Mahmood v Mitsubishi Electric Europe BV & Ors [2013] EWHC 44 (Ch)

[2013] EWHC 44 (Ch)Case No HC11C02110
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 18/01/2013
Before
MR JUSTICE MORGAN
Between
ASIF MAHMOODClaimant/(1) MITSUBISHI ELECTRIC EUROPE BVDefendants/(2) MITSUBISHI ELECTRIC CORPORATIONRespondents(3) MITSUBISHI HEAVY INDUSTRIES LTDRespondent(4) MITSUBISHI CORPORATIONRespondent
Mr Nigel Tozzi QC and Mr James Knott (instructed by Osborne Clarke) for Claimant/AppellantMr Andrew Onslow QC and Mr Peter Ratcliffe (instructed by Baker & McKenzie LLP) for First and Second Defendants/RespondentsMr Steven Thompson (instructed by Hogan Lovells International LLP) for Third and Fourth Defendants/RespondentsHearing Hearing dates: 29, 30 and 31 October and 1 November 2012
Judgment

Introduction

[1]There are four matters before the court, which are the subject of this judgment, as follows: i) an appeal by the Claimant against an order of Master Bragge dated 27th April 2012 whereby it was ordered that a major part of the Claimant’s claim against the First and Second Defendants be dismissed, pursuant to CPR 24.2; ii) a cross-appeal by the First and Second Defendants against the decision of Master Bragge on 27th April 2012 not to dismiss the remainder of the Claimant’s claim against them, pursuant to CPR 24.2; iii) an appeal by the Claimant against an order of Master Bragge dated 27th April 2012 whereby it was ordered that the Claimant’s claim against the Third and Fourth Defendants be dismissed, pursuant to CPR 24.2; iv) an application by the Claimant for permission to rely, for the purpose of his appeals, on further evidence which was not before the Master.[2]In summary, the Claimant claims substantial sums which are said to be due to him from the First and Second Defendants, pursuant to an agreement which he made with the First Defendant, and possibly also with the Second Defendant, in May 2002. The claim against the First and Second Defendants is primarily a claim in debt but the pleaded claim also extends to a claim in damages and in restitution. The Claimant’s claim against the Third and Fourth Defendants is a claim in restitution; it is said that the Claimant provided services which benefited the Third and Fourth Defendants, which benefit was freely accepted by the Third and Fourth Defendants. All of the Defendants say that all of the claims made by the Claimant have no real prospect of success and they applied to the Master for summary judgment in their favour, pursuant to CPR 24.2. The Master dismissed a major part, but not all, of the claim against the First and Second Defendants and he dismissed the whole claim against the Third and Fourth Defendants.[3]The parties have served a substantial body of evidence in connection with the applications for summary judgment and the Claimant has applied for permission to rely on further evidence which was not before the Master. There are many disputes of fact. In this judgment, I have to decide whether the Claimant has a real prospect of establishing the facts which he must establish in order to succeed in his claim. Insofar as I later determine that the Claimant has such a prospect in relation to some of those facts, I will refrain from commenting on how strong or weak I consider the Claimant’s case to be in that respect. If, as I hold, there is to be a trial in relation to the claim against the First and Second Defendants, then matters of fact will be for the trial judge and not for me at this stage.

The parties

[4]For the purposes of these appeals in relation to applications for summary judgment, I will take the description of the parties from the Claimant’s Particulars of Claim. Those descriptions may or may not be accepted at any subsequent trial.[5]The Claimant describes himself as a businessman whose expertise includes the provision of advisory and introductory services to entities seeking to do business in the Middle East, especially in energy and/or infrastructure projects.[6]The First Defendant (hereinafter referred to as “MEE”) is a wholly owned subsidiary of the Second Defendant (hereinafter referred to as “MELCO”). MELCO is described by the Claimant as a manufacturer of electrical and electronic equipment. The Third Defendant (hereinafter referred to as “MHI”) is described by the Claimant as a manufacturer of heavy machinery. The Fourth Defendant (hereinafter referred to as “CORP”) is described by the Claimant as a trading company engaged in, amongst other things, the provision of treasury services and finance to other Mitsubishi companies.[7]It appears to be accepted that although there are some limited cross-shareholdings between MELCO, MHI and CORP, these three companies are not associated companies in accordance with any conventional company law concept of association. Nonetheless, all three of these companies (and MELCO’s subsidiary, MEE) have the word “Mitsubishi” in their names and they all use the well known Mitsubishi trade mark of three diamonds. There is a considerable amount of disputed evidence as to the informal connections which are said to exist between MELCO, MHI and CORP. It is part of the Claimant’s case that these three companies were in a position to discuss matters of business between themselves in a secret and deniable way. In particular, the Claimant has pleaded at paragraph 4 of the Particulars of Claim:
“MELCO, MHI and CORP (which entities, together with MEE, are referred to herein as “Mitsubishi” or “Mitsubishi companies”) are members of the “Mitsubishi Kinyokai”
. This is a “keiretsu”, an informal group or family of core Mitsubishi companies that meets regularly, promotes access to their mutually shared brand, and adopts (or may choose to adopt) a co-operative approach to business decisions that affect them.”

The consultancy agreement

[8]On 2nd May 2002, Mr Collins of MEE sent an email to the Claimant. The email contained a draft of a letter intended to contain the terms of an agreement, to be called a “consultancy agreement”. The email expressly referred to MEE and the Claimant as intended parties to this agreement. The draft letter distinguished between:(1) the case where MEE or MELCO entered into a contract with the Dubai Municipality to provide Substations and Associated Works in connection with the Dubai Metro project; and(2) the case where MEE or MELCO entered into a consortium with other interested parties to execute works in connection with the Dubai Metro project and the consortium entered into a contract with the Dubai Municipality to do works in connection with that project.[9]On 30th May 2002, MEE and the Claimant entered into a written agreement, called a “consultancy agreement”. MEE and the Claimant were named as the parties to the agreement. No other party was named in the agreement. MEE was defined as “the Client” and the Claimant was defined as “the Consultant”. The Consultant agreed to perform “the Services”. The description of the Services distinguished between the Consultant facilitating:(1) a contract between MEE and the Dubai Municipality for MEE to provide Substations and Associated Works in connection with the Dubai Metro project; and(2) a contract between MEE and its consortium partners and the Dubai Municipality to do works in connection with the Dubai Metro project. The agreement provided for MEE to pay the Claimant for his Services. The terms as to payment distinguished between: (1) a fee of 3.75% of the total contract value in the case of a contract awarded to MEE for Substations; and (2) a fee of 2.5% of the total contract value in the case of a contract awarded to MEE for Rail Work.

