Yello Voice Solutions Limited v Onecom Partners Limited [2026] EWHC 1856 (Comm)

[2026] EWHC 1856 (Comm)Case No CC-2025-BRS-000022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
CIRCUIT COMMERCIAL COURT
Venue Bristol Civil & Family Justice Centre
2 Redcliff Street
Venue Bristol BS1 6GRDate Thursday 30 th July 2026
Before
HHJ RUSSEN KC(sitting as a judge of the High Court)
Between
YELLO VOICE SOLUTIONS LIMITEDClaimantONECOM PARTNERS LIMITEDDefendant
ADAM SHER KC (instructed by Goodwin Procter (UK) LLP) for Defendant/ApplicantPAUL STRELITZ and JAMES SHAW (instructed by Clyde & Co LLP) for Claimant/RespondentHearing Hearing date: 21 May 2026(Draft judgment circulated to the parties on 21 July 2026)Approved JudgmentThis judgment was handed down remotely at 10.00am on Thursday 30 th July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................HHJ RUSSEN KC

HHJ RUSSEN KC:

[1]This is my judgment on the application dated 5 March 2026 by which the Defendant (‘Onecom’) seeks:(1) primarily, the striking out of the claim brought by the Claimant (“Yello”) under CPR 3.4, alternatively summary judgment on the entirety of the claim, on the basis that the Claim Form and Particulars of Claim do not disclose any reasonable grounds for bringing the claim and are an abuse of process and/or that Yello has no real prospect of obtaining the relief sought (‘Limb 1’); or(2) alternatively, summary judgment in respect of the claim on the ground that Yello has no real prospect of such success (‘Limb 2’). Onecom recognises that there is one aspect of the case (relating to Variation 4 identified below) which is not suitable for summary determination under CPR 24 because it would require further investigation of certain factual matters. However, Onecom’s position is that the particular claim should be struck out (in exercise of the Jameel jurisdiction explained below) or, alternatively, that a conditional order should be made pursuant to which summary judgment will be entered in the absence of proper particularisation by Yello.[2]In addition to raising questions as to when it may not be appropriate to seek declaratory relief in a claim without seeking any other relief (i.e. to ask the court to do that which CPR 40.20 makes clear may in an appropriate case be done The language of CPR 40.20 is:
“The court may make binding declarations whether or not any other remedy is claimed.”
This confirmation is wider (and arguably less restrictive of any procedural objection by the defendant to a declaration-only claim) than its predecessor in RSC O. 15 r. 16. That read (with my emphasis in underlining) “No action or other proceedings shall be open to objectionon the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed.” The words underlined by the first and third emphases might have posed difficulties for an application such asOnecom’s (assuming, that is, that it isdeclarations “of right”that are sought by Yello) as they would arguably have precluded the argument based upon Henderson v Henderson abuse. ), Limb 1 calls for consideration of the rule in Henderson v Henderson (1843) 3 Hare 100 and related legal principles (reflected either in substantive law or procedural rules) based upon the core public policy of supporting the good administration of justice by promoting the finality of litigation. Those principles have in the main been established by decisions about whether a litigant should be permitted to bring a subsequent claim on the basis that he considers an earlier one not to have finally disposed of the underlying dispute between him and his opponent. Rather unusually, in this case it is Yello’s initial claim (properly described as such when Yello expressly contemplates bringing a later claim should this one be successful) which falls to be tested against those public policy considerations.[3]It is on that basis that Limb 1 also extends beyond the need to consider any Henderson v Henderson type of abuse of process and also embraces what parties have described as the “Aldi principle” (see Aldi Stores v WSP Group Plc [2007] EWCA Civ 1260; [2008] 1 WLR 748 for the need for a litigant to identify at an early stage all of its possible claims) and the “Jameel jurisdiction” (see Jameel v Dow Jones [2005] EWCA Civ 75, [2005] QB 946 for the circumstances where pursuit of an arguable cause of action is objectively pointless and wasteful, in the sense that the benefits of success are likely to be extremely modest when compared to the wholly disproportionate costs of defending the claim).[4]Limb 2 requires analysis of the merits of Yello’s claims to declaratory relief. Mr Adam Sher KC, for Onecom, invited me to reach a decision on Limb 2 even if I acceded to his client’s case on Limb 1. On Limb 2, the Jameel jurisdiction is invoked by Onecom even if part of Yello’s claim survives a critical analysis of its merits.

BACKGROUND

[5]These proceedings involve claims for declaratory relief, only, as to the meaning and effect of Master Services Agreement dated 10 February 2022 between 9 Group (Partners) Limited (as Onecom was then known) and Yello (“the Yello MSA”). The Yello MSA was terminated by Onecom by a notice dated 25 February 2025.[6]Onecom is one of the UK’s leading providers of telecommunications and cloud-based services. Its business includes acquiring and then selling telecommunication services to resellers (“Reseller Partners”) who in turn sell telecommunications services direct to their end customers (“End Users”). Until the termination of the Yello MSA, Yello was one of Onecom’s many Reseller Partners.[7]At the time the parties entered into the Yello MSA, Onecom was known as 9 Group (Partners) Ltd. The evidence in support of the application summarises the arrangements by which Onecom became part of the Onecom Group in February 2021. It explains that Mr James Palmer is the former owner of a business operated through a company then known as 9 Group Limited (since renamed three times so that the company is now known as KM Telecom Limited) and of which Onecom (then named 9 Group (Partners) Limited) was a part.[8]One element of the business of 9 Group Limited which was not acquired by the Onecom Group through the acquisition of Onecom was a communications platform and a collection of associated products known as “eve” (“the eve Services”). After the acquisition, the eve Services were not provided directly by 9 Group Limited, as had been the case before, but instead by another company of Mr Palmer’s called Eve Connect Limited. That company then supplied it to the company formerly named 9 Group Limited (then known by the second of the three names mentioned above) and then onwards to Onecom. Onecom’s evidence is that, in May 2023, Mr Palmer transferred ownership of the company now named KM Telecom Limited to a Mr Kevin Mitchell, who is said to be Mr Palmer’s chauffeur.[9]Mr Palmer is now engaged in a number of pieces of litigation with Onecom, and its wider group, and Onecom invites me to infer that he is funding Yello’s claim (and would have been behind the claim contemplated by Bespoke Connected Ltd mentioned below) in circumstances where Yello’s latest abbreviated accounts for the year ended 30 June 2025 show significant current liabilities and a deficit of shareholders’ funds of £15,799 (the equivalent figure as at 30 June 2024 was -£54,120 and as at 30 June 2023 it was -£26,317).[10]In its Defence and also in the witness statement of Mr Oliver Glynn-Jones (a partner in Onecom’s solicitors, Goodwin Procter) in support of the application, Onecom made it clear that, in the absence of a clear refutation by Yello, it would invite the court to infer that Mr Palmer is funding this claim by Yello and has a role in bringing and directing the litigation.[11]The sole director of Yello is Mr Lee Waller. In his evidence on the application, Mr Waller accepts that the litigation is being funded by a third party but he is coy about that party’s identity, referring to him as “the Funder”. He says the funder was “known to him” and it is clear that the funder was involved prior to the instruction of Clyde & Co on behalf of Yello. Mr Waller denies that Mr Palmer controls the litigation. Both Mr Waller and Ms Rebecca Armstrong of Clyde & Co (in her witness statement on the application) say that Clyde & Co do not take instructions from Mr Palmer. Mr Sher KC pointed out that this evidence does not go so far as to deny the role in the litigation suggested by Mr Glynn-Jones.[12]As Mr Sher KC submitted, if Mr Palmer really had nothing to do with the instigation, pursuit or the funding of the proceedings in the way flagged by Onecom, it would have been easy for Yello to say so. Yello has not done so, and I do therefore conclude that Mr Palmer is both funding Yello’s claim and (allowing for the fact that only Mr Waller, as the sole director of Yello and therefore the company’s directing mind and will, is competent to give instructions to the company’s solicitors) is playing some part in the pursuit of it.[13]As the description ‘Master Services Agreement’ suggests, the Yello MSA contained terms that were common to Onecom’s supply of telecommunication services to other Reseller Partners.[14]Indeed, some 6 weeks before Clyde & Co wrote on behalf of Yello on 18 July 2025, requesting copies of the Yello MSA and the notices of variation addressed below, the firm sent what was described as a letter before action on behalf of another Reseller Partner, Bespoke Connected Ltd (“Bespoke”). The eighteen-page letter dated 6 June 2025 proposed that an independent accountant be appointed to evaluate various aspects of Onecom’s pricing. It also threatened that the potential litigation would have “wider implications” for Onecom and those described as “the individuals involved”, saying this was a matter of public interest and that referrals to the Competition and Markets Authority were under consideration. However, within a week of that letter being sent, Bespoke was compulsorily wound up on the petition of HMRC, before then going into administration. In her witness statement, Ms Armstrong says that Yello’s own letter before action adopted those complaints which had been articulated on behalf of Bespoke.[15]Bespoke’s claims were assigned to Yello on 18 July 2025, the date on which Clyde & Co began corresponding on behalf of Yello.[16]Under the Yello MSA, Onecom supplied a number of different telecoms and cloud-based services (“Services”) to Yello such as fixed-line telephony, mobile telephony, “unified” communications (Voice Over Internet Protocol - ‘VOIP’ - or internet telephony) and connectivity services (broadband and Dedicated Internet Access, or DIA). Within the confines of the Services there could be dozens of different products such as different broadband providers (offering different upload/download speeds and so forth), call queuing services or access to a mobile app. The Services included the licence, supply, and use of the eve Services. Yello and/or End Users accessed and were supplied the eve Services via the portal allocated to them.[17]Onecom invoiced Yello for each Service separately on a monthly basis. Many of the Services were priced at a few pounds or, in some cases, pence per month while the connectivity services might be several hundred pounds per month per End User.[18]The Yello MSA contained both general terms (in Part A) and also terms specific to different Services (in Part B).[19]Yello’s present claim is a prelude to a monetary claim which it proposes to bring on the basis that Onecom over-charged Yello for certain Services as a consequence of four variations to ‘Charges’ (see paragraph 21 below) which were effected by Onecom in the period between March 2023 and June 2024. Each was notified by way of an email to Yello, referred to by Onecom as a ‘Variation Notice’ (“Variation 1”. “Variation 2”, “Variation 3” and “Variation 4”, respectively, and together, “the Variations”).[20]Under the Yello MSA there were two methods by which Onecom was permitted to vary the terms of the contract, in particular pricing:(1) Under clause 1.7.2, Onecom could effect a “Bespoke Variation”, which required 30 days’ notice to be given to Yello. The purpose of the 30 days’ notice was to enable Yello to raise an objection “within any stated time period for doing so”, failing which the clause (and clause 7.3) provided that Yello would be bound by the Bespoke Variation. The full terms of clauses 1.7.2 and 7.3 are set out in paragraphs 49 and 50 below.(2) Under clause 7.6, Onecom could effect a “Supplier Increase Variation”. The full terms of clause 7.6 are set out in paragraph 57 below. The clause permitted Onecom to increase “Charges in respect of any Service if [Onecom’s] Supplier in respect of that Service validly increases the charges that [Onecom] pay[s] to them…”. This did not require 30 days’ notice but instead provided that Onecom would provide as much notice as was practicable and (importantly) that Onecom would:
“increase the Charges only by such amount as is necessary for the Charges to reflect substantially the same financial margin for [Onecom] as they did before the increase by [Onecom’s] Supplier.”
[21]The Yello MSA provided (at clause 7.3) that the Charges (defined to mean all charges and fees payable in respect of the Services or any part of them) applicable to Yello would be set out in a “variation agreement” which was supplemental to the Yello MSA, and which included Onecom’s prevailing Standard Variable Tariff (“SVT”) or (if applicable, and none are relevant to this case) any ‘Special Tariffs’ specifically agreed by a variation and taking precedence over the SVT. Clause 7.3 acknowledged that the SVT could be amended pursuant to clause 1.7.2 and that a copy of the current SVT applicable from time to time was available from Onecom upon request. It is common ground between the parties that no variation agreement was ever executed between Yello and Onecom, nor was any Special Tariff agreed.[22]Onecom’s application is also supported by the evidence of Mr Christian Craggs. Mr Craggs is the Director of Strategy and M&A of the Onecom group of companies. He explains that the SVT is a list of the then-current standard prices, which are (in many cases) also available on a ‘portal’ accessible to Reseller Partners (see clause 27.2 of the Yello MSA for provision for this to be done). Onecom’s prices would also appear from pricing notifications (of certain prices) and were available on request. Mr Craggs says “it was not the case that [Onecom] would circulate a wholly new SVT for every change in price, or addition or removal of a product.”[23]Onecom’s case is that Variations 1 (notified on 30 January 2023) and 3 (notified on 29 February 2024) were validly effected as Bespoke Variations, whilst Variation 4 (notified on 3 June 2024 and for which less than 30 days’ notice was given to Yello because it notified a change in Charges for eve Services with effect from 1 June 2024) was validly effected as a Supplier Increase Variation. Onecom says Variation 2 (notified on 29 August 2023) can be justified on both bases.[24]For the purposes of the argument on Limb 2, it should be noted that none of the Variations (or the covering emails by which Onecom notified Resellers Partners such as Yello of the change in Charges) referred to a clause in the Yello MSA as the basis for it being made. Instead, the relevant Variation simply informed customers of the individual prices which were being amended, and the date from which this change was effective. The evidence is that this practice had prevailed for a number of years, including when Onecom was known as 9 Group (Partners) Ltd. There is no suggestion that Yello ever complained about any of this method and form of variation in the past.[25]That said, the language in the introductory paragraph of each of the Variations, differed slightly in explaining the basis for it. Variations 1 and 3 (referring to “external market factors impacting global pricing and the recent Openreach industry-wide price increase”) were expressed in terms wider than being just indicative of a Supplier Increase Variation. Variations 2 and 4 did use introductory language indicative of a Supplier Increase Variation.[26]Variation 2, which is the subject matter of a discrete estoppel argument by Yello addressed briefly under Limb 2 below, begins with the following:
“Over the past few months, we’ve encountered various challenges with our supplier of eve services, which have led to a series of issues impacting ourselves and our Partners.”
[27]By a letter dated 25 May 2023 from FTP Group (Telecom) Ltd (the company now named KM Telecom Limited) and signed by Kevin Mitchell, Onecom was notified of price rises for the eve Services which FTP Group said have been notified to them by eve Networks, taking effect from 1 June 2023, and informed “these prices will be passed on to Onecom Partners as of the same date.” Variation 2 informed Yello that Onecom was actively engaged in discussions to contest what was said to be a substantial price adjustment across the entire range of eve Services but that “we must make a necessary adjustment to the pricing of all eve services, effective from 1 October 2023.” Variation 2 said that if Onecom was successful in overturning their Supplier’s price increase then “we will credit back the increased amount in full for the eve services impacted from the 1st October 2023.”[28]Onecom’s categorisation of the relevant Variation being a Bespoke Variation or a Supplier Increase Variation rests upon whether or not 30 days’ notice of a change in the Charges was given.[29]In these proceedings, Yello contends that none of the Variations was valid and seeks declaratory relief to support that contention.[30]That the present claim for declaratory relief is a forerunner to a contemplated money claim against Onecom is made clear by the terms of the Amended Particulars of Claim (“APOC”). Paragraphs 62 and 63 of the APOC reserve Yello’s rights to bring further claims (including for restitution on the grounds of unjust enrichment or damages) after judgment in these proceedings.[31]Mr Waller says in his witness statement he fully intends to “seek all financial recompense for Yello” once the declarations sought are obtained. He also refers to the declaratory relief putting him in “a position to enter into the expensive and complex process of fully quantifying and evidencing my own and BCL’s losses.” The reference to BCL appears to be the Bespoke claims that have been assigned by Bespoke to Yello. However, as Mr Sher KC pointed out, the present claim does not relate at all to Bespoke and it is unclear how the requested declaratory relief would enable Bespoke to proceed directly to consideration of damages when its factual position in relation to Charges is not identical to Yello’s.[32]Mr Paul Strelitz and Mr James Shaw on behalf of Yello said the price increases under the Variations had a considerable adverse impact on Yello’s business over the course of 2023 and 2024. They referred to the evidence of Mr Waller that Yello found that it could not pass those price rises on to its customers because, as he explains, he did not consider he had the contractual right to do so and, in any event, “the inevitable result would have been that my customers went elsewhere”. In common with other resellers in this industry, many customers of Yello “rely on dependable and affordable telecommunications services for their daily operations, and stable pricing is an important factor in maintaining those services”. Yello therefore had to absorb the price rises itself.[33]Mr Waller’s witness statement sets out Yello’s current best estimate of the potential financial value of the declaratory relief to Yello and what he says is the unlawful price increases by Onecom to which that relief relates. This comprises(i) the direct impact of overcharging;(ii) the adverse impact on Yello’s growth opportunities;(iii) loss of new business;(iv) loss of existing customers;(v) inability to meet upcoming commercial commitments; and(vi) inability to invest in future growth. At a high level, in relation to the consequential losses that arise out of the second to sixth factors, he estimates Yello’s lost revenue to be around £915,000 and he identifies a loss of gross profit of approximately £439,200 over a five-year period as a result of the unlawful price increases.[34]That evidence was produced in response to a detailed analysis undertaken by Mr Craggs. Mr Craggs has spent some 40 to 50 hours on a quantitative analysis of the position since Clyde & Co’s letter before action on behalf of Bespoke and he explained in his witness statement that the maximum value of the alleged over-charges under Variations 1 to 4 is £18,921.18.[35]Mr Craggs’s evaluation assumes Yello’s complaints are well-founded. For Variations 2 and 4 this means he has assumed they are invalid in their entirety so that the prices paid by Yello for the products covered by them should have been those prevailing before they were made. He made the point that, under Variation 1, the next month’s prices were higher by the total amount of £349.97 though the financial impact decreased financially over time as Yello migrated services away from Onecom.[36]Mr Craggs adopted a different approach for Variations 1 and 3, in the interests of expediency, because a detailed month-by-month analysis (of the kind undertaken for the other two) would have required the review of billing data for 21 different product lines and multiple sub-products thereunder. In relation to individual call pricing under Variation 1, he referred to a single month’s data covering more than 2,000 individual call records. Therefore, he adopted the approach of analysing only the first month under each of Variations 1 and 3 and then multiplying the difference between the “before” and “after” pricing by the number of months for which the Variation was in effect until the Yello MSA was terminated. He made the point that this approach will have resulted in an over-estimate of the financial impact for Yello because it did not take account of the decrease over time in the number of products supplied to Yello.[37]Mr Craggs’s conclusions upon the Variations “at their absolute highest and assuming for the sake of argument that Yello’s complaints are correct” were set out by him as follows:[38]Mr Waller does not dispute Onecom’s evidence about the direct loss suffered through the alleged over-charging having a modest value of less than £20,000. I note that the APOC describes Onecom’s termination of the Yello MSA in February 2025 by reference to Onecom’s demand for “the alleged overdue debt” of £1,618.79 which Yello says it paid without any admission that it was in fact due.

