BL-2024-000734 - [2025] EWHC 3003 (Ch)

A point which was made in submissions (although it is not found in the grounds of appeal themselves) was that there are two issues arising out of this litigation which can be said to be matters of uncertain and possibly evolving law. One is the extent to which a chargee is constrained in his ability to exercise powers granted to him by a charge document without being subject to limitation by an implied Braganza-like term. The other is the extent to which the parties to an agreement which has been assigned are subject to a pre-existing agreed variation of that agreement where the variation was agreed between the assignor and the counterparty, but where the variation does not appear on the face of the agreement and is not known to the assignee.

As regards these issues the Claimants say that I should not have struck out any part of the claim which related to an area where “the law is in a state of development”. This latter point was said to be supported by the decision of Peter Gibson LJ in Hughes v Colin Richards & Co. [2004] EWCA Civ 266 where he said (at [22]):

“I start by considering what is the correct approach on a summary application of the nature of Mr. Richards's application at this early stage in the action when the pleadings show significant disputes of fact between the parties going to the existence and scope of the alleged duty of care. The correct approach is not in doubt: the court must be certain that the claim is bound to fail. Unless it is certain, the case is inappropriate for striking out (see Barrett v Enfield London Borough Council [2001] 2 AC 550 at p. 557 per Lord Browne-Wilkinson).

Lord Browne-Wilkinson went on to add:

“[I]n an area of the law which was uncertain and developing (such as the circumstances in which a person can be held liable in negligence for the exercise of a statutory duty or power) it is not normally appropriate to strike out. In my judgment it is of great importance that such development should be on the basis of actual facts found at trial not on hypothetical facts assumed (possibly wrongly) to be true for the purpose of the strike out.”

This is clearly correct. However, the issue which it raises in this context is as to whether the law in respect of either of these issues is in the sort of state of development which Lord Browne-Wilkinson envisages.

I do not see that this dictum has any relevance in this context. It should not be possible to proof a claim against strike-out simply by pleading a disputed area of law. The mere fact that a claim contains the suggestion that the facts give rise to a Braganza-type duty (or, for example, alleges that a contract is relational) does not and must not mean that it should automatically proceed to trial.

I therefore refuse permission to appeal on all of the grounds put forward.