“Mandatory pre-payment – Promotion Agreement (a) If the Promotion Agreement is terminated at any time directly as a result of a default…by the Promoter (“Promoter Termination”) the [Company] shall immediately repay to the [Petitioner] the outstanding principal amount of the Refinancing Loan and the Deemed DE Loan together with all other amounts then due and outstanding under this Agreement. For the avoidance of doubt…if a Promoter Termination occurs, no corresponding amount of the Deemed DMF Loan shall be deemed to have accrued and be payable under this Agreement. (b) If the Promotion Agreement is terminated at any time other than as set out in paragraph (a) above, the [Company] shall immediately repay to the [Petitioner] the outstanding principal amount of all Loans together with all other amounts then due and outstanding under this Agreement.”
“[21] ‘The legal test that should be applied by a judge in the case of IR 2016 r.10.5(5)(b) applications…is whether there is a “genuine triable issue” (Crossley Cooke v Europanel (UK) Ltd[2010] EWHC 124 (Ch) ,[2010] BPIR 516 at [16], with the applicant needing to show more than a merely arguable case but one that has a “real prospect of success” (i.e. the summary judgment test applied underCPR 24 ): see Collier v PJ Wright[2008] 1 WLR 643 at [21] per Arden LJ indicating the tests were aligned. [22] ‘As with summary judgment applications, the court should not conduct a mini trial of the issues; on the other hand, the judge is likely to have to decide on the credibility of the factual assertions and is entitled to “grasp the nettle” and determine short points of law or construction where “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”; and such a case does not need to go to trial simply 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 at [12] and [14].”
“21. In my judgment, the judicial observations so far considered represent a clear, consistent and principled approach. It could be dangerous to reformulate the principles, but I would add six comments on the summary given by Lord Simon in the BP Refinery case 180 CLR 266 , 283 as extended by Bingham MR in the Philips case [1995] EMLR 472 and exemplified in The APJ Priti[1987] 2 Lloyd's Rep 37 . First, in Equitable Life Assurance Society v Hyman[2002] 1 AC 408 , 459, Lord Steyn rightly observed that the implication of a term was “not critically dependent on proof of an actual intention of the parties” when negotiating the contract. If one approaches the question by reference to what the parties would have agreed, one is not strictly concerned with the hypothetical answer of the actual parties, but with that of notional reasonable people in the position of the parties at the time at which they were contracting. Secondly, a term should not be implied into a detailed commercial contract merely because it appears fair or merely because one considers that the parties would have agreed it if it had been suggested to them. Those are necessary but not sufficient grounds for including a term. However, and thirdly, it is questionable whether Lord Simon's first requirement, reasonableness and equitableness, will usually, if ever, add anything: if a term satisfies the other requirements, it is hard to think that it would not be reasonable and equitable. Fourthly, as Lord Hoffmann I think suggested in Attorney General of Belize v Belize Telecom Ltd[2009] 1 WLR 1988 , para 27, although Lord Simon's requirements are otherwise cumulative, I would accept that business necessity and obviousness, his second and third requirements, can be alternatives in the sense that only one of them needs to be satisfied, although I suspect that in practice it would be a rare case where only one of those two requirements would be satisfied. Fifthly, if one approaches the issue by reference to the officious bystander, it is “vital to formulate the question to be posed by [him] with the utmost care”, to quote from Lewison, The Interpretation of Contracts 5th ed (2011), p 300, para 6.09. Sixthly, necessity for business efficacy involves a value judgment. It is rightly common ground on this appeal that the test is not one of “absolute necessity”, not least because the necessity is judged by reference to business efficacy. It may well be that a more helpful way of putting Lord Simon's second requirement is, as suggested by Lord Sumption JSC in argument, that a term can only be implied if, without the term, the contract would lack commercial or practical coherence.”
“Before turning to the authorities which in modern times have cascaded over the law reports, it is important to address the question which has much troubled the courts, of how wide ranging is the loss of a chance doctrine. In short, when does a claimant have to prove on a balance of probabilities that a particular result would have come about and when need he prove only that a chance, which may be less than a probability, of achieving that particular result has been lost. The distinction is of immense importance, separating as it does the cases where the claimant will be awarded all or nothing and the cases where a percentage of loss will come their way. A broad summary of the overall position is made, with crystal clarity, by Andrew Burrows QC sitting as a High Court judge prior to his appointment to the Supreme Court of the United Kingdom in Palliser Ltd v Fate Ltd[2019] EWHC 43 (QB) at [27]. He said: “The correct picture of the law on proof in relation to damages is therefore that where the uncertainty is as to past fact, the ‘all or nothing balance of probabilities’ test applies. Where the uncertainty is as to the future, proportionate damages are appropriate. Where the uncertainty is as to hypothetical events, the correct test to be applied depends on the nature of the uncertainty: if it is uncertainty as to what the claimant would have done, the all or nothing balance of probabilities test applies; if it is as to what a third party would have done, damages are assessed proportionately according to the chances.”
“11-048 … When we are looking at past events we are necessarily in the realm of causation; the test is balance of probabilities and chances just do not matter. But when we are looking to the future we are concerned with the quantification of loss and here chances are all-important; an assessment of damages is entitled, indeed is required, to take into account all manner of risks and possibilities. …. It is therefore the case that a loss of a chance, and its assessment, is frequently involved in the quantification process, and this has always been so and long before Chaplin v Hicks was decided. In the quantification process, assessment of chances of a hypothetical fact are matters of evaluation rather than determinations of fact. 11-049 Losses of a chance appearing in the process of quantification do not fall within the loss of a chance doctrine. Loss of a chance proper, as it may be termed, has a more limited field. It comes in before we get to quantification; indeed it comes in at the causation stage. How is this? It is because there are situations where the law has recognised, and has treated, the loss of a chance as a form of loss, an identifiable head of loss in itself. To take Lord Hoffmann’s way of putting it in Barker v Corus (UK) Ltd “the law treats the loss of a chance of a favourable outcome as compensatable damage in itself”
“… In his definitive judgment Stuart-Smith LJ distinguished between three types of situation or categories. In his first category fall cases in which the defendant’s negligence consists in some positive act or misfeasance and the question of causation is one of historical fact. … Proof on the balance of probabilities prevails here. In the second category fall cases in which the defendant’s negligence consists of an omission where causation depends not upon a question of historical fact but upon the answer to the hypothetical question what would the claimant have done if there had been no negligence. How the claimant would have reacted is again subject to proof on the balance of probabilities. In the third category fall cases in which the claimant’s loss depends upon the hypothetical action of a third party, whether in addition to action by the claimant or independently of it. Here the claimant need only show that they had a substantial chance of the third party acting in such a way as to benefit them. In the case before the court, therefore, the claimants had to show on the balance of probabilities, before any recovery was possible, that they would have sought a degree of protection against the contingent liability; it was held that in this they succeeded. However, they needed to show only that there was a significant chance, which could be less than likely, that the third party would have been prepared to afford them this protection; the majority, Millett LJ dissenting, held that the loss of such a chance had been made out and it was assessed at 50 per cent. …”