Simon Gibbons v Gravity Franchise Limited & Ors [2026] EWHC 2089 (Comm)

[2026] EWHC 2089 (Comm)Case No CC- 2025-LDS-000018IN THE HIGH COURT OF JUSTICEVenue BUSINESS AND PROPERTY COURTS IN LEEDS, LEEDS CIRCUIT COMMERCIAL COURTDate Date: 6 August 2026Before: His Honour Judge Richard Carter
Between
MR SIMON GIBBONSClaimant/(1) GRAVITY FRANCHISE LIMITEDDefendants/(2) GRAVITY FITNESS (WARRINGTON) LIMITEDApplicants(3) MR PAUL HARVEY JENKINSONApplicant
The Claimant in person for in personMr Nicol (instructed by Irwin Mitchell LLP) for First and Second DefendantsMr Taczalski (instructed by Beale & Company Solicitors LLP) for Third DefendantHearing Hearing dates: 11 May 2026
JudgmentI direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic..............................
[1]The First and Second Defendants (“the Gravity Defendants”) seek an order pursuant to CPR 3.4(2)(a)/(b) striking out the Claimant’s claim, alternatively pursuant to CPR 24.2 summary judgment in respect of the Claimant’s claim by an Application dated 16 March 2026. The Third Defendant (Mr Jenkinson) seeks the same by an Application dated 11 March 2026.[2]By my Order of 16 April 2026, the Applications were listed for hearing on the 11 and 12 May 2026 with a time estimate of 2 days. The Costs and Case Management Conference listed by the Order of HHJ Klein dated 4 March 2026 was adjourned to be listed (if necessary) after the determination of the Applications.[3]For the reasons set out below, the Applications are granted and the Claimant’s claim is dismissed. The Gravity Defendants have issued a Counterclaim in the sum of £849,288.07 pursuant to the Lease and Franchise Agreement. The Claimant by his defence to the counterclaim simply pleaded as follows:
“I note the counterclaim from defendant 1 and defendant 2. The claim brought before the courts by the claimant will form the defence to the ‘Counterclaim’ I believe none of the claims brought forward by the defendants under the franchise agreement or lease are valid. All are refuted, This is due to the clear misrepresentations made prior to the agreements being entered into.”
[4]As submitted by Mr Nicol the consequence of the success of the Applications is that the Defence to the Counterclaim cannot stand and I therefore propose to grant summary judgment on the Counterclaim pursuant to CPR 24.[5]I would invite the parties, if possible, to agree the terms of an Order which can be made upon the handing down of this Judgment by email. If no agreement can be reached, or if there are any other matters which need to be determined, then the parties should file their (agreed) time estimate and availability for a consequentials hearing.

