some cases where the claimant has done work for the defendant the only benefit which the defendant can have received is the provision of the services themselves, because they leave no marketable residue in the defendant’s hands: once the services have been performed, nothing remains from which the defendant can derive any further benefit. One example is R. (Rowe) v Vale of White Horse DC, where the claimant provided the defendant with sewerage services; another is Chief Constable of Greater Manchester Police v Wigan Athletic AFC, where the claimant provided the defendant with special policing services at football matches; a third is Brenner v First Artists’ Management Pty Ltd, an Australian case where the claimant provided management services to a pop star. It is well established that “pure” services of this kind can constitute an enrichment, the value of which can be recovered in an action for unjust enrichment. 5-40 Cases where the claimant’s services leave a marketable residue in the defendant’s hands can be more difficult, because there is more than one way to characterise the benefit received by the defendant: it may be the services themselves, just as in the “pure” services cases, but it may also be the product of the services. … 5-42 … The best approach is for the court to keep an open mind, and to take all the circumstances into account, including whether the parties themselves thought that the benefit being transferred was the services or their end-product .” (Emphasis added).

82. Where the benefit transferred comprises services, the usual value of the product is to be calculated by reference to an objective test, ascertained by asking whether the reasonable person would consider the defendant to have received something of value. Thus, in Benedetti v Sawiris, in the judgment of Lord Clarke, he said: “13. The basic principle is that a claim for unjust enrichment is "not a claim for compensation for loss, but for recovery of a benefit unjustly gained [by a defendant] ... at the expense of the claimant": Boake Allen Ltd v HMRC [2006] EWCA Civ 25 , [2006] STC 606 para 175, per Mummery LJ; see also Goff and Jones, The Law of Unjust Enrichment, 8 th ed (2011) ("Goff and Jones"), para 4-01. Given that Mr Benedetti's other claims have fallen away, the concern in the present case is not the value of Mr Benedetti's loss but of Mr Sawiris' gain. The question is whether an objective or subjective approach should be adopted when calculating that gain.

14. Whichever approach is adopted, it is clear that the enrichment is to be valued at the time when it was received by Mr Sawiris: BP Exploration Co (Libya) Ltd v Hunt (No 2) [1979] 1 WLR 783 at 802, per Robert Goff J; see also Goff and Jones, para 4-34. As appears at para 52 below, in the present case, the services rendered were completed for all practical purposes by 26 May 2005, by which time there was no possibility of, or need for, further services from Mr Benedetti. Similarly, it is clear that, whether an objective or a subjective approach is taken to the evaluation of the benefit, the question is what is the value of the services themselves, not of any end-product or subsequent profit made by the defendant: see eg Cobbe v Yeoman's Row Management Ltd [2008] UKHL 55 , [2008] 1 WLR 1752 at paras 41-42, per Lord Scott.

83. This was explained by Lord Scott in Cobbe v Yeoman's Row Management Ltd above in the above passage per Lord Scott at paras. 40-42 as follows: “40. There is no doubt but that the value of the property will have been increased by the grant of planning permission and that the appellant has, accordingly, been enriched by the grant of the permission for which it has had to pay nothing. Since the planning permission was obtained at the expense of Mr Cobbe it is very easy to conclude that the appellant has been enriched at his expense and, in the circumstances that I need not again rehearse, unjustly enriched. So, in principle, he is entitled to a common law remedy for unjust enrichment.

41. But what is the extent of the unjust enrichment? It is not, in my opinion, the difference in market value between the property without the planning permission and the property with it. The planning permission did not create the development potential of the property; it unlocked it. The appellant was unjustly enriched because it obtained the value of Mr Cobbe’s services without having to pay for them. An analogy might be drawn with the case of a locked cabinet which is believed to contain valuable treasures but to which there is no key. The cabinet has a high intrinsic value and its owner is unwilling to destroy it in order to ascertain its contents. Instead a locksmith agrees to try to fashion a key. He does so successfully and the cabinet is unlocked. As had been hoped, it is found to contain valuable treasures. The locksmith had hoped to be awarded a share of their value but no agreement to that effect had been concluded and the owner proposes to reward him with no more than sincere gratitude. The owner has been enriched by his work and, many would think, unjustly enriched. For why should a craftsman work for nothing? But surely the extent of the enrichment is no more than the value of the locksmith’s services in fashioning the key. Everything else the owner of the cabinet already owned. So here. Quantum Meruit

42. It seems to me plain that Mr Cobbe is entitled to a quantum meruit payment for his services in obtaining the planning permission. He did not intend to provide his services gratuitously, nor did Mrs Lisle-Mainwaring understand the contrary. She knew he was providing his services in the expectation of becoming the purchaser of the property under an enforceable contract. So no fee was agreed. In the event the expected contract did not materialise but a quantum meruit for his services is a common law remedy to which Mr Cobbe is entitled. The quantum meruit should include his outgoings in applying for and obtaining the planning permission, which should be taken to be reasonably incurred unless Mrs Lisle-Mainwaring can show otherwise, and a fee for his services assessed at the rate appropriate for an experienced developer. To the extent, of course, that Mr Cobbe’s outgoings included the fees of planning consultants whom he employed, there must not be double counting. The amount of the quantum meruit for Mr Cobbe’s services would, in my opinion, represent the extent of the unjust enrichment for which the appellant should be held accountable to Mr Cobbe (emphasis added)”

84. By contrast, the end-product case is different. Frequent incidences of the difference are as follows: (1) if there had been a contract, payment would have been by reference to the end-result; (2) typically, but not always, that payment would have been by a commission rather than by reference to the time spent by the provider of the services; (3) typically, but not always, there would be no payment unless the end-result was achieved: in other words, the person providing the services would take a risk of having no payment without the end-result; (4) put another way, without investment by outside investors introduced by the provider of the services, no payment would be due; (5) the focus is not on the services but on the whole transaction leading to the end-result.

85. The case of Gray v Smith is directly in point. Mr Richard Smith (as he then was) sitting as a Deputy Judge of the High Court said the following at paras. 440-451: “440. According to Benedetti (at [15]-[16]), whether the defendant has been enriched is an objective test, ascertained by asking whether the reasonable person would consider the defendant to have received something of value. As Goff & Jones notes (at [5-39]), where the provision of services is in issue, considerable debate can arise as to whether the 'enrichment' is properly characterised as the services themselves or their 'end-product'. In this case, the Defendants contend for the latter, saying that the purpose of Mr Gray's involvement in Blackmoor was the raising of capital. Goff & Jones suggests (at [5-39] ) that, in deciding the proper characterisation of the relevant benefit:- Para. 5-42 of the current edition " The best approach is for the court to keep an open mind, and to take all the circumstances into account, including whether the parties themselves thought that the benefit being transferred was the services or their end-product ."

441. The value of any enrichment is also to be determined, in the first instance, by an objective test, namely " the price which a reasonable person in the defendant's position would have had to pay for the services " ( Benedetti (at [17])). The authorities show that such " price " may take different forms. So, in Brenner v First Artists' Management Pty Ltd [1993] 2 VR 221 , a 'pure services' case concerning the provision of management services to a pop group, the Court considered it would be appropriate in many cases to assess the value of the services by applying an hourly rate to the time spent, making a " global assessment " where an itemisation of the hours spent or of the precise services is not possible. However, in other cases, the Court has adopted a different approach to valuation where, for example, a commission, fee, royalty or some other basis reflects industry practice or the parties' own understanding of the value of the claimant's services (see Goff & Jones (at [5-45]-[5-46])). Finally, if the defendant can show that he or she valued the enrichment less than its market value, that market value may be reduced to reflect the defendant's 'subjective devaluation' ( Benedetti (at [18])).

442. Applying these principles here, the Claimant says that it would be wrong simply to look at the end-product rather than taking into account " all the circumstances ", consistent with the approach suggested in Goff & Jones (noted at [440]). I was also referred further to Brenner , including for the proposition that " where the services were requested and accepted, the law will not stop to enquire whether they were, on any other basis, of benefit to the party requesting and accepting them ". However, this did not seem to advance matters much beyond it being well established that the provision of 'pure services' can constitute enrichment for the purpose of a claim in restitution.

443. As to the proper characterisation of the benefit in this case , the Claimant points to the value of various aspects of the services he provided, including (i) the pooling of contacts, evidenced by the significant names introduced by Mr Gray and Blackmoor continuing to pitch to contacts from the period of their collaboration (ii) the iterative, collaborative and long-term processes of developing marketing materials, analysing target companies and identifying investors (iii) Mr Smith continuing their association for nearly a year, including their marketing trips and pitches (iv) Mr Gray's inclusion in the FCA application (v) his appointment as BIPL director (vi) Mr Gray's pedigree and credentials and (vii) these efforts cumulatively permitting the seamless continuation of Blackmoor's development to the launch of the Blackmoor Fund.

444. Although I acknowledge that Mr Gray did make significant efforts to attempt to raise capital for Blackmoor, his exposition overlooks the following important matters: first , as noted (at [76]), it is common ground that Mr Gray's most important task was the raising of capital. As both experts agreed (Joint Statement at [2.4]):- "… the activities being undertaken by the Claimant were centred around successfully bringing in investors ."

445. Second , without success in capital raising, there would have been no Fund;

446. Third , as I have already found (at [309]), and noted (at [431]) in the context of the 'unjust factor' relied on, Mr Gray understood that he would not remunerated unless successful in capital raising in his own right . As Chitty notes in the context of non-monetary benefits (at [32-022]), "[r]estitution will not be awarded if the dealing between the parties shows that the risk is to be borne by the party rendering the services ."

447. Fourth , in terms of a start-up's ability to pay its investment team pre-launch, the experts also agree (Joint Statement at [2.5]) that:- "…. prior to launch, a start-up fund has no ability to pay. The ability of a fund to pay its investment team is typically subject to both agreement from the owners of the fund and a successful launch, at which point, performance and management fees become payable ."

448. Fifth , Blackmoor was no different. The Bi-Invest Contract funded its expenses but it did not have the means to pay for Mr Gray's services (or direct expenses) as well; and

449. Sixth , despite his pedigree and their collaboration lasting for nearly a year, Mr Gray did not succeed in raising any capital.

450. Finally, I have already rejected Mr Gray's 'continuum argument', including (at [435]) in a restitutionary context as well. It was Mr Smith taking Blackmoor " in a different direction ", not Mr Gray's prior efforts which eventually allowed the Blackmoor Fund to launch. None of those who invested in it were contacts of Mr Gray or Mr Smith during the period of their collaboration.

451. In circumstances in which the principal objective of their collaboration was the raising of capital, Mr Gray knowingly took the risk that he would not be paid for his work unless he was successful and the parties' mutual understanding in that regard was consistent with market practice, BIPL's enrichment cannot be said to lie in the individual services provided by Mr Gray. Rather, I would have found that such enrichment lay in their end-product in the form of committed investor capital and that the appropriate measure of the value of that enrichment (if any) would have been a fee, commission or percentage share based on the level of capital raised, not the time spent (or expenses incurred) to that end. Since Mr Gray failed to raise any capital, I would therefore have found that BIPL was not enriched.”

