Kounis v Critchlow and Associates Ltd - Professional Negligence Appeal

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  Kounis   v Critchlow and Associates Ltd [2026] EWHC 693 (KB) (25 March 2026)

URL: https://www.bailii.org/ew/cases/EWHC/KB/2026/693.html
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[2026] EWHC 693 (KB) | | |
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| | | Neutral Citation Number: [2026] EWHC 693 (KB) |
| | | Case No: KA-2025-000079 |
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ON APPEAL FROM THE ORDER OF MASTER GIDDEN DATED 8 APRIL 2025
CLAIM NO: KB-2023-004667

| | | Royal Courts of Justice
Strand, London, WC2A 2LL |
| | | 25/03/2026 |
B e f o r e :

MR JUSTICE COTTER

Between:
| | GEORGE KOUNIS | Claimant/Resp |
| | - and - | |
| | CRITCHLOW AND ASSOCIATES LIMITED | Defendant/App |

**THOMAS BELL (instructed by DWF Law LLP) for the Appellant
SAMIR AMIN (instructed by Click Law Partners) for the Respondent

Hearing dates: 11th March 2026**

HTML VERSION OF APPROVED JUDGMENT ____________________

Crown Copyright ©

3. This judgment was handed down remotely at 10.30am on 25 March 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
5. .............................
7. MR JUSTICE COTTER
9. Mr Justice Cotter :
10. Introduction
12. This is an appeal against the order of Master Gidden made on 8 th April 2025 dismissing the Appellant's application dated 12 th December 2024 to strike out the claim brought against it by the Respondent, Mr Kounis, or for summary judgment.
15. Permission was granted by Mrs Justice Tipples on 15 th October 2025, having previously been refused by Mr Justice Ritchie on the papers.
18. In short the Appellant argued before the Master that the claim should be struck out because Mr Kounis lacked standing, having assigned his causes of action to a third party, Amtrust Europe Limited ("Amtrust"), before proceedings were issued.
21. It is the case on behalf of Mr Kounis that the Master correctly found that he was not in a position to make a binding finding that there is no real prospect of him succeeding at trial in demonstrating that he has a legal or equitable right to bring proceedings based on an exchange of e-mails on 15 th May 2023. It is also argued (as set out in a Respondent's notice) that Mr Kounis had also raised an argument based on an exchange of emails which occurred in October 2023 and if the Court were minded to allow the appeal because it disagreed with the Master's interpretation of the May 2023 emails, the Master's decision should be upheld on the basis of the arguable legal consequences flowing from the October 2023 emails.
24. Facts
25. In these proceedings, Mr Kounis claims damages against the Appellant firm of solicitors for professional negligence.
27. Between 2012 and 2015, Mr Kounis worked as a self-employed consultant for a firm of solicitors called Maxwell Alves ("MA") to represent individuals who wanted to bring claims arising from the alleged mis-selling of property in Cyprus ("the Cyprop clients").
29. In around 2015, the relationship between Mr Kounis and MA broke down. This led to a dispute about Mr Kounis' continuing relationship with the Cyprop clients.
31. On 16 th January 2017, MA sent a letter of claim to Mr Kounis requiring him to cease providing legal services to the Cyprop clients and to provide copies of documents and a list of clients.
33. This led to Mr Kounis instructing the Appellant to act for him in connection with the claim that MA had intimated.
35. It is relevant to note that MA's claim was driven and funded by Amtrust, its professional indemnity insurers. Amtrust's apparent concern was that, if Mr Kounis continued to act for the Cyprop clients in circumstances where he was not a solicitor, it could expose MA to claims by the Cyprop clients and/or intervention by the SRA.
37. On 26 th January 2017 MA issued proceedings against Mr Kounis claiming a final injunction to prohibit him from acting for the Cyprop clients and other relief. At the same time as issuing its claim, MA applied for an interim injunction.
39. Mr Kounis agreed to compromise MA's interim injunction application by giving undertakings as reflected within the order of Mr Justice Hickinbottom (as he then was) made on 4th February 2017. Costs were reserved to the trial Judge.
41. On 25 th April 2017, Mr Kounis terminated the Appellant's retainer.
43. In June 2017, MA applied for summary judgment, but before that application was determined, the parties compromised the claim by Mr Kounis giving final undertakings. Again costs were left to be determined at a further hearing. On 12 th July 2017, Mr Justice Jay ordered Mr Kounis to pay 70% of MA's costs of the proceedings, to be assessed if not agreed. On 19 April 2018, Jay J ordered Mr Kounis to pay 70% of the costs reserved by Hickinbottom J, again to be assessed if not agreed.
45. Settlement agreement
46. On 10 th October 2019, Mr Kounis MA and Amtrust entered into an agreement (entitled "Settlement Agreement") whereby MA and Amtrust agreed to accept ?160,000 in respect of MA's costs. This was on terms that Mr Kounis would:
48. a. Pay ?80,000 within 28 days; and
49. b. As set out in clause 3.1.1.2 of the agreement, assign to Amtrust
50. " his causes of action against ABC [viz. the Appellant], in tort and contract? ". " in lieu of payment of the balance ".
51. As for the causes of action against the Appellant, it is Mr Kounis' case that the Appellant negligently advised him that he had a strong defence to MA's claim, whereas in truth he had no arguable defence. Mr Kounis maintains that if he had been advised correctly, he would have settled with MA from the outset and would therefore have avoided incurring his own costs and the substantial liability to pay MA's costs.