The Background

[6]The First Defendant operates several indoor entertainment parks in the UK (and overseas) under the Gravity brand and through franchise agreements. Mr Jenkinson is a Director of the First and Second Defendant. In June 2019 the Claimant, expressed an interest in taking a franchise and was sent a “Gravity Franchise and Investment Prospectus” (1/487). That Prospectus included several case studies and contained a disclaimer:
“While neither the Company nor any of its shareholders, directors, officers, agents, employees or advisers give, or have authority to give, any representations or warranties (express or implied) as to, or in relation to, the accuracy, reliability or completeness of the information in this Presentation, or any revision thereof, or of any other written or oral information made or to be made available to any interested party or its advisers (all such information being referred to as the information and liability therefore is expressly disclaimed). Accordingly, neither take any responsibility for or will accept any liability whether indirect, express or implied, contractual, tortious, statutory or otherwise, in respect of, the accuracy or completeness of the information or any of the opinion contained herein or for any errors, omission or misstatement or for any losses, howsoever arising, from the use of this Presentation. This Presentation may contain forward-looking statements that involve substantial risk and uncertainties, and actual results and developments may differ materially from those expressed or implied by these statements. …By their nature, forward-looking statements involve risk and uncertainties because they relate to events and depend on circumstances that may or may not occur in the future…”
[7]In July 2019, the Claimant decided to take matters further and to seek additional financial information – stating that he “will need to do a lot more due diligence and planning” and that he “anticipates 3 month timeline/due diligence process on [his] part”. By the end of the month, he was telling the First Defendant that he wanted to sign the Franchise Agreement (“FA”) within 6 weeks. On 8 August 2019 the Claimant was provided with a Letter of Intent for signature and return if he wished to take matters further. He was also provided with a draft FA.[8]The Claimant signed a final LOI on 27 September 2019 having emailed the Claimant the day before stating that ‘“I have liaised with my solicitor, and he is happy with the Franchise Agreement and the amendments which have been agreed. I am 90% happy with the LOI.”. The LOI expressly stated that:
“The Franchisee acknowledges that the investment to open a Gravity location could be as much as £1.5 million GBP. This will largely be dictated by local market conditions, and the investment could exceed this amount. Franchisee acknowledges this and confirms that the Franchisee has taken professional advice and performed all necessary due diligence. The Franchisee is not relying on any statement made by Gravity in relation to the Branded Business. The Franchisee acknowledges that Gravity cannot guarantee any revenue return under the Formal Agreement and acknowledges that any new business opportunities have risk potential and has taken professional advice on these risks.”
[9]The Claimant was at that time represented by solicitors and indicated that he was carrying out due diligence on the proposal. He was provided with the 2019 financial information for Gravity’s UK parks and on 28 November 2019 he stated in an email to a potential funder:
“The project looks like being around the £1.6m mark but the final costings and forecasts won’t be ready until the new year. I would estimate borrowing 15% of the initial CAPEX costs. Once I have agreed the terms of the franchise I will produce a business plan for your attention.”
[10]Discussions continued about the terms of the FA and on 17 December 2019 in an email timed at 13.11 the Claimant stated: “You all seem very confident that we will be under the budget of £1,405,115 (excludes VAT). If we go over-budget I will potentially be bankrupt before I even get started. What written assurances can you give me that the Capex costs will not go over budget?”.[11]No such assurances were given by Gravity and on 20 December 2019 the Claimant signed the FA (151). The Claimant does not deny that he signed the FA although he initially suggested in correspondence otherwise. At the time the FA was signed no site had been identified for the Gravity park and no lease was in place. Under the terms of the FA, the Claimant was responsible for the refurbishment of any property including the project management and costs. The Claimant asserts in his submissions that he was required to use Gravity’s chosen contractor for the works, One Shot Construction Limited (“OSCL”). The FA provided at clause 16: 16.3 The Franchisee shall comply with the terms, conditions, covenants and undertakings to be observed and performed by the Franchisee under the Agreement for Lease and/or the Sub-Lease and without prejudice to the provisions of them shall: 16.3.2 be responsible for its own due diligence on the Premises including demographic studies. The Franchisor is not responsible for the suitability of the Premises and the Franchisors consent means only that the Premises meets the minimum site requirements stipulated by the Franchisor; 16.3.6 be responsible for the project management of the refurbishment of the Premises including project timelines and all fees and expenses relating to this shall be the responsibility of the Franchisee;[12]The FA included the following terms: 31 LIMITATION OF LIABILITY 31.1 Nothing in this Agreement shall limit or exclude the liability of either party for: 31.1.2 fraud or fraudulent misrepresentation or wilful default; 32.4 Entire agreement32.4.1 This Agreement and the Manual constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, all promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.32.4.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.[13]The Claimant signed a Lease on 20 July 2020 for premises which were to be known as “Gravity Warrington”. Due to the increases in costs following the covid lockdown, the Claimant had to source further funding for the refurbishment of the premises. Gravity offered assistance to the Claimant and C&G by way of introductions to potential funders and offered to stand as a Guarantor. Gravity was unable to agree with one specific funder the terms of such a guarantee, and the Claimant instead sought a short-term bridging loan. The Claimant/C&G’s relationship with OSCL deteriorated due to cost increases and Mr Gibbons asserts in his evidence as a result of OSCL being “…untrustworthy, incompetent and unprofessional…”.[14]The park opened in October 2020, but the Claimant chose to defer part of the refurbishment (the bar element) due to high costs. By January 2021 the Claimant/C&G was seeking a rent reduction and on 12 August 2022 C&G was placed into administration.