The claim in outline

[10]The principal claim made by the Claimant against MEE and MELCO is for the sums which he says are due to him in the events which have happened. He advances two claims, in particular.[11]The Claimant’s first claim in contract relates to sub-sub-contracts awarded to MELCO. The Claimant says that MELCO was awarded two (at least) sub-sub-contracts in connection with the Dubai Metro project. MELCO admits that it was awarded two sub-sub-contracts. The first of these related to the provision of electrical propulsion systems and train information management systems for inclusion in railway cars which were to be provided by others in connection with the Dubai Metro project. The second identified sub-sub-contract related to the provision of escalators and elevators in connection with the Dubai Metro project. The Claimant says that these two sub-sub-contracts are material contracts for the purposes of the consultancy agreement with the result that he is entitled to be paid by MEE and MELCO 3.75% of the value of those sub-sub-contracts.[12]The Claimant’s second claim against MEE and MELCO in contract relates to a consortium contract which was awarded in relation to the Dubai Metro project. The successful consortium did not include MEE or MELCO. Instead, the successful consortium included MHI and CORP. The Claimant puts his case in contract to be awarded 2.5% of the value of the consortium contract in various ways. One particular way in which he puts this claim is to assert that it was an express or an implied term of the consultancy agreement that if the consortium contract was awarded to a consortium which included “a Mitsubishi entity” (which phrase included MHI and CORP), as a result of the services provided by the Claimant under the consultancy agreement, then MEE and MELCO would pay to the Claimant 2.5% of the value of the consortium contract, even though MEE and MELCO were not part of the successful consortium.[13]The Claimant also claims damages against MEE and MELCO for breach of contract and further claims in restitution for alleged unjust enrichment.[14]As stated earlier, the Claimant’s claim against MHI and CORP is in restitution; it is said that the Claimant provided services which benefited the Third and Fourth Defendants, which benefit was freely accepted by the Third and Fourth Defendants, with the result that they are liable to pay to the Claimant a reasonable sum which is said to be 2.5% of the value of the consortium contract.

The procedural history

[15]The claim form was issued on 23rd June 2011 and was amended and re-issued on 17th October 2011. The Particulars of Claim are dated 14th October 2011. The First and Second Defendants served a Defence dated 14th December 2011. The Third and Fourth Defendants also served a Defence, dated 14th November 2011.[16]On 14th November 2011, the Third and Fourth Defendants applied pursuant to CPR 24.2 for summary judgment in relation to the whole of the claim against them. On 5th January 2012, the First and Second Defendants applied pursuant to CPR 24.2 for summary judgment in relation to the whole of the claim against them. The applications for summary judgment were heard by Master Bragge on 21st and 22nd February 2012 and he handed down a reserved judgment on 27th April 2012. The Master dismissed the claim against the First and Second Defendants in relation to the consortium contract but he held that the remainder of the claim against those Defendants could go to trial. The Master dismissed the whole of the claim against the Third and Fourth Defendants. The Master made consequential orders for costs.[17]With permission given by Floyd J on 1st June 2012, the Claimant has now appealed the Master’s orders. With permission given by Arnold J on 14th September 2012, the First and Second Defendants, by a Respondent’s Notice, have appealed the decision of the Master not to dismiss the whole of the claim against them.[18]On 16th October 2012, the Claimant applied for permission to rely on further evidence which had not been considered by the Master. The application is on the basis that the further evidence was not in the possession of the Claimant at the hearing before the Master and, although it could have been obtained before that hearing, it was not reasonable or proportionate for the Claimant to have obtained that further evidence at that stage. It is also said that the further evidence is prima facie credible and will probably have an important effect on the outcome of the appeal. The application to adduce this evidence is before me and is opposed by the Defendants.