86. The instant case has parallels with the case of Gray v Smith . In that case: (1) there were to be performance and management fees in the event that the investment was made and there was a successful launch of the fund; (2) the provider of the services took the risk that there would be no investment and no successful launch of the fund; (3) the defendant (Musst) was a start-up and did not have the ability to pay, but would have the ability from moneys received by it following a successful launch; (4) the enrichment lay in the end-product in the form of committed investor capital and that the appropriate measure of the value of that enrichment (if any) would have been a fee, commission or percentage share based on the level of capital raised, not the time spent (or expenses incurred) to that end.

87. There is an important difference between the instant case and Gray v Smith . In that case, the defendant was the fund (in the instant case, the position of Octave/Astra). In the instant case, there are three parties to consider. The case put forward in Musst v Astra was that of a tripartite relationship of Musst, Astra and Matrix, but that was rejected in the judgment in that action. The contract that was found was the one as pleaded between Musst and Astra (by novation). The court in that case did not have to deal with the question of whether there was a contract between Musst and Matrix because the Master on 2 November 2020 refused to give permission to the instant action to be heard at the same time as the claim in Musst v Astra .

88. The contractual case put forward in the instant case was two contractual relationships, that is between Matrix and Musst and between Musst and Octave/Astra. That case was withdrawn following the conclusion of the evidence at trial, albeit that it had been pursued right up to trial, and Musst has had to respond to it in detail in its opening.

89. The unjust enrichment case is on the basis of a contract between Musst and Octave/Astra, but services provided which have enriched Musst at the expense of Matrix and in circumstances where the enrichment is unjust. What is that enrichment? The case is put in alternative ways, namely either the sums to which Musst became entitled or the sums received by Musst. Whichever it is, this is an end-product case rather than a services received case. The reasons for this are as follows: (1) this is a case where from the inception, Matrix was expecting either a contract under which it would be rewarded by reference to a proportion of management and performance fees received from investors. This can be found in the first instance in the document of 15 February 2012 from Mr Reeves to Mr Siddiqi and Ms Galligan seeking that Musst should go for a percentage of the investments and that a large percentage (80%) should be payable from Musst to Matrix. Whilst there is no evidence that this was accepted, nor is there evidence that Musst disabused Matrix of at least the expectation that they would be paid on the basis of a percentage of fees received. (2) if there is a case in restitution, Matrix took the risk that no investments would be found and/or no investor would sign up. In the case of a performance fee, Matrix also took the risk that the fund would not earn a profit without which there would be no performance fees.

90. It was known that Musst was a start-up and so the expectation was that it would not have the resources to make payment unless put in funds itself by Astra. Likewise, it would have been known that Astra as a start-up would not be expected to have the resources to make payment unless put in funds itself by the investor.

91. The totality of this strongly points to the fact that these were end-product arrangements. It follows that money would not become due until at earliest the money had been paid by the investor to Astra whereupon money would have been due to be paid to Musst. Further, for reasons set out below, no moneys would be payable to Matrix until money had actually been received from Musst. VIII The rate of remuneration: fixed fee or commission?

92. The Court can properly quantify the objective value of the services on a commission basis where this is industry practice and/or reflects the parties’ own understanding of the value of the claimant’s services: Goff & Jones at paragraph 5-50.

93. In Vedatech Corp v Crystal Decisions (UK) Ltd [2002] EWHC 818 (Ch) the parties envisaged that the claimant, who provided services by introducing the defendants’ software product into Japan, would receive some sort of participation in the sales thereof. Jacob J (as he then was) held that the claimant was entitled to a commission and ordered an inquiry as to the quantum of that claim. In particular, he held: “[86] … Clearly the parties expected that some of the benefit of the work lay in the future rather than in the early part of the entry into the Japanese market. … [90] Accordingly I hold that Vedatech are entitled to claim reasonable remuneration for the work that was done for Holistic. In principle, because Vedatech were asked to and did undertake risk as to success of Holos (and not merely risk as to whether there would be a contract) they are entitled to some reward if that risk proved beneficial. As in Way v Latilla the proper remuneration due is to be assessed not merely on a time basis but on time and success basis.”

94. In Fenchurch Advisory Partners LLP v AA Ltd [2023] EWHC 108 (Comm) the claimant was a banking and finance advisory firm which provided advice to the defendant in relation to a potential sale of its insurance division. In relation to quantum, Sean O’Sullivan KC (sitting as a Deputy High Cout Judge) found that the market value of the claimant’s services was to be assessed on a commission basis on the footing that both the parties’ understandings and the expert evidence showed that this was the way in which advisers like the claimant charge for their services in a transaction of this kind; see paragraphs 319, 343 and 358. In particular, at paragraph 343 the Deputy Judge found that there was no evidence to support a market value calculated on the basis of hourly rates.

95. There is evidence from the experts that payments by reference to percentages or commissions were the usual way of payment in the industry such that payment would not be by reference to time spent. It is implicit in this that payment would be based on results, such that no money would be payable if there were no investors. The rate of remuneration would reflect the risk being undertaken that there might be no returns. In this way, regard should be had not only to the work undertaken in respect of The Observatory/2B and LGT/Crown, but also to the risk that other work undertaken to bring other investors to Octave/Astra may not reap any direct reward. It is in the nature of such work that a large amount of the sales work will not result in an end-result.

96. In my judgment, that is how Matrix was to be paid by Musst. That is supported by (a) the reasoning of the experts, (b) the absence of evidence that time records were kept, (c) the commission compensating in part for the risk of no money being due at all due to the contingencies not being fulfilled, and (d) some limited evidence of some commission being expected. All of this supports the case that the value of the services should be on the basis of a percentage rather than an hourly basis, as indeed was the case for Musst’s actual agreement with Octave. Another part of the reason the parties operated on a commission basis is that both Octave/Astra and Musst were start-ups who could simply not afford to commit to an upfront capital outlay on distribution services; they were only ever going to operate, or be able to operate, on the basis that distribution would be paid for it if was successful and investors were found.

97. The payment being on the basis of results and not by reference to the services provided has an effect on limitation to which this judgment will now turn. IX Limitation: are the claims wholly or in part statute barred?

98. In the submissions of Musst, it is appropriate to consider limitation first. The reason given by Musst is because if the claim in unjust enrichment is statute barred, then that is the end of the case. It obviates the need to consider further whether each of the ingredients of unjust enrichment are satisfied or whether there is a defence or the value of the enrichment. I start with limitation in part because it focuses on the nature of the benefit, if any, arising from the expense of Matrix. (a) Musst’s case

99. Musst submits that the claim in unjust enrichment is time barred pursuant to section 5 of the Limitation Act 1980 which is applicable to such claims and which provides that time expires six years from the date on which the cause of action accrued.

100. Section 5 of the Limitation Act 1980 reads as follows: “Time limit for actions founded on simple contract. An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.”

101. It is common ground that the relevant law is that this section applies also to claims in unjust enrichment, that is a six-year period from the time when the cause of action accrued: see Aspects Contracts (Asbestos) Ltd v Higgins Construction pl c [2015] 1 WLR 2561 at [25]. The battleground was when the cause of action accrued. The relevant law was summarised by Musst as follows in their opening at paras. 97 as follows: “... A right accrues to bring a claim in unjust enrichment upon receipt of an incontrovertible benefit, see Surrey CC v NHS Lincolnshire Clinical Commissioning Group [2020] EWHC 3550 at [89], per Thornton J, and the decisions of Peter MacDonald Eggers QC, sitting as a Deputy Judge of the High Court, in Sixteenth Ocean GmbH and Co KG v Societe Generale [2018] EWHC1731 (Comm) at [106] and in Moorgate Capital Corporate Finance Limited v Sun European Partners LLP [2020] EWHC 593 at [145] in which he held “The cause of action for a quantum meruit accrued when all the elements of a claim for unjust enrichment had materialised, namely the enrichment of the defendant at the claimant’s expense and the rendering of that enrichment unjust...”, and the extracts from Christopher Clark J’s decision in Dalman v 2 Toobz at [2020] EWHC 291 (Comm) at [33] (cf [42]).”

102. Musst’s case is that the unjust enrichment occurred, or at least first occurred, when the anticipated contract on the basis of which MRL says it gave its assistance in introducing The Observatory/2B and LGT/Crown did not materialise, that is after Musst had acquired the rights to be paid for the introductions under the Octave contract made on 18 April 2013. It is said that the basis on which Matrix had provided its assistance in introducing investors failed, namely that Musst would in turn enter into a corresponding agreement with Matrix to pay for its work. On this way of putting Musst’s case, the incontrovertible benefit to Musst was the fact that work had been done in respect of introductions of customers, Musst had been able to monetise this by entering into the Octave contract and there was the failure of basis. In these circumstances, from this point of 18 April 2013, Matrix had a claim in unjust enrichment and so it became statute barred by 18 April 2019 and in any event by the time of the issue of proceedings on 4 September 2020.

103. Alternatively, Musst submitted that if the benefit which Musst received from the Octave Contract was not incontrovertible until sums were received by Musst, then the cause of action accrued on the dates when Musst received its first payment from each investor. That was in the case of 2B on 13 May 2013 and in the case of Crown on 8 November 2013. On this basis, the claim is said to have been statute barred by May 2019 and November 2019 respectively on the basis that incontrovertible benefit had been received in relation to Crown and 2B respectively and there was a failure of basis because Musst had not entered into a corresponding agreement with Matrix. Even analysing the case on the basis of an end-product for the services, it was submitted that the right to an income stream had accrued by the time of the first payments as above.

104. The analysis of Musst is that nature of the claim and/or the policy of the Limitation Act 1980 is to allow for a single sum for damages or compensation or restitution to remedy once and for all the injustice. By reference to cases in nuisance ( Jolla v Shell [2024] AC 595 ) and negligence ( Nykredit Mortgage Bank plc v Edward Erdman Group Ltd (No.2) [1997] 1 WLR 1625 at 1633), Musst submitted that the claim should be brought from when the damage first occurred, and not from when it can more easily be ascertained or from each incidence of damage thereafter.

105. Musst also submitted that the enrichment is to be valued at the time that it is received, and they rely upon MacInnes v Gross [2017] EWHC 46 (QB) at 163 per Coulson J (as he then was): “A claim for unjust enrichment is not a claim for compensation for loss, but for recovery of a benefit unjustly gained by a defendant at the expense of the claimant, which is sometimes referred to as a “transfer of value”: see Boake Allen Limited v MRC [2006] STC 606 , CA. The enrichment is valued at the time that it was received by the defendant.”