The Claim

[15]The Claimant issued his claim in May 2025 through the CNBC seeking some £3.4M. The Claim Form was accompanied by particulars of claim (1/9). Amended Particulars of Claim (APOC) were filed on 3 July 2025. They referred to 5 Pre-contractual Representations (§3) made prior to the Claimant/C&G entering into the Franchise Agreement and Lease Agreement (“The Agreements”):3.1 That the cost of the project in Warrington would be no more than £1.5million3.2 That the defendants had a proven business model which would yield an average 20% EBITDA. Specifically, the defendants claimed that the business would make £55,409 net profit in year one, then subsequent net profits of £393,061 and £336,122 in net profit in year 2 and 33.3 That their lead contractor [OSCL] was trustworthy, competent and professional. And that they had the required expertise to deliver the project on time and within budget.3.4 That in committing to additional strip out works on the premise the claimant’s business would receive an additional £100k contribution, along with a 4 week rent and 4 week service charge reduction.3.5 That the defendants would secure £400,000 finance required to invest into the project by way of them standing as a guarantor. The claimant had refused to sign the lease to the premise and put a stop to the project, refusing to move forward due to the impact of Covid-19. At this point, in order to get the claimant to proceed in signing the lease the defendant agreed to arrange the finance required for the project.[16]At §4 of the APOC the Claimant set out the falsity of those representations and at §5 under the title “Legal Basis” he alleged that they were fraudulent (on the basis that the Defendants knew them to be false or were reckless as to their truth), negligent (in that the Defendants owed a duty of care to the Claimant) or innocent giving rise to a right to rescind. At §6 he set out how the Representations induced him into the Agreements (as well as into the contractual relationship with OSCL and the decision to carry out the strip out of the premises).[17]All three Defendants filed and served defences which asserted that the information provided by the Claimant was insufficient to establish the claim he sought to pursue. This was contrary to CPR 16.4(1)(e) which refers to PD8.2:
“The claimant must specifically set out the following matters in the particulars of claim where they wish to rely on them to support the claim- (1) any allegation of fraud; (2) the fact of any illegality; (3) details of any misrepresentation; (4) details of all breaches of trust; (5) notice or knowledge of a fact; (6) details of unsoundness of mind or undue influence; (7) details of wilful default; and (8) any facts relating to a claim for mitigation expenditure.”
[18]The Defendants served Part 18 Requests on the Claimant seeking further information on each representation (in particular how they were made, by whom, when and the precise terms) and whether each was said to be made fraudulently, negligently or innocently, if fraudulently whether the Defendants knew they were false, or whether they were reckless, and how they were false/inaccurate. The Defendants made it clear that they reserved their rights to amend their defences further depending on the response to those requests.[19]The Claimant responded to both requests in a like manner. He stated that he had provided the relevant information on numerous occasions, that he had provided letters before action (when he was represented by solicitors) supported by some 222 exhibits, and that the APOC contained a “summary” of this information. He then said:
“All the above information provides everything that you require. It will be a complete and intentional waste of my time to reformat it for you.”
[20]It is on the basis of that response and the APOC that the Defendants have made these applications.