The law as to summary judgment

[19]The Defendants’ applications for summary judgment are made on the basis that the Claimant has no real prospect of succeeding in his claim and that there is no other compelling reason why the claim should be disposed of at a trial, rather than summarily.[20]The principles which the court should apply to applications of the present kind are well established. They were conveniently summarised by Lewison J in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15], in these terms:
“The correct approach on applications by defendants is, in my judgment, as follows: i) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman [2001] 2 All ER 91; ii) 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]; iii) In reaching its conclusion the court must not conduct a “mini-trial”: Swain v Hillman; iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10]; v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550; vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63; vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725.”
[21]This summary of the relevant principles was approved by the Court of Appeal in A C Ward & Son v Catlin (Five) Ltd [2009] EWCA Civ 1098 at [24].[22]In Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63 at [5], Mummery LJ stated that although the test to be applied, when considering whether a claim had a real prospect of success, was a simple one, it was often difficult to apply that test in practice. He pointed out that it was often more difficult to apply the “no real prospect of success” test on an application for summary judgment than it would be to determine the claim after a trial.[23]The approach to be adopted on a defendant’s application for summary judgment was considered in detail by the House of Lords in Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1. By a majority of 3 to 2, the House of Lords concluded that the claim in that case should not be summarily dismissed but should go to trial. The majority comprised Lord Steyn, Lord Hope of Craighead and Lord Hutton. Although the following passage from the speech of Lord Hope is a lengthy one, it helpfully sets out the relevant principles and their rationale:
“94 For the reasons which I have just given, I think that the question is whether the claim has no real prospect of succeeding at trial and that it has to be answered having regard to the overriding objective of dealing with the case justly. But the point which is of crucial importance lies in the answer to the further question that then needs to be asked, which is—what is to be the scope of that inquiry? 95 I would approach that further question in this way. The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well-recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hillman, at p 95, that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all. 96 In Wenlock v Moloney [1965] 1 WLR 1238 the plaintiff's claim of damages for conspiracy was struck out after a four day hearing on affidavits and documents. Danckwerts LJ said of the inherent power of the court to strike out, at p 1244b-c: "this summary jurisdiction of the court was never intended to be exercised by a minute and protracted examination of the documents and facts of the case, in order to see whether the plaintiff really has a cause of action. To do that is to usurp the position of the trial judge, and to produce a trial of the case in chambers, on affidavits only, without discovery and without oral evidence tested by cross-examination in the ordinary way. This seems to me to be an abuse of the inherent power of the court and not a proper exercise of that power." Sellers LJ said, at p 1243c-d, that he had no doubt that the procedure adopted in that case had been wrong and that the plaintiff's case could not be stifled at that stage, and Diplock LJ agreed. 97 In the Court of Appeal, ante, p 78e-f the majority said that "this somewhat rigid position" had been modified in Williams and Humbert Ltd v W & H Trade Marks (Jersey) Ltd [1986] AC 368, where Lord Templeman said at pp 435h-436a that if an application to strike out involves a prolonged and serious argument the judge should, as a general rule, decline to proceed with the argument unless he not only harbours doubts about the soundness of the pleading but, in addition, is satisfied that striking out will obviate the necessity for a trial or will substantially reduce the burden of preparing for the trial or the burden of the trial itself: see also Lord Mackay of Clashfern, at p 441e-f. But they were satisfied that this case fell within the exceptional class for the same reasons as those explained in the Williams and Humbert case, and that Clarke J was right to embark upon the exercise. I too would not criticise the judge for undertaking the exercise. But I would also pay careful regard to what the Court of Appeal in Wenlock v Moloney [1965] 1 WLR 1238 regarded as objectionable. In Morris v Bank of America National Trust [2000] 1 All ER 954, 966b Morritt LJ said that Wenlock's case illustrated a salutary principle. He then said, at p 966b-c: "In the Three Rivers DC case the Court of Appeal upheld the decision of Clarke J to strike out a complicated claim for damages for misfeasance in a public office made against the Bank of England for authorising BCCI to carry on the business of banking. In that case all the evidence then available to the plaintiff was before the court because all the facts had been investigated by Bingham LJ as he then was ... Obviously the fact of a recent inquiry is a material distinction." For reasons already explained (in section (4)), I do not think that the investigation that was conducted by Bingham LJ justifies a departure from the principle. I consider that both Clarke J and the majority in the Court of Appeal were wrong to approach this case on the basis that all the facts that are relevant to the claim that is being made in this case had been investigated. … 106 I agree with my noble and learned friend Lord Hobhouse that the overriding objective of dealing with cases justly includes dealing with them in a proportionate manner, expeditiously, fairly and without undue expense. As he says, each case is entitled only to an appropriate share of the court's resources. Account has to be taken of the need to allot resources to other cases. But I do not believe that the course which I favour offends against these important principles. The most important principle of all is that which requires that each case be dealt with justly. It may well be that the claimants, on whom the onus lies, will face difficulties in presenting their case. They must face the fact that each and every allegation of bad faith will be examined rigorously. A trial in this case will be lengthy and it will be expensive. There is only so much that astute case management can do to reduce the burdens on the parties and on the court. Nevertheless it would only be right for the claim to be struck out if it has no real prospect of succeeding at trial. I do not think that one should be influenced in the application of this test by the length or expense of the litigation that is in prospect. Justice should be even-handed, whether the case be simple or whether it be complex. It is plain that the situation in which the claimants find themselves was not of their own making, nor are they to be blamed for the volume and complexity of the facts that must be investigated. I would hold that justice requires that the claimants be given an opportunity to present their case at trial so that its merits may be assessed in the light of the evidence. 107 I have taken one other factor into account. The decision which your Lordships are being asked by the Bank to take is to give summary judgment in its favour on the entire claim. It would only be right to strike out the whole claim if it could be said of every part of it that it has no real prospect of succeeding. That would mean that even the latest depositors who were entrusting their money to BCCI SA up to the very end of the final period would be left without a remedy. I think that that is too big a step to take on the available material. Conversely, I consider that if one part of the claim is to go to trial it would be unreasonable to divide the history up and strike out other parts of it. A great deal of time and money has now been expended in the examination of the preliminary issues, and I think that this exercise must now be brought to an end. I would reject the Bank's application for summary judgment.”
[24]In the same case, at [145] to [149], Lord Hutton referred to the possibility that relevant evidence might only emerge on cross-examination of witnesses at a trial. He considered whether it was reasonable to take into account (on an application for summary disposal) the possibility that evidence might emerge in that way; he stated that it all depended on the particular circumstances of the case. At [150], Lord Hutton considered that the various parts of the claim in that case were interwoven so that it would not be appropriate to dismiss parts of the claim; it was therefore appropriate to allow the entire action to proceed to trial. Lord Steyn agreed with Lord Hope and Lord Hutton: see at [6].[25]It has been repeatedly said that an application under CPR 24.2 for a summary disposal of a claim does not allow the court to conduct a mini trial of that claim. The court’s approach on such an application differs from its approach at a trial in a number of ways. In particular, at a trial, the court acts upon the material which is before it and decides any factual issues arising on the balance of probabilities. On an application for summary disposal, the court takes into account the further material which might be available at a later trial and does not decide any factual issue on the balance of probabilities; instead, the court asks if the claimant’s case on a factual issue has a real prospect of success or is fanciful. However, the fact that the court must not conduct a mini trial on an application of this kind does not mean that the court should not consider how to react to the material before it, taken together with the material which might later emerge, when asking itself whether the claim carries some degree of conviction, whether there is any real substance in a claimant’s factual assertions or whether they are fanciful and whether those factual assertions are contradicted by contemporaneous documents. It is also well established that the court should hesitate before concluding that a claim has no real prospect of success. Nonetheless, when the court is confident that the claim is bound to fail, the court should say so and dismiss the claim. The summary dismissal of such a claim has been said to be in the claimant’s own interests as well as in the interests of the defendant.[26]These comments are particularly apposite in the present case where the Defendants’ applications for summary judgment are not based on arguments of law but are essentially based on the contention that the Claimant’s factual assertions are fanciful. The Defendants submit that the fanciful nature of those assertions can be demonstrated on these summary applications so that there is no need to have lengthy and expensive pre-trial procedures, followed by the further expense of a trial.