106. It is said to be irrelevant that there might be difficulty in assessing the damages just as in the case of a claim for compensation. The Court could make an assessment about future losses or grant a declaration and an order for payment when the money is subsequently received.

107. Musst also submitted by reference to Reeves v Butcher [1891] 2 QB 609 , 611 per Lindley LJ that “the right to bring an action may arise on various events; but it has always been held that the statute runs from the earliest time at which an action could be brought.” That was a case defining when the cause of action had arisen in a loan agreement, and does not advance the analysis.

108. In the alternative, Musst submitted that Matrix could have brought a claim for a declaration of right and an account of all past and future payments received by Musst from its introduction of The Observatory/2B and LGT/Crown. This does not have any bearing on when the claim arises for unjust enrichment or at least compel a person to bring a claim for a declaration or an account before the relevant benefit has been received. As MRL submitted, the claim is not based simply on the contingency that a management fee was payable but on the further contingency that the performance fee element of what Musst earned in the event of the fund performing so as to turn a profit on the investments. This would in turn lead to either Musst becoming entitled to a commission and thereafter receiving a commission. (b) Discussion on limitation

109. Where the ‘end product’ of services is the hoped for accomplishment of an investment, or a return on an investment, or similar contingency, the enrichment does not occur generally until the contingency eventuates. Conversely, if the contingency does not eventuate, there is no enrichment. Thus, in Gray v Smith the Court held that the enrichment lay in the end-product of the claimant’s services, in the form of committed capital, on the basis of the parties’ understanding as to the principal objective of their collaboration and the claimant taking the risk it would be paid only on the occurrence of the end product (para 451).

110. This illustrates, as MRL observed in its written opening, that where the existence of A’s enrichment in respect of B’s services depends on the occurrence of a contingency, A is not enriched, and time does not start to run for limitation purposes, unless and until that contingency arises. Or, to put it another way: if A and B have operated on the understanding that B will only be compensated for its services if A receives a benefit upon the occurrence of a particular contingency, A’s enrichment will only be unjust if the contingency occurs and A nonetheless fails to compensate B.

111. In opening, MRL said that it would be submitted that the requisite unjust enrichment of Musst depended on the occurrence of a number of contingencies: the entry into a contract between Astra/Octave and Musst; the accomplishment of investment into the fund by persons introduced by Musst/Matrix; in respect of the performance fee element, the successful performance of the fund so as to generate an entitlement to a performance fee on the part of Astra/Octave and a corresponding entitlement to be paid a commission on that fee on the part of Musst; and the receipt of the commission pursuant to that entitlement by Musst from Astra.

112. Having identified that this was an end-product case as above, the services do not stand to be valued at the point of the services being conferred or a failure of basis of no agreement having been made between Matrix and Musst. The cause of action is therefore by reference to the end-product of the investment having been not only made, but having led to a benefit being received by Musst.

113. The case of Musst is that the first sum received is an incontrovertible benefit for all time such as to trigger the limitation period. It is said that time started to run in 2013 on the first payments from Crown and 2B respectively, such that the action was time barred. There are several fallacies in this argument as follows: (1) a claim for unjust enrichment is not a claim for compensation for loss, but for recovery of a benefit unjustly gained by a defendant at the expense of the claimant. The analogy with a single (and non-continuing) tort nuisance or negligence is misplaced. (2) in a contractual claim, there can be multiple causes of action, for example, where there are multiple instalments payable in a contract which does not provide for all the moneys to become due on default or where there is no termination for breach. So too, there is no reason why there cannot be more than one benefit in an unjust enrichment claim. (3) if it were otherwise, then a minor claim for a share of management fees would have to be commenced at a time when it was not known whether there would ever be a performance fee, which might not arise for years to come.

114. If this had been a claim in contract, then the moneys would not have been due upon the receipt of the first share of the management fees, but only upon receipt of the share of the performance fees. There would be nothing objectionable in each performance fee triggering a different cause of action. So by parity of reasoning, there is no reason not to have a separate cause of action for each enrichment. In the circumstances of this case, it is self- evident in that the claim for a share of the performance fee did not accrue more than six years prior to the commencement of this action. Accordingly, the Court rejects the submission that on the first payment being made in respect of an investor that the limitation period accrues for the entirety of what may be received. The benefit is received payment by payment and not through a fiction that an early payment brings about the benefit for all time. There is no assistance from cases about an account: this is not an action for an account.

115. It therefore follows that in respect of the management fees, this is a case where the right accrued upon receipt of management fees by Musst. For reasons explained in more detail below, I reject the notion that the claim for management fees of Matrix against Musst accrued at the earlier stage of the same being received by Octave/Astra. The reason for this is that there was not an incontrovertible benefit for Musst until the moneys were received by Musst. The fact that Musst could have brought an action against Astra is not a benefit, unless and until the money was received whether paid voluntarily or paid pursuant to a judgment debt. Insofar as moneys had been received referable to The Observatory/2B and LGT/Crown prior to 4 September 2014, the claim is statute barred.

116. In respect of performance fees, the claim is not statute barred whether it was by reference to moneys received by Octave or, as I hold, by Musst, the claim had not accrued more than six years before the action, that is before 4 September 2014. Accordingly, the claim is not statute barred.

117. Before leaving limitation, it is necessary to draw attention to a subtle change in the submissions of MRL in respect of the incontrovertible benefit. The way in which it was expressed in the opening at [43] was as follows: “…the requisite unjust enrichment of Musst depended on the occurrence of a number of contingencies: the entry into a contract between Astra/Octave and Musst; the accomplishment of investment into the fund by persons introduced by Musst/Matrix; in respect of the performance fee element, the successful performance of the fund so as to generate an entitlement to a performance fee on the part of Astra/Octave and a corresponding entitlement to be paid a commission on that fee on the part of Musst; and the receipt of the commission pursuant to that entitlement by Musst from Astra. At least in respect of the performance fees, these contingencies were not accomplished until some time after 4 September 2014. (Emphasis added)”

118. In the closing argument of MRL at [126], it was expressed as follows: “In the present case the relevant enrichment plainly did not occur when the services were provided by Matrix. At that stage, Musst had received no benefit from those services and might never have received any. Rather, the accrual of any benefit remained dependent on a number of contingencies: the entering into between Musst and Astra/Octave of a contract for the payment of a commission; the making of an investment in the fund by an investor in respect of whom Matrix and Musst had assisted; and, in relation to the performance fee, the fund making a profit on such investor’s investment. (emphasis added)”

119. The difference is that a contingency mentioned in the opening is “the receipt of the commission pursuant to that entitlement by Musst from Astra” , whereas in the closing the contingency in relation to the performance fee is “the fund making a profit on such investor’s investment.” In the closing, the fund is Octave/Astra and the contingency is the receipt of the profit by Octave/Astra rather than the receipt by Musst from Astra is not mentioned.

120. For the purpose of responding to the limitation defence, this makes no difference on the facts of this case, at least as regards the performance fees received by Musst from Astra referable to The Observatory/2B and LGT/Crown. That is because the action was brought within 6 years of the performance fees being received by Astra and in fact prior to the moneys being received by Musst. Accordingly, there is no limitation defence in respect of performance fees.

121. There may be a distinction in respect of management fees between the time when these fees were received gross by Octave/Astra and the time when the appropriate percentage was received by Musst. In my judgment, the benefit conferred on Musst was only at the point of its receipt by Musst. If there had been an insolvency of Octave/Astra, no benefit would arise. If it had been necessary to bring an action for the receipt of the moneys and Musst was not prepared to bring the action, say because of the risk of the action or inability to fund the action, then here too no benefit would arise. The formulation of MRL at the commencement of the case was the appropriate one, namely that the benefit was not received until the fees were received by Musst.

122. For the purpose of completeness and clarity, it should be reiterated in this section on limitation that the pleaded concealment case was withdrawn at latest following the evidence at trial.

123. Although there is no limitation defence in respect of performance fees, the time when the benefit was received is significant to other aspects of this claim, notably (i) whether there was a causal connection between the truncated services provided in 2012 and the judgment proceeds received in about 2022 as opposed to the time of the receipt by Astra in say 2016, and (ii) other considerations which might go to the question of defences or overall justice in considering any obstacles to recovery by Musst. This will be considered below. X The action to recover commission relating to the management fees in respect of The Observatory/2B and LBT/Crown (a) The position of MRL

124. MRL submits that a percentage of the benefit of the management fees is an unjust enrichment, that is an incontrovertible benefit to Musst at the expense of Matrix which it is unjust for Musst to retain without paying a percentage of it to Matrix. It follows from the ruling on limitation above that insofar as any moneys were received on or before 4 September 2014 that they are statute barred.

125. MRL submits that the dominant part of the introductions was by Matrix and not Musst. In that regard, they submit as regards The Observatory that the introducer was Ms Galligan whilst at Matrix. They particularly advert to the fact that she had some connection with the Observatory prior to Ms Galligan reaching out to Mr Septon in April 2012, whereas any connection of Mr Siddiqi was tenuous, perhaps a chance encounter at a conference or conferences. Ms Galligan thereafter did set up the first telephone discussion in April 2012 which then took place on 21 May 2012 (involving Mr Siddiqi, Mr Mathur, Ms Galligan and Mr Septon) and the next one between the same people on 2 July 2012. They particularly stress the meeting in September in New York which she attended without Mr Siddiqi. There is also the role of Matrix more generally in dealing with distribution. (c) The position of Musst

126. Musst relies on the cumulative importance of the eight points at para. 59 above including the coordinating role of Mr Siddiqi, the fact that Mr Siddiqi introduced the AMCo fund to Mr Matrix, Mr Siddiqi’s assistance on the initial presentation to Mr Mathur. Whilst Mr Siddiqi was not in attendance in September 2012 at New York with Mr Septon (he had a visa problem), and whilst he was not in attendance at a meeting in October 2012 with LGT (he was not informed of it and he was in India), he was in attendance personally or on the phone at the major presentations.

127. By the end of October 2012, Matrix had ceased to trade, going into administration on 6 November 2012. Ms Galligan had transferred to Musst by the end of October 2012. It therefore followed that Matrix did not take The Observatory/2B investment over the line. The December due diligence meeting had to take place. Whilst there was reason to believe that Mr Septon was serious in his consideration to invest (he would not have come to London were he not serious), the meeting was an intensive meeting. Mr Siddiqi’s contribution at that meeting was very important. Thereafter, it was necessary for Musst to negotiate with Octave an agreement whereby money would be paid to Musst among other things management fees. This was not achieved until April 2013. (d) Discussion

128. On the basis that there has to be an overall assessment of the respective contributions of Musst and Matrix, I conclude that the greater share should be that of Musst, but a substantial proportion should be paid to Matrix. This is because ultimately it was the technical expertise of Mr Siddiqi and ability to present which came from his deep immersion in the product. It was this which ultimately triggered the decision of Mr Septon to proceed, especially in the discussions of 21 May, 2 July and 4 December 2012.