53. The Appellant denies that it advised the Respondent that he had a strong defence and argues that even if it had advised him that his position was hopeless, Mr Kounis would not have acted any differently. Furthermore, the Appellant maintains that the Respondent's claim fails to acknowledge the significant commercial benefit that he derived from his opposition to MA's claim ? namely the ability to carry on his relationship with the Cyprop clients following their transfer to a new firm of solicitors.
55. This appeal does not require the Court to engage with the substance of the Respondent's negligence claim.
57. Variation agreement
58. On 10 th December 2021, Mr Kounis and Amtrust entered into a second agreement (entitled "Variation to Settlement Agreement") under which Amtrust assigned the causes of action back to Mr Kounis so that he could bring proceedings against the Appellant himself on terms that he would grant Amtrust a charge over the ?80,000 balance. It was agreed;
60. "Clauses 3.1.1.2, 3.1.1.3, 3.1.2 and 3.2 [of the SA] be deleted, to the effect that the Respondent's Insurers assign back to the Appellant his causes of action against ABC, in tort and contract, in full."
61. The agreement further provided that, if Mr Kounis had not issued the present proceedings by 1 st January 2023, then the causes of action against the Appellant were reassigned back to Amtrust. Clause 3E provided as follows:
63. "In the event that the Appellant has not issued proceedings in the High Court of England and Wales against ABC by 1 January 2023, then the Appellant re-assigns to the Respondent's Insurers his causes of action against ABC, in tort and in contract, and clauses 3.1.1.2, 3.1.1.3, 3.1.2
64. and
65. 3.2 of the Agreement be reinstated."
67. On 29 th December 2022 Amtrust agreed to vary the variation agreement extending the deadline in Clause 3(E) to 1 st February 2023.
69. There were then discussions about a further extension. In an e-mail of 20 th January 2023 email, Amtrust's solicitor, Ms Sophie Engel of DAC Beachcroft, stated:
71. "Further to my email below, with reference to the Settlement Agreement dated 10 October 2019 and the Variation to Settlement Agreement dated 10 December 2021, we have received instructions and can confirm that our client is willing to extend the date in Clause 3 E of the Variation to Settlement Agreement from the previously agreed extension of 1 February 2023 to 16 May 2023, further to your entering into a Standstill with ABC which suspends time until 1 June 2023."
72. There was clearly a concluded agreement to extend the period before the cause in action automatically vested back in Amtrust on 16 th May 2023.
74. On 11 th May 2023, Mr Kounis asked Ms Engel if Amtrust could extend the deadline again so that he had enough time;
76. "to determine whether an out of court settlement is possible or otherwise to consider issuing."
78. 15 th May 2023
79. On 15 th May 2023, Ms Engel wrote to Mr Kounis asking him to
81. "Please confirm the period of the extension to clause 3E which you seek."
82. Mr Kounis replied the same day:
84. "We have already asked their solicitors to give us an idea of how long they are likely to need to decide whether they want to settle or litigate. We already know, however, that it will be several weeks before this round of exchanges is completed.
85. If your client has any issue extending to say, the end of this year, I need to know now, before incurring more costs."
87. In her reply ? which is the crucial email for the purpose of this appeal ? Ms Engel wrote:
89. > "Our client has no objection in principle to agreeing an extension to the assignment."
90. Mr Kounis acknowledged this by writing,
92. > "Thank you for your confirmation. I will let you know as soon as I get a response from the o/s."
94. There was no further correspondence before 16 th May 2023 and the central issue before the Master was whether the exchange set out above constituted a concluded agreement.
96. I shall deal with the extent to which subsequent correspondence assists with the determination of whether there was a concluded agreement in due course. However on Mr Kounis' case they altered the parties' legal positions in the event that there was no agreement reached.
98. October e-mails
100. On 11 th to 19 th October 2023, Mr Kounis and Ms Engel engaged in a further exchange of emails:
102. On 11 th October 2023 Mr Kounis e-mailed setting out that :
104. "Since our last email of 18th August, we have not heard back from ABC.
105. ?
106. I shall be grateful therefore if you will confirm whether you will support me in a claim against ABC [by giving evidence] or whether you would prefer to see the claim abandoned.
107. Given that the long stop date is the 1st of December and that we need to give them notice before the 30th of October at the latest, we shall be grateful for your prompt response."
109. Ms Engel responded on 16 th October 2023
111. "We would indeed reiterate our comments in our previous email dated 24 March 2023 and can confirm that our client would not be willing to give evidence in your prospective claim against ABC.
112. Whether you wish to abandon the claim is ultimately a matter for you."
114. Mr Kounis replied on 19 th October 2023
116. "In light of your response:
117. 1.I presume that your client no longer has an interest in this claim and if I do not issue proceedings, neither will your client.
118. 2.You consider that I no longer have responsibilities under the Settlement Agreement of 10/10/2019 and the matter is considered by your client as closed."
119. 3.You no longer wish to be updated on progress?.
121. Ms Engel then stated on 19 th October 2023
123. "Our client is not interested in being assigned this prospective claim nor will it seek to pursue the claim.
124. If you intend to abandon the claim, as previously stated, this is matter for you. Should you do so then, by definition, you no longer need to provide us with updates.