The claim in more detail

[27]The claim was originally set out in detail in the Particulars of Claim. By the time of the hearing before the Master, in the light of certain evidence that had been filed by the Defendants, the Claimant appears to have accepted that he could not make good some of the factual allegations in the original Particulars of Claim. In the course of the hearing before the Master, the Claimant produced a draft Amended Particulars of Claim which were designed to accommodate, to some extent, some of the evidence put forward by the Defendants. The draft pleading repeated most of the original Particulars of Claim but changed the allegations of fact in one important respect. Thereafter, the case was argued before the Master, and before me, on the basis of this draft pleading.[28]In the draft pleading, the Claimant set out his case as to the connections between the four Defendants, all of whom have the word “Mitsubishi” in their names: see paragraph 7 above. The Claimant then referred to conversations he said he had with Mr Collins (of MEE); the Claimant said that he was asked to promote “Mitsubishi as a whole” rather than only MEE, or only MEE and MELCO. The Claimant relied upon the consultancy agreement. He said that MELCO was an undisclosed principal (together with MEE as a disclosed principal) to that agreement. He said that the terms of the relevant agreement were contained in a combination of the email of 2nd May 2002 and the written agreement of 30th May 2002.[29]In paragraph 26.3 of the original Particulars of Claim, and repeated in the draft pleading, the Claimant alleged that the consultancy agreement contained certain express terms. In particular, in paragraph 26.3.3, the Claimant contended:
“Further or alternatively (and given Mr Mahmood’s express role of seeking work on behalf of Mitsubishi companies generally) in the event that Mr Mahmood’s services led to the relevant contracts being awarded to some other Mitsubishi entity, or a consortium including some other Mitsubishi entity, MEE or MELCO would in any event compensate him on the basis of the contract values specified above.”
[30]In paragraph 26.4 of the original Particulars of Claim, and repeated in the draft pleading, the Claimant alleged that the consultancy agreement contained certain implied terms. In particular, in paragraph 26.4.3, the Claimant contended:
“In the event that the contract for the Dubai Railway Project was awarded to another company or companies within the Mitsubishi keiretsu, whether individually or as part of a consortium, as a consequence of the services provided by Mr Mahmood, the remuneration identified in paragraph 24 above would become due and payable.”
[31]I understand that the Claimant accepts that he is only to be entitled to payment if his services “led to” the entry into some relevant contract (see paragraph 26.3.3) or if the entry into some relevant contract was “the consequence of” his services (see paragraph 26.4.3). Up to this point in the draft pleading, the Claimant identified circumstances in which he said he was to be contractually entitled to be paid a sum of money, i.e. a claim in debt.[32]The Claimant pleaded further implied terms in the consultancy agreement. He said that it was to be implied that MEE and MELCO would not frustrate the circumstances in which the Claimant’s fee would be payable under the consultancy agreement. It would seem that any breach of such an implied term would give the Claimant a claim in damages, rather than a claim in debt. It was further pleaded that it was to be implied that MEE and MELCO would not, without compensating the Claimant, frustrate the Claimant’s entitlement to fees by diverting an opportunity for MEE or MELCO generated by his services to a source from which MEE or MELCO would benefit indirectly. As pleaded, it seems to be said that such a diversion would not be a breach of the consultancy agreement but would instead give the Claimant a contractual right to compensation under the agreement. It may be that the Claimant would wish to say, in the alternative, that such a diversion would be a breach of the consultancy agreement entitling him to damages. It may also be that the Claimant would wish to say that a diversion by MEE or MELCO of an opportunity, generated by the Claimant, to someone else, where MEE or MELCO would not benefit, even indirectly, would also trigger an obligation to pay contractual compensation or damages.[33]The Claimant then pleaded that he performed the services required by the consultancy agreement and placed “Mitsubishi” in a good position to tender for work in connection with the Dubai Metro project. In this context, as elsewhere in the draft pleading, a reference to “Mitsubishi” included MEE, MELCO, MHI and CORP.[34]In his original Particulars of Claim, the Claimant had asserted that MELCO was a member of a consortium which included two other entities referred to as Obayashi and Merkezi. It was asserted that this consortium, amongst others, was confirmed by the Dubai Municipality as pre-qualified to tender for work in connection with the Dubai Metro project and was short-listed for such tenders. It was then pleaded that between January and March 2005, MHI and CORP were substituted for MELCO as consortium partners.[35]In the draft pleading, the reference to MELCO having joined in a consortium with Obayashi and Merkezi was removed. It was no longer pleaded that MELCO, with or without others, had pre-qualified to tender for any relevant work in connection with the Dubai Metro project. Instead, it was pleaded that MELCO “deliberately ceded its position within the Mitsubishi bid” to MHI and CORP and allowed the opportunity which MELCO had in this respect to be taken by MHI and CORP. It was pleaded that there was a consortium of MHI, CORP, Obayashi and Merkezi. It was pleaded that MELCO ceded its position to MHI and CORP pursuant to a decision taken jointly by those three companies. This decision was said to be on the basis that MELCO would obtain a substantial amount of work in relation to the Dubai Metro project. The Claimant pleaded that a Mr Okafuji of CORP told him in 2005 “after the consortium’s bid had been successful” that MELCO would be involved in the project and was in line to receive substation and rail equipment projects.[36]In the draft pleading, the Claimant then pleaded that MHI and CORP took the benefit of and freely accepted the services provided by the Claimant which had been highly instrumental in enabling the Mitsubishi bid to reach the stage it had. He also pleaded that following the substitution of MELCO by MHI and CORP, Mr Collins assured the Claimant that he would continue to be paid commission on all substation and rail equipment work, irrespective of the legal entity contracting for such works.[37]The draft pleading then referred to matters which are not in dispute such as the fact that the Dubai Municipality awarded a major contract in connection with the Dubai Metro project to a consortium which included MHI, CORP, Obayashi and Merkezi. It is also pleaded that MELCO undertook a substantial amount of work in connection with the project.[38]There are two distinct claims pleaded against MEE and MELCO. First, the Claimant claims 3.75% of the value of the sub-sub-contracts directly secured by MELCO in relation to the project. Secondly, the Claimant claims 2.5% of the value of the contract secured by the consortium which included MHI and CORP. This second claim is put on different bases; one basis is that, pursuant to the terms pleaded in paragraphs 26.3.3 and 26.4.3 of the draft pleading, MEE or MELCO is obliged to pay 2.5% of the value of the consortium contract because the relevant consortium included another Mitsubishi entity. It will be remembered that liability was said to arise, inter alia, under the terms pleaded in paragraphs 26.3.3 and 26.4.3 if the Claimant’s services “led to” the entry into the contract, or that was “the consequence” of the Claimant’s services. Another basis for the claim for 2.5% of the value of the consortium contract is that compensation is contractually payable to the Claimant because MELCO diverted to MHI and CORP an opportunity which the Claimant had generated for MELCO (and that MHI and CORP would allow MELCO to benefit indirectly). A third basis for the claim for 2.5% of the value of the consortium contract is that MELCO was in breach of the consultancy agreement by frustrating the circumstances in which the Claimant would be entitled to be paid under that agreement and the Claimant is entitled to damages for such breach.[39]The claim against MHI and CORP is pleaded as a quantum meruit claim on the basis that MHI and CORP freely accepted the services provided by the Claimant, in promoting Mitsubishi companies, and that they were incontrovertibly benefited by those services. It is said that the value to MHI and CORP of those services is 2.5% of the value of the consortium contract. I will refer to the pleaded case against MHI and CORP in more detail later in this judgment.[40]Finally, it is pleaded that if MEE and MELCO are not contractually obliged to pay sums to the Claimant on the bases earlier pleaded, then MEE and MELCO freely accepted the Claimant’s services and must pay their value (presumably the value to MEE and MELCO).