THE CLAIM

[39]Yello’s claim focuses upon the basis for, and form of, the notices by which Onecom says it effected the Variations.[40]In a section of the APOC headed ‘Oral Confirmation’, Yello alleges that almost immediately after his receipt of each of the Variations, Onecom’s Sales Director assigned to Yello’s account (Ms Roper) phoned Mr Waller to discuss them. Mr Wallers says that on each occasion Ms Roper expressly represented to him that the price rises in question were solely due to Supplier increases, which Onecom was simply passing on, and that there was nothing that Onecom could do about it. Neither could Yello when the terms of clause 7.6 of the Yello MSA (set out in paragraph 57 below) did not permit of any objection by Yello. Yello therefore had no choice but to pay the increased Charges. Onecom’s Defence says that the alleged misrepresentations by Ms Roper are unparticularised and not admitted. In any event, Yello does not pursue a claim in misrepresentation in this action and any such statements made after the service of a notice of a Variation cannot operate retroactively to invalidate it. Yello’s Reply did not engage with that point beyond the general joinder of issue.[41]I mention that aspect of the pleaded cases because it highlights the point that Yello’s present claim is all about seeking to establish what were the terms and effect of the Yello MSA, now terminated. In the absence of a tortious claim, the alleged representations by Ms Roper (if untrue) will be of no consequence unless those contractual terms extend to the implied terms described by Yello as the Objection Term and the Good Faith Duty which I described below.[42]Instead of claiming damages, the prayer to the APOC seeks “Declaratory relief as aforesaid”. In relation to each of the Variations the requested declaratory relief begins with a declaration that increases in Charges “which commensurately increased the sums demanded from [Yello] by [Onecom], were not (a) permitted price variation(s) under the Yello MSA whether pursuant to Clause(s) 1.7.2/7.3 of Part A or otherwise, or alternatively the devising, communication, and/or imposition of the same was a breach of contract”.[43]The prayer goes on to seek declarations that the “increased prices charged were imposed without a, or any proper, contractual basis and/or were unlawful” and “were in each case (or alternatively in one or some cases) invalid (in that they did not properly reflect the sums properly due and owing to Onecom Partners for services provided by it under the Yello MSA) and/or not binding on Yello”.[44]The declaratory relief sought by the APOC also extends to a declaration that: “All (alternatively one or some) of the terms pleaded as implied terms in paragraphs 15 and 17 above were implied into the Yello MSA”.[45]Yello says a Bespoke Variation could only be effected by a notice which complied with quite a long list of formal requirements: see paragraph 51 below.[46]Yello says a Supplier Increase Variation that was excessive, because it resulted in a margin for Onecom which was not “substantially the same” (the language of clause 7.6 of the Yello MSA) as the margin applicable before the supplier price rise, is invalid.[47]In relation to Yello’s challenge to notices of a Supplier Increase Variation, Onecom’s Defence asserts that any increase in the charge for an individual Service not producing a margin “substantially the same” would only affect the charge for that Service, rather than all the Services to which the Supplier Increase Variation related. However, Yello’s Reply does not admit Onecom’s construction on the basis “Onecom Partners identifies no basis for such a contention in the Yello MSA”. Therefore, it appears to be Yello’s case that any such excessive margin in respect of any one or more of the Services will undermine the validity of the notice in respect of all of them. Yello does not advance an alternative case that individual product price rises were invalid even if the Variation Notice as a whole was not. Further, as noted above, a particular Service can be made up of numerous products. Consistent with the language of clause 7.6, Yello’s case focuses upon Onecom’s margin for a Service following notification of a Supplier Increase Variation. Mr Waller’s witness statement refers to a “practical and representative sample” of product prices. Yello has not analysed each individual product charge within a Service for the purpose of collating them to assess the position of Onecom’s margin across that Service.[48]Yello’s case is underpinned by what Mr Sher KC has identified to be at least twenty-seven different forms of declaratory relief (when alternatives within a particular form of declaration are taken into account) together with a general fall-back claim for “declarations in such alternative terms as this Honourable Court thinks fit”. Yello’s Case on the Bespoke Variations[49]Clause 1.7 of the Yello MSA provides:
“1.7 From time to time we may update our standard template of this MSA or otherwise vary the terms of the Agreement. There are two ways in which this could occur: 1.7.1 certain variations will automatically apply to you, for example where we make them in accordance with Clause 37; and/or 1.7.2 We may seek to vary the MSA otherwise than as permitted by Clause 37 (for example, if we update our standard form template of the MSA or the Standard Variable Tariff from time to time). If we seek to do this (a “Bespoke Variation”), we will notify you of the relevant changes at least 30 days in advance of them becoming binding on you (the version number will always be shown in the bottom right corner of each page, for example “v5.1”). If we notify you of a Bespoke Variation and you do not notify us in writing of any query or objection to such variation in accordance with Clause 27.3 within any stated time period for doing so, then the Agreement will thereafter be legally binding on you as varied by the Bespoke Variation. For the avoidance of doubt, if you do validly raise any objection regarding a Bespoke Variation, this will not affect the validity of the Agreement in the form in which it already existed between you and us prior to our notification of a Bespoke Variation.” 1.7.1 certain variations will automatically apply to you, for example where we make them in accordance with Clause 37; and/or 1.7.2 We may seek to vary the MSA otherwise than as permitted by Clause 37 (for example, if we update our standard form template of the MSA or the Standard Variable Tariff from time to time). If we seek to do this (a “Bespoke Variation”), we will notify you of the relevant changes at least 30 days in advance of them becoming binding on you (the version number will always be shown in the bottom right corner of each page, for example “v5.1”). If we notify you of a Bespoke Variation and you do not notify us in writing of any query or objection to such variation in accordance with Clause 27.3 within any stated time period for doing so, then the Agreement will thereafter be legally binding on you as varied by the Bespoke Variation. For the avoidance of doubt, if you do validly raise any objection regarding a Bespoke Variation, this will not affect the validity of the Agreement in the form in which it already existed between you and us prior to our notification of a Bespoke Variation.”
[50]Clause 7.3 provides:
“The Charges applicable to you at the time of your execution of this MSA will be as set out in a variation agreement executed by you and us that is supplemental to this MSA. These will include our Standard Variable Tariffs (“SVT”) and, if applicable, any Special Tariffs that we may have specifically agreed with you. You acknowledge that our SVT may change from time to time at our sole election and, if you are subject to the Standard Variable Tariffs and are notified by us of any changes in accordance with Clause 1.7.2, you will automatically be bound by any changes to the SVT if you do not raise any objection with us in accordance with Clause 1.7.2. A copy of the current SVT applicable from time to time is available to you upon request.”
[51]Yello’s pleaded case (it uses the term ‘Valid Bespoke Notice’) is that a notice of a Bespoke Variation is only valid if:(1) it was notified to Yello at least 30 days in advance of the increase(s) becoming (or purporting to become) binding on Yello;(2) it always showed the version number in the document showing the amendment in the bottom right corner of each page, for example “v.5.1”;(3) it stated a time period for Yello to notify Onecom Partners of any query or objection to such variation; and(4) it did not breach implied terms labelled by Yello as “the Discretion Term”; “the Notice Sufficiency Term”; “the Objection Term”; and/or “the Good Faith Duty”.[52]The first three of those conditions precedent to the validity of a notice under clause 1.7.2 are said to arise on the proper construction of that clause. The implied terms identified by Yello within the fourth condition precedent to validity are said to be justified either on the application of the necessity and/or business efficacy and obviousness tests (for a contractual term to be implied in fact) and/or the so-called Socimer or Braganza limitation upon the exercise of certain unilateral contractual powers: see Socimer International Bank v Standard Bank [2008] EWCA Civ 116; [2008] Bus LR 1304, at [60]-[66], and Braganza v BP Shipping [2015] UKSC 17, [2015] 1 WLR 1661, at [66]. The Good Faith Duty is also said to be supported by Yello’s case that the Yello MSA was a relational contract involving a long-term relationship between the parties to it. I return to the applicable legal principles below when addressing Limb 2 of Onecom’s application.[53]The Discretion Term alleged by Yello is to the effect that Onecom must have exercised its power or discretion “to devise, convey and/or impose a Bespoke Variation under clause 1.7.2 and/or 7.3honestly, in good faith, genuinely, and/or for a proper purpose, and/or without arbitrariness, capriciousness, perversity, or irrationality”.[54]The Notice Sufficiency Term alleged by Yello required a Bespoke Variation notice to have been expressly, or alternatively sufficiently, identified as such by Onecom.[55]The Objection Term alleged by Yello is that Onecom should not have directly or indirectly represented to Yello or otherwise permitted or encouraged it to believe that a price increase is a Supplier Increase Variation (clause 7.6 giving Yello no opportunity to object to the same) when either in reality the price increase was made or purported to be made as a Bespoke Variation (to which Yello was entitled to object) or there was no proper contractual basis for it at all.[56]The Good Faith Duty is said to have been an implied obligation on Onecom “to act in good faith, requiring a high degree of honest cooperation, communication, fidelity to the bargain and the spirit of the bargain, transparency, compliance with the standards of commercially acceptable conduct that reasonable and honest people would expect in the commercial context, to take reasonable account of [Yello’s] interests, and not to harm or penalise the other in bad faith”. Yello’s Case on the Supplier Increase Variation[57]Clause 7.6 of the Yello MSA provides for the Supplier Increase Variation mechanism, as follows:
“We may increase the Charges in respect of any Service if the 9 Supplier in respect of that Service validly increases the charges that we pay to them in accordance with our contract with that 9 Supplier or otherwise in accordance with any Applicable Law. If this happens then we will give you as much prior notification as is practicable and will increase the Charges only by such amount as is necessary for the Charges to reflect substantially the same financial margin for 9 Group as they did before the increase by the 9 Supplier.”
[58]Mr Strelitz and Mr Shaw said clause 7.6 is a mechanism which required Yello to place a high degree of trust in Onecom during the currency of the Yello MSA. When Supplier Increase Variations were implemented, Yello was unable to know(i) what prices Onecom was paying to its own supplier(s);(ii) whether such charges were being levied in accordance with the relevant contract; and(iii) what financial margin Onecom was making on the same when it sold the Eve Services to Yello.[59]Yello’s pleaded case is that clause 7.6 gave Onecom the discretion to make a Supplier Increase Variation:(1) if and only if the Supplier of the relevant Service to Onecom has validly increased its charges in accordance with the relevant contract in place between Onecom and the relevant Supplier (or in accordance with “Any Applicable Law”); and(2) if and only if, and then only to the extent that such an increase was necessary for the Charges to reflect substantially the same financial margin for Onecom as they did before the increase by the Supplier.[60]Those requirements are said to arise on the proper construction of Clause 7.6. Yello also alleges that a Supplier Increase Variation needed to comply with the Objection Term explained above (and here focussing upon there being no contractual basis at all for the variation), the Good Faith Duty also explained above and another implied term labelled in argument (though not by the APOC) as ‘the Supplier Increase Discretion Term’.[61]The Supplier Increase Discretion Term is to the effect that the Discretion Term is also to be implied in the operation of clause 7.6. Accordingly, Onecom must have exercised its power or discretion to “devise, convey and/or impose” a Supplier Increase Variation under clause 7.6 honestly, in good faith, genuinely, and/or for a proper purpose, and/or without arbitrariness, capriciousness, perversity, or irrationality. LIMB 1 Analysis