The Applications

[21]As noted above, the Gravity Defendants and Mr Jenkinson seek orders that the Claimant’s claim be struck out pursuant to CPR 3.4 and/or there should be reverse summary judgment on the basis that the Claimant has no real prospect of succeeding in his claim and there is no other compelling reason why the case should be disposed of at Trial. The Applications are supported by two witness statements prepared by the instructing solicitors – Ms Katherine East and Mr James Stretton. Although there is degree of similarity in the evidence in support, Mr Jenkinson’s application goes beyond that of the Gravity Defendants and challenges the basis on which he has been personally sued.[22]Ms East sets out the background to the claim and refers to the pre-action correspondence between her firm and the firm then instructed by the Claimant – Hamilton Pratt – including the letter dated 8 August 2022 and headed “Notice of Termination and Letter Before Claim”. That LBA refers to 3 Issues which now form Representations 3.1, 3.3 and 3.5. A very detailed response was provided by Irwin Mitchell noting the terms of the FA (and other documents) limited the Claimant’s ability to rely on representations, pointing to the high bar necessary to allege fraudulent misrepresentation, and raising affirmation of the contract(s) as a defence.[23]At §25 she notes the Claimant’s failure to clarify his claim despite the opportunities that the Defendants have given him to do so. She states that:
“This is unacceptable because the Claimant alleges that misrepresentations were made fraudulently but (despite being requested to do so repeatedly) has provided no proper particulars of that allegation. In the absence of such a properly constituted plea the contention is that his Claim (and his Defence to the Counterclaim) must fail.”
[24]Mr Stretton in his statement goes further than Ms East and sets out in detail the background to the claim and the deficiencies with each of the allegations of fraudulent misrepresentation in much the same way as Mr Taczalski does in his skeleton. He further points to the wholesale failure of the Claimant to identify which representations were made specifically by Mr Jenkinson and how his role is differentiated from that of the companies of which he is a Director.[25]He then addresses the failures to respond to the Part 18 request and to the emails following on from his response. He stresses that the Defendants have sought to give the Claimant as of a much chance as possible to plead his claim in a complaint way. He invites the Court to strike out the Claim against D3 as he was acting only as a Director of D1 and the Claimant has not identified a basis on which the claim could be pursued personally. He also criticises the lack of detail in the alleged representations, and the failure to identify which class of misrepresentation is being advanced. He then deals with the summary judgment application and the 5 allegations pleaded (which I shall deal with below).