The case for MEE and MELCO

[41]At this point, I will describe (in outline) the case put forward by MEE and MELCO. In their pleaded Defence, they challenge a number of the legal propositions put forward by the Claimant. They accept that MEE entered into a consultancy agreement with the Claimant but they do not accept that MELCO entered into any contract with the Claimant. They do not accept that the email of 2nd May 2002 formed any part of any contract. They do not accept the consultancy agreement contained the terms alleged by the Claimant. As regards the terms pleaded in paragraphs 26.3.3 and 26.4.3 of the draft pleading, for the purposes of their application for summary judgment, MEE and MELCO do not invite the court to dismiss the claim in these respects nor do they invite the court to decide any preliminary issue in relation to these matters. Instead, their case is that the factual assertions made by the Claimant are demonstrably unfounded.[42]As to the claim to 2.5% of the value of the consortium contract, MEE and MELCO say that MELCO (as part of a consortium with Sumitomo) competed with MHI and CORP for the consortium contract. However, the consortium of MELCO and Sumitomo failed to pre-qualify for the tender process for that contract. MELCO did not “cede its position” to MHI and CORP. Instead, MELCO competed with MHI and CORP and was unsuccessful. The alleged connections between companies bearing the name “Mitsubishi” and the existence of and the nature of the Mitsubishi kinyokai and keiretsu had no relevance in a case where MELCO unsuccessfully competed with MHI and CORP. In relation to the Claimant’s case as pleaded in paragraphs 26.3.3 and 26.4.3 of the draft pleading, the Claimant has to show that his services caused the Dubai Municipality to award the consortium contract to the consortium which included MHI and CORP, or at the lowest made a contribution to that decision. The Claimant has failed to show any such causation or contribution.[43]As to the claim to 3.75% of the value of the sub-sub-contracts, it is said that the Claimant has to show that his services caused, or at least contributed to, the award of the sub-sub-contracts to MELCO and that the Claimant has failed to show any such causation or contribution.

The case for MHI and CORP

[44]MHI and CORP contend as follows: i) they were not parties to the consultancy agreement; ii) they had no contractual or other relationship with the Claimant; iii) they were not aware of the consultancy agreement nor of any relationship between the Claimant and MEE and MELCO until the receipt of this claim; iv) MHI and CORP were involved in the tender process for the Dubai Metro project independently of MELCO; v) the consortium which included MHI and CORP competed with the consortium which included MELCO; vi) MELCO’s consortium lost the competition when it failed to pre-qualify for the tender process; vii) MELCO did not “cede its position” to MHI and CORP; viii) MHI and CORP did not know of any services provided by the Claimant pursuant to an agreement with MEE and MELCO; ix) MHI and CORP did not knowingly benefit from any services provided by the Claimant; x) the consortium which included MHI and CORP did not win the consortium contract as a result of any services provided by the Claimant.

The Master’s judgment

[45]Of the two applications which were before him, the Master first considered the application for summary judgment which had been made by MHI and CORP. He considered the original Particulars of Claim and the draft pleading which had been relied upon. He considered the witness statements which had been served by the parties. He referred to the statements of the witnesses for MHI and CORP as being “detailed”. He said that unless the contents of these witness statements and the verified Defence of MHI and CORP were untruthful, the evidence was overwhelming such that the Claimant had no real prospect of establishing his case, whether by inference or otherwise, that MEE and MELCO had allowed MHI and CORP to take their place in relation to the bid for the consortium contract. The Master referred to the evidence as to the contacts which MHI and CORP had in Dubai. He said that he was not persuaded that such disclosure of documents as had taken place was not determinative. He then referred to the Claimant’s evidence. He described the Claimant’s case as based on suspicion and inference. He then concluded that the evidence provided by the Defendants was overwhelming for the purposes of summary judgment; unless that evidence was fabricated, the Claimant had no real prospects of success against MHI and CORP. The Master said that the case based on suspicion and inference had to give way to the factual witness statements “unless that evidence is incredible, which in my assessment it clearly is not”. He considered that the claim against MHI and CORP had an absence of reality.[46]The Master then considered the application made by MEE and MELCO. He noted that MEE and MELCO were prepared for the court to assume that the agreement made with the Claimant provided for the Claimant to be rewarded in the event that services provided by him led to MEE and/or MELCO and/or “some other Mitsubishi entity” being awarded a relevant contract. The Master then held that the Claimant could not succeed in relation to the various ways he put his claim in relation to the consortium contract because he had no real prospect of establishing that the consortium contract was awarded to a consortium, which included MHI and CORP, as a result of his efforts. The Master accepted the evidence given by the Defendants that there was a bid by a consortium, comprising Sumitomo and MELCO, which made a bid in competition with the bid made by the consortium, which included MHI and CORP. The Master rejected the Claimant’s suggestion there was collaboration between MELCO on the one hand and MHI and CORP on the other which led to the Dubai Municipality inviting MHI and CORP to tender in August 2003.[47]The Master then considered the claim in relation to the sub-sub-contracts awarded to MELCO. There were admitted to be two such sub-sub-contracts. The Claimant did not accept that these were the only relevant sub-sub-contracts but there was no evidence which identified any others. The Master held that it was sufficiently arguable, for summary judgment purposes, that the subject matter of the two sub-sub-contracts fell within the terms of the commission agreement. He also held that it was, similarly, sufficiently arguable that the two sub-sub-contracts were relevant contracts notwithstanding the fact that they were not made directly between the Dubai Municipality and MELCO. He then held that prior to disclosure and a trial, which would allow an investigation into the Claimant’s role in the awarding of these sub-sub-contracts, it would not be appropriate to hold that the claim in that respect had no real prospect of success. He stated that a summary judgment application was not an appropriate vehicle for resolving complex questions of fact. He finally stated that it was not appropriate to make “a conditional order”, that is, an order requiring the Claimant to secure the costs, which would be incurred by the First and Second Defendants, as a condition of allowing that part of the claim to go to trial.

