Posted Tuesday 10th November 2026
The business that never was: can you recover lost profits from a missed opportunity?
Calculating financial loss can be relatively straightforward where money has already been spent or profits lost. But what happens when the loss is a business that was never launched, an investment that was never made or an opportunity that never materialised?
That was the task facing the High Court Alta Trading UK Ltd v Bosworth. The case provides a useful reminder that, when claiming for a lost commercial opportunity, the question is not simply what might have happened, but what you can prove would have happened.
A ten-year freeze
In Alta Trading UK Ltd v Bosworth, a worldwide freezing injunction was obtained against a number of defendants in 2015 in connection with allegations of fraud. The underlying claims were eventually dismissed and the court was then asked to assess the losses caused by the injunction, which had remained in place for approximately ten years.
Two of the defendants claimed, amongst other things, that the injunction had prevented them from setting up a new oil trading business. They argued that they should be compensated for the profits it would have generated.
There was one fundamental problem: the proposed business had never actually got off the ground.
Proving what might have been
The court accepted that, but for the injunction, the defendants would have pursued the proposed business and that their experience, industry relationships and available capital supported a real and substantial chance that the venture would have succeeded.
However, the court did not simply accept the defendants’ projections at face value. Instead, it considered a model of how the business might have performed and assessed the defendants as having an overall 50% chance of achieving the modelled profits.
The case illustrates an important principle: an uncertain loss is not necessarily an unrecoverable loss. Courts regularly consider what would have happened if the conduct complained of had not occurred. The challenge is proving it with credible, contemporaneous evidence.
“I would have bought Bitcoin…”
Perhaps the most eye-catching part of the judgment concerned the defendants’ claims for lost cryptocurrency investments.
They argued that, but for the injunction, they would have made substantial investments in Bitcoin. Given Bitcoin’s subsequent rise in value, those hypothetical investments had become extremely valuable.
The court was not prepared to accept a claim based on hindsight alone. Instead, it examined earlier statements and contemporaneous documents to decide what investments the defendants were actually likely to have made.
Ultimately, the court assessed compensation on the basis that each defendant would have invested US$100,000 in Bitcoin at the end of July 2015 and held it until the end of January 2021.
The distinction is important: subsequent market performance might tell you what an investment would have been worth, but it does not prove that you would have made the investment in the first place. Pointing to what you could have done with the benefit of hindsight is unlikely to be enough.
Keep the receipts (and the business plans)
The facts of Alta Trading UK Ltd v Bosworth are unusual, but the evidential lesson has much wider application to commercial disputes.
Where a business loses a contract, investment, expansion opportunity or proposed new venture, the absence of guaranteed future profits does not necessarily prevent a claim. The legal basis for recovery will always depend on the claim and the facts, but the quality of evidence will often be decisive.
Useful evidence may include:
The sensible approach is to preserve evidence as soon as the opportunity is lost, rather than when trying to reconstruct what might have happened several years later.
Courts can put a value on an uncertain future. They are less keen on being asked to guess.
If you find yourself in a dispute which has caused, or may cause, your business to lose a contract, investment or other commercial opportunity, it is worth seeking advice sooner rather than later. Joelson’s Commercial Litigation team can help you understand the losses you may be able to recover and, importantly, what evidence you should be gathering now to put you in the best position if a claim becomes necessary.
This article is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.
