“11) We have already indicated that it may assist the Court if the claim is amended, particularly given that it can now include the information derived from the Defendant’s current limited partial and belated disclosure, so narrowing the issues. The claim can be further refined. The Claimants reserve their rights to further amend pending full disclosure at the Disclosure stage. 12) Therefore, at this stage, the Claimants have given consideration as to how to narrow the issues with a view to streamlining the claim and in the interest of cost efficiencies. The Claimants are therefore willing to withdraw certain allegations within the claim to clarify the key issues and assist the Court. 13) For ease, these allegations which the Claimants propose no longer to seek to pursue given the facts and matters now available to them, but which had not previously been available, are referred to from the paragraphs in the Particulars of Claim. The First Claimant is referred to as C1. The Second claimant is referred to as C2.: Implied terms (C1 & C2): 1. Accepting C2 cheques (POC§16.1); 2. Duty of good faith (POC§16.2/20.1); and 3. Fair treatment (POC§16.3/20.2). Breaches of contract (C1): 1. Failure to cash cheques (POC§23); 2. Failure to reverse charges (POC§25); 3. Failure to place hold on charges (POC§26); Breaches of contract (C2): 1. Failure to provide a functioning account (POC§29); and 2. Refusal to provide a credit card (POC§30). 14) On the basis that the above allegations are no longer pursued, the Claimants consider that the remaining allegations will help focus the issues between the parties and should be explored at a full Trial. 15) For the avoidance of doubt, those allegations which the Claimants propose should proceed to Trial are as follows: C1 and C2: 1. An agreement to vary Account 4770 to change the name from C1 to C2 (POC§5). It is understood the Defendant accepts that it allowed C2 to cash a cheque made out to C2 on23 December 2021 . There is a dispute about whether that was performance of the variation agreement. In any event, the Court will need to make a finding of fact as to which party (either C1, C2 or both) was the account holder of Account 4770 at the relevant times. 2. Breach of that agreement by reversing the name from C2 to C1 (POC§24 & POC§28) 3. Failure to log and or investigate complaints (POC§27); 4. Poor credit reference (POC§31). It is understood that the Defendant accepts it provided financial information about C2 by reference to the financial standing of Account 4770 to CRAs but that the Defendant’s pleaded case is C2 was not the account holder of Account 4770. As above the Court will need to make a finding of fact as to which party was the account holder of Account 4770 at which time. 5. This claim relies on breaches of the Defendant’s complaints procedure (POC§15.3) and the implied term of reasonable care & skill (POC§16.5). 6. Clearly Braganza considerations will also apply. 16) We consider the Defendant will have no objection in the Claimants seeking to refine the claim in this manner. Particularly given the effect of narrowing of the issues is reasonable and helpful to both parties and the Court. On the basis the claim is so narrowed, the Claimants again invite the Defendant to withdraw its Application for Summary Judgment/Strike Out of the entirety of the claim and the claim can proceed.”
“... the court must be careful before giving summary judgment on a claim. 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] 1 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 .”
“A proposed amendment must be arguable, carry a degree of conviction, be coherent, properly particularised and supported by evidence that establishes a factual basis for the allegation: see Kawasaki Kisen Kaisha Ltd v James Kemball Ltd[2021] EWCA Civ 33 at [18]”, and “The court may reject an amendment seeking to raise a version of the facts of the case which is inherently implausible, self-contradictory or is not supported by contemporaneous documentation. See Collier v P & MJ Wright (Holdings) Ltd[2007] EWCA Civ 1329 ; [2008] 1 W.L.R. 643 (a set aside case), Carey Group Plc v AIB Group (UK) Plc[2011] EWHC 594 (Ch) and Shah v HSBC Private Bank (UK) Ltd[2011] EWCA Civ 1669 ; [2012] Lloyd’s Rep. F.C. 337.”
“The Bank would act fairly in determining any disputes between the parties in accordance with its complaints procedure.”
“The Bank would provide fair procedures for determining any disputes between the parties.”
“if the Bank were to provide a£1 credit card, which we’re happy to pay the£1 up front, that’s I think a very important point. So, we just need that credit card to go back on to Amazon to begin trading and secure our account.”
“… A confidential settlement agreement was reached [with Amazon] which stated Leeway Services LTD could return to its trading position on Amazon with an express condition that it had to re-enter a credit card into the Amazon Platform in the name of Leeway Services LTD. The credit card could be limited to£1 , to by-pass the Amazon AI to start re-trading. The Natwest Group was fully aware of this credit card condition.”
“Loss of profit of around£1000 a day trading on Amazon. This loss arose as a result of C2 being deprived of the Account 4770 bank card and credit facility as described in paragraph 8 above without which C2 could not trade on Amazon which was at all material times known to D, as described in paragraph 12 above.”
“This loss arose as a result of [the Company] being deprived of Account 4770 banking services in consequence of which [the Company] was prevented from paying VAT rebate cheques and/or other payments into the account.”