125. Our client agreed to enter into a practical arrangement with you in light of the ?80,000 in costs you were ordered to pay but were unable to pay at the time. Our client's rights in this respect are entirely reserved."
127. Mr Kounis issued proceedings against the Appellant on 11 th December 2023.
129. The Proceedings
131. In the Defence dated 14 th February 2024 the Appellant pleaded at paragraph 3:
133. "?The Claimant lacks standing to bring this claim because, by a Variation to Settlement Agreement dated 10 December 2021, he assigned his cause of action against the Defendant to MA's insurer, Amtrust Europe Limited (Amtrust)."
135. The Appellant also served a Request for Further Information that included the following requests:
137. "2. Please explain how the Respondent has standing to pursue the Appellant for the sum of ?160,000 in respect of his liability for MA's costs, in light of the fact that the Variation referred to above provides that the Respondent's causes of action against the Appellant would be reassigned to Amtrust if proceedings had not been issued by 1 January 2023, where proceedings were not issued until 11 December 2023.
138. 3. Please provide copies of any relevant documents in support."
139. Mr Kounis' response to Requests 2 and 3, dated 10 June 2024 and signed with a Statement of Truth was as follows:
141. > "The effect of Clause 3E of the Variation was to postpone the assignment of the cause of action. By an email dated 20 January 2023 (attached to this response) Amtrust's solicitors extended the postponement to 16 May 2023. By an email on 15 May 2023 the same solicitors extended the postponement to the end of 2023."
142. The response then set out an alternative argument
144. "On 19 October 2023 the same solicitors sent an email which stated "Our client is not interested in being assigned this prospective claim nor will it seek to pursue the claim" (attached to this response).
145. Accordingly, the assignment never took effect. Alternatively, the parties to it agreed to treat it as not having taken effect. Alternatively, they adopted the mutual convention that it had not taken effect and Amtrust would be estopped from asserting otherwise. In any event the email of 19 October 2023 contained an unequivocal abandonment of the assignment, and it is obvious that Amtrust does not regard itself as entitled to the cause of action. If, despite the above, the Appellant insists on having Amtrust added as a party, the Respondent will raise this issue at the CMC and ask for a ruling on whether the assignment requires that Amtrust be added under CPR 19."
146. Mr Kounis later supplemented this response on 17 th January 2025 as follows;
148. "An equitable assignee (here, the insurers) cannot sue in their own name. They would have to sue in the name of the Claimant.
149. It follows that the action is currently properly constituted with Mr Kounis as claimant.
150. The defendant is entitled to protect itself from being sued twice, by Mr Kounis and later by the insurers. The court may afford this protection by ordering that the insurers be added as a defendant to this present claim for the purpose of being bound by the outcome. That would be a great waste of money because the insurers have made clear that they have no intention of bringing the claim."
152. In March 2025 Amtrust was asked by Mr Kounis to set out its understanding as to the variation agreement and it was stated by DAC Beachcroft on 28 th March 2025
154. "Whilst clearly this is an issue for the Court to determine, our view is that re-assignment has taken place on the basis that you have informed us that your client issued proceedings before 31 December 2023."
156. and
158. "Our client does not intend to become a party to the proceedings and in any event we do not consider that our client currently has the right to bring proceedings against your client's former solicitors."
161. Following the hearing before the Master in an e-mail of 27 th November 2025 (which was addressed to Mr Kounis's solicitors and the Appellant's solicitors) DAC Beachcroft reiterated the view of Amtrust
163. "We have been contacted by Click Law Partners on behalf of their client Mr George Kounis regarding our client (AmTrust Europe Limited ? "AmTrust") and the dispute that has arisen regarding the status of the re-assignment of Mr Kounis' cause of action against Critchlow and Associates Limited (now known as Costigan King).
164. Whilst clearly it is a matter for legal argument as to whether or not an agreement was reached on an extension before Mr Kounis issued proceedings against Costigan King (and AmTrust's opinion on that issue may therefore be of limited assistance), we confirm that AmTrust is of the view that re-assignment has taken place. This is on the basis that this firm indicated by email on 15 May 2023 that AmTrust was prepared to grant an extension to Mr Kounis until 31 December 2023; and proceedings were issued before that date. AmTrust therefore agrees that Mr Kounis did not assign his cause of action back to AmTrust and that he retains the sole right to bring proceedings. Further, AmTrust has no intention of bringing proceedings against Costigan King, nor applying to join the current proceedings."
166. I return to the order under appeal and the hearing before the Master
168. The Hearing (8 th April 2025)
170. At the hearing, the Appellant submitted that Amtrust had agreed on 20 th January 2023 to vary the variation agreement to extend deadline until 16 th May 2023. However Amtrust did not ever agree to further extend the deadline until the end of 2023. The 15 th May e-mail simply recorded what Amtrust would be willing to do "in principle". Mr Kounis did not issue proceedings by 16 th May 2023, so clause 3E of the variation to the settlement hearing was triggered and as a result the cause of action was re-assigned back to Amtrust. The assignment back to Amtrust was, if not a legal assignment, plainly an equitable assignment. In this regard, it is well established that an equitable assignor (i.e. Mr Kounis) cannot maintain his action unless the assignee (i.e. Amtrust) is a party.
172. It was also submitted on behalf of the Appellant that, despite an invitation to do so, Mr Kounis had made clear that he had no intention of joining Amtrust; so it followed that the claim stood to be struck out. Alternatively, if the claim was not to be struck out, it must be stayed pending Amtrust being joined as a party.