The further evidence

[48]At the hearing before the Master, the Claimant tendered a considerable body of evidence as to the links which he said existed between the various Mitsubishi companies and the Mitsubishi kinyokai and keiretsu. The Master plainly took the view that the possibility of the existence of such links did not allow him to disregard the evidence that a consortium comprising Sumitomo and MELCO had competed with the consortium which included MHI and CORP and that the first consortium failed to pre-qualify for the tender process. Thus, even if the links which existed between the various Mitsubishi companies provided the opportunity for them to engage in collaborative and even anti-competitive behaviour, pursuant to secret and deniable deals, what had happened in this case, which had led to the exclusion of MELCO from the tender process for the consortium contract, did not involve collaboration between MELCO, MHI and CORP.[49]Following the Master’s decision, the Claimant has commissioned evidence from a Mr Willis of Alaco Ltd, which is described as a business intelligence and due diligence consultancy. Mr Willis has prepared a lengthy report which, the Claimant submits, shows links and connections of various kinds between the relevant Defendants in this case. The report also contains detailed information as to seriously wrong anti-competitive behaviour in the past, which in various ways has separately involved MELCO, MHI and CORP.[50]I heard detailed submissions as to the principles which I ought to apply as to the admission of what is suggested to be new evidence on an appeal from a decision of a Master to dismiss a claim summarily pursuant to CPR 24.2. If it mattered, I would be inclined to hold that I ought to admit at least some of the evidence in Mr Willis’ report. The authorities seem to support the view that after the introduction of the CPR, particularly in a case where the decision under appeal was a decision to give summary judgment against a party, the court should be prepared to adopt a less strict approach to the question whether the evidence ought to have been gathered and made available to the lower court before it made its original determination.[51]As will be seen, I have come to the conclusion that I should allow the Claimant’s appeal in relation to the claim against MEE and MELCO, even if I confine myself to the evidence which was before the Master and, conversely, I should dismiss the Claimant’s appeal in relation to the claim against MHI and CORP, even if I admit the further evidence on which the Claimant seeks to rely.

Discussion and conclusions in relation to the claim against MEE and MELCO

[52]I will first consider the claim against MEE and MELCO. A large part of the argument at the hearing before me concerned the Claimant’s allegations that MELCO had ceded its position to MHI and CORP. The argument also considered in detail the allegations as to the existence of and the nature of the kinyokai and the keiretsu in relation to certain Mitsubishi companies. I will in the first instance consider the claim against MEE and MELCO on the basis of the evidence which was before the Master and without regard to the further evidence on which the Claimant now wishes to rely.[53]When I later consider the claim against MHI and CORP, I will need to reach conclusions as to whether the Claimant has any real prospect of making good his contention that there was a secret deal between MELCO and MHI and CORP, whereby MELCO would not pursue the possibility of bidding for the Dubai Metro project as a whole but would stand back and allow the consortium of which MHI and CORP were members to advance its bid so that MELCO would benefit by being awarded sub-contracts or sub-sub-contracts for part of the project. However, for the sake of testing other aspects of the Claimant’s case against MEE and MELCO, I will assume against the Claimant that he does not have a real prospect of establishing that contention. However, even making that assumption, I consider that the Claimant has a more than fanciful prospect of success in relation to the way in which he puts his claim against MEE and MELCO. My reasons are as follows.[54]I have already set out the claim as pleaded in paragraphs 26.3.3 and 26.4.3 of the draft pleading. MEE and MELCO do not submit that the terms there pleaded can be regarded as unsustainable for summary judgment purposes. In view of that position taken by MEE and MELCO, I consider that I ought to assess the case for summary judgment purposes on the assumption that the Claimant will establish those matters. On that basis, the key issue as to whether the terms pleaded in paragraphs 26.3.3 and 26.4.3 of the draft pleading will lead to the Claimant recovering against MEE and MELCO at a trial is whether the services provided by the Claimant pursuant to the consultancy agreement “led to” the consortium contract being awarded to the consortium which included MHI and CORP or whether the consortium contract was so awarded “as a consequence of” those services.[55]The Master dealt with the question of the consequences of the Claimant providing his services in paragraphs 23 and 24 of his judgment. He held that the Claimant had no real prospect of establishing that the consortium contract was awarded to the consortium which included MHI and CORP, as a consequence of the services provided by the Claimant. When he discussed that topic in more detail in paragraph 24 of his judgment, he referred to the fact that MELCO was not part of the successful consortium and that the MELCO/Sumitomo consortium had competed with the successful consortium. Like the Master, I am prepared to proceed on the basis that there was a consortium between Sumitomo and MELCO which did unsuccessfully compete with the successful consortium which included MHI and CORP. However, unlike the Master, I do not consider that those facts entirely dispose of the claim made in paragraphs 26.3.3 and 26.4.3 of the draft pleading.[56]I am prepared to assume, for the purposes of considering the claim for summary judgment, that it will be shown at the trial that MHI and CORP did not know of the services provided by the Claimant and that MHI and CORP had their own contacts with the Dubai Municipality. The existence of those contacts is revealed by the contents of the letter dated 5th August 2003 from CORP to the Dubai Municipality. The reliability of the contents of that letter, for summary judgment purposes, is that the relevant parts of the letter were initially redacted and were only opened up at the hearing before me under sustained pressure from the Claimant.[57]Nonetheless, it is the Claimant’s case that he agreed with MEE and MELCO that he would promote “Mitsubishi”, rather than solely the distinct entity MELCO, with the ruling family in Dubai and that he did so. I am not asked to reject his evidence about that on this application for summary judgment. If he is right about his promotion of “Mitsubishi” and about the importance of the views of the ruling family in connection with this contract, then that promotion could have been beneficial to MHI and CORP. I fully recognise the fact that the Claimant’s case that MEE and MELCO are liable to pay remuneration to the Claimant by reference to the value of a contract which was not awarded to them, but was awarded to a competitor, is an odd one. However, as I have stressed above, MEE and MELCO do not ask me to reject the matters pleaded in paragraphs 26.3.3 and 26.4.3 on this summary judgment application. I also recognise the oddity of the Claimant’s case that he benefited MHI and CORP when he had been engaged to help a competitor, MELCO, particularly when CORP wrote to the Dubai Municipality on 5th August 2003 stating that MHI and MELCO were completely different and independent entities. Nonetheless, the question as to the consequence of the Claimant’s services for the purposes of the terms pleaded in paragraph 26.3.3 and 26.4.3 is essentially a factual question. The material which is now before me and the material which might emerge at a trial as to the impact of the Claimant’s services on the ruling family and (directly or indirectly) on the Dubai Municipality, does not allow me to say at this stage that the claim in this respect is fanciful. It may be that the terms pleaded in paragraphs 26.3.3 and 26.4.3 of the draft pleading will not withstand scrutiny at a trial and it may also be that the evidence as to the impact of whatever services the Claimant provided to MELCO will show that the Claimant’s services could not possibly have benefited MELCO’s competitors. However, even if I thought that the Claimant was likely to fail in this part of the claim at trial for one or other of those reasons, I do not consider that I am able to say that the factual question posed by paragraphs 26.3.3 and 26.4.3 must be answered adversely to the Claimant on a summary application.[58]The Master’s discussion of causation in paragraphs 23 and 24 of his judgment contrasts with his discussion in paragraph 32 of his judgment of the question of causation in relation to the sub-sub-contracts. In paragraph 32, he concludes (I think rightly) that the question of causation in relation to the sub-sub-contracts cannot be decided prior to disclosure and trial.[59]The result is that, because MEE and MELCO do not invite me to reject the matters pleaded in paragraphs 26.3.3 and 26.4.3 of the draft pleading, I disagree with the Master’s ultimate conclusion that the Claimant has no real prospect of success in relation to the factual assertions needed to make good those claims. I consider that the Master was “wrong” within the meaning of CPR 52.11(3)(a) to dismiss the claim in relation to the consortium contract on this summary application.[60]MEE and MELCO accepted in the course of argument that if I reached the conclusion that the claim against them in relation to the consortium contract could go to trial, then their cross-appeal against the Master’s decision in relation to the sub-sub-contracts could not succeed.[61]I have reached my conclusions to allow the Claimant’s appeal and to dismiss MEE and MELCO’s cross-appeal without having regard to the further evidence on which the Claimant wished to rely. It follows that it is not strictly necessary for the purpose of determining this appeal and cross-appeal for me to rule formally on whether that further evidence should be admitted.[62]Although it was submitted to the Master that he should only allow the Claimant’s claim to go to trial conditionally upon the Claimant providing security for the relevant Defendants’ costs, the Master was not prepared to impose such a condition and there has been no appeal against that part of his decision.

