Terna Energy Trading Doo v Revolut Ltd

Hearing dates: 27 February 2024

This judgment will be handed down by the Judge remotely by circulation to the parties or representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10;30 am on 12 June 2024.

Introduction

This is my judgment on an application brought by the defendant against the claimant, by notice dated 8 December 2023, for reverse summary judgment, alternatively for an order to strike out the claim. The claim itself is for unjust enrichment, to recover the sum of €700,000 from the defendant. The defendant however says that the claim must fail for either or both of two reasons, both points of law essential to the claim. One is that the defendant has not been “enriched” for the purposes of the doctrine of unjust enrichment. The other is that, even if it has, the enrichment was not “at the expense of the claimant”, again for the purposes of that doctrine. In order to obtain reverse summary judgment, or an order striking out the claim, the defendant needs to be right on only one of these. It is not necessary to show that it is right on both.

The claim form was dated 21 April 2023, and sealed on 24 April 2023. The claim is, as mentioned above, for the restitution of €700,000, which was approximately £618,590 at the date of issue. The particulars of claim are also dated 21 April 2023. The defence is dated 22 June 2023, and the reply 25 August 2023. As I have said, the notice for the application with which I am dealing was issued on 8 December 2023. It is supported by the witness statement of Benjamin Fellows, who is the applicant's solicitor. It is opposed by the witness statement of Lucas Moore, who is the respondent's solicitor. Because this is a summary application, there is in fact very little factual dispute between the parties for the limited purposes of my decision.

Jurisdiction

Summary judgment

The court's jurisdiction to give summary judgment (either against the defendant in favour of the claimant, or vice versa) arises under CPR rule 24.3, which since October 2023 relevantly provides:

“The court may give summary judgment against a claimant or defendant on the whole of a claim or on an issue if—

(a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; and

(b) there is no other compelling reason why the case or issue should be disposed of at a trial.”

In this connection, it is well established that, on an application for summary judgment, the burden of proof rests on the applicant: ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472, [9]; Daniels v Lloyds Bank plc [2018] EWHC 660 (Comm), [49]. That is so, even though at the trial of the claim the burden of proving that claim would rest on the respondents as claimants.

So far as concerns summary judgment, I was referred to the well-known decision of Lewison J (as he then was) in Easyair Ltd (t/a Openair) v Opal Telecom Ltd [2009] EWHC 339 (Ch) 16, endorsed by the Court of Appeal on a number of occasions, most recently in British Telecommunications plc v HMRC [2023] EWCA Civ 1412, [25]. In Easyair, the judge said:

“15. … the court must be careful before giving summary judgment on a claim. The correct approach on applications by defendants is, in my judgment, as follows:

i) The court must consider whether the claimant has a ‘realistic’ as opposed to a ‘fanciful’ prospect of success: Swain v Hillman [2001] 1 All ER 91;

ii) A ‘realistic’ claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8]

iii) In reaching its conclusion the court must not conduct a ‘mini-trial’: Swain v Hillman

iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10]

v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550;

vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63;

vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725.”

In Elite Property Holdings Ltd v Barclays Bank plc [2019] EWCA Civ 204, a case where permission to amend a statement of case was in issue, Asplin LJ (with whom Hamblen LJ and Nugee J agreed) said:

“41. For the amendments to be allowed the Appellants need to show that they have a real as opposed to fanciful prospect of success which is one that is more than merely arguable and carries some degree of conviction … A claim does not have such a prospect where (a) it is possible to say with confidence that the factual basis for the claim is fanciful because it is entirely without substance; (b) the claimant does not have material to support at least a prima facie case that the allegations are correct; and/or (c) the claim has pleaded insufficient facts in support of their case to entitle the Court to draw the necessary inferences …

42. The court is entitled to reject a version of the facts which is implausible, self-contradictory or not supported by the contemporaneous documents and it is appropriate for the court to consider whether the proposed pleading is coherent and contains the properly particularised elements of the cause of action relied upon.”

Although that was said of the phrase “real prospect of success” in the context of an application for permission to amend a statement of case, the same applies to the same phrase in the context of an application for summary judgment: see King v Stiefel [2021] EWHC 1045 (Comm), [21].

Complex claims, cases relying on complex inferences of fact, and cases with issues involving mixed questions of law and fact where the law is complex are likely to be inappropriate for summary judgment: see Three Rivers District Council v Bank of England (No. 3) [2003] 2 AC 1 (HL) at [95] per Lord Hope. And, in relation to the possibility of future disclosure, the relevant question to ask is whether there are reasonable grounds for believing that disclosure may materially add to or alter the evidence relevant to whether the claim has a real prospect of success: Okpabi v Royal Dutch Shell plc [2021] 1 WLR 1294, [128], SC.

As for questions of law, it is not normally appropriate in a summary procedure (such as an application to strike out or for summary judgment) to decide a controversial question of law in a developing area, particularly because it is desirable that the facts should be found so that any further development of the law should be on the basis of actual and not hypothetical facts: see Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd [2012] 1 WLR 1804, [84], PC, Lord Collins. This approach was taken by Teare J, refusing summary judgment in an unjust enrichment claim, Marsfield Automotive Inc v Siddiqi [2017] EWHC 187 (Comm), [1], [35].

Striking out

The statutory test on an application to strike out a claim is set out in CPR 3.4(2). This provides:

“(2) The court may strike out a statement of case if it appears to the court—

(a) that the statement of case discloses no reasonable grounds for bringing...