174. Master Gidden rejected the Appellant's arguments. There is an approved note of judgment. The Master stated
176. "The Defendant makes the application we consider today on the basis that the position is entirely straightforward. At no point did Amtrust agree to extend the 1 st January deadline in such a way as to permit a claim to be brought as late as 11 th December 2023?The Claimant's position also appears to be relatively straightforward?The deadline was extended beyond 1 st January."
177. and
179. "To succeed with the application, the Defendant needs to persuade the Court of these factors, that the Claim discloses no reasonable grounds for the claim to be brought; and for Summary Judgment, that there is no real prospect of the claim succeeding and no other compelling reason for the claim to proceed to trial.
180. In my Judgment, the application meets neither of these thresholds. It is common ground that whether or not the assignment of the Claimant's causes of action against the Defendant returned back to Amtrust before the claim was issued is ultimately a matter for the Court to determine. The Court does so taking into account submissions and relevant agreements that were reached between the Claimant and Amtrust and the emails recorded. It does so, recognising that the Defendant was not a party to any of this, to matters that concerned and involved at the time, the Claimant and Amtrust.
181. What these demonstrably show is that the causes of action were not assigned back, yet again, to Amtrust such that when the claim was issued against the Defendant, the Claimant had standing to bring it.
182. In the absence of any other explanation by the Claimant or Amtrust the Court has no reason to conclude otherwise at this stage. Striking a fair balance between the parties, there is no sound or just basis for the Defendant to be justified now simply on by an early, summary assessment without the full scrutiny of the entirety of the case only possible at trial.
184. Plainly, this is not an outcome that the Defendant seeks today. But in my view, on any reasonable interpretation of the material before the Court in the time available today, the emails around 15 May 2023 establish an agreement to extend the deadline to the end of 2023. The Defendant contends otherwise, but I do not accept this. To me it is clear enough. And if it is not so clear, if in fact the intention as to the meaning and operation of the email exchanges is so uncertain or obscure, then such is not a matter which the Court can fairly determine on a summary basis. A summary and potentially draconian assessment now would not do justice to this dispute. It is easy to see why the Defendant would prefer otherwise."
186. Finally, the Master rejected the concerns expressed on behalf of the Appellant that to allow the matter to proceed to trial without Amtrust as a party would expose the Appellant to the risk of double jeopardy. The Judge stated that,
188. "As I have indicated, this is not a view I agree with. Amtrust would have to persuade a Court that despite all they have said in 2023, and the subsequent statements this year, despite the present claim and the manner in which it is presented and proceeds, Amtrust would somehow have to persuade the Court that it should be permitted to bring a second, further, claim against the Defendant. It is difficult to see how any Court would permit this. These are matters for the management of the case which now falls to be done given my decision on the Defendant's application. They do not warrant a different outcome on that application. There are overall no sufficient and proper reasons to conclude otherwise. The Defendant's application today is dismissed, and this leave us with further work to do."
190. The Appeal
192. I shall first set out an overview of the arguments advanced.
194. The Appellant argues that the Master fell into error in failing to find that it could not be realistically argued that a concluded agreement was reached in 2025.
196. The unusual position is that the Appellant, a third party to agreements between Mr Kounis/Amtrust, disputes the agreed position of both the assignor and assignee and argues that an incorrect legal analysis has been applied and that as a result the right of action remains with Amtrust (contrary to its belief that it does not) and that if the claim was to proceed there would be a risk of double jeopardy (i.e. of the Appellant facing a subsequent claim from Amtrust) notwithstanding the fact that in October 2023 Amtrust made it unequivocally clear to Mr Kounis that it had no interest in any right to bring proceedings (believing at that stage it had none), a view that it has repeated since in March and November 2025.
198. As I shall set out in due course it is my view it is clearly the case, given the statements made by Amtrust in October 2023, before Mr Kounis issued proceedings, that if the conclusion of the Court was that there was no agreement reached in May 2023, and there was then to be a remarkable volte face by Amtrust who took steps to issue proceedings against the Appellant that there could be an application by Mr Kounis to strike the proceedings out as disclosing no cause of action/abuse given
200. (a) The representations to Mr Kounis that he had the right to claim/waiver upon which he unarguably relied
202. and/or
204. (b) Amtrust's own express statement made in circumstances where it is fully aware that Mr Kounis intended to bring proceedings and also after he had brought proceedings.
206. Mr Bell did not concede that there was no realistic prospect of such an application being unsuccessful, although I find it difficult to conceive how it could conceivably not be. Rather it was Mr Bell's submission that whilst Mr Kounis may have the rights/arguments set out above the Appellant did not. So if Mr Kounis were to drop out of the picture the Appellant would remain exposed to the double jeopardy of a claim brought by Amtrust.
208. Mr Bell conceded that this double jeopardy was, as things currently stand, not a realistic possibility. However, things may change and he submitted that whether or not there was a real (current) risk of double jeopardy was not the issue. Rather the substantive law was clear and before proceedings were issued Mr Kounis' and Amtrust's only options if the intention was that Mr Kounis was to issue proceedings were either
210. (a) A formal reassignment (which would have been contrary to the shared belief that this was not necessary due to an existing agreement),
212. or
214. (b) Joining Amtrust to the proceedings as a Defendant (despite the fact that it had no dispute with Amtrust).