Discussion of the claim against MHI and CORP

[63]The claim against MHI and CORP is put on a different basis from the claim against MEE and MELCO. It is not asserted that there was ever any agreement of any kind between the Claimant and MHI or CORP. Instead, the claim is in restitution for alleged unjust enrichment of MHI and CORP at the expense of the Claimant. The essence of the claim against MHI and CORP is pleaded at paragraphs 28 to 31 and 47 to 51 of the draft pleading. I have already referred to some parts of that pleading but it is now desirable to refer in more detail to the matters alleged.[64]In paragraph 28 of the draft pleading, the Claimant alleges that:
“ … MELCO deliberately ceded its position within the Mitsubishi bid to MHI and CORP and allowed the progress and gains made in the preparation of its bid to be passed up to MHI and CORP”
[65]In paragraph 29 of the draft pleading, it is alleged that:
“MELCO allowed MHI and CORP to take the lead role in the Mitsubishi bid”
. In paragraph 30.2, it is pleaded that the matters referred to in paragraphs 28 and 29 of the draft pleading resulted from a decision taken jointly by MELCO, MHI and CORP.[66]It was then pleaded:
“31 In taking over the role of MELCO in the consortium and subsequently benefiting therefrom, MHI and CORP took the benefit of, and freely accepted, the services provided by Mr Mahmood, which had been highly instrumental in enabling the Mitsubishi bid to reach the stage that it had. … 47 Given in particular their close relationship with MELCO, the sharing of key individuals, the involvement of Mr Collins, the fact that Mr Mahmood was charged with assisting the Mitsubishi companies generally in obtaining work, and the circumstances of their late substitution into the bidding process, it is to be inferred that MHI and CORP were aware of Mr Mahmood’s involvement in Mitsubishi’s bid for the Dubai Metro Project and the services that he had been providing. 48 MHI and CORP were incontrovertibly benefited by Mr Mahmood’s services. They could not have secured the Dubai Metro project contract without the benefit of an introduction. 49. Further, MHI and CORP freely accepted Mr Mahmood’s services. 50 Accordingly, MHI and CORP must pay to Mr Mahmood the value of his services. 51 The value of Mr Mahmood’s services is evidenced by the Agreement, namely 2.5% of the value of the contract awarded to the DURL Consortium.”
[67]It is not alleged in the draft pleading, nor in the witness statements served on behalf of the Claimant, that: i) there was any communication of any kind between the Claimant and any representative of MHI or CORP before the bid of their consortium succeeded; ii) the Claimant had any expectation of being paid by MHI and CORP for his services, as distinct from his expectation of being paid by MEE and MELCO.

The law as to unjust enrichment

[68]Neither the Claimant nor MHI and CORP appear to have made submissions to the Master as to the relevant legal principles which applied to the claim in restitution. In the skeleton arguments prepared for the appeal hearing, there was again no mention of those legal principles. At my request, counsel for the Claimant made submissions as to the legal principles on which he wished to rely.[69]The Claimant takes the relevant legal principles from Goff and Jones, The Law of Unjust Enrichment, 8th ed., at paragraphs 4-27 to 4-33 and chapter 17 (paragraphs 17-01 to 17-18). The Claimant also cited Chief Constable of Greater Manchester v Wigan Athletic AFC Ltd [2009] 1 WLR 1580. I have also considered Rowe v Vale of White Horse DC [2003] 1 Lloyd’s Rep 418 (referred to in the Wigan Athletic case) and the later decision of the Court of Appeal in Benedetti v Sawiris [2010] EWCA Civ 1427. In Rowe, it was said by Lightman J at [11] – [12]:
“11. It is now authoritatively established that there are four essential ingredients to a claim in restitution: i) a benefit must have been gained by the defendant; ii) the benefit must have been obtained at the claimant's expense; iii) it must be legally unjust, that is to say there must exist a factor (referred to as an unjust factor) rendering it unjust, for the defendant to retain the benefit; iv) there must be no defence available to extinguish or reduce the defendant's liability to make restitution. 12. It is common ground between the parties that the first two and the fourth conditions are satisfied, for Mr Rowe obtained the benefit of the sewerage services provided by the Council and there is no defence available e.g. of change of position. Originally in a case such as the present of a supply of services, it was necessary in order to satisfy the second condition to establish a request by the defendant for the services. But under the developing law of restitution it is now enough if either of two principles are brought into play. The first principle is that the second condition is to be deemed to be satisfied if the defendant has freely accepted (or acquiesced in the supply for consideration of) the services rendered. The second principle is that in exceptional circumstances the second condition is to be deemed satisfied if the defendant has been incontrovertibly benefited from their receipt: see Goff & Jones The Law of Restitution 6th ed. para 1002. … ”
[70]It was common ground in the Wigan Athletic case that the relevant principles were correctly stated in Rowe. In the course of his oral submissions, counsel for the Claimant put his case on the basis that MHI and CORP had freely accepted the services provided by the Claimant, rather than that they were incontrovertibly benefited by those services. I also noted that in his dissenting judgment in the Wigan Athletic case at [70], Maurice Kay LJ stressed that, in this context, each case was fact sensitive.

