CL-2024-000186 - [2025] EWHC 1895 (Comm)

In the alternative Wanda’s case is that there is to be implied in the Option Agreement a term that Wanda’s obligation to perform and complete the Put Option was subject to and conditional upon the grant of Regulatory Approval.

Counsel for Wanda submitted that the application for summary judgment was not expressed to be based upon the submission that the implied term defence had no realistic prospect of success. Counsel submitted that an amendment was required but that it was now too late to amend; see paragraphs 46-47 of his Skeleton Argument.

The Application sought summary judgment on the whole of CPC’s claim “for the reasons explained in the attached witness statement”. The attached witness statement of Mr. Daniel Scot Bodle stated that “Wanda’s Defence failed to set out any facts or matters on which it might defend itself from CPC’s claim. In my view, it therefore has no prospect of succeeding in its defence”. Since the Defence relied on the true construction of clause 2.7 and, in the alternative, on an implied term it would seem that Mr. Bodle’s witness statement encompassed both defences. That is also to be inferred from the circumstance that CPC sought judgment on the whole of its claim. Such judgment could not be sought unless the application encompassed both defences. However, Mr. Bodle then went onto say that clause 2.7 did not have the effect for which Wanda contended and said nothing about the implied term defence. It is that omission on which counsel for Wanda relies.

In my judgment the natural meaning of the application for summary judgment on the whole of CPC’s claim encompassed both defences. The passage in Mr. Bodle’s witness statement referring only to the true construction defence did not have the effect of cutting down the ambit of the application which remained for judgment on the whole of CPC’s claim.

In case I am wrong about that I must consider CPC’s application to amend its application. I would have allowed CPC to amend its application to include the implied term defence. Counsel for CPC applied to amend (in the event that such amendment was required) during her opening submissions. Although that was as late as could be the lateness caused no prejudice to Wanda because its counsel was, as one would expect, ready to deal with the implied term defence and had made written submissions on the subject in his Skeleton Argument. Permitting the amendment would not require Wanda to deal with the point “on the hoof” as suggested by its counsel at paragraph 47 of his Skeleton Argument. Moreover, if permission to amend were refused CPC would issue a further application for summary judgment which would only lead to extra costs and further delay in considering whether CPC was entitled to summary judgment on the whole of its claim.

So I turn to the question whether the implied term defence has a realistic prospect of success. Counsel for both parties referred me to the decision of the Supreme Court in Marks & Spencer v BNP Paribas Securities Services [2016] AC 742 in which Lord Neuberger set out the relevant principles at paragraphs 14-31. I have read those paragraphs and have them in mind. I will not however seek to summarise them.

Counsel for Wanda submitted that, given the background facts that would be known to a notional reasonable person in the position of Wanda and SGHL at the time they were contracting, such a person would have concluded:

I deal first with the submission that without the implied term the Option Agreement would lack commercial or practical coherence (and thus that the implied term was necessary to give business efficacy to the Option Agreement).

I do not consider that without the implied term the Option Agreement would lack commercial or practical coherence. The Option Agreement is a detailed and carefully drafted contract. The obligation to pay cash was unconditional unlike the obligation to issue and allocate Quotation Shares which was conditional upon law and regulation permitting. Clause 2.2 shows that the parties intended that where CPC elected to receive cash CPC was not to bear the risk that law or regulation might not permit payment of the price. By contrast clause 2.2 provides that CPC was to bear the risk that issue and allotment of Quotation Shares might not be permitted by law or regulation (so long as Wanda had exercised its best endeavours pursuant to clause 2.7). Thus to imply the suggested term would contradict the parties’ allocation of risk in the Option Agreement. That was their contractual solution to the (assumed) need for Regulatory Approval of payment of cash. Wanda is now seeking to imply a different contractual solution. That is not permissible; see Marks & Spencer v BNP Paribas at paragraph 28.

I next deal with the submission that the implied term was so obvious as to go without saying.

In my judgment the notional reasonable person in the position of the parties at the time they were contracting would not have said that the suggested implied term was so obvious that it goes without saying. That is because the suggested implied term would contradict the parties’ allocation of risk in clause 2.2 of the Option Agreement, a detailed and carefully drafted contract.

For these reasons I have reached the conclusion that there is no realistic prospect of Wanda succeeding on its defence based upon the suggested implied term. This is again the sort of “short point of law or construction” which may properly be the subject of a summary judgment application; see EasyAir v Opal Telecom.

In my judgment the suggested term cannot be implied in the Option Agreement.