215. He further submitted that in the absence of (a) the only option available to Mr Kounis was to apply join Amtrust as a Defendant under CPR 19.2. which provides
217. "(2) The court may order a person to be added as a new party if-
218. (a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or
219. (b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue."
221. Mr Bell submitted that this was necessary despite the fact that there was, and is, no dispute between Mr Kounis and Amtrust that Mr Kounis has standing to bring the claim and also that Amtrust has made its position clear such that, in my view, any risk of double jeopardy appears very remote.
223. Mr Amin referred to the Appellants stance as tactical; the aim being to try to strike out the claim rather than to meet any realistic risk of double jeopardy. It was his submission that the Master was right is his interpretation of the 15 th May e-mails and in any event, it was arguable that Mr Kounis' arguments were correct such that the Appellant failed to satisfy the test for a strike out or summary judgment.
225. Mr Bell conceded that if the appeal were to succeed then a proper order could be to allow Mr Kounis time to join Amtrust. This would be in line with the usual approach where a statement of case is found to be defective on strike out application. As Tugendhat J stated in Soom Kim-v-Youg [2011] EWHC 1781 at paragraph 40
227. "where the court holds that there is a defect in a pleading, it Is normal for the court to refrain from striking out that pleading unless the court has given the party concerned an opportunity of putting right the defect, provided that there is reason to believe that he will be in a position to put the defect right."
228. Turning Mr Bell's submissions upon what he referred to as the substantive law, in more detail, they can be summarised as follows;
230. (a) There was no concluded agreement reached between Mr Kounis and Amtrust in on 15 th May 2023. The Grounds of Appeal boil down to the single proposition; that the Master was wrong to find that the 15 May 2023 gave rise, or arguably gave rise, to a concluded agreement by Amtrust to extend the deadline under Clause 3E until the end of 2023.
232. (b) There was no agreement to vary the variation agreement in October 2023 because Mr Kounis and Amtrust (mistakenly) thought that there was an agreement in existence i.e. there was no need to vary the agreement.
234. (c) There can be "no gloss" (such as the likelihood of double jeopardy) on the analysis in Three Rivers DC v Bank of England [1996] Q.B. 292. Where there has been an equitable assignment of a cause of action, but proceedings are brought not by the assignee but by the assignor, then the assignor must join the assignee for the claim to continue. In Three Rivers DC Peter Gibson LJ reviewed the relevant authorities and at 313F said:
236. > > These authorities, in my judgment, clearly establish that the equitable assignee can be regarded realistically as the person entitled to the assigned chose and is able to sue the debtor on that chose, but that save in special circumstances the court will require him to join the assignor as a procedural requirement so that the assignor might be bound and the debtor protected. If, unusually, the assignor sues, he will not be allowed to maintain the action in the absence of the assignee."
237. Staughton LJ stated at 303G:
238. > > "In my judgment the assignor still has a cause of action at law; and the assignee has a cause of action in equity. That was ultimately the position of Sir Patrick Neill in his reply, and I think that it is right. It is the solution which comes nearest to reconciling all the authorities. It allows the assignee still to use the assignor's name, if he wishes, as before the Judicature Act. Of course, the assignee's claim prevails, if he insists upon it. The Supreme Court Act 1981 says so. But where the assignee is a party to the action, and expressly declines to make a claim, I can see no reason why the assignor should not claim what is his legal right. I would allow the appeal and allow the amendments, with or without Sir Patrick's additional wording."
239. In Kapoor v National Westminster Bank plc [2011] EWCA Civ 1083; [2012] 1 All ER 1201 per Etherton LJ stated at [30]:
240. > > "?the assignor cannot bring proceedings to recover the assigned debt in the assignor's own name for the assignor's own account. The assignor can sue as trustee for the assignee if the assignee agrees, and, in that event the claim must disclose the assignor's representative capacity. In any other case, the assignor must join the assignee, not because of a mere procedural rule but as a matter of substantive law in view of the insufficiency of the assignor's title."
242. (d) The equitable shield of estoppel by convention does not avail /is not available to the Appellant in the event of an action brought by Amtrust.
244. (e) Waiver does not avail/is not available to the Appellant in the event of an action brought by Amtrust.
245. Mr Amin submitted that interpretation of the exchange of messages on 15 th May 2023 requires consideration of the context rather than a purely textual approach and the Master was right to conclude that (at the least) it was arguable that there was a concluded agreement between Mr Kounis and Amtrust.
247. Mr Amin also submitted that Mr Kounis had a very strong a fortiori an arguable case in respect of estoppel/waiver. Mr Amin conceded that the Appellant would "struggle" to raise estoppel directly against Amtrust, but if Amtrust did ever seek to bring proceedings then the Appellant could join Mr Kounis to the action.
249. I turn to the issue which the Master found determined the application.
251. Was there a concluded agreement?
253. Mr Bell submitted that the words;
255. "Our client has no objection in principle to agreeing an extension to the assignment"
256. did not constitute an agreement to extend the Clause 3E deadline to the end of 2023 but rather recorded Amtrust's willingness "in principle" to agree to an extension subject to further detail and no more. This was the only arguable construction of the 15 May e-mail. The Master was plainly wrong to interpret that email as giving rise to an agreement to vary Clause 3E.