129. Further, the insolvency of Matrix and its inability to take the project over the line which occurred in the lead up to and in the due diligence meeting of 4 December 2012, which was not a formality, all militate in favour of a higher percentage in favour of Musst. The Court also takes into account the sustained efforts on the part of Musst which led to the making of an agreement between Musst and Octave in April 2013. Not only was there an ability to negotiate this agreement, which was the source of the money which was paid to Musst, but also this was itself a recognition on the part of Octave and that Mr Siddiqi was the person who introduced the AMCo fund and Mr Mathur to Matrix. There was therefore only one agreement of Octave to pay one fee to Musst who would then pay any share of it on. In the circumstances, I am satisfied in respect of The Observatory/2B that there should be an apportionment of 60% Musst and 40% Matrix and through Matrix, to its assignee MRL.

130. As regards LGT/Crown, I treat the contribution of Mr Elliott on behalf of Matrix and the marketing and preparatory steps generally of Matrix as significant. He set up the meeting in Switzerland of 15 May 2012, he had a meeting in October 2012 without Mr Siddiqi being present, and it is significant that even after the cessation of trading of Musst, there was discussion about his continuing to be involved and to be paid. As set out above, it is not clear that Mr Elliott “jumped the gun”, but even if he did, the fact is that he made the initial contact, and, for whatever reason, Musst thereafter treated himself as the point of contact. In the case of MRL, the involvement of Mr Elliott was such that it ought to be reflected by a significant percentage.

131. Despite this, here too, Mr Siddiqi’s contribution in respect of technical expertise was significant. I take into account the first five points of the eight points referred to at para. 59 above.

132. Whilst not diminishing the role of Mr Elliott, the time trajectory of the investment of LGT/Crown is very different from that of The Observatory/2B. That is because as at the time when Matrix ceased to trade, the prospect of an investment was more distant in respect of LGT/Crown than in respect of The Observatory/2B. There have been identified a large number of calls and meetings between November 2012 and June 2013, when the investment of LGT/Crown was made. These calls and meetings were mainly due to the involvement of Mr Siddiqi and Ms Galligan now acting for Musst.

133. The submission of Musst is that the court should find there was no significant contribution on the part of Matrix. In part, that is due to a characterisation that the court has rejected of a very limited involvement of Mr Elliott. More significantly, it is because Matrix ceased to be involved many months prior to the investment being made, and when so much remained to be done to interest LGT/Crown in making the investment and finally getting them over the line. The large number of calls and meetings after the demise of Matrix evidences that the contribution of Matrix was much less substantial in respect of LGT/Crown than in respect The Observatory/2B.

134. Taking into account all of the above, in respect of the management fees in respect of LGT/Crown, I assess the respective contributions of Musst as being 80% and Matrix as 20%. XI The action to recover commission relating to the performance fees in respect of The Observatory/2B and LGT/Crown (a) Submissions of MRL

135. MRL submits that a percentage of the benefit of the judgment recovered in the Musst v Astra case is an unjust enrichment, that is an incontrovertible benefit to Musst at the expense of Matrix which it is unjust for Musst to retain without paying a percentage of it to MRL as the assignee of MMM. The submission is that just as this is the case in respect of the management fees received by Musst, so too in respect of the performance fees.

136. The result of the rulings above is that this is a case of benefit by reference not to the provision of services, but to the end-product, namely the receipt of moneys by Musst consequent on the judgment in the Musst v Astra case. In the section on limitation, it has been found that the cause of action did not accrue on the first receipt of the management fees, but incrementally on each receipt of management and performance fees respectively. In respect of the performance fees, the Court did not accept the analysis that Musst received an incontrovertible benefit when there was an entitlement to sue Astra. That only arose on the receipt of the moneys by Musst as a result of judgment in the case of Musst v Astra .

137. The submission of MRL nonetheless is that it is entitled to a share of payment of the amount of the judgment in the Musst v Astra case without any deductions for the following amounts, namely: (1) a payment to litigation funders of a sum of £2.2 million; (2) a payment for ATE insurance of £475,000 insofar as this could not be recovered against Astra; (3) a payment of £1,200,000 in costs to Musst’s lawyers insofar as this could not be recovered from Astra.

138. The reasoning of MRL, to which reference will be made in considering the defence of counter-restitution, is that since funding costs are not recoverable between the parties, so they should be borne by Musst as between Matrix and Musst. Likewise, to the extent that the insurance costs are not recoverable between the parties, which is still to be the subject of argument, so too they should be borne by Musst. In the same way, to the extent that any part of the costs of Musst cannot be recovered following an assessment of the costs, so too they must be borne by Musst.

139. Further, and in any event, there are other items which involve a drain on time and resources which are not recoverable in litigation. The evidence of Ms Galligan in particular at para. 181 of her witness statement copied below is that she and Mr Siddiqi spent a vast amount of time in preparing the case of Musst, in trawling through a vast quantity of documents, in attending interim hearings and in preparing for the trial and the appeal to the Court of Appeal. This must have absorbed a considerable part of their lives over the period of the litigation and for which there is no ability to recover further sums of money.

140. There has not been identified in the evidence the moneys that have been invested in the case which may have comprised raising security for costs ordered of £180,000 and any part of the costs incurred at least prior to litigation funding. The amounts recovered in the litigation are approximately £3.95 million. At least a half of that sum comprises unrecoverable costs as against Astra. It may be a larger sum. The submissions of MRL are that as between Matrix and Musst, they are at the risk and expense of Musst and not to be shared. (b) Submissions of Musst

141. In addition to the denial of liability generally for unjust enrichment, Musst submits the following of particular relevance to the recoveries in the Musst v Astra action at [148] of its written opening: “Further, in relation to the sums recovered in the previous Astra litigation, and any sums it may recover in the current further Astra claim in relation to Crown II and Crown III, it would not be unjust for Musst to retain these sums, because it not only incurred substantial costs and time in doing so (see below under the fifth issue), but it also took the risk on its own of litigating in order to recover these sums, without any assistance from MRL. Indeed, it would be unjust, it is submitted, to let MRL (or Mr Reeves) to lie in the background, and take the benefit of those proceedings without taking the risk or even offering to do so.”

142. This point was made in the oral closing at T7/39/20 – T7/40/1 and T7/40/22 – T7/41/11 as follows: “W ell, my Lord, one way of looking at it would be it is -- our decision to take the risk of suing for performance fees was entirely our decision and there is nothing unjust in those circumstances in our being allowed to keep the fruits of the litigation for which we incurred not only the cost, but the time and the risk. … But, my Lord, it is a point we, as it were, anticipated in our original skeleton. Why is it --given that we have taken all the risk of this litigation to recover the performance fees, why should that not be regarded as, to use the common law Latin, a novus actus interveniens? We have gone out of our way to get these performance fees and it's not just without any help, but against, or rather with the opposition of the very person who now seeks -- or entity, if I can put it that way, who now seeks to share in them. We may say, my Lord, the second point is a fifth wheel. If I'm right on the first point, it's our own decision in any event to get these performance fees and we're entitled to keep them because we took all the risk in getting them and that breaks the chain of causation.” (c) Discussion

143. It is necessary to revert to the four ingredients referred to in Benedetti at [9], namely: (1) has the defendant been enriched? (2) was the enrichment at the claimant's expense? (3) was the enrichment unjust? (4) are there any defences available to the defendant?

144. Mr Knox’s submissions fasten in on two concepts which may be inapposite in this context, albeit that they are very much in the right area. The first is one of injustice. If the Defendant has received an incontrovertible benefit (ingredient number one in Benedetti ) and if the benefit has been at the Claimant’s expense (ingredient number two in Benedetti ), then the question of whether the enrichment has been unjust is not an open textured question.

145. This was expressed by Lord Sumption in Swynson Ltd v Lowick Rose LLP [2017] UKSC 32 , at paragraph 22 as follows: “ As with any novel application of the relevant principles, it is necessary to remind oneself at the outset that the law of unjust enrichment is part of the law of obligations. It is not a matter of judicial discretion. As Lord Reed points out in Investment Trust Companies (para 39) it “does not create a judicial licence to meet the perceived requirements of fairness on a case-by-case basis: legal rights arising from unjust enrichment should be determined by rules of law which are ascertainable and consistently applied.” English law does not have a universal theory to explain all the cases in which restitution is available. It recognises a number of discrete factual situations in which enrichment is treated as vitiated by some unjust factor. These factual situations are not, however, random illustrations of the Court’s indulgence to litigants. They have the common feature that some legal norm or some legally recognised expectation of the claimant falling short of a legal right has been disrupted or disappointed. Leaving aside cases of illegality, legal compulsion or necessity, which give rise to special considerations irrelevant to the present case, the defendant’s enrichment at the claimant’s expense is unjust because, in the words of Professor Burrows’ Restatement (2012) at Section 3(2)(a), “the claimant’s consent to the defendant’s enrichment was impaired, qualified or absent.” As Lord Reed puts it in Investment Trust Companies (para 42), the purpose of the law of unjust enrichment is to “correct normatively defective transfers of value by restoring the parties to their pre-transfer positions. It reflects an Aristotelian conception of justice as the restoration of a balance or equilibrium which has been disrupted.”

146. The submission on behalf of Musst appears to be to the effect that bearing in mind matters of causation, it is unfair to make an order of a payment in restitution. That is, in my judgment, an open textured approach to that which is unjust. The case of Musst is that there was an unjust factor, namely a failure of basis, being the absence of an agreement between Musst and Matrix to compensate Matrix for its services.

147. A further submission of Mr Knox KC was more directly by reference to causation by referring to a novus actus interveniens or breaking the chain of causation: see the quotation above from his oral closing submissions on Day 7 at pp.39-41. Whilst this is closer to the mark, it is necessary to bear in mind that unjust enrichment is not about the disgorgement of gains or compensation of losses, but the reversal of value between claimants and defendants: see Menelaou v Bank of Cyprus UK Ltd [2015] UKSC 66 at [23].

148. This was explained by Lord Clyde in Banque Financière de la Cite SA v Parc (Battersea) Ltd [1999] 1 AC 221 at 227 , citing a maxim of Pomponius: “My Lords, the basis for the appellants’ claim is to be found in the principle of unjust enrichment, a principle more fully expressed in the Latin formulation, nemo debet locupletari aliena jactura [no-one should be enriched by another’s loss] ... Without attempting any comprehensive analysis, it seems to me that the principle requires at least that the plaintiff should have sustained a loss through the provision of something for the benefit of some other person with no intention of making a gift, that the defendant should have received some form of enrichment, and that the enrichment has come about because of the loss (emphasis added).” (p 237)

149. This was quoted with approval in the subsequent Supreme Court case of Investment Trust Companies at para. 44. At para. 45, Lord Reed said: “It should be emphasised that there need not be a loss in the same sense as in the law of damages: restitution is not a compensatory remedy. For that reason, some commentators have preferred to use different terms, referring for example to a subtraction from, or diminution in, the claimant’s wealth, or simply to a transfer of value. But the word “loss” is used in the authorities, and it is perfectly apposite, provided it is understood that it does not bear the same meaning as in the law of damages….”

