Factual and Procedural Background
Until April 2017, Company A was the approved importer of Jaguar motor cars into The State pursuant to an Importer Agreement with Company B. Another entity, Company C, was the approved importer of Land Rover motor cars into The State. Following a tender process completed in September 2016, from April 2017 Company C became the approved importer of both Jaguar and Land Rover motor cars. Company A alleges that Company B represented to it that the appointment as importer for both brands was assured ("in the bag") to induce Company A to maximize its expenditure on promoting the Jaguar brand. Company A seeks to recover that expenditure from Company B. Initially, three tort causes of action were advanced, but only unlawful means conspiracy is now relied upon. Company A also advances a claim in unjust enrichment and a separate contractual claim relating to costs incurred promoting the Jaguar F-Pace motor car.
Company B seeks to have the claims struck out on grounds that the Points of Claim disclose no reasonable grounds or are an abuse of process, and alternatively seeks reverse summary judgment. If unsuccessful, Company B seeks security for costs and further particulars of the Points of Claim.
Legal Issues Presented
- Whether the Points of Claim disclose reasonable grounds for alleging unlawful means conspiracy against Company B.
- Whether the alleged representations by Company B can support a claim of unlawful means conspiracy.
- Whether the claim in unjust enrichment is sufficiently pleaded and arguable.
- Whether the separate contractual claim relating to the Jaguar F-Pace launch costs is enforceable given the contractual requirement for written variations.
- Whether security for costs should be ordered against Company A.
Arguments of the Parties
Appellant's Arguments (Company A)
- There was a conspiracy between Company B and Company C to injure Company A by inducing it to invest in the Jaguar brand through unlawful means, specifically by misrepresenting that Company A would be awarded the contract for importing both Jaguar and Land Rover vehicles.
- The representations included assurances that the award was "in the bag" and that Company A should invest heavily as if it would hold the contract for five to seven years.
- The unlawful means alleged include misrepresentations and manipulation of audit processes to favour Company C.
- The claim in unjust enrichment is based on Company B receiving benefits from Company A’s investments made under false pretences and without intention to continue the contractual relationship.
- The contractual claim regarding the Jaguar F-Pace launch costs is based on an oral agreement by Company B to reimburse launch costs if the contract was not awarded to Company A.
Appellee's Arguments (Company B)
- The Points of Claim fail to clearly plead a conspiracy, the unlawful means, or the intention to injure, thus disclosing no reasonable grounds for the unlawful means conspiracy claim.
- The alleged representation that the contract was "in the bag" is not supported by contemporaneous documents and is inconsistent with Company A’s own communications seeking guidance and meetings.
- The claim in unjust enrichment is inadequately pleaded as it fails to identify why Company B’s enrichment is unjust, especially given contractual obligations requiring Company A to bear marketing costs.
- The oral agreement to reimburse Jaguar F-Pace launch costs is unenforceable due to a contractual clause requiring any variation to be in writing and signed by both parties.
