[2023] EWHC 1480 (IPEC)

Considering the tests as set out in the materials referred to above, the main question is whether the Defence has a realistic prospect of success or is merely fanciful. In answering that question, several considerations come into play which are addressed briefly below.

The Defendants’ case as articulated before me carries a degree of conviction. Although that conviction may prove to be misplaced at trial, the Defendants’ approach, as far as is apparent in the brief time available to review the pleadings and evidence on a summary basis, is not perfunctory. Documentary evidence has been provided which is relevant to factual aspects which have been put in issue. JBC has engaged with some of those issues.

In my view, the resolution of the factual dispute will require the trial judge to conduct a more thorough investigation of the facts than was possible during this short hearing and on the evidence available. The trial judge is also likely to have available more and different evidence relevant to the facts in issue including, for example, evidence from the Defendants as to their sources of supply and from JBC as to the matters underlying Mr Reid’s evidence on packaging.

While some of that evidence might have been made available for the hearing of the Application, it was not, nor had either party sought to obtain it through a Part 18 request.

The burden of proof in such an application lies with the applicant and is, as Mr Muir Wood acknowledged, a high bar. While Mr Muir Wood submitted forcefully that it was more likely than not that the bottles acquired by JBC from the Defendants were so different from those said by JBC to be genuine that they had not been part of the (limited numbers of) relevant products supplied by JBC to the Defendants in 2020 and 2021, this is not sufficient to succeed on a summary basis. Despite his able submissions, I cannot conclude with a sufficient degree of certainty at this interim stage that the Defendants’ Defence will not succeed. I accept Ms McFarland’s submission that proper determination of the dispute will require the fuller development of evidence and oral examination of witnesses that is possible at trial.

The Application for summary judgment / striking out of the Defence must therefore be dismissed.