LIMB 1

[62]Yello’s claim is an unconventional one. It is unusual for a claimant to bring a claim about what the terms of the parties’ contract are, with a view to saying some of those terms have been breached by the defendant, without also going on to allege, within that claim, the specific breaches and their consequences (usually financial and sounding in damages).[63]When some of those terms are said to be implied terms, I think it would also be highly unusual to seek, by way of free-standing relief reflected in the court’s order, declarations as to their existence and content. A party presenting a claim based upon the express or implied terms of a contract usually does so in the expectation that it is in its reasoned judgment that the court will address the existence and effect of any contentious implied term that forms the basis of any damages award (or any order for some other form of financial recompense to be made). If established, any implied term is and has always been just as much a term of the contract as the express ones.[64]The court does not generally in the orders it makes declare the existence and content of what are in fact the parties’ pre-existing and agreedrights and obligations. The position might well be different if there was a dispute about whether or not a contract existed, at all, between the parties. However, court orders would become very long and unwieldy if the terms of a contract (whether they are express or implied) recognised by the parties to exist had to be set out in the order. Even if they were set out, I question what, from a juridical perspective, the court would be adding or what purpose could be served by a formal pronouncement of what the parties themselves have already agreed. As a matter of analysis, any such wording in an order would probably be by way of recitation, or preamble, rather than a declaration by the court of some further legal right not already expressly or impliedly agreed.[65]In the light of what had been said about Mr Palmer’s involvement, and knowing that Bespoke had been contemplating bringing its own claim by reference to contractual terms materially the same as those under the Yello MSA, I raised with counsel the prospect that the declarations sought by Yello about the existence of implied terms of the Yello MSA might be relied upon by other Reseller Partners of Onecom, either past or present. However, the declarations sought are not declarations in rem and Mr Sher KC was correct to point out that any such declaratory relief would only relate to the contract between Onecom and Yello – the Yello MSA - and, therefore, could not be said to be res judicata in any later litigation between Onecom and another Reseller Partner. On further reflection, there is also nothing in the related thought I expressed about the court’s willingness to make declarations about such implied terms in a (largely) standard form agreement possibly being tempered by a concern that a different judge, in such later litigation, might disagree about their existence; and the unhappy situation of different judges reaching different conclusions about the meaning of what are essentially the same contract provisions. The presence of such self-doubt about the correctness of the declarations is not, of course, consistent with them being made in the first place and, on reflection, I recognise their inclusion in a sealed order is unlikely to provide any greater incentive for other Reseller Partners to mount similar claims than if the existence of the implied terms was instead addressed, in the conventional way, in the court’s reasoned, approved and published judgment.[66]Therefore, as recognised by Onecom who did not suggest that Yello’s claim is some kind of informal group litigation, the viability of the claim for the purposes of Limb 1 falls to be considered solely by reference to the position of these parties.[67]Just because Yello’s claim is an unconventional one does not of course mean that it should be struck out. The unconventional nature of the claim must be such that its departure from what the court is entitled to expect from a claimant means that it can properly be categorised as an abuse of process and/or one with no real prospect of obtaining the relief that Yello seeks under it.[68]Onecom advances 4 or 5 related grounds (I think the first two amount to saying much the same thing) in saying that test is met. They are identified by the headings given to them in Mr Sher KC’s skeleton argument:(1) no useful purpose;(2) the proceedings will leave very substantial issues to be litigated;(3) the declarations are not “worth the candle”;(4) usurpation of the court’s function; and(5) Cui bono? Mr Palmer’s interest and influence. (1) No useful purpose and (2) Substantial issues remain to be litigated[69]The first of these two grounds for challenging the viability of Yello’s claim should be approached recognising that any dispute between the parties is purely historic. Yello and Onecom have no current dealings and there appears to be no prospect of them doing so again on the same terms as the Yello MSA.[70]As Mr Sher KC correctly noted, the declarations sought by Yello therefore have nothing to do with providing certainty for a future ongoing business relationship between the parties.[71]In relation to both of these grounds, Onecom points to the discretionary nature of the court’s power to grant declaratory relief in saying this plainly is a case where it should not be exercised. The essential ground for saying that is that, even if the claim to the declaratory relief survives the challenge made under Limb 2, the declarations as to the historic position under the Variations will not achieve a useful purpose in and of themselves.[72]Mr Sher KC relied upon the leading textbook Zamir & Woolf on The Declaratory Judgment (4th ed, 2011), at [4-01] and [4-06] to [4-07], to highlight what the authors describe as the “most important feature” of the remedy that lies in the discretion whether or not to grant it. Within the elements of that discretion, the textbook (at [4-99] refers to the “prime importance” of considering whether, objectively assessed, any “useful purpose” would be served by granting declaratory relief; and that (per [4-121] to [4-122]) involves evaluating whether or not the declarations would finally settle the dispute between the parties. Those observations are the subject of recent judicial endorsement.[73]In Uzbekov v Revolut [2024] EWHC 98 (KB), Mr Uzbekov claimed nominal damages and declarations in respect of Revolut first blocking and then closing his account. He said he suffered distress and embarrassment and wished to obtain an authoritative determination that Revolut had no good reason to suspect him of money laundering. Revolut accepted that the breach of contract claim raised triable factual issues but contended that a declaration would serve no useful purpose, so there was no real prospect of the court granting one; and that the proceedings amount to wasteful and disproportionate litigation. Revolut sought reverse summary judgment and/or a striking out of the claim. Chamberlain J (as he then was) struck out the claim as an abuse of process. He did so on the basis that Mr Uzbekov had no real prospect of obtaining the requested declaratory relief and also on the basis of the Jameel jurisdiction.[74]A significant part of Chamberlain J’s reasoning in support of that conclusion therefore involved consideration, at [14]-[21], of the discretionary power to grant declaratory relief by reference to previous authority and Zamir & Woolf. Having quoted from paragraph [4-99] of the textbook, he said, at [42]:
“………………As a matter of principle, it seems unlikely that justice to the claimant would favour the grant of a declaration that would serve no useful purpose (even to the claimant). Equally, it is difficult to see how there could be a “special reason” for granting a declaration that would serve no useful purpose (even to the claimant). I would accordingly endorse as a correct statement of the law Zamir & Woolf’s proposition that “[t]he question of whether or not any useful purpose would be served by granting declaratory relief is therefore of prime importance in determining how discretion should be exercised”.”
[75]One of the earlier cases considered in Uzbekov was Rolls-Royce v Unite the Union [2009] EWCA Civ 387; [2010] 1 WLR 318. In that case, Rolls-Royce, as an employer, sought a declaration that the use of a length of service criterion in the selection matrix for redundancy was contrary to the domestic regulations made in implementation of an EU directive. Although there was no current dispute with the defendant union, the point was not academic in that, if not resolved it would lead to one. The point was also of wider importance to other employers and employees and both parties were asking the court to determine it. The Court of Appeal decided that declaratory relief was appropriate.[76]The decision in Rolls-Royce must now be read subject to what was said by the Supreme Court in Union of Rail, Maritime and Transport Workers v Tyne and Wear Passenger Transport Executive (t/a Nexus) [2024] UKSC 37, at [66]-[67], about the “illegitimate” procedure adopted in Rolls-Royce when the defendant union (as opposed to employees who had been made redundant) had no legal interest in the determination of the dispute. However, that is a point of procedure based upon the court’s recognition of the need to address the position of interested persons who may be indirectly affected by any declaration which would otherwise be made in their absence or without them being represented. I have already explained that my initial thoughts about the potentially wider-ranging implications of Yello’s suggested declaratory relief were misplaced. The principles in Rolls-Royce explaining when declaratory relief is appropriate (assuming the proper procedure has been observed in relation to all of those whose rights may be affected by it) remain applicable.[77]In Uzbekov, at [18], Chamberlain J set out the seven principles distilled by Aikens LJ in Rolls-Royce, at [120], as being applicable to the grant of declaratory relief. The last principle is:
“(7) In all cases, assuming that the other tests are satisfied, the court must ask: is this the most effective way of resolving the issues raised? In answering that question it must consider the other options of resolving this issue.”
[78]More recently, in JP Morgan International Finance v WeRealize.com Ltd [2025] EWCA Civ 57; [2025] BCC 570, at [118], the Court of Appeal (citing Rolls-Royce) has said much the same thing:
“Whether to grant a declaration is a discretionary decision. The primary considerations are whether a declaration serves a useful purpose and whether it is the most effective way of disposing of the dispute that has arisen.”
[79]In JP Morgan, at [119]-[123], the Court of Appeal did not interfere with “the judge's evaluative decision on the question whether the declaration served a useful purpose” She had made a declaration that “Viva is a subsidiary of JP Morgan for the purposes of Regulation K”. Viva was the company the shareholding in which was the subject matter of the call option over which the parties were litigating. Regulation K is part of the US Code of Federal Regulations which provide that “Edge Act Corporations” may only engage, directly or indirectly, in certain activities in the United States that are permitted by the Federal Reserve Act; and the phrase "directly or indirectly" made Viva’s subsidiary status a relevant issue. The judge in fact decided that the valuers under the call option process were required to disregard any effect of Regulation K but the Court of Appeal disagreed on that point. Addressing the correctness of the judge’s decision to grant the declaration, Lewison LJ said:
“121. It is true that the declaration as framed does not answer the question: what can Viva do in the USA? But it may be of some utility for the valuers to know that Viva is (as things stand) constrained by Regulation K. That would (at least potentially) enable them to consider whether there would be a different price paid for the shares by the hypothetical buyer depending on whether that buyer was or was not an Edge Act Corporation. It may also be of some utility for the valuers to know why Regulation K applies to Viva as things stand. 122. Moreover, this question was fully pleaded out in the statements of case and was the subject of detailed expert evidence. It was therefore the subject of a live dispute.”
[80]I recognise that CPR r.40.20 enables the court to make a declaration about the existence of rights or of facts or as to a principle of law (per Neuberger J in Financial Services Authority v Rourke [2002] CP Rep 14) and, therefore, as to the existence of an implied term. The provision is arguably wider than its predecessor in RSC O. 15 r. 16 which referred to “declarations of right”. However, the overarching question is whether it is appropriate to do so in the light of the principle recognised in Rolls-Royce, Uzbekov and JP Morgan.[81]I have already referred to Mr Waller’s evidence which is to the effect that the present claim is seen by Yello as a stepping stone towards an expensive and complex process of fully quantifying and substantiating its alleged losses. However, to the extent they are quantified, substantiated and found to be recoverable, those losses will necessarily relate to breaches of contract that occurred before the Yello MSA terminated in February 2025.[82]I have also referred above to this unconventional approach of a claimant seeking redress for past wrongdoing by bringing (in the sense of contemplating the second which is said to be the justification for the first) two separate claims about it.[83]It is significant that, in the decisions addressed above, the court considered seeking declaratory relief to be appropriate when the declarations would serve a useful purpose in determining the parties’ future rights and obligations: the basis of any future redundancies in Rolls-Royce and the share valuation in JP Morgan.[84]Likewise, in Zavarco Plc v Nasir [2025] UKSC 5; [2025] AC 738 the Supreme Court recognised that there may be justifiable reasons for a litigant to seek declaratory relief before pursuing a subsequent claim for a coercive remedy (in that case the payment of an alleged debt). In Zavarco, the claimant company had obtained a declaration that it was entitled to forfeit the defendant’s shareholding. Having forfeited the shareholding, the company then brought a second claim on the basis that the defendant remained liable under its articles of association to pay for them (his failure to pay for them having given rise to its right to forfeit them).[85]Zavarco raised the issue of whether the doctrine of merger applied to declaratory judgments as well as coercive ones (commanding a party to do something or prohibiting him from doing something). The Chief Master had applied the doctrine in concluding that the claimant’s second debt claim had merged in the declaration of an entitlement to forfeit and had thereby become extinguished. The Court of Appeal and the Supreme Court disagreed: declaratory judgments are not within the scope of the doctrine of merger.[86]Lord Hodge, at [51], agreed with the observation of Sir David Richards in the Court of Appeal that it made “good sense” for the claimant to first seek a declaration that Zavarco was entitled to forfeit the shares. Sir David (as he then was) had made the point that if the claimant had been able to sell the shares, having established through declaratory relief that they had been validly forfeited, it would only be entitled to judgment after giving credit for the net sale proceeds: see [2021] EWCA Civ 1217; [2022] Ch 105, at [40]. Lord Hodge noted that the defendant had not appealed against Birss J's rejection of his defence based on a Henderson v Henderson abuse of process (everyone concerned knew that the claimant might seek to enforce its right to payment after it had established its right to forfeit the shares) and said, at [53], “[t]he further proceedings entail what ought to be a straightforward claim for the debt which is the unpaid price of the shares”.[87]In contrast to these three cases involving declarations of an entirely forward-looking nature, Mr Sher KC referred to two further authorities where (as in Uzbekov) the requested declaratory relief related either wholly or in part to past events that were said by the claimant to have given rise to a liability in damages.[88]In Pigot v Environment Agency [2021] EWCA Civ 213 an owner of riparian rights over the River Kennet claimed that, during periods of low water when the river flow was diverted to it, the Environment Agency’s ‘fish pass’ interfered with his Archimedes turbine which he used to generate electricity that he sold to the grid. He sought declarations as to the Agency’s liability for nuisance or breach of statutory duty. There was therefore an ongoing element to the claim which was not confined to past interference with the flow through the turbine. Mr Stephen Jourdan QC, sitting as a Deputy Judge of the High Court, rejected the contention that a claim lay for breach of statutory duty, but he otherwise upheld his claims and granted declarations accordingly. The two issues in the Court of Appeal were whether the Agency had a defence of statutory authority to any claim in nuisance and whether it could defeat the claim on the basis that when it was constructed in 1999 the fish pass caused no appreciable injury to the operation of earlier turbine (a Francis turbine) which was later replaced by the Archimedes turbine. The Court of Appeal allowed the Agency’s appeal on the second point.[89]In relation to the procedure adopted by the claimant, Nugee LJ said this:
“24. The claim was issued as a Part 8 claim for the determination of points of law and declaratory relief on the basis of certain agreed facts. In those circumstances there was no oral evidence and the Judge was not asked to resolve any dispute of fact, although it was apparent that certain matters might be in dispute in any subsequent claim by Sir George for damages. The Judge, aptly to my mind, said that he had considerable misgivings about this procedure, and that it was unsatisfactory to claim declaratory relief with a view to seeking the determination of points of law in preparation for a possible later claim for damages and an injunction; the normal and better course would have been to issue a claim for damages and an injunction and then apply for the determination of preliminary issues, which might well not have been ordered: Jmt at [30]. He nevertheless felt obliged to determine the issues which had been referred to, and argued before, him. I share his misgivings but we too have to deal with the points of law raised by the appeal despite the unorthodox procedure that the parties adopted below.”
[90]The other authority in relation to backward-looking declaratory relief relied upon by Mr Sher KC is Yuk Ming Cheung v Office of Intercollegiate Services [2025] EWHC 1109 (KB), a decision of District Judge Maddison sitting in the Birmingham District Registry of the High Court. The claimant sought declaratory relief against the various defendants for alleged misconduct in connection with the claimant’s intended claim for judicial review for the bringing of which he failed to obtain the necessary permission (first on paper, then at a renewal hearing and finally on an unsuccessful appeal to the Court of Appeal). His claim was described as a non-monetary one based on his contention that “the defendants, whether collectively or individually, engaged in obstruction of justice and interference with the administration of justice”. The judge noted that the particulars of claim did not explicitly plead a recognised cause of action but that, at certain points, the claimant’s written submissions were framed in terms of an unlawful means conspiracy. The particulars expressly averred that the claimant was not seeking any damages. The defendants applied to strike out the claim or for reverse summary judgment on grounds which included the lack of an entitlement to declaratory relief as a matter of law.[91]Part of DJ Maddison’s reasoning in granting the application, having considered the principles in Rolls-Royce, was that he was satisfied that there was no realistic possibility that the court might, in the circumstances of the case, grant the declaratory relief sought. There was no concrete benefit or purpose to the declarations sought. In this regard, he said: “49. Essentially, the claimant advances three bases on which he says there is some purpose to the declarations he seeks:(i) to provide a foundation on which to complain to the Bar Standards Board (“BSB”);(ii) to go on to seek an order that an article be removed from Monckton chambers’ website; and(iii) to bring a claim in respect of an unlawful means conspiracy. All of these are standalone matters; they do not require prior grounding in declarations. Notwithstanding that the court has concluded above that the claimant’s allegations are baseless, he could, in principle, complain to the BSB (which would conduct its own investigation) about the barrister defendants (or his own barrister), sue for an injunction requiring the article to be removed from the website or bring an action in damages in respect of the alleged unlawful means conspiracy.” (3) The declarations are not ‘worth the candle’[92]Onecom recognises that its grounds for challenging the claim are closely related. The decisions in Uzbekov and Choudhrie (mentioned below) illustrate the interaction between the Jameel jurisdiction and Onecom’s first ground of challenge. The Jameel jurisdiction, flagged at the beginning of this judgment, is also firmly planted in the court’s case management powers (to be exercised in furtherance of the overriding objective identified in CPR 1.1) which forms the basis of Onecom’s fourth ground of challenge below.[93]However, it is sensible to deal with the Jameel jurisdiction point separately because it raises a discrete point about the court’s power to curtail legal proceedings on the ground of abuse of process. As already noted above, this has also been raised as distinct point said to be relevant to Onecom’s fallback position in Limb 2 which does not otherwise rest upon an alleged abuse of process.[94]Mr Waller says that Yello has not yet engaged in a detailed analysis of its losses caused by the direct impact of the suspected overcharging within the Variations. I have referred above to his estimated consequential losses reflected in a loss of gross profit of approximately £440,000 over a five-year period.[95]On behalf of Onecom, Mr Craggs has undertaken a careful analysis of the price increases under the Variations which indicates that, at most and making all assumptions in Yello’s favour, the maximum value of any overcharging is less than £19,000. Onecom says that Yello’s claim to have suffered extensive consequential losses is implausible.[96]The Court of Appeal’s decision in Jameel v Dow Jones [2005] EWCA Civ 75; [2005] QB 946 concerned a defamation claim. It arose out of an article posted by the defendant on an internet website in the USA. While posted on the website over a four-day period (before being archived and then removed from the archive some 4 months later) it was available to subscribers in England and Wales. However, such publication within England was minimal as the defendant’s evidence was that it had been accessed by five such subscribers within the jurisdiction. The Court of Appeal upheld the judge’s order striking out the part of the defence which attacked the irrebuttable presumption in English defamation law that the publication of a defamatory article damaged the person defamed by it. However, the court said the claim was an abuse of process on the basis that the publication within the jurisdiction was minimal and did not amount to a real and substantial tort, the damage to the claimant's reputation was insignificant and the facts did not justify the grant of an injunction prohibiting further publication. If the defences based on qualified privilege did not succeed, the court said (at [68]) “it does not seem to us that the jury can properly be directed to award other than very modest damages indeed.”[97]Giving the judgment of the court, Lord Phillips MR said, at [69]:
“If the claimant succeeds in this action and is awarded a small amount of damages, it can perhaps be said that he will have achieved vindication for the damage done to his reputation in this country, but both the damage and the vindication will be minimal. The cost of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick.”
[98]Earlier in the judgment, at [54], the Master of the Rolls said:
“An abuse of process is of concern not merely to the parties but to the court. It is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice.”
[99]In Uzbekov, Chamberlain J addressed the Jameel jurisdiction and relied upon it as a further basis for striking out the claim. Having quoted that same passage in paragraph [54] of Jameel, he said:
“39. This is of particular importance, because, as CPR 1.2(e) expressly recognises, using the court’s resources to determine one claim has an impact on other parties who may have disputes that are equally or more deserving of court time. This consideration was central to the species of abuse of process identified in Jameel. That was a libel case, but, as Mr Green rightly accepted, the need to protect parties from disproportionately costly and time-consuming litigation and to allot to them a fair share of court’s limited resources applies more generally than that. Abbey v Gilligan and Choudhrie v Choudhrie are examples of the application of the Jameel principles to other causes of action.”
[100]In Choudhrie v Choudhrie [2019] EWHC 2066 (Ch), sitting as a judge of the High Court, HHJ Hodge QC addressed an application to strike out a claim for declaratory relief which was said to be justified by the need for clarity and certainty around the existence and scope of the equitable duty of confidence which the claimant said was owed to him by his estranged wife. HHJ Hodge QC struck out the claim on the ground that there was no real prospect of the declarations sought being granted, given their lack of utility and their failure to “achieve any measure of clarity or finality”. The judge also said, at [82], that the considerations relevant to whether there was any useful purpose in granting the declarations also “feed into” the alternative ground of strike out (abuse of process), concluding that given there was no real prospect of a declaration being granted, the claim was also an “abuse of process on Jameel grounds”.[101]In Municipio de Mariana v BHP Group (UK) [2022] EWCA Civ 951; [2022] 1 WLR 4691, at [175], the Court of Appeal has recently described the Jameel jurisdiction as follows: “[P]roceedings may …be abusive if, even though they raise an arguable cause of action, they are (objectively) pointless and wasteful, in the sense that the benefits to the claimants from success [are] likely to be extremely modest and the costs to the defendants in defending the claims wholly disproportionate to that benefit.” (4) Usurpation of the Court’s function[102]Onecom’s fourth ground involves different strands of legal principle each of which has its principal roots in public policy considerations. Those considerations, which underpin the principles of substantive law aimed at preventing a party having to litigate the same cause of action or issue more than once (the doctrine of res judicata) or, perhaps, a conclusion that, as a matter of procedure, a claim ought to have been advanced as part of a previous claim (Henderson v Henderson abuse of process or what is sometimes referred to as “res judicata in the wider sense”), also feed into the court’s case management powers under the Civil Procedure Rules. Part of Onecom’s argument on this ground is that the effect of Yello’s decision to proceed with a breach of contract claim in this unconventional way is to deprive the court of certain of its case management powers in a way that shows it to be an abuse of process.[103]Just as there is a degree of overlap between Onecom’s first, second and third grounds, so too there are aspects of this fourth ground of challenge which are linked with the observations above about the need to analyse the usefulness of granting purely declaratory relief. The passage of the judgment in Pigot quoted in paragraph 89 above clearly indicates that both Mr Jourdan QC and Nugee LJ had well in mind the point that, by seeking declaratory relief instead of damages and an injunction, the claimant had deprived the court of its case management discretion concerning the appropriateness or otherwise of a determination of preliminary issues. However, in that case the defendant did not suggest the claim was an abuse of process but, instead, subscribed to what Nugee LJ described as the unorthodox procedure adopted by the parties. By the time the Part 8 Claim came before the deputy judge at the substantive hearing the time for such case management directions had obviously passed.[104]Mr Sher KC referred to a passage in Zamir & Woolf op. cit., at [4-120] in a section headed ‘Public Policy’, which states: “The courts will also refuse to grant any relief when the courts considers that the only purpose of the proceedings amounts to an abuse of procedure”.[105]As explained above, the decision in Zavarco addressed the doctrine of merger. Lord Hodge (at [32]) explained that the doctrine played an important role in controlling abusive litigation when:
“….. the means of control available to the courts were significantly less than they have since become. The common law now has a panoply of rules and doctrines by which the courts can promote finality of litigation and prevent duplicative and vexatious actions. Those aims can be further supported by judicial case management under among others Part 3 of the Civil Procedure Rules and practice directions.”
[106]In Zavarco, at [29]-[30], Lord Hodge referred to the judgment of the Supreme Court in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd (formerly Contour Aerospace Ltd) [2013] UKSC 46; [2014] AC 160, at [25], where Lord Sumption described res judicata (i.e. cause of action estoppel or issue estoppel) as a rule of substantive law and abuse of process as a concept which informs the exercise of the court’s procedural powers. They are what Lord Sumption described as “distinct although overlapping legal principles with the common underlying purpose of limiting abusive and duplicative litigation”. Lord Hodge, at [31], went on to refer to the decision of the Privy Council in Primeo Fund v Bank of Bermuda (Cayman) Ltd [2023] UKPC 40; [2024] AC 727.[107]In Primeo, in a section of the judgment headed ‘Procedural Issues’, the Privy Council said:
“146 There has long been established in the common law a principle that there must be an end to litigation and that a party is not to be vexed by repeated legal challenges in relation to the same subject matter. The court requires parties to bring forward their whole case and, absent special circumstances, will not permit the parties to reopen the same subject of litigation in relation to matters which could have been brought forward in an earlier hearing: Henderson v Henderson (1843) 3 Hare 100, 114-115. The principle has manifested itself in the rules relating to res judicata, cause of action estoppel, issue estoppel and abuse of process. In the present appeal the Board is concerned with the circumstance that a party has sought to raise new arguments on appeal which were not raised before the judge instance who presided over the trial. 147. In Barrow v Bankside Members Agency Ltd [1996] 1 WLR 257, 260, (“Barrow”) Sir Thomas Bingham MR explained the rule in Henderson v Henderson in these terms: “It requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have brought forward for decision on the first occasion but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for ever and that a defendant should not be oppressed by successive suits when one would do. That is the abuse at which the rule is directed.”” “It requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have brought forward for decision on the first occasion but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for ever and that a defendant should not be oppressed by successive suits when one would do. That is the abuse at which the rule is directed.””
[108]Mr Sher KC observed that the policy identified by the Master of the Rolls in Barrow is reflected in the following aims identified in CPR 1.4 which the court must promote in its active management of cases in furtherance of the overriding objective:
“(b) identifying the issues at an early stage; …… (d) deciding the order in which the issues are to be resolved; …… (f) helping the parties to settle the whole or part of the case; …… (i) dealing with as many aspects of the case as it can on the same occasion.”
[109]As I remarked at the hearing in response to these references, the aspirations of the overriding objective itself (see CPR 1.1(2)) not only include saving expense and dealing with the particular case both expeditiously and in a way which is proportionate to its value but also allocating to it an appropriate share of the court’s resources, taking account of the fact that those finite resources need to stretch to managing and disposing of other cases. As I observed, Yello’s approach to this litigation requires resources not just for two trials (the first over the declaratory relief and the second the more orthodox breach of contract claim) but two separate claims and therefore two lots of case management with its ancillary demands upon the court’s time and resources.[110]Of course, the parties are required to help the court in furthering the overriding objective: see CPR 1.3. Although the striking out of a statement of case as an abuse of process (or where it is likely to obstruct a just disposal of the proceedings) forms a separate part of the court’s power to strike out under CPR 3.4, a failure to comply with CPR 1.3 might in certain circumstances also be a ground for doing so: see CPR 3.4(2)(c).[111]The directive to deal with cases justly and at proportionate cost (see CPR 1.1(1)) underpins the Jameel jurisdiction. The goal of dispensing justice at proportionate cost obviously includes “saving expense”: CPR 1.1(2)(b). That includes avoiding legal costs which cannot be justified by the value of the claim before the court.[112]In Sullivan v Bristol Film Studio [2012] EWCA Civ 570 the Court of Appeal heard an appeal against the striking out of a claim based upon an infringement of copyright and performance moral rights through defendant’s uploading of a video of the claimant to YouTube where it remained for a period of 5 days before being removed following the claimant’s objection to it. The claimant valued the claim at £800,000. The deputy judge did not dismiss the claim on the basis that it lacked any real prospect of success but instead because he assessed the claimant’s maximum possible recovery at £50. He relied upon the Jameel jurisdiction. On appeal, the claimant accepted that if the claim was indeed only worth £50 or thereabouts it should not go forward to trial. The Court of Appeal upheld the strike out of a claim on Jameel grounds. Etherton LJ said:
“40. For my part, I would emphasise that the disproportion justifying the strike out of Mr Soloman’s claim is not merely between the likely amount of damages he would recover if successful in the proceedings and the litigation costs of the parties. It includes consideration of the extent to which judicial and court resources would be taken up by the proceedings. That was the approach rightly taken by the Deputy Judge, who said in [27] of judgment that the proceedings would involve a large amount of court time and would cost a great deal of money to argue and would be a disproportionate use of the court’s resources and unfair to the defendant.” ……. “44. ………… the court must, in accordance with the Overriding Objective, consider at the earliest opportunity the most efficient, cost effective, proportionate and fair way of resolving the dispute. …….”
[113]In Sullivan, at [32], Lewison LJ said:
“When in future a judge is confronted by an application to strike out a claim on the ground that the game is not worth the candle he or she should consider carefully whether there is a means by which the claim can be adjudicated without disproportionate expenditure.”
