Mad Atelier International BV v Mr Axel Manes
Citation: [2021] EWHC 1899 (Comm)
Background Facts​
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Mad Atelier International BV (“Mad Atelier”), were a part of a corporate group developing restaurant ventures.
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Mr Axel Manes, was chef and entrepreneur and former joint venture partner.
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In 2015, the parties agreed to form a joint venture to develop restaurants under the "L'Atelier de Joel Robuchon" brand in London and Dubai.
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Mad Atelier alleged that Mr Manes fraudulently induced it into transactions leading to loss of its interest in MAD Atelier SA (a joint venture entity) at undervalue and loss of future profits.
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The dispute involved complex damages calculations based on hypothetical profits (“but for” analysis).
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Before trial, Mr Manes applied to strike out parts of Mad Atelier’s witness statements and expert evidence, arguing they contained impermissible opinion, commentary, and hypothetical projections contrary to Practice Direction 57AC (which governs Business and Property Courts witness statements).
​Judgment
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Decision:
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The court dismissed the application to strike out the witness statements.
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​
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Key findings:
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The witness statements were admissible even though they contained hypothetical opinions on projected restaurant profits and business outcomes.
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Practice Direction 57AC aims to stop narrative commentary and advocacy in witness statements but does not change substantive admissibility rules.
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Witnesses with direct involvement and relevant experience can give opinion evidence related to facts within their knowledge.
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Even though the statements contained opinions on hypothetical future outcomes, these were relevant for assessing “but for” scenarios in fraud damages claims and did not constitute improper expert evidence.
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​
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Outcome:
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Application to strike out parts of statements dismissed.
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Mad Atelier allowed to rely on the statements and related expert evidence at trial.
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General Principles Developed
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Admissibility of hypothetical evidence:
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Witnesses directly involved in a business may give evidence on what would or could have happened (e.g., future business plans and profits) as fact-based opinion evidence.
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​
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Scope of Practice Direction 57AC:
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The Practice Direction restricts narrative and commentary but does not override established case law on admissibility of opinion evidence from non-experts with relevant experience.
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Striking out under 57AC is discretionary, focused on preventing excessive narrative, not substantive content.
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​
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"But for" loss scenarios:
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In claims for loss of chance or profits (especially in fraud cases), hypothetical evidence of what might have happened is necessary and accepted.
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​
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Transparency and testing in cross-examination:
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Providing detailed hypothetical evidence in witness statements promotes transparency and allows robust cross-examination, rather than leaving all analysis solely to experts.
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​
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Civil Evidence Act 1972, s.3(2):
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Confirms admissibility of opinion evidence as a way of conveying relevant facts personally perceived by the witness.
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