Conclusions as to the claim against MHI and CORP

[71]It can be seen from the passages I have quoted from the draft pleading that the way in which the Claimant has put his case of unjust enrichment relies upon his assertion that MELCO had the opportunity to benefit from the services the Claimant had provided and that, as a result of a secret deal between MELCO and MHI and CORP, MELCO passed the benefit of the services to MHI and CORP. The Claimant’s case is put in the same way in the witness statements served on his behalf. The Master considered in detail the way in which the Claimant put his case and the evidence put forward by the Defendants which was relevant to that case. That evidence supported the way in which MHI and CORP put their case; I have summarised their case earlier in this judgment. In particular, the Master held that the Claimant had no real prospect of establishing his assertion that MELCO had ceded its position to MHI and CORP.[72]I have considered afresh all of the evidence which relates to the case advanced by the Claimant as to unjust enrichment. Whether or not the Claimant is strictly speaking entitled to rely upon the further evidence which was not before the Master, I have also considered what the impact of that further evidence would be if it were held to be admissible on this appeal. Some of the contents of Mr Willis’ report were not of much relevance and some of the contents may not have been totally reliable. I refer in particular to the suggestion that certain named individuals were connected with more than one Mitsubishi company. It seems at least possible and indeed quite likely that some of these suggestions ignored the fact that they involved two people with the same name. Nonetheless, I have considered with care the evidence of the anti-competitive behaviour of the various Mitsubishi companies. It was submitted to me that the Master had been naive in accepting at face value the evidence of the Defendants’ witnesses as to the events in this case. I was politely warned against a similar naivety. In the end, I do not consider that this evidence is of very much, if any, assistance to the court in forming its assessment in this case. The fact that there were opportunities for the Defendants to engage in collaborative and even anti-competitive behaviour, pursuant to secret and deniable deals, is relevant when assessing whether such behaviour took place but does not itself establish that MELCO did exclude itself from the bidding process pursuant to a secret deal with MHI and CORP (as the Claimant contends). I accept that it is arguable that MELCO had an opportunity to act in that way but nonetheless I do not accept that the Claimant has a real prospect of showing that that is what happened in this case.[73]It is fundamental to the Claimant’s factual case that MELCO ceded its position to MHI and CORP, voluntarily gave up the opportunity to win the consortium contract and thereby passed the benefit of the Claimant’s services to MHI and CORP. In my judgment, on all the material now before the court, that case has no real prospect of success. On that material, it is clear that MELCO participated in a consortium with Sumitomo, that that consortium sought to pre-qualify for the tender process in competition with the consortium which included MHI and CORP and that the Sumitomo/MELCO consortium failed to pre-qualify and were excluded from bidding for the consortium contract with the Dubai Municipality. It is true that neither Sumitomo nor MELCO have been able to disclose very much by way of documents as to the Sumitomo/MELCO consortium. However, the failure at the present time to disclose more than a few documents in this respect is fully explained by the fact of the passage of time before the Claimant brought this claim and the fact that Sumitomo/MELCO failed to pre-qualify and then destroyed documents relating to that consortium. The few documents which MELCO has been able to put forward as to the involvement of Sumitomo are consistent with MELCO’s factual case. The Claimant has no relevant evidence to give about the existence of the Sumitomo/MELCO consortium or its failure to pre-qualify except that he says that he did not know about those matters at the time. Otherwise, his case on the existence of that consortium and its failure to pre-qualify is that he does not believe the evidence given in the witness statements served by the Defendants. In my judgment, the Claimant does not have any real case for saying that MEE and MELCO (or MHI or CORP for that matter) will be required to produce further documents on disclosure which will enable him to show that the evidence of the Sumitomo/MELCO consortium and its failure to pre-qualify was deliberately untruthful. Further, this is not a case where the court should allow the case to go to trial so that the Claimant can be given the opportunity to cross-examine the witnesses for the Defendants so that it can be put to them that their evidence in the witness statements is deliberately false. The Claimant does not have enough of a case to justify being allowed to continue with this claim until trial; all that the Claimant has to say in support of his case is that he firmly believes that he is right and the witnesses who contradict him are not telling the truth.[74]When considering the claim against MEE and MELCO, I reached the conclusion that there was an issue of fact as to whether the Claimant’s services were of benefit in some way to MHI and CORP and assisted them in connection with the award of the consortium contract. Even if it should turn out at trial that the Claimant’s services were of assistance in that way, that would not entitle the Claimant to claim in restitution that he should be paid by MHI and CORP. On the Claimant’s case, he made an agreement with MEE and MELCO that he would promote Mitsubishi and would be paid by MEE and MELCO in certain circumstances. Even if MHI and CORP were aware of the Claimant’s involvement pursuant to an agreement with MEE and MELCO, and their witnesses say that they were not, and even if the Claimant’s involvement was ultimately beneficial to MHI and CORP as “Mitsubishi” companies, that again would not entitle the Claimant to claim in restitution to be paid by MHI and CORP. There would be nothing unjust about leaving the Claimant to such claims (if any) as he has against MEE and MELCO.[75]It was submitted that I should not give summary judgment against the Claimant in relation to the restitution claim as the relevant legal principles were not yet fully developed. I have also noted that claims of this kind are potentially fact sensitive. However, I consider that the factual basis of the claim put forward by the Claimant has no real prospect of success and I do not consider that it is appropriate for him to continue with a claim where his factual assertions have no real prospect of success just because he can argue that the refinements of the relevant legal principles are not yet fully settled.[76]It appears to have been accepted by the Claimant that he must show a real prospect of success in his claim against MHI and CORP and that, if he fails to demonstrate that at this stage, it would not be right to allow the claim against MHI and CORP to go to trial just because the claim against MEE and MELCO may go to trial and MEE and MELCO’s involvement with the Dubai Metro project will be examined at that trial.[77]I consider that the Master was right to give summary judgment dismissing the claim against MHI and CORP.

The result

[78]The result is that in relation to the application by MEE and MELCO for summary judgment, I will allow the Claimant’s appeal and dismiss the cross-appeal by MEE and MELCO. In relation to the application by MHI and CORP for summary judgment, I will dismiss the Claimant’s appeal. I will make no substantive order in relation to the application for permission to rely on further evidence.