150. At para. 52, Lord Reed stated that “the “at the expense of” requirement is not satisfied merely by the direct receipt of a benefit. The claimant must also incur a loss through the provision of the benefit. As Lord Clyde put it in Banque Financière, in the passage cited at para 44 above, “the plaintiff should have sustained a loss through the provision of something for the benefit of some other person”. That requirement will not normally be satisfied where the provision of the benefit was merely an incidental or collateral result of his expenditure.” He then went on to consider what would happen if the benefit was “merely incidental or collateral to the reason why the expenditure was incurred.” In that connection, Lord Reed said that “a “but for” causal connection between the claimant’s being worse off and the defendant’s being better off is not, therefore, sufficient in itself to constitute a transfer of value.” Whilst that was in connection with an incidental or collateral benefit, there is no reason to confine the application of the statement that a “but for” causal connection does not suffice by itself unless the enrichment has come about because of the expense of the claimant. (d) The relevant facts

151. Mr Adkin KC rightly said that it was important to have a close inspection of the facts in each case because these cases of identifying an unjust enrichment, and in this case whether a benefit was received by Musst at the expense of Matrix (or whether enrichment has come because of the loss) is particularly fact sensitive.

152. It will be assumed for this purpose that Matrix has proven that it provided a service expecting some remuneration and that it conferred a benefit on Musst in the form of the receipt of management fees. The facts now to be investigated are those relevant to any claim that the receipt of the performance fees through the judgment in the case of Musst v Astra are to be treated as having come about because of the loss, namely the provision of services in 2012.

153. The following is now to be borne in mind, namely: (1) following the appointment of administrators of Matrix on 6 November 2012, Matrix took no further role in assisting Musst/Octave in connection with the introduction of The Observatory /2B or LGT/Crown or anyone else. (2) neither Mr Reeves nor anyone else following the administration informed the administrators or the liquidators of a possible claim of Matrix to a share of any moneys which would be received by Musst. Any attempts after the commencement of the administration to continue a relationship with Musst or Octave were independently of Matrix e.g. through LGBR or Mr Elliott personally, but appear not to have borne fruition. (3) given the end-product analysis, it is now necessary to consider whose efforts led to the end-product of the judgment in the litigation. There stands to be contrasted the role of Musst in the litigation with the role of Matrix. (4) for Musst, this was a process of many years from Musst’s contract with Octave/Astra until judgment for the payment on account in the action of Musst v Astra . It is important to analyse what was done during that period. It included the following in summary only and without intending to be comprehensive, namely: (i) in the summer of 2016, pre-action correspondence against Astra who denied contractual liability; (ii) it had to contend with the knowledge that any action would not only be defended, but that there would be a counterclaim in defamation; (iii) Musst had to instruct a firm of solicitors who would put together a team to assist and Leading and Junior Counsel as well as Junior Counsel specialising in defamation; (iv) as the action progressed, the issues mushroomed as Astra challenged the Claimant’s entitlement to the performance fees because: a) the introduction was effected before a cut-off date of 21 November 2012 and/or because the performance fees were received by Astra more than three years after the cut-off date or after the written agreement of April 2013, and; b) the allegation that there had been a November arrangement negativing any entitlement to the performance fees in question; c) Astra had no liability in that it was not the original contracting party and the novations did not have the effect contended for by Musst; d) other arguments of contractual construction backed up by expert evidence stood in the way of Musst. (v) Musst incurred very substantial bills in order to fight this action, at first legal bills of their own, and then when it was all too much, having to engage litigation funders (at a cost of £2.2 million) and the cost of obtaining ATE insurance (at a cost of £450,000). Musst had to provide security for costs of £180,000. A sum of about £1.2 million was paid in costs to the lawyers of Musst: see paras. 180-181 of the witness statement of Ms Galligan quoted below. It is presumed that the security for costs would have cost a multiple of that but for the litigation funding and the ATE insurance. The burden of this must have involved a large amount of time, expense and anxiety. (vi) Mr Siddiqi and Ms Galligan had to expend a large part of their time to prepare for an action which would last in court alone for about three week, and would then go to the Court of Appeal. The intensity of knowing the case, dealing with the many thousands of documents on disclosure, the preparation of witness statements, being involved in the instruction and consideration of expert evidence and preparing to give evidence must have involved months of their time, and more likely more than that.

154. Contrast the position of MRL. As a result of the administrators/liquidators not being notified of any claim, there was no action to assist Musst to bring about investments on the part of The Observatory/2B and LGT/Crown respectively. Further, there was no attempt to assist Musst in anything required in order to ascertain whether performance fees had been received by Octave/Astra and/or to assist Musst in making recovery from Astra.

155. It was worse than that. It became apparent from disclosure in the case of Musst v Astra that Mr Reeves actively assisted Astra in the disclosure process in 2016 by transferring a Dropbox of documents. The inference is that Mr Reeves must have known at that time about the nature of the dispute between Musst and Astra.

156. Even at a point in time when MRL had acquired their assignment of rights, Mr Reeves actively assisted MRL by volunteering a witness statement in the Musst v Astra action. The date of the witness statement was 12 January 2021. The date of the assignment was on 2 August 2020. As already noted, the statement of Mr Reeves corroborated the case of Mr Mathur and was served on behalf of Astra. It was intended to assist Astra and thereby would harm the case of Musst. Not only that, but also it would, if accepted, have the result that Musst would lose its case against Astra with the result that MRL would not make any recovery in its action against Musst. It was also in conflict with the contractual case in this action (which had been commenced on 4 September 2020). This has all the hallmarks of someone who has suspended truth for his own changing interests from time to time.

157. It is not necessary to make a finding that there was a collaboration between Mr Reeves and Mr Mathur or to find that Mr Mathur backed the instant action (it was related that that was not the case). It is important to relate that Mr Reeves gave written and oral evidence which was intended to undermine the case of Musst against Astra.

158. If accepted, this would have led to no share of the performance fee being payable to Musst with a consequence that MRL would receive nothing. The fact that he gave evidence in this case at odds with his evidence in the case of Musst v Astra , and has no or no sensible explanation for this change of account is damaging to his credibility or the veracity of the major points in his statement.

159. I do not have go so far as to find that he was in cahoots with Mr Mathur, but it does not matter. It suffices to say that Mr Reeves was actively giving evidence which he must have known was intended to contradict the case of Musst and thereby lead to no end-product in respect of moneys received from the performance fees.

160. The position has been worse still in the following respects, namely: (1) timing: the fact that this action was brought at the critical time of the preparation for the trial in Musst v Astra is telling in terms of intending to harm Musst. (2) Mr Reeves could have agreed to a stay until after the action in Musst v Astra , but MRL did not do so and sought in liaison with Astra to have it heard at the same time as the trial. He must have known that Musst could not be ready at the last moment to deal with the two actions simultaneously and/or that the effect would have been to postpone the Musst v Astra trial at a time when this might have put into jeopardy funding arrangements. (3) the fact that Mr Reeves has now run a contradictory case in the instant action shows at best a lack of reliability, but confirms the conclusion that no credibility can attach to Mr Reeves whose evidence appears to turn with the wind.

161. The recoveries must have been no sooner than 2022, that is to say almost 10 years after the collapse of Matrix. It is very distant in time from the time said to be the introduction of The Observatory/2B and LGT/Crown respectively. It may have been that the moneys were not handed over unconditionally until after the judgment of the Court of Appeal of 13 February 2023. There is so much that was intervening between the services curtailed by the administration of Matrix on 6 November 2012 and the receipt of the performance fees by Musst pursuant to the judgment in the case of Musst v Astra.

162. In addition to the intervention of time, there has been the intervention by bringing hazardous litigation in order to obtain the judgment. The litigation involved very large expenditure on costs, very substantial risk of failure, very large sums of money to be sacrificed to enable the action to be pursued or continued by the involvement of litigation funders, large sums spent to avoid or reduce the risk of a costs and to avoid or reduce security for costs. It involved exposing Mr Siddiqi and Musst to a claim in defamation which may have been tactical in the sense that it may have been a strategic weapon to make Musst less keen about pursuing Astra. This was an exposure to personal risk of Mr Siddiqi as well as risk to Musst. This too was an intervention between the interrupted activities of Matrix in 2012 and the eventual judgment in the Musst v Astra action.

163. A yet further intervention were all the steps taken by Mr Reeves/MRL to assist the case of Astra/Mr Mathur and to damage the case of Musst/Mr Siddiqi.

164. In my judgment, the sum of the parts or indeed some of the parts by themselves were such that they broke any chain of causation between the truncated assistance of Matrix in 2012 and the judgment in Musst v Astra . (e) Conclusion

165. In all the circumstances, and applying the causation test from Banque Financiere and Investment Trust Companies , any enrichment of Musst has not come about because of the loss of Matrix, in other words, at the expense of Matrix. So much had intervened (described in detail) that the judgment in 2021 and 2022 and the resisting of the subsequent appeal in 2023 did not come about because of the truncated efforts of Matrix in 2012. It is not sufficient to apply to apply some “but for” causation. The primary contribution to the making of the investments was that of Musst over Matrix, but that was in 2012-2013. From the start of November 2012, Matrix ceased to do anything from the onset of the insolvency.

166. The facts of this case are so peculiar involving not only hazardous, hard fought, expensive and draining litigation, but also no assistance by the liquidator and Mr Reeves participating in seeking to undermine the very cause of action underlying this action. Mr Reeves cannot be treated as a mere third party: he was apparently the controlling force of MRL, and his potentially destructive written and oral evidence in the Musst v Astra action was immediately following the inception of this action.

167. A different way of expressing this is that the failure of basis is posited on the failure on the part of Musst to enter into an agreement with Matrix upon making an agreement with Octave. There is an unreality in the fact that Matrix was insolvent and had ceased to provide services. It might have been expected that then Mr Reeves would be liaising with the liquidator or then seeking an assignment of a claim of the liquidator, which evidently he did not do until 2020. The position is in fact worse in that Mr Reeves supported the case of Astra (Mr Mathur) in a way designed to prevent Musst from receiving any share of performance fees, and thereby negating any claim of Matrix or MRL in that regard. It therefore follows that the case of MRL depends upon ignoring the evidence of Mr Reeves in the Matrix v Astra action and imagining that Mr Reeves would have negotiated an agreement which was fundamentally different from the evidence of Mr Reeves in the Musst v Astra .