He did so in the context of noting the mere fact that the value of a claim is small should not automatically result in the court refusing to hear it at all if there is an entitlement to recovery. Although the point did not sustain the claimant’s appeal, what, in essence, had gone procedurally wrong in that case was a failure by the District Judge to allocate the claimant’s “soft IP” claim of modest value to either the Patents County Court or the small claims track in the Bristol County Court. That would have been the “proportionate procedure”. As Lewison LJ put it, at [29]:
“…. The real question, to my mind, is whether in any particular case there is a proportionate procedure by which the merits of a claim can be investigated. In my judgment it is only if there is no proportionate procedure by which a claim can be adjudicated that it would be right to strike it out as an abuse of process. …..”
[114]Yello’s counsel relied upon the decision of Nicklin J in Alsaifi v Trinity Mirror Plc [2018] EWHC 1954 (QB); [2019] E.M.L.R. 1. Like Jameel, this was a decision in a defamation claim involving what the court concluded, at the interlocutory stage, to be a viable claim for defamation. As Lewison LJ remarked in Sullivan, at [29], “to some extent defamation actions are a special case” because the County Courts Act 1984 precludes the county court from hearing actions for libel or slander.[115]In Alsaifi, and building on the £50 example given in Sullivan, Nicklin J said, at [45]: “The Court cannot strike out a claim for a £50 debt simply because, assessed against the costs of the claim, it is not ‘worth’ pursuing. Inherent in the value of any legitimate claim is the right to have a legal wrong redressed. The value of vindicating legal rights – as part of the rule of law – goes beyond the worth of the claim. The fair resolution of legal disputes benefits not only the individual litigants but society as a whole.” (Yello’s counsel’s emphasis added).[116]The element of the overriding objective which requires the court to deal with cases “justly” (as well as at proportionate cost) can be seen to be the essential basis of the Aldi principle which I have mentioned in the introduction to this judgment alongside the Jameel jurisdiction. The powers to be exercised by the court in its active case management, identified in paragraph 108 above, of course relate to “the case” as it has been advanced, with the claims identified by it, and as it is before the court for such case management. What has been described in these proceedings as the Aldi principle, which rests heavily upon the rule in Henderson v Henderson, requires a party to identify at an early stage all of the claims it wishes to bring so that they can be managed effectively.[117]In Aldi Stores v WSP Group Plc [2007] EWCA Civ 1260; [2008] 1 WLR 748 the Court of Appeal allowed an appeal against the judge’s striking out of a second claim. The defendants to that second claim had in earlier proceedings been made defendants to a Part 20 claim brought by the claimant against another defendant. The judge struck out the second claim as an abuse of process on the ground that it could and should have been brought in the previous proceedings. However, the Court of Appeal held that, although the fact that the defendants to the original claim and the second one were different did not operate as a bar to the finding of an abuse of process, it was a powerful factor in the application of a broad merits-based judgment as to whether there was such an abuse. That judgment requires an assessment of the relevant factors. On the facts, the claimant’s decision not to proceed against the defendants in the first set of proceedings was commercially reasonable, forensically legitimate, reasonably transparent and (the claimant having obtained judgment and recovered in full against the original defendant) resulted in the defendants being faced with a claim for the first time.[118]The Aldi principle is based upon what Thomas LJ said at [30]:
“30. Parties are sometimes faced with the issue of wishing to pursue other proceedings whilst reserving a right in existing proceedings. Often, no problem arises; in this case, Aldi, WSP and Aspinwall each in truth knew at one time or another between August 2003 and the settlement of the original action in January 2004 that there was a potential problem, but it was never raised with the court. I have already expressed the view that it should have been. The court would, at the very least, have been able to express its view as to the proper use of its resources and on the efficient and economical conduct of the litigation. It may have seen if a way could have been found to determine the issues applicable to Aldi’s claim in a manner proportionate to the size of Aldi’s claim and without the very large expenditure that would have been necessary if Aldi had to participate in the trial of the actions. ……….” 31. However, for the future, if a similar issue arises in complex commercial multi-party litigation, it must be referred to the court seised of the proceedings. It is plainly not only in the interest of the parties, but also in the public interest and in the interest of the efficient use of court resources that this is done. There can be no excuse for failure to do so in the future.”
[119]In Football Dataco Ltd v Stan James [2014] EWHC 504 (Ch), Mr Iain Purvis QC, sitting as a Deputy Judge of the High Court, addressed that passage of the judgment of Thomas LJ (and later decisions relying upon Aldi) in the context of a late application by the claimants for permission to make a fifth re-amendment to their particulars of claim. The judge refused permission on the basis that the amended claim would amount to an abuse of process because of the failure to comply with the Aldi principle. At [113], he summarised the principle as follows:
“….. the mischief identified in the Aldi line of cases is that the failure to identify causes of action at an appropriate stage reduces the Court’s ability effectively to manage cases. It is no excuse for such a failure to contend that the Court would probably not have acted differently if they had been told about the new claim. In reality of course no-one can ever know what would have happened.”
[120]Mr Strelitz emphasised that in the above passage of his judgment in Aldi, (allowing the appeal from the judge’s decision to strike out the claim) Thomas LJ expressed the point in terms of it being a matter of case management. See also the judgments of Wall and Longmore LJJ, at [36] and [42] respectively, to the same effect. He made that point on behalf of Yello to say that Onecom should have raised its concerns at the Case Management Conference in this case and not presented them on a strike out application. If at the CMC the court were to have concerns based on the Aldi principle then the result would be an order for Yello to file and serve a more comprehensive statement of case (extending to breach of the Yello MSA, causation and loss) not the striking out of the case that has so far been advanced.[121]In support of that submission, Mr Strelitz referred to the decision of Tugendhat J in Kim v Park and others [2011] EWHC 1781 (QB). That was a libel claim which the master had struck out because the burden was upon the claimant to demonstrate that there has been a publication and he had failed to provide sufficient particulars to support a case of actual publication to any individual. Between the date of the hearing and the handing down of the judgment the claimant sent the court a number of witness statements made by those who said they had read the article in question. The master said in his judgment that this was too late and it would not be fair to admit evidence at that late stage. The decision to strike out was overturned on appeal. Tugendhat J said, at [40], “where the court holds that there is a defect in a pleading, it is normal for the court to refrain from striking out that pleading unless the court has given the party concerned an opportunity of putting right the defect, provided that there is reason to believe that he will be in a position to put the defect right.”[122]Mr Strelitz said Onecom had not been able to identify an authority where the court had struck out a claim by reference to the fact that it was only a stepping stone to a further claim seeking redress. They said Yello’s claim did not cross the line between perhaps being unusual to something that is “significantly different from the ordinary and proper use of the court process” That is how Lord Bingham CJ described an abuse of process in Attorney-General v Barker (QBD) [2000] 1 FLR 759, at 764. The decision concerned the Attorney-General’s application for a civil proceedings order under s 42 of the Supreme Court Act 1981 by reference to the respondent having habitually and persistently, and without any reasonable grounds, instituted vexatious civil proceedings. It is noted in the 2026 White Book commentary (para. 3.4.3) in relation to the undefined term “abuse of the court’s process” in CPR 3.4(2)(b). (5) Cui bono? Mr Palmer’s interest and influence[123]I have said above (see paragraph 12 above) that I do act upon Onecom’s invitation to infer that James Palmer is funding and playing some part (short of the control ultimately reserved to Mr Waller as Yello’s sole director) in Yello’s pursuit of its claim.[124]Onecom’s evidence in support of the application addressed this in some detail in support of the case that, there being no prospect of substantial financial recovery by Yello of the kind that might persuade a commercial funder to support a piece of litigation, Mr Palmer’s involvement further illustrated Yello’s abuse of the court’s process. I think it is fair to say that Mr Sher KC’s submissions on this aspect illustrated the ancillary nature of this ground. He said the unusual features of Yello’s claim all benefit Mr Palmer in what Onecom says is his multi-front litigation, regulatory and publicity campaign against Onecom. It would make the litigation process much longer and more expensive for Onecom to defend and are of a type that makes it impossible to settle.[125]Those submissions amount to saying that the claim is being pursued for Mr Palmer’s collateral or improper purposes.[126]In Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2013] UKPC 17; [2014] AC 366 the Privy Council was concerned with a counterclaim based on the closely related torts of abuse of process and malicious prosecution. That substantive claim by the defendant surveyors, in part based on an abuse of process, arose out of proceedings brought against them by the insurers which had been based on allegations of fraud and conspiracy in respect of property repairs but which were withdrawn before trial. The Board allowed the defendant’s appeal in relation to their claim based upon the tort of malicious prosecution but the appeal in relation to the tort of abuse of process failed since it was not alleged that the legal process had been used by the insurers for any purpose other than that for which it was designed.[127]In relation to the tort of abuse of process, Lord Wilson addressed what is meant by a collateral or (“more helpfully”) an improper purpose. He said, at [63]: “What is an improper purpose? A helpful metaphor suggested by Isaacs J in the High Court of Australia in Varawa v Howard Smith Co Ltd (1911) 13 CLR 35, 91, is that of a stalking-horse: “If the proceedings are merely a stalking-horse to coerce the defendant in some way entirely outside the ambit of the legal claim on which the court is asked to adjudicate they are regarded as an abuse of process for this purpose …" The metaphor aids resolution of the conundrum raised by the example of a claimant who intends that the result of the action will be the economic downfall of the defendant who may be a business rival or just an enemy. If the claimant's intention is that the result of victory in the action will be the defendant's downfall, then his purpose is not improper: for it is nothing other than to achieve victory in the action, with all such consequences as may flow from it. If, on the other hand, his intention is to secure the defendant's downfall or some other disadvantage to the defendant or advantage to himself by use of the proceedings otherwise than for the purpose for which they are designed, then his purpose is improper. …………” “If the proceedings are merely a stalking-horse to coerce the defendant in some way entirely outside the ambit of the legal claim on which the court is asked to adjudicate they are regarded as an abuse of process for this purpose …"[128]One of the many cases referred to in the judgments in Crawford was that of Teare J in JSC BTA Bank v Ablyazov and others (No. 6) [2011] EWHC 1136 (Comm); [2011] 1 W.L.R. 2996. The decision in Ablyazov (No. 6), like the present case, concerned a claim of abuse of the process in seeking a case management decision by the court. The defendants sought a stay of the proceedings on the grounds, amongst others, that the proceedings were being pursued by the claimant for an illegitimate collateral purpose; namely in furtherance of the objective of the President of Kazakhstan to eliminate the first defendant as a political opponent.[129]In Crawford, at [65], addressing a situation of mixed motives, Lord Wilson doubted whether Teare J was correct to conclude that that any legitimate purpose negatived abuse even if an improper purpose was predominant. However, in Ablyazov (No. 6), at [10], Teare J also relied upon what Simon Brown LJ said in Broxton v McClelland [1995] EMLR 485 as follows:
“Only in the most clear and obvious case will it be right to strike out proceedings as an abuse of process so as to prevent a plaintiff from bringing an apparently proper cause of action to trial.”
[130]The decision in Ablyazov (No. 6) has been endorsed, including for that last proposition, in a number of subsequent decisions, including of the Court of Appeal: see Optaglio Ltd v Tethal [2015] EWCA Civ 1002, at [62]-[63] (per Floyd LJ); Harlow Higinbotham (formerly BWK) v Teekhungam [2018] EWHC 1880 (QB), at [41] (per Nicklin J); Re Compound Photonics Group Limited [2020] EWHC 3176 (Ch); [2021] B.C.C. 249, at [36] (per Adam Johnson J); Municıpio de Mariana v BHP Group (UK) Ltd [2022] EWCA Civ 951; [2022] 1 WLR 4691, at [178] (per Underhill, Popplewell and Carr LJJ); Kireeva v Zolotova & Anor [2024] EWHC 552 (Ch); [2024] BPIR 772, at [128] (per ICC Judge Greenwood). These did not concern claims based on the tort of abuse of process. The decision in Ablyazov (No. 6) was referred to for what it says in connection the procedural decision to stay or strike out a claim on the ground that it is brought for an ulterior purpose.[131]I respectfully adopt the summary of the applicable principles given by Nicklin J in Higinbotham, at [41], including his recognition of the two categories of improper (or collateral) purpose, as follows (the bold appears in Nicklin J’s judgment): “i) Court proceedings may not be used or threatened for the purpose of obtaining for the person so using or threatening them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist (JSC BTA Bank -v- Ablyazov (No.6)[2011] 1 WLR 2996 [3] quoting Lord Evershed MR in In re Marjory; ex p The Debtor -v- FA Dumont Ltd [1955] Ch 600, 623-624); ii) Legal process is used properly when it is invoked for the vindication of a person’s rights or the enforcement of just claims. It is abused when it is diverted from its true course so as to serve extortion or oppression: or to exert pressure so as to achieve an improper end (Ablyazov [4]; Goldsmith -v-Sperrings Ltd [1977] 1 WLR 478, 489 per Lord Denning MR). iii) A claimant’s motive and intention as such are irrelevant: the fact that a party who asserts a legal right is activated by feelings of personal animosity, vindictiveness or general antagonism towards his opponent is nothing to the point: Ablyazov [10]; Broxton -v- McClelland [1995] EMLR 485, 497-498 per Simon Brown LJ; iv) Accordingly, the institution of proceedings with an ulterior motive is not of itself enough to constitute an abuse: an action is only that if the court's processes are being misused to achieve something not properly available to the plaintiff in the course of properly conducted proceedings: Broxton -v-McClelland, supra. v) The cases appear to suggest two distinct categories of such misuse of process: a) achievement of a collateral advantage beyond the proper scope of the action. In such cases, the difficulty is deciding where precisely falls the boundary of such impermissible collateral advantage (see Bridge LJ's judgment in Goldsmith -v- Sperrings Ltd (at p.503D-H)); and/or b) conduct of the proceedings themselves, not to vindicate a right, but to cause the defendant problems of expense, harassment, commercial prejudice or the like beyond those ordinarily encountered during properly conducted litigation (c.f. Wallis -v- Valentine [2003] EMLR 8 [28] and [34] per Sir Murray Stuart-Smith. Broxton -v- McClelland, supra. vi) The test of the claimant’s motive is objective: Wallis -v- Valentine [32] per Sir Murray Stuart-Smith; vii) The merits of the claims sought to be brought are relevant where it is suggested that a claim is brought for mixed purposes. A good arguable claim may indicate that the proceedings were brought, at least in part, for a legitimate purpose: Ablyazov [24]. viii) Only in the most clear and obvious case will it be appropriate, upon preliminary application, to strike out proceedings as an abuse of process so as to prevent a claimant from bringing an apparently proper cause of action to trial: Broxton -v- McClelland, supra.” a) achievement of a collateral advantage beyond the proper scope of the action. In such cases, the difficulty is deciding where precisely falls the boundary of such impermissible collateral advantage (see Bridge LJ's judgment in Goldsmith -v- Sperrings Ltd (at p.503D-H)); and/or b) conduct of the proceedings themselves, not to vindicate a right, but to cause the defendant problems of expense, harassment, commercial prejudice or the like beyond those ordinarily encountered during properly conducted litigation (c.f. Wallis -v- Valentine [2003] EMLR 8 [28] and [34] per Sir Murray Stuart-Smith.