257. Mr Amin argued that a contract can only be interpreted in light of its factual matrix. Offer, acceptance and an intention to create legal relations are fact sensitive issues As Lord Hodge put it in Wood v Capita [2017] UKSC 24:
259. "10. The court's task is to ascertain the objective meaning of the language which the parties have chosen to express their agreement. It has long been accepted that this is not a literalist exercise focused solely on a parsing of the wording of the particular clause but that the court must consider the contract as a whole and, depending on the nature, formality and quality of drafting of the contract, give more or less weight to elements of the wider context in reaching its view as to that objective meaning.
260. ?
261. 13. Textualism and contextualism are not conflicting paradigms in a battle for exclusive occupation of the field of contractual interpretation. Rather, the lawyer and the judge, when interpreting any contract, can use them as tools to ascertain the objective meaning of the language which the parties have chosen to express their agreement. The extent to which each tool will assist the court in its task will vary according to the circumstances of the particular agreement or agreements. Some agreements may be successfully interpreted principally by textual analysis, for example because of their sophistication and complexity and because they have been negotiated and prepared with the assistance of skilled professionals. The correct interpretation of other contracts may be achieved by a greater emphasis on the factual matrix, for example because of their informality, brevity or the absence of skilled professional assistance."
263. Both Mr Bell and Mr Amin argue that the context of the relevant e-mail supported their arguments. ****
265. Mr Bell submitted that
267. a. the relevant email chain started with Mr Kounis asking for the 16 th May 2023 deadline to be extended
268. > "to give us sufficient time to determine whether an out of court settlement is possible or otherwise to consider issuing."
269. b. Ms Engel responded by asking how long an extension was being sought. So the length of time was a potential issue.
270. c. Mr Kounis replied saying that he had already asked the Appellant's solicitors) to "give [them] an idea" of how long they needed to decide whether they wanted to settle or litigate. He then added that it would be
271. > "several weeks before this round of exchanges is completed"
272. > and then wrote,
273. > "If your client has any issue extending to say, the end of this year, I need to know now, before incurring more costs."
274. d. The only interpretation of a-c above is that Mr Kounis was not proposing a specific variation. Rather, he was simply asking about Amtrust's position. It is in this context that DAC Beachcroft replied by saying that Amtrust had no objection in principle to agreeing an extension. They were simply telling the Respondent what Amtrust's position was, as he had asked them to. It was then for Mr Kounis to propose a specific extension. It may have been that a seven month proposal if advanced may have met with the response that a shorter time was appropriate.
275. e. Mr Kounis' reply (the final email in the chain);
276. > "Thank you for your confirmation. I will let you know as soon as I get a response from the o/s"
277. showed that he did not consider the matter closed. He knew that before agreeing an extension he would first need to find out from DWF how long the Appellant would need before deciding whether it wanted "to settle or litigate".
278. Mr Amin submitted that the context of the exchange was that the right was going to expire that day. This pressure of time led to the brevity and informality of the exchange. The suggestion that Ms Engel was awaiting further information was unrealistic and Mr Kounis' acknowledgement was because he need to do not more at that stage, nothing having been requested of him. Objectively assessed it was, as the parties believed and still believe it to be, a concluded agreement.
280. The correct interpretation of a contract, or, as here, whether a contract was formed given an exchange of messages, is a question of law.
282. The ordinary and natural meaning of the phrase "in principle" in the context of an agreement means subject to specific details which have not yet been agreed. There was nothing in the evidence before the Master to suggest that the words were not used to convey this meaning. Ms Engel, as a solicitor used to formal language and communicating on behalf of a client, should be taken to have understood the clear meaning and effect of the words i.e. that a party is explaining that there is consensus with/no objection to a proposal in outline but that there is scope for further consideration of detail upon which the proposed agreement may yet flounder (and a concluded agreement not reached).
284. During submissions Mr Amin agreed with the proposition that for the Court to conclude that an agreement was reached requires the words "in principle" to effectively be treated as "surplusage" to use the description of Black J in the Australian case of P J Leahy & Ors v A R Hill & Anor [2018] NSWSC 6.
286. Pressed on the issue of consideration of the phrase in other cases Mr Amin conceded that the words may defeat a claim that there was a concluded agreement; but context was vital and that a purely textual analysis was inappropriate (or at least arguably so). He referred to the fact that this was a strike out/summary judgment application and that further evidence as to context may be determinative of, or at the least give assistance with, the interpretation of the exchange. He did not give any detail of what such evidence could be. There was no statement from Mr Kounis. Ms Oikonomou, solicitor with conduct of the litigation on his behalf had provided statements but they foreshadow no further evidence as to context.
289. The starting point for interpretation of this exchange of emails in a professional/commercial context such as existed on 15 th May is that words must be given their ordinary and natural meaning and cannot be simply ignored. Here the words are unambiguous; there was not complete consensus and further detail was required before final agreement. In my view there is no scope for the Court to revise the words used by the parties in the 15 th May 2023 exchange to achieve an agreement they did not actually make. I agree with Mr Bell that there was nothing remotely unusual about their use in context; they opened up the opportunity for Mr Kounis to put forward a specific proposal; but he failed to do so.
291. So much, in my view is straightforward on an objective textual and contextual interpretation of the words used in the exchange on 15 th May alone. No concluded agreement was reached. It is illuminating to consider the position as at July 2023. At that stage there is obvious force in Mr Bell's argument that Amtrust could have issued proceedings and Mr Kounis would not have been able to argue that a concluded agreement prevented it from doing so.