- Security for costs should be ordered because Company A has failed to provide sufficient financial evidence to dispel a reason to believe it cannot pay Company B’s costs if ordered.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Kuwait Oil Tanker SAK v Al-Bader (No.3) [2000] 2 All ER (Comm) 271 |
Essential elements of the tort of conspiracy to injure by unlawful means. |
Used to define the necessary elements Company A must plead and prove for unlawful means conspiracy. |
| FM Capital Partners Ltd. v Marino [2018] EWHC (Comm) 1768 |
Intention to injure can be inferred from inevitability of loss. |
Relied upon to argue that loss to Company A was inevitable and thus intention to injure could be inferred. |
| Tower v Wills [2010] EWHC 1209 (Comm) |
Necessity for clarity in pleading to avoid ambiguity. |
Referenced to emphasize the need for clear allegations of conspiracy and unlawful means. |
| JSC BTA Bank v Ablyazov and another (No.14) [2020] AC 727 |
Whether misrepresentation can constitute unlawful means. |
The court accepted arguability that misrepresentation could amount to unlawful means but did not decide the issue. |
| EasyAir Ltd. v Opal Telecom Ltd. [2009] EWHC 339 (Ch) |
Approach to summary judgment and evaluation of evidence. |
Guided the court’s cautious approach to reverse summary judgment and the need to consider evidence at trial. |
| TFL Management Services v Lloyds TSB Bank [2014] 1 WLR 2006 |
Definition of a realistic case and approach to summary judgment. |
Used to assess whether Company A’s case carried some degree of conviction. |
| King v Stiefel [2021] EWHC 1045 |
Court’s powers to evaluate evidence on summary judgment. |
Supported the court’s position on cautious evaluation of evidence at the summary judgment stage. |
| Dargamo Holdings Limited and another v Avonwick Holdings Limited [2021] EWCA Civ 1149 |
Principles governing unjust enrichment and when enrichment is recoverable. |
Guided the analysis of the unjust enrichment claim and the defence based on contractual obligations. |
| AMP Advisory and Management Partners AG v Force India Formula One Team Limited [2019] EWHC 2426 (Comm) |
Established categories of unjust enrichment and reliance on assurances during negotiations. |
Supported the arguability of Company A’s unjust enrichment claim. |
| MWB Business Exchange Centres Ltd. v Rock Advertising Ltd. [2019] AC 119 |
Validity of "no oral variation" clauses in contracts. |
Confirmed the enforceability of the clause requiring written variations, undermining the F-Pace oral agreement claim. |
| Allen v Bloomsbury Publishing Ltd [2011] EWHC 770 |
Principles on security for costs applications. |
Reviewed relevant principles for ordering security for costs, applied in assessing Company B's application. |
| Aerotel Limited v Wavecrest and others [2007] EWHC 104 (Pat) |
Burden of proof and evidential considerations in security for costs. |
Supported the inference that failure to produce financial evidence may justify security for costs. |
| Sarpd Oil International Ltd v Addax Energy SA [2016] EWCA Civ 120 |
Inferences drawn from failure to provide evidence in security for costs applications. |
Applied to infer reason to believe Company A may be unable to pay costs due to lack of disclosure. |
| Kompaktwerk GMBH v Liveperson Netherland [2019] EWHC 1763 (Comm) |
Legal burden and evidential standards in security for costs applications. |
Referenced in assessing the evidence and burden in Company B’s security for costs application. |
Court's Reasoning and Analysis
The court examined the adequacy of the pleadings for unlawful means conspiracy and found critical deficiencies: the Points of Claim lacked express allegations of a conspiracy between Company B and Company C, failed to clearly identify the unlawful means alleged, and did not sufficiently plead an intention to injure Company A. Although a benevolent reading might discern a conspiracy, the court emphasized the need for clarity to avoid unnecessary delay and expense. However, striking out was deemed a last resort, and Company A was granted a final opportunity to provide clear particulars.
Regarding reverse summary judgment, the court found that while contemporaneous documents raised doubts about the alleged representation and reliance, it was not possible to resolve these factual disputes without trial evidence. The court accepted that the representation that the contract was "in the bag" was sufficiently clear to proceed to trial.
On the unjust enrichment claim, the court acknowledged the claim was arguable, noting established categories where benefits transferred in anticipation of a contract that does not materialize may support recovery. The court found it inappropriate to decide this point summarily due to the developing nature of the law and the need for factual findings at trial.
The separate contractual claim regarding the Jaguar F-Pace launch costs was considered unenforceable on summary judgment due to the contractual requirement that variations be in writing and the absence of pleaded estoppel. However, as there will be a trial on related claims, it was not sensible to determine this claim summarily.
On security for costs, the court found reason to believe Company A might be unable to pay Company B’s costs, based on Company A’s failure to provide management accounts or detailed financial evidence despite opportunities to do so. The court considered it just to order security for costs, given the unclear pleading, evidential difficulties, and the weak nature of the claims.
Holding and Implications
The court REFUSED TO STRIKE OUT the claims and DENIED REVERSE SUMMARY JUDGMENT. However, the court ordered Company A to provide clear particulars of its unlawful means conspiracy claim within a specified period and granted security for costs in the sum estimated by Company B.
The direct effect is that the proceedings will continue to trial, with Company A required to clarify its case and provide security for costs. No new legal precedent was established, and the decision primarily addresses procedural and evidential standards in pleading and summary applications.