Decision

[132]Regardless of what my decision on Limb 2 shows to be the merits of Yello’s claim based upon the alleged implied terms and conditions precedent, I have concluded that it is an abuse of process and should be struck out.[133]I recognise that, in describing it in those terms, there is an element within that finding which is properly analysed as a merits based conclusion that the backward-looking declaratory sought by Yello lacks the useful purpose which the decisions in Rolls-Royce, Uzbekov and JP Morgan confirm is a necessary part of any claim to the discretionary remedy. As I noted at the outset of this judgment, it is not immediately obvious that, by relying on a provision in the court rules (CPR 40.20) to ask the court to do something which the rules expressly say can be done, a party can be said to be abusing its process.[134]However, Onecom’s application on Limb 1 also asserts that the claim to declaratory relief lacks any real prospect of success for the purposes of CPR Part 24 in addition to it failing to disclose any reasonable grounds bringing it (CPR 3.4(2)(a)) and being abuse of process (CPR 3.4(2)(b)). An application for reverse summary judgment was in fact the primary limb of the defendant’s application in Uzbekov, though I note Chamberlain J chose to express his conclusion in the terms of CPR 3.4(2)(b) and to strike out the claim. In this case, I based the decision on both CPR 3.4(2)(a)) (for which CPR 24.3 could have served equally well) and CPR 3.4(2)(b).[135]I have reached my conclusion on Limb 1 regardless of whether or not Yello is successful in resisting Onecom’s attack under Limb 2 upon Yello’s contractual analysis which, Yello says, should be vindicated by declaratory relief as to its correctness. I have reached it for the combination of reasons identified by Onecom in each of its grounds 1 to 4 above. As was the case in Uzbekov and Choudhrie, the reasons include the absence of a justifiable basis for seeking declaratory relief (Onecom’s grounds 1 and 2) and the Jameel jurisdiction (ground 3). I have explained that the Jameel jurisdiction feeds into Onecom’s ground 4. On that fourth ground, I am persuaded that Yello’s approach is at odds with a useful and efficient use of the court’s resources and is contrary to the Aldi principle.[136]However, the warp and weft of my finding on Limb 1 does not include the last of Onecom’s strands: ground 5 (Mr Palmer’s interest and influence). That is because, applying Nicklin J’s third and fourth principles in, at [41], I treat Mr Palmer’s motives as being irrelevant.[137]The focus of the authorities concerning an alleged collateral purpose is upon the motives of the party bringing the claim (“the person so using or threatening them” as it was put in the first principle in Higinbotham) which in this case is Yello, not Mr Palmer. Onecom’s other grounds are in any event directed more to Yello’s conduct of the proceedings rather than the idea that Yello is securing some collateral advantage for itself: see the distinction drawn in the fifth principle. For the purposes of that distinction, I think it is fair to summarise Onecom’s concerns as a complaint that Mr Palmer is enabling Yello to cause Onecom “problems of expense, harassment, commercial prejudice or the like”.[138]However, it is obvious from the fact that ground 5 is a standalone ground that Onecom’s objections to this claim are advanced regardless of whether or not Mr Palmer is enabling it. Mr Palmer’s position as a funder might be relevant to any recovery of costs by Onecom (see paragraph 9 above for Yello’s balance sheet insolvency as at 30 June 2025) but costs are always a consequential matter. I do not regard Mr Palmer’s involvement in the claim as significant for the purposes of deciding what should happen to it on this application.[139]Reliance upon ground 5 would also require me to take little note of, if not disregard, the grievance that Yello has (through MrWaller) expressed about the Variations and their suggested financial impact. Mr Strelitz referred not only Mr Waller’s witness statement on this aspect but an email he wrote to Lloyds Banking Group about Onecom (on the basis it is a subsidiary of that Group) on 20 June 2025. In that email, which pre-dates the issue of the claim by 5 months, Mr Waller referred to his business as “the victim of fraudulently misrepresented pricing notifications issued by [Onecom]”. This evidence cannot properly be disregarded to the point where matters become clear and obvious for the purposes of Nicklin J’s eighth principle. [I note here that, although Mr Waller said Onecom is a subsidiary of Lloyds Banking Group, Onecom says it would be more accurate to say that LDC, which is such a subsidiary, was an investor in Onecom.][140]In this case the court has been told by Yello at the outset about the further claim it intends to bring (compare the late amendment sought in Football Dataco). However, such frankness on Yello’s part only highlights its failure to do what Thomas LJ said in Aldi should be done, so that the court is in the position of being able to consider exercising one or more of the case management powers identified in paragraph 108 above over the whole of Yello’s claim. If Yello had brought a conventional claim for damages for breach of contract then I think it highly unlikely that the court would have directed a split trial of liability and quantum. By instead proceeding in this unorthodox way Yello has in effect sought to impose upon the court its decision to have “liability” addressed before quantum.[141]Generally, as the very nature of Henderson v Henderson abuse confirms, there will be “no excuse” (to use Thomas LJ’s phrase) for acting only upon part of an accrued cause of action against the defendant. In my judgment, Yello’s construction of an elaborate claim for preliminary declaratory relief out of what should be a conventional claim for damages for breach of contract (i.e. the claim which Yello in fact seeks to hold in reserve) cannot amount to a good excuse. To the contrary, this unusual approach involves Yello ignoring its obligation under CPR 1.3.[142]Yello’s counsel said the Aldi principle is one to be engaged with at the CMC and is not supportive of a striking out of the claim. The hearing date of 21 May 2026 had originally been listed for the CMC in this case before that was superseded by Onecom issuing its application. Implicit in counsel’s submission was the recognition that Yello might have been ordered to amend its claim to include allegations of causation, loss and the particularisation of the damages claimed. In my judgment, contemplating what would have happened at the CMC serves to show just how far away Yello is from “the ordinary and proper use of the court process” (to use the language of Lord Bingham CJ in A-G v Baker) on a claim about breach of contract. Reflecting upon the points made in support of Onecom’s grounds 1 and 2, the court would have ordered Yello to start again with an entirely fresh statement of case seeking damages (for breach of express and/or implied terms) rather than declarations. Reflecting upon Yello’s claim on loss, including consequential losses in the light of Onecom’s contractual right under clause 20 to terminate the Yello MSA on one month’s notice, it might well also have transferred the claim to the County Court.[143]Mr Waller says in his witness statement:
“I do not think that there is anything improper about my approach to this litigation. It is not my intention to vex or harass Onecom Partners. I am simply pursuing the litigation strategy in respect of my claims that makes the most sense to Yello. I understand that it is an accepted practice in litigation for a party to seek declaratory relief before bringing claims for damages.”
[144]I have explained why the basis of that understanding must be doubtful when applied to a case which is all about alleged past breaches of contract.[145]So far as the strategy making most sense is concerned, Mr Waller says Yello is mindful of the likely cost, complexity and duration of any proceedings to recover the losses outlined in his evidence. He refers to the need to instruct experts, to enter into a detailed factual analysis of what might have happened if Onecom had not breached the contract and the need to undertake a significant disclosure. He also contemplates the need to resist various attempts by Onecom to delay and frustrate proceedings. Mr Waller says Yello elected to bring a claim for declaratory relief to “establish, as quickly and cheaply as possible, whether Onecom Partners had breached the Yello MSA”.[146]This evidence does not really make sense. It certainly falls short of convincing me that no abuse of process emerges from what is revealed to be an evident lack of finality in the resolution of the dispute by the present claim.[147]Although the last quote above from Mr Waller’s evidence might perhaps indicate that Yello is testing the merits of its claim in stages (the first being to establish whether or not Onecom breached implied terms of the Yello MSA) Yello’s position in the present proceedings must be, and should be taken by the court to be, that the second set of proceedings will follow (see Yello’s resistance of Onecom’s attack under Limb 2). There is no point to the present claim unless it is to support Yello’s recovery of damages. On that basis, I simply do not understand Mr Waller’s basis for his thinking that the strategy adopted by Yello will result in the route to that financial goal being quicker, cheaper or less complex. The evidential matters he refers to in support of the damages claim will have to be addressed at some stage.[148]Rather than the current strategy saving time and money, it is obvious that this two-stage process is increasing the overall legal costs and delaying any recovery of damages. Yello’s estimate of its costs of the present proceedings is £200,000 which Onecom says is a hopeless underestimate. I note from the schedules of costs filed with the court that the parties’ combined costs in relation to the present application exceed £455,000.[149]As for Mr Waller’s concern that Onecom will seek to delay and frustrate any damages claim, again I find it difficult to grasp what interest is served by postponing the commencement of the claim which would test the genuineness of that concern. Of course, on that claim, Yello would be able to invoke the court’s case management powers to counter any feet-dragging on the part of Onecom. Had Yello brought a conventional claim for breach of the Yello MSA then it seems clear that Onecom would have issued an application for reverse summary judgment in respect of the alleged implied terms currently the focus of the suggested declaratory relief. Whether or not that application would be categorised as a delaying tactic in the face of a meritorious claim is best considered in the light of my conclusions on Limb 2 below.[150]However, even if Mr Waller’s predicates were sound, it is not what makes “most sense”, or is most convenient, to Yello (alone) that is paramount. The overriding objective clearly addresses the position of both parties in its aspiration of dealing with their case justly.[151]Mr Waller says it is not Yello’s intention to vex Onecom. But it is Yello’s intention to subject Onecom to two separate sets of proceedings, rather than just the one set which alleged past breaches of the Yello MSA would ordinarily point to, and that is vexatious. Applying the concept of Henderson v Henderson abuse, recently re-visited in the judgments in Zavarco and Primeo, Yello’s approach is contrary to public policy and abuse of process.[152]The “proportionate procedure” (to use Lewison LJ’s phrase in Sullivan) for Yello to have adopted would have been to bring a conventional Part 7 claim for damages for breach of contract. If the claim were to be accepted by Yello to be as modest as Onecom suggest then the County Court would be the venue for recovering damages in the region of £20,000. If, however, consequential losses of the kind intimated by Mr Waller were sought to be recovered by Yello then the claim would be issued in the High Court. Either way, the ordinary type of Part 7 claim would be the basis for testing whether a legal wrong falls to be redressed and, if so, the true value of that vindication of legal rights (to adapt the language of Nicklin J in Alsaifi).[153]In my judgment, Yello’s failure to adopt the proportionate course is demonstrated by the disregard of the overriding objective involved in the procedure it has adopted. It involves an unnecessary layer of additional costs and delay: compare the aims of the overriding objective in CPR 1.1(2)(b), (c) (d) and (e) (saving expense, dealing with the case in a manner proportionate to its nature, ensuring it is dealt with expeditiously and allocating to it an appropriate share of the court’s resources). It has also deprived Onecom of the opportunity to respond to it by acting upon what Onecom considers to be its modest value suitable for the County Court. In the face of a money claim, preceded of course by an appropriate letter of claim, it is possible that Onecom would have taken a commercial decision that (despite the confidence in its position indicated by the points taken on Limb 2) it would prove to be disproportionately costly to defend. If the letter of claim intimated it would bring a higher value one in the High Court then Onecom might have made a Part 36 Offer reflecting what it considered to be its true worth. Either step would have been consistent with the overriding objective: see CPR 1.4(2)(f), which shows the overriding objective is served by the parties being helped to settle their dispute.[154]Yello’s counsel said that nothing in the proceedings brought prevented Onecom getting ahead of matters by making an open offer which anticipated Yello’s claim to damages and was for the maximum amount which Onecom considered could be claimed by Yello. To my mind, that submission again highlights the very unconventional nature of Yello’s claim when tested against how claimants who are victims of alleged breaches of contract ordinarily and properly make use of the court process. Offers to settle such claims are necessarily responsive and any defendant making one is entitled to know what the claimant is seeking from the court should that process run its course. As pleaded, the present claim does not even hint at a value.[155]For these reasons, I grant Onecom’s application on Limb 1 and will strike out the claim pursuant to CPR 3.4(2)(a) and (b) on the basis that no reasonable grounds have been disclosed for bringing it and/or it is an abuse of the process of the court.