168. Further, if MRL had taken the assignment in 2012 or shortly thereafter, and on the counter-factual that there would not have been a failure of basis, then it is to be inferred that there might have been various scenarios which have not taken place. First, it might have been expected that Matrix and/or MRL would have been expected to contribute to the claim against Astra, which did not occur. Second, it might have been expected that there would have been an express term or an implied term of that agreement that Matrix or MRL would not have done anything calculated to prevent Musst from enforcing its rights against Astra, which would have contradicted fundamentally by the support of Mr Reeves/MRL for Astra.

169. The effect of the above is that the claim for failure of basis is at least confused. One way in which this had been expressed at one point of the submissions of Musst is that it was unfair for there to be a remedy in restitution which would allow for MRL/Mr Reeves to be at one point destructive of the claim of Musst against Astra, and after that claim succeeded, then seeking to enforce the same. There was no pigeonhole for a defence of unfairness such as any form of estoppel. It does not matter because that stage was not reached. I am satisfied that the intervention of Musst having to pursue the action against Astra without any assistance on the part of Matrix or MRL and/or the actions herein described of Mr Reeves/MRL in attempting to prevent Musst from receiving any money from Astra have as their effect that any enrichment of Musst has not come about at the expense of Matrix.

170. For all these reasons, the claim of MRL to have any share of the performance fees in respect of The Observatory/2B and LGT/Crown must fail. XII Counter restitution

171. On the basis of the above, the issue of counter-restitution does not arise, at least as regards the costs and expenses incurred incidental to the Musst v Astra action. That is because the claim fails as regards a share relating to the performance fees. In case there were scope for a share of the amount recovered by Musst in respect of the performance fees, I shall set out what I would have found as regards counter-restitution.

172. If this were a claim for services only, then it would have accrued on the failure of the basis, that is after the failure to enter into an agreement between Matrix. Then the argument would be as to the value of the services conferred on Musst. However, as analysed above, this is an end-product case. If there is an obligation to pay, it is by reference to the end-product, that is an expectation that Matrix would be paid a percentage of the moneys received by Musst.

173. The subtle shift in the case of MRL from the opening to the closing does not assist Matrix. I do not accept that the benefit was the entitlement to sue Astra. If that were the case, that would be valued at the point when that entitlement arose. That does not seem to be consistent with an end-product. There is no “end-product” that Musst would have the “incontrovertible benefit” of something which could only be realised by hazardous litigation in the High Court. It was litigation against a determined opponent in which the issues only grew and which incited a counterclaim in defamation.

174. It was litigation where Musst as a BVI company had to provide security for costs. It was litigation which Musst required the assistance of ATE insurance because of the exposure in the event that it lost. It was litigation where Musst turned to litigation funders at great expense in order to prosecute the action. I do not have to consider what would have happened if there was an open and shut case against Astra in the event that Musst irrationally decided not to proceed with the claim. This is not the case: any analysis of the judgments in this case at first instance and in the Court of Appeal will demonstrate that it was far from being open and shut.

175. Matrix has analysed the position by reference to counter-restitution. This is at para. 45 of its written opening in which it said: “45. Musst says it is entitled to claim counter-restitution in relation to any unjust enrichment claim on two bases: 45.1 For the assistance which it says it and SS provided to Matrix on ‘other matters’ in respect of which, it is alleged, LR had agreed with SS that fees would be discussed later (Defence paragraph 41(3)(a) [A/5/76] ); and 45.2 For any unrecovered or irrecoverable costs which Musst has had to incur to make any recovery from Astra (Defence paragraph 41(3)(b) [A/5/77] ), and in particular: unrecovered legal costs; the third party funding costs; and ATE insurance.”

176. The word “counter-restitution” is not mentioned in the Defence and is a characterisation of MRL. It might have been applicable to the first part which refers to some service said to have been provided to Matrix by Mr Siddiqi on other matters. The problem with that part of the case of Musst is that the other matters are not identified and/or are, if they exist, so closely connected to impeach or reduce the claim for restitution. There is no evidence to substantiate it.

177. The second part (para. 45.2) is, in my judgment, not properly called counter-restitution. Using the case cited by Matrix of School Facility Management Ltd v Christ the King College [2021] EWCA Civ 1053 , Popplewell LJ at [83] said that the counter-restitution principle was “ that the benefits for which the claimant must give credit are those which are sufficiently closely connected with the benefits provided to the defendant that justice requires him to do so. … The formulations used by the editors of Goff & Jones of benefits “in exchange”, and by Lord Burrows in his Restatement of “reciprocal benefits”, capture the flavour of benefits which will be sufficiently closely connected, but cannot be an infallible guide:….”

178. This involves a cross-claim analysis between the incontrovertible benefit on the one hand and the benefit conferred the other by the defendant on the claimant for which the claimant must give credit if sufficiently closely connected to the subject matter of the claim. The point in this case is that there is no cross-claim analysis or benefit conferred on Matrix by Musst. Leaving aside para. 45.1 of the Defence which has been discounted, para. 45.2 does not involve any reciprocal benefit. There was no benefit conferred on Matrix by Musst for which Musst must give credit.

179. The plea in para. 41.3(b) of the Defence was not characterised as counter-restitution because it was not such. It was stated as follows: “Further, such sum must take into account (a) the assistance provided to MMM and Matrix, and (b) All the unrecovered costs (including legal costs, insurance fees and litigation funding fees) which the defendant has had to incur to make any recovery from Astra.”

180. Para. 41(3)(a) can be ignored because this refers to para 45.1 of the defence, which has been rejected. Para. 41(3)(b) is not about counter-restitution. It is about the costs incurred by Musst in order to obtain the end-product payment from Astra. It did not involve conferring a benefit on Astra. In my judgment, these were costs incurred in order to obtain the incontrovertible benefit for Musst, namely the payment from Astra to Musst.

181. Given the absence of a cross claim or a benefit the other way, there is no scope to apply the analogy with the claim to recover from a wrongdoer damages in the nature of indemnity costs, but where there is a line of authority saying that the recovery is limited standard costs: see British Racing Drivers Club Ltd v Hextall Erskine & Co [1996] 3 All ER 667 . It is not necessary to consider this controversial area and a line of authority which may or may not be followed, but of which McGregor on Damages 22 nd Ed. is critical . It does not arise for consideration because this is not a case of valuing a claim for damages or a claim for counter-restitution. It affects the value of the incontrovertible benefit. In my judgment, this is to be calculated as a net sum after deducting the costs incurred in order to obtain the benefit. Those costs incurred include (a) the funding costs, (b) the ATE premium, and (c) the actual costs paid to lawyers to pursue the action. It is not to the point that funding costs may not be capable of being recovered against the wrongdoer in litigation or that there are restrictions in the way of recovering those costs against a wrongdoer in respect of damages. McGregor on Damages 22 nd Ed. paras. 22-003-22-012

182. The point here is that if, contrary to the foregoing, there was an incontrovertible benefit in the nature of a share of the performance fees at the expense of Matrix, this did not arise without these costs and expenses. It therefore follows that it is necessary to deduct these sums from the recoveries because the incontrovertible benefit is net of these costs and expenses. The gross sum never got into the hands of Musst. Its solicitors would have been bound to account to the litigation funders and the ATE insurers out of the moneys received by them, and likewise there would have been an entitlement of the solicitors to deduct their true costs subject to any solicitor and own client assessment.

183. In the evidence of Ms Galligan, she said the following at para. 180-181 of her statement as follows: “ 180. Musst received a total of $784, 367.51 from Octave and Astra in respect of LGT and the Observatory fees until Astra stopped paying in 2016. Musst was then successful in litigation against Astra in respect of the fees relating to The Observatory’s 2B account, and LGT’s Crown I account. Following that claim Musst’s solicitors held approximately £3.95million on behalf of Musst, comprised of sums received from Astra following judgment in that claim (made up of USD$4,100,240.81 and £675,725.64.) Of that, approximately £2.2million was paid to Musst’s litigation funder; approximately £475,000 was paid to its insurer; and approximately £1.2million to its lawyers. Musst has also received US$29,876.27 in respect of fees post-judgment in the Musst v Astra litigation. 181.Needless to say, Saleem and I have spent a huge amount of time in the last 9 years prosecuting the claim against Astra. We have had to liaise regularly with lawyers throughout this time and trawled through vast volumes of documents. The claim against Astra involved several interim applications including over disclosure, expert evidence and security for costs. The trial lasted 3 weeks and then there were subsequent hearings and an appeal hearing in the Court of Appeal.”

184. It is not for the Court in these circumstances to analyse whether it was necessary to obtain litigation funding or ATE insurance or whether the costs incurred by Musst were too high. It is simply to calculate the amount of the benefit. In fact, if Matrix had been trading instead of going into liquidation, or if the assignment had been obtained at a much earlier stage, then Matrix could have seized the initiative and encouraged Musst to proceed with its funding of the action obviating in whole or in part the need for litigation funding or ATE insurance. Instead, that did not arise. I am satisfied that the extent of any incontrovertible benefit is limited to the amount received that was available to Musst after discounting the expenses incurred in order to obtain the benefit, in this case, the cost of the litigation funder, the cost of the ATE insurance and the legal costs. This is provided that these expenses will not be recovered on the detailed assessment of costs against Astra. The issue which would arise if these items were being brought into account as damages by reference to costs do not arise for the reasons set out above. XIII Alternative analysis about the value of any benefit received at the expense of Matrix in respect of a share of performance fees

185. If, contrary to my primary conclusion, the amount received from the litigation was in any sense caused by the original truncated services of Matrix, then the question would be what value, if any, was to be ascribed to the serviced provided upon the end-product being received. I do not accept that it would have any substantial value. In my judgment, the services would stand to be valued not at the time when they were provided (as would occur in a true value case), but at the time of the end-product being received, namely when payment was made by Astra to Musst following judgment in the Musst v Astra case.

186. In view of all the intervening events described above, I do not accept that it had any substantial value. It is not sufficient just to consider the unrecovered costs including the funding costs, the ATE costs and the legal and other costs paid to solicitors and not recovered. There also has to be factored in the vast amount of risk on the part of Musst, the enormous amount of time spent in preparing disclosure, witness statements, experts, interim hearings, having a command of the documents for trial, trial itself, consequential hearings and the appeal process. There has to be factored in how complex the trial became with the numerous defences advanced on behalf of Astra, as well as the defamation cross-claim.

187. When all of this is taken into account, the question is whether the contribution of Matrix was greater than the sum payable to it in respect of a share of management fees. I am satisfied that it is no greater than that, bearing in mind the fact that its contribution (already less than that of Musst) came to an end at the start of November 2012 whereas the sustained contribution of Musst went on year after year until after the judgment in Matrix v Musst case. There stands to be put into the balance on the one hand the risk, expenditure, time and effort of Musst in order to collect the performance fees over numerous years and the absence of risk, expenditure, risk and effort on the part of Matrix against the historic and truncated assistance of Matrix in 2012. Although that suffices for this alternative conclusion, the position was worse in that Mr Reeves, even after acquiring the claim through MRL, instead of supporting the claim of Musst against Astra, adopted the case of Astra and took a number of steps to enhance the position of Astra at the expense Musst. Even without this last point, I assess the contribution of Matrix to the collection of the performance fees as nil or no more than negligible. XIV The wrong party defences

188. There are two points which were heavily emphasised by Musst at the trial, and which have been described by Mr Adkin KC as ‘in limine points”. This literally means “at the threshold”, but in context it means points that the wrong party is the claimant, which, if correct, would be fatal to the claim.