293. Arguments as to whether or not there was a concluded contract usually come before the Court when one on the parties to an exchange argues that there was no agreement was reached. I strongly suspect that the Master would have reached a different view upon the issue of an agreement had the argument been between Mr Kounis and Amtrust and/or solely based on the exchange on the 15 th May. The unusual feature of the application before him was that the assignor and assignee agreed that their interpretation /belief was that there was a concluded agreement and that was made clear by subsequent correspondence in October 2025. So the question arises as to the relevance and effect of that correspondence. Again Mr Bell and Mr Amin advanced very different arguments.
295. Mr Amin placed reliance on the view expressed by Mr Justice Ritchie when refusing permission on the papers. Richie J stated that the October 2023 communications shed light on what factual evidence might emerge at trial as to the intentions of the Mr Kounis and Amtrust in May 2023, and the factual matrix in which they were operating including their mutual goals and interests at that time. In refusing permission to appeal, he said:
297. "The only evidence from Amtrust was that they had no interest in retaking assignment of the proposed claims by K against A (albeit the evidence at the application was in an "after the event" email, if evidence was to be put in at trial to support that being their view at the time then the Master was entitled to take that as their likely view and their intention at the time). This would not be determinative but would be relevant background. K wished the extension and Amtrust had no interest in frustrating that or adopting K's right to sue."
299. Mr Bell submitted that the Court should reject any suggestion that the meaning and effect of the 15 th May 2023 e-mail exchange can be deduced from Amtrust's subsequent communications and that it is trite law that the Court may not generally look at the subsequent conduct of the parties to interpret a written agreement or language used in relation to making of an agreement.
301. In The Interpretation of Contracts, 8 th ed. at 3.185 it is explained:
303. "In Union Insurance Society of Canton Ltd v George Wills & Co, [1916] 1 AC 281 Lord Parmoor said:
304. "It is immaterial to the construction of the contract to consider subsequent events. The intention of the parties must be gathered from the language of the contract, the subject-matter, and the circumstances in existence at the time it was made."
305. In James Miller and Partners Ltd v Whitworth Street Estates (Manchester) Ltd, [1970] A.C. 583 it was held by the House of Lords that subsequent conduct of the parties could not be looked at in order to construe a written contract unless that conduct amounted to a variation of the contract, or gave rise to an estoppel. Lord Reid said
306. "I must say that I had thought it now well settled that it is not legitimate to use as an aid in the construction of the contract anything which the parties said or did after it was made. Otherwise one might have the result that a contract meant one thing the day it was signed, but by reason of subsequent events meant something different a month or a year later."
307. And at 3.187
308. In addition, in Rembrandt Group Ltd v Philip Morris International Inc, 25 February 1999. Morritt LJ (with whom Butler-Sloss and Sedley LJJ agreed) said of certain post contractual statements:
309. "Each of the events amounts to the description by one party in the presence or to the knowledge of the other of the legal effect of the contract or contracts already concluded. Such views cannot be relevant to or of assistance in the determination by the court of the point of law on which the party is expressing its opinion. Nor, without more, can it be of any assistance in the determination, for the purposes of the Novation Agreement, what obligations had been previously undertaken by PMI. I can understand that the views and opinions so expressed might give rise to some estoppel by convention for the future or to some further or collateral contract to the effect represented in the statement; cf Amalgamated Investment & Property Co Ltd v Texas Commerce International Bank Ltd. [1982] 1 Q.B. 84. But in the absence of such an estoppel or contract, and none was suggested, I do not see how the statements relied on can have any effect on the issues we have to determine."
310. In the present cases there was no suggestion before the Master of any surrounding conversations or other extrinsic influence on the words used. So whilst I accept the proposition that evidence of subsequent conduct may be admissible for the purpose of identifying which terms were actually agreed (as opposed to interpreting the terms/language used; see generally Great North Eastern Rly Ltd v Avon Insurance Plc, [2001] 2 All ER (Comm) 526 per Longmore LJ ) I cannot accept that the October 2023 communications can be used to assist with issue of whether or not a concluded agreement reached on 15 th May 2023. That is not to say that the October exchanges were of no legal effect; which shifts focus onto Mr Amin's secondary argument to which I shall turn in due course.
312. By reason of the matters set out above the Master fell into error in his analysis of the e-mails exchange of 15 th May. No concluded agreement was reached and the cause of action vested in Amtrust. Tempting though it is to seek to give effect to the erroneous beliefs of the relevant parties as subsequently expressed this would be wrong in principle.
314. Estoppel and variation
316. Although the beliefs expressed were wrong, the October correspondence has (or at the very least arguably has) legal effect.
318. By a respondent's notice Mr Kounis argues that the Master's order was justified on other grounds as set out in the response to the request for further information;
320. "On 19 October 2023 the same solicitors sent an email which stated "Our client is not interested in being assigned this prospective claim nor will it seek to pursue the claim" ?. Accordingly, the assignment never took effect. Alternatively, the parties to it agreed to treat it as not having taken effect. Alternatively, they adopted the mutual convention that it had not taken effect and Amtrust would be estopped from asserting otherwise. In any event the email of 19 October 2023 contained an unequivocal abandonment of the assignment, and it is obvious that Amtrust does not regard itself as entitled to the cause of action."