LIMB 2

[156]Even though the claim will be struck out under Limb 1, I address the issues raised by Limb 2 as Onecom invited me to do.

Analysis/Decisions

[157]Limb 2 calls for an analysis of the justification of the seven conditions precedent relied upon by Yello (as said to be applicable to a Bespoke Variation) including four which rest upon the respective implied terms outlined above. Those implied terms are also invoked by Yello in relation to Onecom’s notification of a Supplier Increase Variation. However, it is necessary to address a preliminary point before addressing these matters. (1) Variation 2 - Estoppel[158]In relation to Variation 2, Yello says that Onecom is estopped from asserting that it can be justified as a Bespoke Variation (as well as Supplier Increase Variation). As already noted, Onecom says Variation 2 can be justified on both bases but the estoppel argument arises out of the fact that, in letters dated 13 August 2025 and 17 November 2025, Goodwin Procter referred to as a Supplier Increase Variation. As Mr Sher KC noted, the letters were silent as to whether it could also be justified as a Bespoke Variation.[159]At the hearing, in response to Mr Sher KC’s request for clarification of the position, Mr Strelitz confirmed that Yello was not conceding the estoppel point.[160]In my judgment, Yello should have done so as I regard the estoppel argument as hopeless. The APOC relies upon that pre-action correspondence to allege that “[Onecom’s] solicitors asserted that, and [Onecom] are now estopped from asserting to the contrary that, [Onecom] relies upon …. Clause 7.6 …. for their alleged right to devise, convey and impose Purported Variation 2. ….”. Of course, Onecom is not seeking to assert the contrary. It still relies upon clause 7.6 but now seeks to rely clause 1.7.2 upon as well. There being no mention in the correspondence to the latter clause, there was no clear representation that Onecom were not relying upon it (in other words, was then only relying upon clause 7.6 in a manner contrary to its pleaded case).[161]Mr Sher KC also noted, correctly, that there was no detrimental reliance by Yello upon what Goodwin Procter’s letters said of the kind necessary to support an estoppel; and that Yello’s Reply had engaged with the substance of Onecom’s case on the validity of Variation 2 on the basis that Onecom is not so estopped.[162]As I indicated at the hearing, there appears to me to be a further, equally fundamental problem in the way of treating pre-action correspondence as the basis of an estoppel. The Yello MSA had terminated some 6 months before the first of the pre-action letters relied upon by Yello. The subject matter of the alleged estoppel is a contractual notice served while the Yello MSA was in force. Nothing Yello did or did not do during the remaining life of the Yello MSA can have been influenced by letters not yet written. I have already noted that Variation 2 (like the other Variations) did not mention any clause of the Yello MSA. In my judgment, it is a novel argument to say that the contractual effectiveness of a document can be determined (through the operation of an estoppel) by what is later said about it by a party’s solicitor. Pre-action correspondence does not have the status of a verified statement of case, which is why the court tends to be unenthusiastic about making decisions on the substance of a dispute (as opposed, perhaps, to decisions on consequential matters such as costs) by reference to the toing and froing in solicitors’ pre-action correspondence.[163]That said, it is possible for a pre-action admission to be made in such correspondence: see CPR 14.1. If one is made, then the party making it will require the court’s permission to withdraw it. That is a procedural decision and, although I recognise the court may apply “estoppel-ish” considerations to any application to withdraw one, the very nature of the power to grant such permission shows that it is not equivalent to a final determination at trial of an issue which applies principles of substantive law to reach a binary decision as to whether or not a party is estopped. The problem for Yello is that the Goodwin Procter correspondence contains no more of a pre-action admission that Variation 2 was notified only under clause 7.6 than it does any representation to that effect (upon which Yello can sensibly be said to have acted to its detriment) for the purposes of invoking substantive principles of estoppel.[164]I turn to the conditions precedent to validity alleged by Yello. Three of them are said to arise out of the true construction and proper application of clause 1.7.2 of the Yello MSA. The remaining four rest upon the contention that notification of a Bespoke Variation or Supplier Increase Variation was regulated by four implied terms (one of them - the Discretion Term or the Supplier Increase Discretion Term – having a different label according to the nature of the variation). (2) Conditions Precedent within Clause 1.7.2[165]The conditions precedent addressed here (as opposed to those which require the alleged implied terms to be considered) are the three which Yello says are supported by the express terms of the Yello MSA.[166]First, Yello says (APOC, paragraph 24.1) it was a condition precedent to the validity of a Bespoke Variation that it was notified at least 30 days in advance of the relevant increase in Charges. This is not a point of contention as Onecom accepts that, as clause 1.7.2 expressly provides, a Bespoke Variation needed to be notified at least 30 days in advance. Variation Notes 1, 2 and 3 (those which Onecom relies upon as notifying Bespoke Variations) gave 30 days’ notice. Whether a Bespoke Variation Notice which provided less than 30 days’ notice was invalid and void, or whether the consequence was that no Variation was effective until 30 days after the notice, is therefore a sterile debate.[167]The next alleged condition precedent (APOC, paragraph 24.2) is that a Bespoke Variation must have “[a]lways showed the version number in the document showing the amendment in the bottom right corner of each page, for example “v. 5.1” (“the footer requirement”). This draws upon the language of clause 1.7.2 set out in paragraph 49 above. This point was only touched upon lightly in Yello’s skeleton argument (where it was said this was the “far superior construction” of clause 1.7.2) and, reading the APOC, I was initially unsure of the reasoning behind it.[168]However, as Mr Sher KC explained the point being made against his client, and which was then developed in Mr Strelitz’s submissions, Yello’s contention is that a Bespoke Variation under clause 1.7.2 could only be used to change the Yello MSA and the SVT but not “the Agreement” more generally. Indeed, as Mr Strelitz developed his submissions, he came to say that, despite the pleaded case (APOC, paragraph 23) indicating the SVT might also be amended under clause 1.7.2, the power under that clause was confined to varying the Yello MSA and it was only clause 7.3 which contained the power to vary the SVT. Either way, as the Yello MSA did not contain any prices, it is Yello’s case, therefore, that there was no valid change in the SVT unless that document (i.e. the SVT with hundreds of product prices within it and its version duly identified) accompanied the Bespoke Variation and complied with the footer requirement. I say “accompanied” on the basis that Yello’s pleaded case is that the Bespoke Variation was one that “showed” the amendment with a document complying with the footer requirement.[169]Paragraphs 28.2 and 41.2 of the APOC allege that Variations 1 and 3 failed to meet the requirements of clause 1.7.2 because the relevant email “did not include (either by itself or any document appended to it) an updated copy of the Yello MSA or SVT with an updated version number visible in the bottom right hand corner, or at all”. My initial difficulty in grasping Yello’s point is because this line of argument is not easily reconciled with the language of clause 7.3 (set out in paragraph 50 above) which concludes by saying “[a] copy of the current SVT applicable from time to time is available to you upon request.” The definition of an SVT in Part D says the same. Only the SVT in force at the date of the Yello MSA was required to be “executed” by the parties.[170]Onecom’s competing argument is that this level of formality for a Bespoke Variation (which it points out is at odds with how 9 Group Limited effected price changes before Onecom acquired the relevant part of its business) is commercially nonsensical. Certainly so far as the pleaded case is concerned, as opposed to how Mr Strelitz developed his argument about the clause, it is based upon the misconception that, so far as any ability to increase charges is concerned, clause 1.7.2 is limited to and therefore focussing upon variations of the SVT. Onecom says clause 1.7.2 extends to varying the terms of “the Agreement” (as thrice mentioned in clause 1.7 as whole). When, by a Bespoke Variation, Onecom notified Yello that a standard tariff for a product was changing it was thereby changing the Agreement and, with it, the SVT. That was sufficient to change the SVT (which reflects the sum of the standard prices and is avowedly “variable”) without the formality of setting out all the prices, whether increased or unchanged, as would be required on Yello’s case (even if only a relatively few of them had changed).[171]I consider Yello’s interpretation of clause 1.7.2 (and clause 7.3) to be strained and unrealistic and against the principles of contractual interpretation as explained by the Supreme Court in the modern authorities such as Arnold v Britton [2015] UKSC 36, [2015] AC 1619, at [14]-[22] (per Lord Neuberger). The court strives to discern the objective meaning of the relevant contractual wording in its documentary, factual and commercial context. It does so having regard to(i) the natural and ordinary meaning of the words under scrutiny;(ii) any other relevant provisions of the contract,(iii) the overall purpose of the contract;(iv) the facts and circumstances known or assumed by the parties at the time it was made; and(v) commercial common sense. Mr Strelitz referred to the recent decision of the Court of Appeal in Songa Product and Chemical Tankers III AS v Kairos Shipping II LLC [2025] EWCA Civ 1227, at [25], where Phillips LJ endorsed the judge’s summary of the relevant principles. One of them, emphasised by Mr Strelitz, is:
“e. Where the parties have used unambiguous language, the Court must apply it - see Rainy Sky SA v Kookmin Bank [2011] UKSC 50 [2011] 1 WLR 2900 per Lord Clarke JSC at paragraph 23.”
[172]In my judgment, Yello’s interpretation ignores the natural and ordinary meaning of clause 1.7.2 and offends commercial common sense. I say that for a combination of reasons:(1) Although I recognise that the footer requirement is one which the language of clause 1.7.2 indicates applies to any kind of variation notified by a Bespoke Variation, it most obviously applies to an amendment of the Yello MSA. The version of the Yello MSA in the hearing bundle (duly marked in accordance with the footer requirement) is “v. 5.5” (dated 12 March 2021). Yello’s argument is advanced in an attempt to dilute this point which otherwise leaps out from the natural and ordinary meaning of the words. Yello strives for the narrower interpretation in order to sustain the condition precedent to the validity of a Bespoke Variation which is identified in paragraph 24.2 of the APOC. In other words, because clause 1.7.2 is focussing upon Bespoke Variations of the SVT, rather than “the Agreement” more generally, there has to be a document – i.e. a revised SVT – which complies with the footer requirement.(2) Clause 1.1 of the Yello MSA (headed ‘Overview of the Agreement’) provides that “[t]he [Yello] MSA and any Ancillary Documents together comprise a legally binding contract between you and us, which is collectively referred to as ‘the Agreement’”. Part D of the Yello MSA contains definitions and rules of interpretation. The term ‘Agreement’ is also there defined as meaning the Yello MSA together with all ‘Ancillary Documents’ and, to the extent applicable, any ‘Historic Documents’. Clause 1.7 (including clause 1.7.2) plainly addresses a right in Onecom to vary the Agreement, as defined. So much is obvious from its initial reference to the possibility that Onecom may vary the Agreement, its description of the two ways in which that can occur (the first being under clause 37 which is a provision headed ‘Variation of the Agreement’) and the provision in clause 1.7.2 that, in the absence of any timely written query or objection by Yello, “the Agreement will be legally binding on you as varied by the Bespoke Variation”.(3) Part D defines ‘Ancillary Document’ (which form part of the ‘Agreement’) as including “any variation agreement, or other document that is legally binding on you, which is expressed to vary or supplement the [Yello] MSA …..”. The definition of the SVT refers to “the standard base rate tariffs in respect of Charges applicable to certain of our Services as may be amended from time to time in accordance with clause 7.3” and it is on this basis that the SVT – either the version in force at the date of the Yello MSA or as subsequently varied - falls within that part of the definition of ‘Ancillary Document’. That is no surprise given what clause 7.3 (set out in paragraph 50 above) says about the binding effect of changes to the SVT during the life of the Yello MSA. By clause 7.3 and the definition of the term ‘Charges’, the standard base rate tariffs in the SVT form part of the Charges payable by Yello in accordance with the provisions of clause 7.(4) It is therefore clear (as the language of clause 7.3 also expressly recognises) that the SVT may be varied from time to time under clause 1.7.2. Indeed, clause 1.7.2 gives the example of the power under the clause being used to update the SVT. However, that is because (as an ‘Ancillary Document’) the SVT is one part of the Agreement to which the power under clause 1.7.2 relates. As Mr Sher KC highlighted, one of the rules of interpretation of the Yello MSA is that examples (such as the example given in clause 1.7.2 of the SVT being updated) “will be construed as illustrative and will not limit the sense of the words, description, definition, phrase or term preceding or following [them]”. Even if the SVT was not part of the ‘Agreement’ (when it plainly is), that example could not be used to limit the scope of clause 1.7.2 when the words preceding and following it clearly refer to a variation of ‘the Agreement’ generally.(5) The suggestion that any Bespoke Variation had to be accompanied by a revised form SVT which satisfied the footer requirement is at odds with the provision in clause 7.3 (and the definition of the SVT) that a copy of the current SVT would be available on request.(6) Reading clause 1.7.2 as containing a power to amend the SVT and not just the Yello MSA does not render clause 7.3 otiose as Mr Strelitz suggested. As developed, his submission was that the power to vary the SVT lay only in clause 7.3 which, I note, does not feature the footer requirement. If correct, the submission would reinforce point (1) above and appear to undermine the case for the footer requirement applying to the SVT. Mr Strelitz said the reference to the SVT in the subordinate part of clause 1.7.2 (i.e. the parenthetical reference to it being updated as an example of the exercise of the power under that clause) could not expand the prescriptive opening language of that clause referring to “the MSA”. He said Onecom’s argument that clause 1.7.2 extends to varying the SVT would mean that clause 7.3 was redundant and a waste of ink. However, it is clear from the language of clause 7.3 (see paragraph 50 above) that it complements clause 1.7.2. Clause 7.3 expressly recognises and confirms Yello’s recognition (“you acknowledge”) of the power to vary the SVT under clause 1.7.2. Clause 7.3 itself does not in fact contain a free-standing power to vary the SVT as Mr Strelitz’s submissions assumed it does.[173]As Mr Sher KC correctly observed, clause 1.7.2 does not say in terms that a Bespoke Variation must attach a complete version of the Yello MSA, as varied, if it is to be effective. Indeed, so far as Bespoke Variations both of that kind and those relating “price changes” or “price increases” (the language of Variations 1, 2 and 3) are concerned, the natural and ordinary meaning of clauses 1.7.2 and 7.3 is that it is only after 30 days from notification by Onecom (no objection being raised in the meantime) that the clerical exercise of updating the document, as varied, would be engaged with. The SVT “applicable from time to time” (my emphasis), referred to in clause 7.3, is the one that becomes applicable after that period “if you do not raise any objection with us in accordance with clause 1.7.2”.[174]Yello would therefore need to establish that it was an implied condition precedent to the validity of the Bespoke Variation that the footer requirement is complied with when it is notified. Viewing matters against the commercial background, Mr Sher KC asked rhetorically whether it is seriously suggested by Yello that, if the parties had been asked whether it was their intention that a notified variation should be ineffective if (for example) one page of an enclosed 27-page varied Yello MSA did not have its version number, or had it on the left bottom corner (rather than the right), they would have responded, “but of course”?[175]The answer to that rhetorical question is obviously “no”. Answering “yes” would require the court to conclude (on an objective construction of the Yello MSA which includes the application of commercial common sense and consideration of the relevant requirement, and its purpose, in its contractual context) that compliance with the footer requirement was an “indispensable condition” of a notified Bespoke Variation becoming effective (in the absence of objection by Yello) 30 days later.[176]The language of “indispensable condition” is used in the well-known decision of the House of Lords in Mannai Investment Co v Eagle Star Life Assurance [1997] AC 749 (concerning the validity of notice a under given under a break clause in a lease) upon which Mr Sher KC relied along with later authority relying upon the principle established by the decision: see Rennie v Westbury Homes (Holdings) Ltd [2007] EWCA Civ 1401, at [15]-[16], per Dyson LJ; Newbold v Coal Authority [2013] EWCA Civ 584; [2014] 1 WLR 1, at [70], per Sir Stanley Burnton; CJ andLK Perks Partnership v NatWest Markets Plc (formerly The Royal Bank of Scotland Plc) [2022] EWHC 726 (Comm) at [314], per Jacobs J.[177]The question in such cases is how the reasonable recipient would have understood the notice: per Lord Steyn in Mannai at p. 768B. In OG Thomas v Turner [2022] EWCA Civ 1446, [2023] 2 P & CR 15 the court was concerned with the validity of a notice to quit given by the landlord to the former tenant in circumstances where he was unaware the tenant had assigned the lease to his company. The Court of Appeal held that the notice was invalid. It could not be right to conclude that the landlord intended to give notice to a company of whose existence he was completely unaware and, if a notice fails to satisfy the substantive conditions upon which its validity turns, the question of how it is to be interpreted does not arise. Lewison LJ, at [15], referred to the decision in Mannai as follows: “…….. Those of their lordships in the majority distinguished between formal requirements on the one hand, and requirements to impart information on the other. Lord Steyn at 767 referred to what he described as "indispensable" conditions for the effective exercise of the right. Among them was "service ("on the landlord or its solicitors")". Lord Hoffmann illustrated the difference graphically at 776: "If the clause had said that the notice had to be on blue paper, it would have been no good serving a notice on pink paper, however clear it might have been that the tenant wanted to terminate the lease. But the condition in clause 7(13) related solely to the meaning which the notice had to communicate to the landlord. If compliance had to be judged by applying the ordinary techniques for interpreting communications, there was strict compliance. The notice clearly and unambiguously communicated the required message." "If the clause had said that the notice had to be on blue paper, it would have been no good serving a notice on pink paper, however clear it might have been that the tenant wanted to terminate the lease. But the condition in clause 7(13) related solely to the meaning which the notice had to communicate to the landlord. If compliance had to be judged by applying the ordinary techniques for interpreting communications, there was strict compliance. The notice clearly and unambiguously communicated the required message."[178]The absurdity of Yello’s position is in my judgment revealed by contemplating whether there could have been any commercially comprehensible basis for Yello to have objected, within the 30 days, to any of Variations 1, 2 or 3 solely by reference to a concern that the proposed revised SVT (otherwise unobjectionable) did not comply with the footer requirement. Yello’s implied condition precedent is not reasonable, let alone necessary. It is also illogical. For the reasons explained above, it is inconsistent with the express terms of the Yello MSA which make clear, firstly, that even a variation of the Yello MSA (duly complying with the footer requirement) does not take effect until 30 days later and, secondly, whenever the SVT is varied (again, 30 days later) it is not supplied by Onecom but instead is to be made available on request.[179]Yello did have a fallback argument on this aspect of the case which was to say an entitlement in Onecom to vary Charges, without amending the whole SVT, would be to permit Onecom to perform the contract in a manner substantially different from what was reasonably expected. The term was therefore subject to a reasonableness requirement under section 3(2)(b)(i) of the Unfair Contract Terms Act 1977. However, Mr Sher KC relied upon the decision of the Court of Appeal in Paragon Finance v Nash [2001] EWCA Civ 1466, [2002] 1 WLR 685, at [75]-[77] (per Dyson LJ), for the proposition that changing the price that Yello must pay for the Onecom’s performance does not involve any change in the performance itself. Mr Strelitz confirmed at the hearing that Yello was not pursuing this fallback argument.[180]The last of the three conditions precedent (APOC, paragraph 23.3) is said to be contained in the language of clause 1.7.2 and is that a Bespoke Variation was required to state a time period for Yello to notify Onecom of any query or objection to it. None of the Variations did so. The clause (see paragraph 49 above) provided that Yello would “automatically be bound by any changes to the SVT if you do not raise any objection with us in accordance with Clause 27.3 within any stated time period for doing so” (clause 7.3, with its cross reference to clause 1.7.2, is to the same effect). Clause 27 of the Yello MSA provided for such notification to be given for formal written notice but, in respect of matters of timing, only made provision, by clause 27.4, for when a particular form of notice (delivery by hand, by post or by email) was deemed to be received.[181]In my judgment, it is impossible to read into the language of a clause which expressly refers to “any” stated time period a requirement that a period for objection had to be stated in the Bespoke Variation (i.e. “any” has to be read as “the period, if specified” rather than “the specified period”). The only sensible reading of the clause is that, in the absence of any shorter period being specified, Yello had 30 days to object (allowing for the deemed service provisions in clause 27.4). I cannot see any basis for saying a Bespoke Variation was invalid because its wording failed to impose a shorter objection period upon Yello. That result, resting upon the notion that a shorter specified objection period was an indispensable condition for Mannai purposes, would be perverse and commercially absurd.[182]I therefore turn to the alleged implied terms that are said to support the further four conditions precedent to the validity of a Bespoke Variation (APOC, paragraphs 24.4 to 24.7). (3) Implied Terms[183]The implied terms alleged by Yello are said to underpin four of the conditions precedent to the validity of a Bespoke Variation and to have governed Onecom’s notification of any Supplier Increase Variation. I have summarised the alleged implied terms in paragraphs 53 to 56 and 61 above.[184]Onecom does not contend that the issue of whether or not the Good Faith Duty falls to be implied is one suitable for summary determination, though it does rely on the lack of any pleaded breach of the alleged duty.[185]Mr Strelitz and Mr Shaw submitted that the Discretion Term, the Notice Sufficiency Term, the Objection Term and the Supplier Increase Discretion Term each fall to be implied into the Yello MSA by reference to the principles recognised in Marks and Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd [2015] UKSC 72; [2016] A.C. 742 and Yoo Design Services Limited v Iliv Realty Pte Ltd [2021] EWCA Civ 560. The court has before it on Onecom’s application all the relevant material (specifically, the Yello MSA and each of the Variations) required for the application of those principles. It is difficult to see what further material could be relevant on what is an issue of law. I say that by reference to the reference in their skeleton argument on behalf of Yello to the opacity of Mr Glynn-Jones’s challenge to the implied terms (he said it was a matter for legal argument).