189. The first point was that if anyone did the introductory work as regards the Observatory/2B and LGT/Crown in 2012, it was not the Matrix company which made the assignment to MRL. To be more precise, it was not MMM, that is as defined above, Matrix Money Management Limited, but it was its associated company, MAAM, that is as defined above, Matrix Alternative Asset Management Limited. If this is correct, MRL has no claim because the rights which it acquired by way of assignment were those of MMM and not MAAM.

190. A second point is that even if rights existed in MMM, it is suggested that they were transferred by MMM in November 2012 whether to BGL or LGBR or Mr Reeves. If this was the case then there was nothing for MMM to transfer to MRL at the time of the assignment.

191. Despite the characterisation of these points as being preliminary, they are more comprehensible after considering the respective cases on the other issues. They do not exist in a vacuum. Further, nothing is lost by reversing the order because irrespective of the outcome in respect of these issues, there can be no shortcut and the other issues require thorough consideration.

192. Before considering the issues in detail, this part of the case has been hampered in two respects, one a criticism of the case of Musst and the other a criticism of the case of MRL. As regards the case of Musst, it comprises numerous pages of dense examination of numerous documents in which there is a forensic analysis of the language of documents with a view to finding suggestions which support the case of Musst. In large part, I have found the case difficult to discern through a morass of detail without a big picture or documents which made the case plainly. In the end, this was because the pointers to the conclusions sought to be drawn were in large part not made out and/or abstruse. As regards the case of MRL, I have found the case difficult because it relies in large part on the evidence of Mr Reeves whose evidence is so unsatisfactory as described above. XV Wrong party first point: the assignment fails because any services were performed by MAAM or a Matrix entity other than MMM (a) The case of MRL

193. The big picture point, which is supported by documents, is that MMM was the company through which the distribution work was performed through the Matrix sales team. This is supported in the financial statements. The employees were employed by a service company, namely Matrix Securities Limited. They were in turn seconded to group companies.

194. The MMM financial statements for the year end 30 June 2011 (the last that were produced) state at note 14 that in 2011, MMM had 17 employees in sales and 5 in administration, (and in 2010 had 20 employees in sales and 7 in administration). The notes also record that: “[t]he employees are employed directly by Matrix-Securities Limited (a fellow subsidiary undertaking) and work on a full time basis for Matrix Money Management Limited. The associated employment costs have been recharged to Matrix Money Management Limited”.

195. The MAAM LLP financial statements for year end 30 June 2011 ( again, the last that were produced) stated at note 12 that in 2011 MAAM LLP had 4 employees all of whom were engaged in administration and none in sales (with the same having been the position in 2010). The notes record that the employees were employed directly by MSL and worked on a full time basis for MAAM LLP, with the associated employment costs having been recharged to MAAM LLP.

196. MAAM LLP employed no sales staff either directly or indirectly. It did not engage in sales, but was the part of the group concerned with investment management. This is consistent with the description of its business given in the same financial statements under the heading “Principal activities and review of the business” , where it is stated: “The principal activity of the limited liability partnership continued to be that of providing investment management services. The limited liability partnership expects to continue its current activities …”

197. The fact that MMM was performing the sales part of the group’s operations is evidenced by Ms Galligan’s employment contract. The employer was the service company, Matrix Services Limited. In paragraph 5 of the contract, it was stated as follows: “You are employed as Institutional Development Manager in the Matrix Money Management Division . You will report to Luke Reeves. …” [emphasis added]

198. Ms Galligan accepted in her evidence that this was a reference to MMM [Day3/6/3-5]. Further, the footers of the sales team’s emails, and specifically of Ms Galligan, Mr Reeves and Mr Elliott, show that they were working on behalf of MMM. They were signed with the ‘Matrix Asset Management’ signature followed by the words “Issued by Matrix Money Management Limited” , that is MMM. As Ms Galligan accepted in evidence, this was because she and the other members of the sales team were working, by way of secondment, for MMM.

199. Likewise, there were different email footers used by MAAM LLP staff which made clear they were acting on behalf of MAAM LLP. Thus, the email footer used by Lionel Welch, Head of Investor Relations at MAAM LLP, was signed with an “Matrix Asset Management Division” signature followed by the words “Matrix Alternative Assets Management LLP is a limited liability partnership registered in England & Wales …” . Similarly, the email footer used by Paul Condon, the Operations Manager at MAAM LLP, was signed “Matrix Alternative Asset Management”. (b) The case of Musst

200. Musst’s points to opposite effect were as follows. First, it pointed to a letter before action dated 31 July 2020 in which Stewarts said that they were acting for MRL “as assignee of Matrix Alternative Asset Management Ltd.” . Technically, that was a different entity, which had in fact been dissolved on 18 March 2018, and was not the same as MAAM LLP. Nonetheless, it is advanced by Musst to say that it was not written in respect of an assignment by MMM.

201. The letter before action is confused. First, it was said to be for an assignee for a limited company, but the limited company at the relevant time had been dissolved. It has to be premised on a mistake in that the reference may have been intended to be as assignee of Matrix Alternative Asset Management LLP. Musst make the point that it is not said as assignee of MMM. Second, the assignments relied upon were in August 2020, that is after the letter of 31 July 2020. The letter would therefore appear to have been premature.

202. Despite these inaccuracies, the case of Musst is that the letter was at least accurate in not saying “as assignee of Matrix Money Management Ltd”. It is relevant that the letter did not say that, but it does not make the letter itself accurate. It is known that the letter was inaccurate in the respects set out in paragraph 201 above. The letter was written years after the services in question. The position was not straightforward because of the secondment of Mr Reeves and his sales team. There is no reason to believe that the letter is conclusive. In my judgment, against the matters in the near contemporaneous accounts, the letter carried little weight.

203. Second, the liquidators of MMM did not refer in their progress reports to any potential claims against Musst prior to the assignment. That might be relevant to whether or not MMM or anybody else had a claim. There is no evidence that a liquidator of a different company referred to a claim against Musst. This shows that there is nothing in this point in that there is no evidence of any liquidator being told that there was a potential claim.

204. It is not necessary to say anything more about this point. On one view, this point is contrary to the entirety of the case of MRL. It is to the effect that there was no evidence of any claim against Musst being communicated to any liquidator, and therefore perhaps suggesting that there was no claim at all. What is the reason for this? It may be that Mr Reeves was too busy at this stage after the insolvency positioning himself through a new corporate or limited partnership entity. He may have been seeking to get reward from Octave or Astra thereafter. It is likely at that stage that he was not thinking about the law of restitution. It is not necessary to form a view about this. It suffices to say that the absence of communication with the liquidator of MMM does not prove that there was an entitlement of a different Matrix entity, whether MAAM Ltd or MAAM LLP or any other entity.

205. Third, Musst relied on certain draft or proposed agreements entered in which the relevant Matrix counterparty was not MMM. They referred to various documents as follows: (1) a draft contract between an entity called SEB and MAAM LLP, dated 5 December 2010, to which AG was taken in re-examination; see T4/50/3-51/19 ] . It is difficult to see how this supports the contentions of Musst in that this draft contract was not a distribution agreement, but seed investment in an investment fund managed by MAAM LLP. MAAM LLP was the entity within the Matrix group which operated as an investment manager, rather than operating as a distributor. (2) a draft contract between an entity called Diapason Commodities Management and MGL which would appear to have been drafted by Diapason itself rather than Matrix, as is apparent from the header and footer on each page of the draft. There is no evidence that there was an executed version of this draft. It is difficult to know what this is intended to show since it is nobody’s case that MGL was the Matrix entity which undertook distribution work or which provided the services in the present case. At highest, it is a further instance of confusion, perhaps caused by the draftsperson within Diapson, but it does not assist in the case being advanced by Musst that the MAAM LLP was the relevant entity rather than MMM. (3) a reference in the minutes of the Matrix New Business Committee meeting on 11 September 2012 to it being proposed that MAAM be appointed the distributor of 3 Unicorn funds. No Matrix contract was in fact signed with Unicorn in respect of those three funds [ T2/96/3-11 ]; Mr Reeve’s new vehicle LGBR subsequently distributed those three Unicorn funds [ T2/99/18-100/3 ].

206. Fourth, Musst also placed reliance on documents which Mr Reeves sent Derek Fulton (of First Trust) between Wednesday 24 October 2012 and Saturday 27 October 2012 and native Excel MR_0006465. Musst says that because the working draft presentation had “ Emerging Managers (external) ” as a product under MAAM and then listed AMCo under Emerging Managers, that establishes that MAAM LLP was distributing AMCo and not MMM. This is a point which is to be taken into account in the context of the case as a whole. It was about a proposed structure rather than showing the existing structure. It was prepared in haste in the context of imminent insolvency. Mr Reeves sought to explain it as such: see his evidence at T2/71 – T2/76. For reasons given elsewhere in this judgment, it is difficult to give any credence to the evidence of Mr Reeves. That does not result in the opposite of anything which he says being, as a matter of logical inference, correct. Of greater import than the evidence of Mr Reeves is that there is no evidence that this was how the business had been carried out. Seen against the big picture points of MRL, and even seen with the narrow points made by Musst, it does not in my judgment tilt the balance in favour of MAAM having been a distribution manager. (c) Conclusion on the first wrong party point

207. This point does not turn on which party has the burden of proof. I am satisfied on the balance of probabilities that MMM was the distribution arm and that the relevant employees of Matrix who assisted in connection with attempting to secure the business of the Observatory and LGT were working for MMM on secondment. In those circumstances, the contention that they were working for a different entity and/or specifically for MAAM LLP must be rejected for the reasons set out by MRL and for the reasons set out in criticism of the points advanced by Musst. XVI Wrong party second point: the claim was transferred to LGBR or some other entity so that the assignment of MMM to MRL was ineffective

208. The case of Musst is that even if the part of the business which made the introductions to the Observatory and LGT was MMM, the evidence is that that business was transferred to LGBR or some other entity in late 2012.