321. Mr Amin submitted that the October 2023 communications show that the Respondent and Amtrust did not consider (at that time) that any assignment to Amtrust had taken place in May 2023, that Amtrust did not want to be assigned the claim; and that Amtrust was content to have the Respondent decide whether or not he wanted to pursue a claim. All Amtrust was interested in was reserving its right to receive the first ?80k of any damages recovered.
323. Mr Amin argued that the communications would undoubtably be admissible on the issues of whether Mr Kounis could rely on an estoppel or argue that there had been a waiver or variation. I agree with that proposition (and Mr Bell did not argue otherwise).
325. Mr Amin argued that the October exchanges had the effect that
327. i. Mr Kounis and Amtrust adopted a mutual convention that no legal or equitable assignment has taken place and as a result Amtrust were estopped from asserting that there has been a legal or equitable assignment.
328. ii. Amtrust has abandoned any rights it has to an assignment. The October 2023 communications amounted to a waiver by Amtrust of any right it had to have the claim assigned to it under Clause 3(E). Amtrust made a clear an unequivocal representation and Mr Kounis acted on that representation by bringing a claim. Amtrust is therefore estopped from going back on that waiver.
329. iii. The October 2023 communications amounted to a variation of the variation agreement or an agreement collateral to it, either retrospectively extending time under Clause 3(E) or removing Clause 3(E) altogether.
330. Mr Bell did not dispute that (i) and (ii) above were arguable. Rather, as I have already set out, his response was that the existence of an estoppel could not avail the Appellant if Amtrust were to issue proceedings (and argue that there was no concluded agreement reached on 15 th May 2023), so could not alter the requirement for Amtrust to be joined to the proceedings. He submitted that any estoppel was a shield and created no new substantive rights. He noted that Mr Amin conceded that the Appellant would face difficulty in relying directing on an estoppel argument against Amtrust and suggested that Mr Amin's answer that the Appellant could join Mr Kounis should Amtrust bring an action ended up with three parties to the claim, which was what the Appellant contended was necessary.
332. As for the argument that the October 2023 exchanges constituted a variation of the existing agreement Mr Bell submitted that the obvious problem is that the parties were not at any stage considering a variation as they did not think that one was necessary and the language used reflected that (incorrect) understanding. The statement on behalf of Amtrust
334. "Our client is not interested in being assigned this prospective claim nor will it seek to pursue the claim."
336. Cannot be strained to establish an agreement by Amtrust to assign back a right it had.
337. I accept Mr Bell's submissions and for these reasons the arguments in the Respondents Notice cannot support the order made by the Master. Estoppel does not create new rights and it would not be a shield that the Appellant could use if Amtrust was to bring a claim (given that there was no concluded agreement on 15 th May 2023). Given the language used, and the context, there is no arguable basis for an agreement to vary the variation agreement.
339. E-mail of 27 th November 2025
341. In the event that his primary and secondary arguments failed Mr Amin relied upon the e-mail from Amtrust of 27 th November 2025 (so after permission to appeal was granted). He submitted that this gave the Appellant a shield in estoppel and/or grounds to apply to strike out any claim brought by Amtrust as an abuse of process.
343. The e-mail set out that Amtrust recognised that it was a matter for legal argument whether there was a concluded agreement and expressed its view that there was. It concluded;
345. " Further, AmTrust has no intention of bringing proceedings against Costigan King, nor applying to join the current proceedings."
346. Mr Bell submitted that this statement although clear as to current intent was "not of binding force"; by that he meant as creating a contractual right or a binding estoppel. He also submitted that whilst the Appellant may be able to bring a strike out application against Amtrust in the future were it to bring proceedings the test on such an application may result in wide ranging issues.
348. In my view on the basis of the limited submissions before me (which did not include any from/on behalf of Amtrust) the e-mail does not provide unequivocal, unarguable protection such that there is no further requirement for protection for the Appellant. To achieve that aim Amtrust would have to go further. How that could be done is not a matter for me to explore at this stage.
350. Conclusion
351. In my Judgment the Master fell into error in arriving at his conclusion as regards an agreement having been reached on 15 th May and that the issue of double jeopardy would be best dealt with as part of case management.
353. The Master's order cannot be supported on the grounds set out in the Respondent's notice.
355. I have very considerable sympathy and understanding for the Master's approach. Indeed anyone hearing the exchanges during oral submissions will have appreciated my concerns about the failure to recognise the lack of any real prospect of Amtrust seeking to issue proceedings (creating double jeopardy) and that the step of joining Amtrust would incur unnecessary costs. However in the end I am satisfied that Mr Bell's submissions about the substantive legal position are correct and that there can be no "gloss"/qualification to the principle set out in Three Rivers.
357. Appropriate order
359. The next question is what order the Master should have made.
361. Mr Bell recognised in his written submissions that whilst his primary position was that the claim should be struck out there was a fallback position, which was to stay the proceedings unless and until Mr Kounis applies to join Amtrust as a party (this was the order made by the first instance Judge, Mr Justice Gatehouse, in Three Rivers). Mr Bell conceded during oral submissions that if the appeal were to succeed then a proper order could be to allow Mr Kounis a set period time to apply to join Amtrust in default of which the claim would be struck out (which in my view is clearly more appropriate than an open-ended stay). That is the order which I will make.
363. It is to be noted that the requirement is to make an application to join Amtrust. I do not prejudge the application.
365. I invite the parties to draw up a suitable order.
369. .

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