[186]In relation to the Discretion Term and the Supplier Increase Discretion Term, they point to the admission in the Defence that “Onecom Partners’ power to vary the terms of the Agreement under Clause 1.7.2 and Clause 7.3 was limited by an implied term to the effect that Onecom Partners was obliged to exercise its power honestly, in good faith, genuinely and for a proper purpose, without arbitrariness, capriciousness, perversity or irrationality”. They also refer to a passage in the evidence of Mr Glynn-Jones which does not include the Good Faith Duty alongside the implied terms in respect of which he says there is no prospect of Yello succeeding.[187]Referring to that evidence, Yello’s counsel said Onecom had not articulated the basis for challenging the case based upon compliance with the Discretion Term or the Supplier Increase Discretion Term being a condition precedent to the validity of a notice of Bespoke Variation or a Supplier Increase Variation (as the case may be).[188]Even if one or more of Yello’s alleged terms meets the test for implying a term, as set out below, so that it is applied alongside the express provisions of the Yello MSA, the test carries within it the further question as to whether Onecom’s failure to comply with its implied obligation invalidated the relevant Variation, in its entirety, or instead resulted in a claim by Yello for damages measured by something less than complete invalidity.[189]On this aspect, Yello’s counsel relied upon the decision of Foxton J (as he was) in Hayes v Pack [2025] EWHC 402 (KB) where, at [14]-[18], he addressed the legal consequences when it has been established that there has been a failure to comply with the legal requirements attaching to the contractual decision.[190]In Hayes, the court was concerned with the validity of a decision to expel the claimant from membership of an unincorporated association (the Liberal Democrats political party). The judgment therefore addressed the Socimer or Braganza limitation and the public law connotations from which it is derived. Foxton J noted that the burgeoning law on contractual discretions has devoted comparatively little attention to difficult questions relating to the consequences of the decision-making process not being in accordance with the legal requirements attaching to it. He said much is likely to turn on the nature and character of the deviation from the contractually required mode of decision-making and that whether or not non-compliance will be of the kind to deprive the decision of any contractual status “will essentially be a matter of construction of the contract”.[191]Yello’s counsel submitted that this is therefore a novel and developing area of the law. As it is open to the court to invalidate the decision, rather than award damages for breach of contract, Yello’s case that the Variations are invalid for want of compliance with any one or more of the pleaded conditions precedent is not susceptible to being struck out or to reverse summary judgment. They submitted that, as a matter of textual and contextual interpretation and commercial common sense, a conclusion that a Variation lacked any contractual effect is far more likely in this case than mere damages where, say, it has been implemented contrary to the basic requirements of the Discretion Term or the Supplier Increase Discretion Term (i.e. rationality, a proper purpose, a lack of arbitrariness or capriciousness).[192]Although probably not a matter for summary determination, I have my doubts about that last submission if, say, the great majority of price increases notified by a Supplier Increase Variation (“devised, conveyed and imposed” to use the language of the alleged implied term) were fully justified by the Supplier’s increased charges, and Onecom maintaining its pre-existing financial margin, and only a few fell foul of the Supplier Increase Discretion Term. That is the position indicated by Mr Craggs who, as explained above, says Yello’s complaint about Variation 4 has a value of only £2,059.88 even if it is well-founded. In such a situation, it seems to me that the court might well be able to conclude that the breach should sound in damages rather than a declaration that the Variation in its entirety was a nullity. The court would have half a mind to the prospect that Onecom might have notified a fully compliant Variation without the offending items.[193]Yello’s reliance upon the decision in Hayes might also be confronted by the proper application of the principle in Mannai if and to the extent the relevant implied term cannot readily be translated into a requirement that the Bespoke Variation should impart certain specified information.[194]I note, for example, that some of the implied terms extend to an obligation that a Variation would not be made where there was no proper contractual basis for it. That obligation cannot, I think, be sensibly reflected in an information requirement and the decision in OG Thomas v Turner highlights the distinction between such substantive invalidity and the interpretation of a contractual notice by reference to the indispensable conditions with which it must comply. The Notice Sufficiency Term addressed below would require a Bespoke Variation to be expressly or sufficiently identified as such. That alternative raises a question about what a Variation which did not identify clause 1.7.2 was supposed to say. Mr Sher KC said the alleged implied terms are open textured and, unlike the pink paper versus blue paper example in Mannai, incapable of being verified in the exercise of testing the essential validity of a Bespoke Variation. He questioned, for example, how Yello, receiving a Bespoke Variation, would be able to form an understanding as to whether it complied with the Good Faith Duty.[195]But such thoughts about the potential outcome simply highlight the need to examine the soundness of the basic premise behind Yello’s case on invalidity. Without the relevant implied term first being established, as a foothold for elevation into a clear condition precedent, the argument about the legal consequence of it being breach has no basis.[196]In Yoo Design, at [47], Carr LJ (as she then was) noted by reference to the decision of the Supreme Court in Marks and Spencer the “different and altogether more ambitious undertaking" faced by a party who seeks to imply a term into a contract rather than confine itself to any issues of interpretation that might arise out of the language of the express terms agreed by the parties. She went on to the explain that, in decisions subsequent to Marks and Spencer, the Supreme Court and Privy Council have consistently made it clear that whether or not a term falls to be implied is to be judged by reference to the test of business efficacy and/or obviousness. Carr LJ went on, at [51], to summarise the test for implying a term as follows:
“In summary, the relevant principles can be drawn together as follows: i) A term will not be implied unless, on an objective assessment of the terms of the contract, it is necessary to give business efficacy to the contract and/or on the basis of the obviousness test; ii) The business efficacy and the obviousness tests are alternative tests. However, it will be a rare (or unusual) case where one, but not the other, is satisfied; iii) The business efficacy test will only be satisfied if, without the term, the contract would lack commercial or practical coherence. Its application involves a value judgment; iv) The obviousness test will only be met when the implied term is so obvious that it goes without saying. It needs to be obvious not only that a term is to be implied, but precisely what that term (which must be capable of clear expression) is. It is vital to formulate the question to be posed by the officious bystander with the utmost care; v) A term will not be implied if it is inconsistent with an express term of the contract; vi) The implication of a term is not critically dependent on proof of an actual intention of the parties. If one is approaching 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; vii) The question is to be assessed at the time that the contract was made: it is wrong to approach the question with the benefit of hindsight in the light of the particular issue that has in fact arisen. Nor is it enough to show that, had the parties foreseen the eventuality which in fact occurred, they would have wished to make provision for it, unless it can also be shown either that there was only one contractual solution or that one of several possible solutions would without doubt have been preferred; viii) The equity of a suggested implied term is an essential but not sufficient precondition for inclusion. A term should not be implied into a detailed commercial contract merely because it appears fair or merely because the court considers the parties would have agreed it if it had been suggested to them. The test is one of necessity, not reasonableness. That is a stringent test.”
[197]In Bank of New York Mellon (International) Ltd v Cine-UK Ltd [2022] EWCA Civ 1021; [2023] 2 P. & C.R. 19, at [140], Sir Julian Flaux C. accepted a submission by counsel that where “the contracts in question were detailed documents prepared by lawyers, the scope for implication is limited.” The judge at first instance (see [2021] EWHC 2591 (Ch); [2022] 2 P. & C.R. 19, at [64]-[65]) also accepted as a correct statement of law the observation in Lewison on The Interpretation of Contracts (2023), at [6.45], that “[t]he default position is that nothing is to be implied into a contract. The more detailed and apparently complete the contract, the stronger this presumption is."[198]I reject Yello’s attempt to embellish the detailed and comprehensive terms of the Yello MSA with the suggested implied terms and/or conditions precedent to validity of a Bespoke Variation or Supplier Increase Variation.[199]Yello’s implied terms (the basis for which must, I recognise, be tested as at the date of the Yello MSA – 10 February 2022 – and not at a later point in time) must be considered against the overall structure of the parties’ agreement.[200]So far as any variation in Charges was concerned, these could be initiated by Onecom (clause 1.7.2) or driven by an increase in the price charged to Onecom by a Supplier (clause 7.6). The Yello MSA contained some protection for Yello in the event of Onecom invoking either clause.[201]In the event of a proposed Bespoke Variation, Yello could object to it. In the event of Yello doing so then, as I noted at the hearing, the Yello MSA does not contain any dispute resolution mechanism for determining what should come of the objection and, in particular, whether it was “validly raised” within the meaning of clause 1.7.2. If Onecom did not treat the objection as valid, and Yello regarded the proposed price increase as a “deal breaker”, then presumably it would request Onecom to cease to supply the relevant Service (or, after the minimum 24-month term of the Yello MSA, possibly give 3 months’ notice terminating the Yello MSA in its entirety). Clause 4 of the Yello MSA regulated the order process by which Yello requested Services and Mr Craggs’s evidence shows how the supply of services to Yello reduced over the period between the dates of the Variations and the termination of the agreement. Paragraph 20 of the APOC states:
“By about April 2025, the majority of the services to its customers that Yello could migrate away from [Onecom] had already been so transferred.”
[202]In the event of a Supplier Increase Variation, clause 7.6 contained protection for Yello by providing that Onecom’s own margin on the supply would not be substantially different after the increase than it was before. If Onecom made a Supplier Increase Variation which was not triggered by a Supplier’s increase in charges and/or exceeded “by such amount as is necessary for the Charges to reflect substantially the same financial margin” as before then that would be a breach of clause 7.6. There would be a claim in damages for the impermissibly excessive amount of the increase. A finding of breach would not rest upon an implied term (compare the Objection Term alleged by Yello) but instead Onecom acting in breach of its express promise under clause 7.6.[203]I make these points because each of the implied terms alleged by Yello (and summarised in paragraphs 53 to 56 and 61 above) relates to the act and/or form of Onecom making a Bespoke Variation or a Supplier Increase Variation. Hence a claim which says nothing about damages and is confined to the declaratory relief.[204]The language of the Discretion Term and the Supplier Increase Discretion Term seeks to attach implied promises on the part of Onecom to the act of “devising, conveying and/or imposing” the variation. The Notice Sufficiency Term relates to the form of a Bespoke Variation. The Objection Term is to the effect that Onecom should not represent that it is making a Supplier Increase Variation when it is in truth a Bespoke Variation and/or there has been no Supplier Increase to justify it.[205]In my judgment, none of the alleged implied terms meets the stringent test summarised in Yoo Design.[206]The Discretion Term (see paragraph 53 above) is not necessary to give the contract commercial or practical coherence. Onecom admits in its Defence that a conventional Socimer or Braganza limitation applies to the exercise of the power under clause 1.7.2. Mr Sher KC accepted, for example, that Onecom could not purport to increase prices by a Bespoke Variation, but only for customers with red hair. Mr Strelitz and Mr Shaw submitted that it is obvious such a term will be implied in relation contractual discretions such as that under clause 1.7.2. However, and to repeat, Yello’s claim of breach of the Discretion Term (see the APOC, paragraphs 28.3 and 41.3) does not relate to the actual price increase (e.g. its size or motivation or any other matter that may feed into a decision to exercise the clause 1.7.2 power) but instead solely to the manner in which the Bespoke Variation was “conveyed”. This is because Yello seeks to elevate the implied term into a condition precedent, non-compliance with which invalidates the Bespoke Variation (as a document otherwise having contractual status) in its entirety. The essence of the complaint is that the notice did not refer in terms to clause 1.7.2.[207]I accept the submission of Mr Sher KC that, under an approach applying the stringent test of necessity or obviousness, the Braganza principle relating to the exercise of a contractual discretion cannot be extended to cover the formal requirements of a notice which reflects its exercise. As he remarked, there is an internal inconsistency in Yello’s position which relies upon the existence of a “discretion”, for the purposes of invoking the principle, while at the same time invoking a number of prescriptive requirements as to what constituted a ‘Valid Bespoke Notice’. The Braganza principle cannot be used to support an implied term which carries with it explicit requirements as to the form of a notice when the Yello MSA could have made express provision for them, but did not, and it cannot be said their absence meant it lacked commercial or practical coherence. Mr Craggs’s unchallenged evidence on this point shows that, without them, the Yello MSA in fact operated for many years with notices being served that did not identify the clause relied upon.[208]Further, regardless of any suggested arbitrariness, capriciousness, perversity, or irrationality on the part of Onecom in seeking to make it, clause 1.7.2 contains express provision for Yello to object to its suggested effect. If Onecom were to accept that Yello’s objection to the proposed price increase was a valid objection (and I would have thought that any later reflection and realisation that the proposal was arbitrary or irrational might well lead Onecom to do so) then clause 1.7.2 expressly provides that the previous price will prevail. If Yello’s objection is not accepted by Onecom then, as I have said above, Yello would be free to curtail the supply of the relevant Service. The Yello MSA therefore deals with the different potential consequences of the service of a Bespoke Variation in a way that shows there is no need for any implied term which addresses the motivation behind it having been “devised”, “conveyed” or (subject to any valid objection) “imposed”.[209]The Supplier Increase Discretion Term (see paragraphs 60 and 61 above) is invoked by Yello in support of alleged breaches involving Onecom(a) having wrongly represented that a Supplier Increase Variation was just that when in fact it was made on some other contractual basis (or perhaps with no proper contractual basis at all) and(b) failing to engage in honest cooperation, communication and with sufficient transparency: see paragraphs 38.3 and 54.3 of the APOC. As Yello’s case here is about the invalidity of Variations 2 and 4, and reliance upon this term operating as a condition precedent, the focus is upon Onecom’s representations and communications and the form of those variations; in other words what was “conveyed” by those Variations. I have summarised Mr Waller’s complaints based upon oral representations in paragraph 40 above.[210]The Supplier Increase Discretion Term therefore suffers from the same objections as above to the Discretion Term. I would add that to those objections the point made above about the express terms of the Yello MSA serving perfectly well to cover a situation where Onecom purports to act under clause 7.6 when in fact there has been no Supplier increase. The point is illustrated by the language used in paragraphs 38 and 54 of the APOC which refers to a notice being served with “no proper contractual basis at all”. There is no need to imply the Supplier Increase Discretion Term for that to be a clear breach of contract.[211]The Notice Sufficiency Term (see paragraph 54 above) would require a Bespoke Variation to be “expressly, or alternatively sufficiently, identified as such” by Onecom. Yello says only Onecom knows whether it is able to raise prices by a Supplier Increase Variation but this implied term is neither an obvious nor necessary implication when clause 1.7.2 itself did not impose any formal requirements for a valid notice beyond requiring that it be given at least 30 days in advance. Again, the suggested basis for this term is undermined by the evidence of Mr Craggs showing that the Yello MSA did in fact operate without such a requirement for many years: compare the first and third principles in Yoo Design.[212]I have summarised Variations 1 to 4 in paragraphs 23 to 27 above. They made it clear when Onecom was pointing to a Supplier led increase in charges (Variations 2 and 4) or, instead, apparently initiating an increase itself (“we have had to implement the following product price changes”) albeit by reference to “numerous industry announcements highlighting external market factors impacting global pricing” (Variations 1 and 3). The date from which the increase would take effect - whether or not 30 days or more hence - was also clearly specified in each of the Variations.[213]The Objection Term (paragraph 55 above) would require the court to be persuaded that it was obvious or necessary for the parties to have agreed that one would not “directly or indirectly represent…or otherwise permit or encourage [Yello] to believe” that a price increase was imposed in accordance with a particular power in the MSA when it was actually imposed under another. The fact that part of the Objection Term is again said to be that Onecom would not make a price variation “when there was no proper contractual basis for it at all” illustrates that there is no basis for this implied term alongside the express terms of the Yello MSA. Further, as Mr Sher KC submitted, such a term is not “necessary” when the common law of misrepresentation would appear adequately to protect the interests of a misled Yello.[214]Yello’s Reply (at paragraph 10) refers to the term being a necessary check to prevent Onecom misleading Yello into believing that it had no right to object to the increase when it did; and I have mentioned the terms of Mr Waller’s email of 30 June 2025 in paragraph 139 above. A parallel tortious claim would in principle exist provided it was not inconsistent with an express term of the Yello MSA and it cannot be said that the contract cannot function without the suggested term. The rather convoluted language of the Objection Term (paragraph 15.4 of the APOC) is a further flag that it fails the test in Yoo Design.[215]Yello’s case on the implied terms is therefore not sustainable. The court does not get to the further and quite separate question, applying Mannai, as to whether the relevant implied obligation (or, perhaps, certain aspects of it) also operated as a condition precedent to the validity of a Variation, as a whole, as opposed to supporting a claim to damages for its breach measured by something less than complete invalidity.[216]I would have included Onecom’s challenge to Yello’s reliance upon the Good Faith Duty (see paragraph 56 above) within its success on Limb 2. Onecom does not challenge the existence of the duty for the purposes of the present application but its Defence at several points made the incontrovertible observation that Yello had failed to particularise its case on bad faith. For example, paragraph 54 includes the Good Faith Duty amongst the implied terms alleged to have been breached in relation to Variation 4 but the allegation is founded upon a case that “to the best of Yello’s knowledge and belief pending Extended Disclosure” the relevant Supplier increases had not occurred.[217]The APOC does not comply with the requirements of CPR PD16 paragraph 8 in alleging that (through one or more named individuals) Onecom had the necessary knowledge to support a breach of the duty explained in paragraph 56 above. This omission from the APOC means that the “claim” under the Good Faith Duty cannot be said to have a real prospect of success. The attempt to use proceedings which are confined to seeking declaratory relief as the vehicle to obtain disclosure to advance a claim of bad faith is also in my judgment a particular illustration of Yello’s abuse of process for the purposes of Limb 1. (4) Variation 4[218]Variation 4 is a Supplier Increase Variation in respect of which Mr Craggs has valued Yello’s complaint, if well-founded, at £2,059.88. As noted at the beginning of this judgment, Onecom accepts the issue of whether or not the complaint is well-founded is not suitable for summary determination. It would require further investigation of such matters as the factual changes in price by Onecom’s Supplier, the lawfulness of those changes by the Supplier, the changes in price by Onecom and Onecom’s margin both before and after the changes.[219]It almost goes without saying that the need to contemplate a trial over Variation 4 could not have saved the other Variations from the reverse summary judgment sought by Onecom. That is clear from the fact that the terms Yello seeks to imply for a Bespoke Variation, and which I have found have no legal basis, are irrelevant to Variation 4. Had I not accepted Onecom’s case on Limb 1, my analysis above of this alternative Limb 2 would have involved a determination adverse to Yello of discrete issues. Those should not have gone to trial alongside any dispute of fact in relation to Variation 4. It follows Yello cannot point to Variation 4 as a reason why the whole of its claim should have proceeded to trial. The decision of Fancourt J (as he then was) in Rhodia v Neo [2021] EWHC 1035 (Ch), at [81]-[82], highlights the obvious distinction between a true application for summary judgment on the claim, or on discrete issues in the claim, and what instead would be a procedurally unsound invitation by a party for the court to make a decision on a legal or factual point which has no consequence in terms of avoiding the trial of the claim or issue. My analysis above knocks out the claim in respect of Variations 1 to 3 and, had it fallen to be acted upon and subject to what I say below, only Variation 4 would have gone forward to trial.[220]Had Yello’s claim in relation to Variation 4 not failed under Limb 1, I would have acceded to Onecom’s alternative application for a conditional order requiring proper particularisation by Yello of its claim in relation to Variation 4. In the light of what I have said about Yello’s case on the implied terms and conditions precedent not being a viable one, the necessary particularisation would have been of the alternative case (APOC, paragraphs 62.4 and 62.8) based upon the prices increases charged to Yello under Variation 4 not being permitted under clause 7.6 with the result that the (presently unspecified) sums in question were not due and owing. Onecom’s draft order in support of the application identified what would have been required. Under the conditional order, the effect of Yello failing to particularise the value of its claim on overcharging under Variation 4 would have been the striking out of the claim. In my judgment, the making of such a conditional order would have been consistent with the guidance given by Lewison LJ in Sullivan aimed at identifying the proportionate procedure for disposing of the claim before the court.

DISPOSAL

[221]I will therefore make an order striking out Yello’s claim pursuant to Limb 1 of Onecom’s application.[222]This judgment has been handed down remotely and the handing down is adjourned solely for the purpose of preserving the time for filing any appellant’s notice against the order which reflects it. Should Yello wish to apply for permission to appeal, the period under CPR 52.12 will not run in the meantime[223]At the time of circulating the draft of this judgment, I invited the parties to agree a minute of order reflecting my decision and to reach agreement upon consequential matters. They have been unable to reach such agreement and the order made today provides for the determination of consequential matters at a further hearing and for the extension of time for any intended appeal by Yello.