209. The evidence relied upon is that LGBR, a new entity was incorporated on 26 October 2012. On 23 November 2012, LGBR by Mr Reeves caused to be circulated to 100-200 customers an invitation to a drinks’ party. This was more than an invitation to drinks, but was notice of the commencement of a new business. The invitation said the following: “I am pleased to say we have completed our buyout of the distribution and fund management business of Matrix Asset Management, including the Ascension Fund and funds of hedge funds. A new distribution company, LGBR Capital LLP, is now established and operational. We're having some very informal launch drinks on Thursday 6 December at the Gable Bar, Moorgate and it would be great if you can join us. In the meantime, please see my new contact details and further information on our new venture below. LGBR Capital LLP Our new distribution company, LGBR Capital LLP, is now established and operational. We also are proud to announce that First Trust Advisors (“FT”), a US asset manager with circa $65bn AUM, will imminently become a shareholder of LGBR Capital. We operate within FT's regulation as an appointed representative of their UK subsidiary (First Trust Global Portfolios Ltd). FT also provide support for our operational and infrastructure needs. LGBR Capital has retained the distribution contracts with all of our external fund managers, which include UK OEICs, UCI TS funds, hedge funds, EIS schemes and Property. Additionally, we have acquired the ownership of Matrix Bermuda Limited, the investment manager for the Ascension funds and the Matrix funds of funds range. The structures for these funds (sub-funds of the MAIS and MSP umbrellas) will not change. The funds are segregated funds operated by an independent board with independent service providers (administration, custody etc) and will continue to operate as normal. Going forward, we will change the names of MAIS, MSP and MMM and I would expect this within the next three months. With the infrastructure and support outlined above, we are extremely excited by this new venture. Thank you for your patience and support recently, it is truly appreciated.”

210. The submission of Musst is that this document is to be taken at face value. It shows or is evidence that LGBR has effected a “buyout of the distribution and fund management business of Matrix Asset Management”. Matrix Asset Management was a trading name embracing both MMM and MAAM. Further, the notification refers also to retaining the distribution contracts with external fund managers. It refers to an imminent change of name of among others MMM.

211. I am satisfied that there was no acquisition. I bear in mind the following matters, namely: (1) the failure to identify any document containing this transfer or acquisition; (2) the failure to identify how the acquisition took place presumably between the incorporation of LGBR Capital LLP on 26 October 2012 and 3 December 2012, being the date of the appointment of administrators to MMM; (3) the fact that the liquidators of MMM (or indeed liquidators of any other Matrix company) appear to have known nothing about the acquisition; (4) the absence of information about the terms of the acquisition; (5) the absence of evidence from any person to confirm that the transfer or acquisition took place.

212. Mr Reeves gave evidence that there was no transfer or acquisition did not take place. Normally, it would be right to be very suspicious of such self-serving evidence from a person demonstrated to be such an unreliable evidence. In this instance, his evidence was simply confirmatory of a position borne out either by the documents or by the absence of documents which would be supposed to have existed. The changing patterns of the positions and testimony of Mr Reeves and his conflicting accounts are such that normally no reliance can be placed upon him. The Court does not need to rely upon the evidence of Mr Reeves that his document to customers was littered with falsehoods. It is upon the absence of a document showing that such acquisition or transfer took place and the absence of evidence of what happened after the invitation which bears out that the matters contained in the invitation were not correct.

213. It does not surprise that Mr Reeves caused a document to be sent to customers with such misleading information, save for Matrix Bermuda Limited where there appears to have been an acquisition. Mr Reeves’ contradictory stances between the Musst v Astra action and the instant action, and his changes in this action are such that it is not surprising that he would represent matters to the outside world in the way in which he did. It is difficult to give an explanation for what he did, given his brazenness in evidence in saying that there was no transfer or acquisition. A generous approach might be that he was expecting that he might be able to achieve some of it in the coming weeks, and it was important not to lose the customers during that period. Critically, I am satisfied that there was no transfer of business to LGBR or to any other entity which prevented the assignment from being effective.

214. There was another email which was relied upon by Musst in the analysis that LGBR took over the business of MMM. It was in an email in August 2013 from Mr Reeves of LGBR in the following terms, namely: “It appears that Saleem has been a little bit naughty and is conveniently forgetting to tell us of a trade into the Synthetic CDO fund that we backed away from at the beginning of the year. It came to our attention as LGT, the client called us to say so and so did Anish the PM. I've emailed Saleem, who has begun his duck n dive but admitted that we should be paid. The reason for letting u know is that this is a 40m growing to 80m trade. Based on 2% amc and 20% performance fee, locked for 3 years, with a fund that could do 2 to 3x, the revenue is too great to ignore ie on 2x growth on 80m, and assuming we get 30% of Mussts take, this is 96kpa to LGBR plus 960k performance fee. Anish, Octave and LGT are very clear and will support us. We are trailing through emails. I will be asking for between 20 and 30% which is lower than the 50:50 agreed on the original unsigned agreement.”

215. This is said to support the fact that payment was to be to LGBR. This email does not support that LGBR had taken over an entitlement to fees from a Matrix entity. It supports the fact that Mr Siddiqi was not coming forward to share moneys, but it does not prove an entitlement to LGBR. The position was complicated as a result of MMM having gone into an insolvency procedure, but nothing in this email identifies an agreement made between Musst and Mr Reeves as to how moneys were to be shared with a new party such as LGBR if at all.

216. Attention was also drawn to correspondence with Mr Elliott in December 2012. At that stage, there was concern as to how Mr Elliott might be paid for his assistance. In an email of 19 December 2012, Mr Elliott stated that “I’m more than happy to have it put through LGBR” . In the same email he said that “we have a simple agreement between Musst and LGBR and it can be a model for agreements going forward.” In an email from Mr Siddiqi at the time, he stated that this “may cause an issue in that we may need to contract without LGBR as I had warned. This is what will provide comfort from a lawyer's perspective and as I have been advised…” It is difficult to follow the drift of emails but this does not prove that there was an agreement between LGBR and Musst or between LGBR and a Matrix company. On the contrary, it is consideration about the arrangement going forward, which in the end did not bear fruition by an agreement between Musst and LGBR.

217. The position was of course complicated. That was the result of the insolvency of the Matrix companies and in particular of MMM. Another complication was that at this stage, and despite extensive requests from Musst to Octave, no agreement had been made between Musst and Octave. That would come only in April 2013. What is not complicated is that this is further confirmation that neither was there an agreement between LGBR and Musst nor was there an acquisition or transfer from a Matrix company and in particular MMM and LGBR.

218. It follows for all of these reasons that the second preliminary point must be resolved against Musst. There is no evidence of an acquisition by LGBR or indeed any other third party at this stage of any of the rights of Matrix companies or MMM against Musst. XVII Disposal

219. Whilst the issues have not been dealt with in the order set in the list of issues, for the purpose of making the end position clear to the parties, they will now be answered in that order.

220. In respect of issue (1), is Musst liable in unjust enrichment in respect of (a) management fees charged to Crown and the percentage received by Musst, (b) management fees charged to 2B and the percentage received by Musst, (c) performance fees charged to Crown and the percentage received by Musst, and (d) performance fees charged to 2B and the percentage received by Musst.

221. The answers are as follows, namely: (a) Musst is liable in unjust enrichment for management fees charged to The Observatory/2B and the percentage received by Musst without action having been brought, and the liability is 40% of the receipts of Musst, but only in respect of receipts from 4 September 2014 because receipts prior to that date were barred by limitation. (b) Musst is liable in unjust enrichment for management fees charged to LGT/Crown and the percentage received by Musst without action having been brought, and the liability is 20% of the receipts of Musst, but only in respect of receipts from 4 September 2014 because receipts prior to that date were barred by limitation. (c) Musst is not liable for performance fees charged to LGT/Crown and the percentage received by Musst. (d) Musst is not liable for performance fees charged to The Observatory/2B and the percentage received by Musst.

222. In respect of issue (2), if so , is the claim statute barred in whole or in part? The claim in respect of the management fees is statute barred in part as identified in the answers in (a) and (b) above, that is in respect of receipts prior to 4 September 2014. If there had been a claim in respect of performance fees, it would not have accrued until money was received by Musst, and accordingly, it would not have been statute barred.

223. In respect of issue (3), does the claim fail because it was not assigned to Musst in that the assignment ought to have been by MAAM to MRL rather than as was the case by MMM to MRL? The answer is that the claim does not fail on this ground.

224. In respect of issue (4), does the claim fail because whatever rights remained in the relevant Matrix entity, they were transferred to LGBR (or BGL or Mr Reeves) and not to MRL? The answer is that the claim does not fail on this ground.

225. In respect of issue (5), what is the value of the unjust enrichment, and in particular: (i) is it a claim for a fixed fee or a retainer confined to its sales marketing and sales organisation work with Matrix dropping out on insolvency; (ii) if it is a claim for a percentage, what percentage is appropriate bearing in mind the expectations in negotiations, who brought each of The Observatory/2B and LGT/Crown to the fund, the work done by Mr Siddiqi and by the representatives of Matrix prior to the insolvency of Matrix and the work done after insolvency? The answers are as follows: (i) it is not a claim for a fixed fee or a retainer, but Matrix does drop out on insolvency in that there is no entitlement in respect of work done thereafter; (ii) in respect of the percentage, it is as defined in the answer to issue (1), namely 40% of the management fees received in respect of The Observatory/2B without action being brought for them, and 20% of the management fees received in respect of LGT/Crown without action being brought for them. No percentage is payable in respect of performance fees.

226. In respect of issue (6), to what extent is MRL liable to make counter-restitution and in what sums? There is no liability for counter-restitution. Insofar as counter-restitution has been used as a word for the costs and expenses incurred in the Musst v Astra action, this is the wrong word. If there had been a liability as regards performance fees, it would have been on the net sums taking into account all costs and expenses incurred by Musst, being not a benefit conferred by Musst on MRL, but the cost of Musst of making its own recovery.

227. In the event, there is no liability in respect of the moneys recovered by Musst in respect of performance fees either in respect of Crown or 2B. This is because there was no benefit to Musst at the expense of Matrix. The steps taken by Musst to claim and recover moneys from Astra relative to the inactivity of Musst since its truncated activity in 2012 (and if necessary the support by Mr Reeves for Astra including after the assignment to MRL) are intervening actions such as to break any chain of causation between any activity of Matrix in 2012 and the judgment being obtained in late 2021 to 2023. Alternatively, the value of any benefit received by Musst at the expense of Matrix taking this into account all of the above (and over and above the share of the management fees) was nil or negligible.

228. It had been hoped that it would be possible to tie down the extent of the claim at this stage, but the parties have been unable to agree the figures. It is to be emphasised that the entitlement to a share of the management fees are those which were recovered without action. It is understood that this occurred within the period of the first three years or thereabouts. There is no entitlement to anything recovered or to be recovered as a result of action, whether performance fees or management fees. It may be that there will have to be adjustments in the judgment in the course of working out what sums are due as specific questions may arise in addition to questions of sums. Since it has not been possible to arrive at these matters at this stage, this judgment is provisional and not final until after the further hearing at which it is hoped to be able to finalise the judgment including but not necessarily limited to what were the sums and how the restitutionary claim applies to each sum received.

229. It remains to thank Counsel for the assistance to the Court which they have provided in the way in which they have conducted the case and particularly for the quality of their written and oral submissions.