B e f o r e :
MR JUSTICE COTTER ____________________
____________________
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 ©
Mr Justice Cotter :
Introduction
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.
Permission was granted by Mrs Justice Tipples on 15 th October 2025, having previously been refused by Mr Justice Ritchie on the papers.
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.
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.
Facts
In these proceedings, Mr Kounis claims damages against the Appellant firm of solicitors for professional negligence.
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").
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.
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.
This led to Mr Kounis instructing the Appellant to act for him in connection with the claim that MA had intimated.
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.
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.
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.
On 25 th April 2017, Mr Kounis terminated the Appellant's retainer.
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.
Settlement agreement
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:
a. Pay £80,000 within 28 days; and
b. As set out in clause 3.1.1.2 of the agreement, assign to Amtrust
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.
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.
This appeal does not require the Court to engage with the substance of the Respondent's negligence claim.
Variation agreement
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;
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:
On 29 th December 2022 Amtrust agreed to vary the variation agreement extending the deadline in Clause 3(E) to 1 st February 2023.
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:
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.
On 11 th May 2023, Mr Kounis asked Ms Engel if Amtrust could extend the deadline again so that he had enough time;
th May 2023
On 15 th May 2023, Ms Engel wrote to Mr Kounis asking him to
Mr Kounis replied the same day:
In her reply – which is the crucial email for the purpose of this appeal – Ms Engel wrote:
Mr Kounis acknowledged this by writing,
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.
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.
October e-mails
On 11 th to 19 th October 2023, Mr Kounis and Ms Engel engaged in a further exchange of emails:
On 11 th October 2023 Mr Kounis e-mailed setting out that :
Ms Engel responded on 16 th October 2023
Mr Kounis replied on 19 th October 2023
Ms Engel then stated on 19 th October 2023
Mr Kounis issued proceedings against the Appellant on 11 th December 2023.
The Proceedings
In the Defence dated 14 th February 2024 the Appellant pleaded at paragraph 3:
The Appellant also served a Request for Further Information that included the following requests:
Mr Kounis' response to Requests 2 and 3, dated 10 June 2024 and signed with a Statement of Truth was as follows:
The response then set out an alternative argument
Mr Kounis later supplemented this response on 17 th January 2025 as follows;
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
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
I return to the order under appeal and the hearing before the Master
The Hearing (8 th April 2025)
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.
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.
Master Gidden rejected the Appellant's arguments. There is an approved note of judgment. The Master stated
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,
The Appeal
I shall first set out an overview of the arguments advanced.
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.
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.
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
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.
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
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
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.
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.
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
Turning Mr Bell's submissions upon what he referred to as the substantive law, in more detail, they can be summarised as follows;
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.
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.
I turn to the issue which the Master found determined the application.
Was there a concluded agreement?
Mr Bell submitted that the words;
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 :
Both Mr Bell and Mr Amin argue that the context of the relevant e-mail supported their arguments.
Mr Bell submitted that
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.
The correct interpretation of a contract, or, as here, whether a contract was formed given an exchange of messages, is a question of law.
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).
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.
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.
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.
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.
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.
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:
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.
In The Interpretation of Contracts , 8 th ed. at 3.185 it is explained:
And at 3.187
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.
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.
Estoppel and variation
Although the beliefs expressed were wrong, the October correspondence has (or at the very least arguably has) legal effect.
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;
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.
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).
Mr Amin argued that the October exchanges had the effect that
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.
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
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.
E-mail of 27 th November 2025
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.
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;
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.
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.
Conclusion
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.
The Master's order cannot be supported on the grounds set out in the Respondent's notice.
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 .
Appropriate order
The next question is what order the Master should have made.
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.
It is to be noted that the requirement is to make an application to join Amtrust. I do not prejudge the application.
I invite the parties to draw up a suitable order.