CL-2021-000431 - [2025] EWHC 1940 (Comm)

The Application Notice seeks summary judgment both in respect of the Shortage Claim and the Misrepresentation Claims and raises two bases for summary judgment.

The first relates to both Claims and provides:

“The grounds for summary judgment in CPR 24.3 are met in relation to the Second Defendant's shortage claim, and the Defendants' claims in deceit and negligent misrepresentation, because those claims have ceased to exist by reason of the Time Bar [viz. the one-year time bar in Article III, Rule 6 of the Hague Rules] and there is no other compelling reason why those claims should be disposed of at trial.”

I shall refer to this as the Time Bar Issue.

The second relates only to the Misrepresentation Claims and is stated as follows:

“The Defendants' plea of reliance, which forms an essential part of their claims in deceit and negligent misrepresentation, stands no realistic prospect of success. Those claims accordingly stand no realistic prospect of success, and there is no other compelling reason why they should be disposed of at trial. The grounds for summary judgment in CPR 24.3 are accordingly met.”

I shall refer to this as the Reliance Issue.

There is no meaningful dispute between the parties as to the general principles governing the applicable test for summary judgment. The court must consider whether the claimant, here the Defendants as counterclaimants, have a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman [2001] 1 All ER 91. The criterion is not one of probability; it is absence of reality: Three Rivers DC v Bank of England (No.3) [2003] 2 AC 1 [158] per Lord Hobhouse. 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].

Different aspects as to approach are however relevant to each of the two Issues as the Time Bar Issue is grounded on a question of law concerning the scope and operation of Article III Rule 6 of the Hague Rules, whereas the Reliance Issue rests purely on the Defendants’ factual case as to their reliance on the matters pleaded as misrepresentations. I consider those different aspects, to the extent that I consider them relevant, under each Issue below.