KB-2021-000741 - [2025] EWHC 2257 (KB)

JBL seeks permission to appeal. Without fettering the precise way in which an appeal may be put, they advance three grounds of challenge, namely:

The decision was by reference to the facts peculiar to this case. It is a fact specific case. There have been detailed findings of fact such that this is not a case which defines what happens in all franchising cases or even in a typical franchising case. Each case has to be seen on its own facts, as is apparent by way of example from the analysis of the decisions in respect of franchise agreements: see paras. 208-216 of the judgment. This was a case of an agreement which was closer to an employment contract than to a commercial agreement for the reasons set out in the judgment, especially at paras. 217-248.

As regards the first ground about implied terms, they were implied terms in fact based upon the peculiar facts of the agreements in question, and in the context of a close relationship of cooperation between the franchisor and the franchisee: see especially the legal analysis at paras. 249-265 of the judgment. The emphasis in the application for permission on previous cases such as Jani-King (GB) Ltd v Pula Enterprises Ltd [2007] EWHC 2433 (QB) ignores the fact specific nature of each case, and the findings specific to the instant case. Indeed, Jani-King is distinguished expressly at paras 211, 223-224 and 241-242 of the instant judgment.

As regards the second ground that the actions were not breaches of the implied terms, this is to limit unduly implied terms of good faith and fair dealing to dishonest conduct and the like. Case law to contrary effect is quoted in the judgment. By way of example only, see the cases at paras. 255 and 256 of the judgment, and the quotations therein from Sheikh Al Nehayan v Kent [2018] EWHC 333 (Comm) per Leggatt LJ at [175] and D & G Cars Ltd v Essex Police Authority [2015] EWHC 226 (QB) per Dove J. at [175]. It will not be useful to summarise in a few paragraphs the analysis of the judgment in respect of the implied terms which is in section IX of the judgment at para. 204 and following.

As regards the second and the third ground about the nature and overall seriousness of the breaches, these are based on a very fact specific analysis which emerged from the evidence of the seventeen franchisees who gave evidence, from the evidence of Mr Benson himself and from about ten further witnesses. The submission that the conduct was not a breach of the implied terms or that it was not sufficient to amount to a repudiatory breach does not identify the points of law as opposed to being an attempt to re-argue the case. Likewise, it is not accepted that the challenge to the application of the law to the facts raises appeal points with a real prospect of success. The findings about the evidence are set out in detail because they derive from a large body of evidence. There is a history to tell which has been set out at section XII of the judgment at paras. 322 and following.

The overall answer to the point that there was no repudiatory breach is contained especially in the case law at paras. 460-466 of the judgment and in the findings of breach at paras. 467-475 of the judgment. One analysis of the case is that in Force India Formula One Team Ltd v Etihad Airways PJSC [2010] EWCA Civ 1051 of Rix LJ at [87]) that there had been “a series of repeated, or continuing, breaches which were sooner or later but ultimately repudiatory”.

For the purpose of the determination of the permission to appeal application, it is not intended to deal point by point with the matters raised in the application for permission to appeal. This would be to rehearse the findings in the judgment, which turn on a case peculiar to its own facts, and which is not susceptible to categorisation or summaries making less serious the breaches than they actually were in nature and effect.

The submissions of JBL specifically address three of the many breaches which have led to the termination of the franchise agreements. It suffices to cross refer to the way in which this selection of breaches has been considered in the judgment, namely:

The above citations in the Judgment are to be seen not only as the reasoning for the findings ofbreach, but they stand to be considered in the context of the other breaches and the relationship as a whole. This goes to the nature, seriousness and effect of the breaches. The context points include the following paragraph reference numbers:

In the circumstances, the threshold for an appeal is not satisfied, and the application for permission to appeal is accordingly dismissed.