Terna Energy Trading doo v Revolut Ltd
| Court | Queen's Bench Division (Commercial Court) |
| Judge | Hhj Paul Mat |
| Neutral Citation | [2024] EWHC 1419 (Comm) |
| Date | 12 June 2024 |
| Year | 2024 |
| Counsel | Anthony Pavlovich,Daniel Burgess |
Neutral Citation Number: [2024] EWHC 1419 (Comm)
Case No: LM-2023-000309
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
LONDON CIRCUIT COMMERCIAL COURT (KBD)
Royal Courts of Justice
Rolls Building, Fetter Lane,
London, EC4A 1NL
Date: 12 June 2024
Before :
HHJ PAUL MATTHEWS
(sitting as a Judge of the High Court)
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Between :
TERNA ENERGY TRADING doo Claimant/
Respondent
- and -
REVOLUT LTD
Defendant/
Applicant
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Anthony Pavlovich (instructed by DLA Piper UK LLP) for the Applicant
Daniel Burgess (instructed by Payne Hicks Beach LLP) for the Respondent
Hearing dates: 27 February 2024
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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.
HHJ Paul Matthews
Approved Judgment
Terna Energy Trading doo v Revolut Ltd
HHJ Paul Matthews :
Introduction
1. 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.
2. 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
3. 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 ManLiquid 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.
4. So far as concerns summary judgment, I was referred to the well-known decision of
EWHC 339 (Ch) 16, endorsed by the Court of Appeal on a number of occasions, most
2
HHJ Paul Matthews
Approved Judgment
Terna Energy Trading doo v Revolut Ltd
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: RoyalBrompton 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
3
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