The Claimant’s response

[26]The Claimant filed a bundle of evidence on 22 April 2026 including 6 witness statements and his own statement in response (2-48). Exhibited to his witness statement were 1288 pages of documents. Exhibited to the statement of his wife, Kerrie Gibbons were 24 pages of exhibits.[27]Some of the witness statements simply give the witness’ view of the Claimant. Two are from an employee and a potential employee. Mrs Gibbons and Mr Childs both worked on the business and give evidence about discussions around Representation 1 (the £1.5m/£1.4m maximum). Mrs Gibbons in particular details a meeting on 8 November 2019 when she, the Claimant, D3 and Mr Lang met to discuss the financial side of the project. She states that:
“Harvey gave his personal reassurances that the figures were accurate and could be relied upon. I asked him a couple of times about the initial investment – telling him we had no more to put in than the £100k we had. Harvey reassured me again that it absolutely would not go over and that his figures were based on a trampoline park currently being built around a similar size. He did say they had almost all of the costs agreed but they were waiting to finalise one or two things. He added that if there was any variation in the above it would be negligible. “My projections were lower than Harvey’s workings at SIG24 but I took a more prudent approach in calculating profits, drawing on my experience as a management accountant. I used Harvey’s figures a base because he was the expert in trampoline parks and I had no reason to suspect his information was not correct.”
[28]The Claimant gives evidence about the discussions prior to the singing the FA and the emails with Richard Lang in late August 2019. He states: “I will be guided by you in relation to the project for the refurbishment costs due to experience and expertise. Any project management budgets would need capping and to be accurate. For example, you inform me the build and investment required is £1.5 million. It then gets started and costs spiral towards the £2 million mark. This could potentially cause significant cash-flow issues and worst-case scenario the business could fail before the operating even begins. As this is your area of expertise, I would be looking for you or the project management team to guarantee any shortfalls in creating the build prior to opening”.14. The response to this section of the email read, “Agreed, we will run through all figures, estimates and project costings” and “We will provide you details for our approved suppliers and builders. These guys have done the fit outs on multiple centres and are well aware of the requirements / time frames.”15. I took this as LANG agreeing that Gravity would take the lead on the project refurbishments and costs would be capped at £1.5million and that Gravity would select the suppliers/contractors to undertake the build process and take the lead in this area.[29]He then identifies various other assurances which he says were made to him including: i) At §19:
“On the 26 September 2019 having reviewed the ‘Letter of Intent’ and ‘Franchise Agreement’ with my solicitor I sent an email agreeing the content / asking for a variation which was agreed. The ‘Letter of Intent’ was signed and submitted the following day, along with the payment for the franchise deposit to secure more information. The ‘Letter of Intent’ still stated that ‘the franchisee acknowledges that the investment to open a Gravity location could be as much as £1.5million’.” ii) At §27: “I reiterated that staying on budget was a priority and question that Gravity could deliver all of the above in their vision for £1.5m to which JENKINSON said, “Easily”. iii) At §37: “Having discussed the figures at the meeting in which the representations made by JENKINSON was that the vision that was explained to CHILDS and I at the site visit on 28th October 2019 could be delivered for just over £1.4million. I have asked, “If I allow £1.6million for everything will that be more than sufficient?”
JENKISON has replied, “EASILY, YOU WILL HAVE CHANGE”. iv) At §50:
“All three key representatives from Gravity, JENKINSON, HARRISON and LANG told CHILDS and I repeatedly not to worry about anything. In that they and One Shot Construction (Nick BODEN) would take control of that side of things. There is no way I would have took on a project of that size and magnitude without any experience. The reason I moved forward with everything is that JENKINSON, HARRISON, LANG and BODEN agreed to deliver their vision. v) At §63: “Prior to signing the franchise agreement I had communicated my concerns about the cost of the project almost 20 times and the Profit & Loss on the project over 10 times. On each occasion I received complete reassurance and certainty from JENKINSON and Gravity that the representations they had made could be delivered and were accurate. On 20 December 2019 I signed the franchise agreement on behalf of C&G Leisure Limited.” vi) §130: “JENKINSON gave me his personal guarantee that the company he effectively ran would stand right behind me and guarantee any finance we needed to get the project over the line. The wording in my email to JENKINSON is clear. As is his reply which states, “As discussed, I can confirm that Gravity and MYSELF are 100% confident we can assist in securing the finance you need for this project”
. This represented what we had discussed on numerous occasions”.[30]The Claimant’s witness statement continues to detail the problems which the Claimant experienced with the project through to the Letter of Claim sent on 8 August 2022, which also terminated the contract/lease. What the witness statement continues to do is fail to identify the 5 Representations, the details of those representations and the Claimant’s reliance on them in any comprehensible way. Even those I have set out above represent what I have been able to glean as the primary allegations. Submissions 31. D1 & D2

Submissions

[31]Mr Nicol started by noting the requirement under the CPR for pleading misrepresentation and fraud and that the mere fact that the Claimant is now a litigant in person does not disapply those rules (see Barton v Wright Hassall [2018] UKSC 12). He stresses that a defendant must know the case being brought against it so that it can answer those allegations. In particular he points to §3 of the APOC: “…various representations to the claimant, including but not limited to: “ as being inappropriate – if the representations are not pleaded, then they cannot be relied on. These failures are aggravated by the failure to respond to the Part 18 request and the other attempts to seek clarity.[32]He also criticised the Claimant’s failure properly to plead dishonesty. He cited Three Rivers v Bank of England (No. 3) [2003] 2 AC 1 where Lord Millett set out the requirements when pleading dishonesty: 184. It is well established that fraud or dishonesty (and the same must go for the present tort) must be distinctly alleged and as distinctly proved; that it must be sufficiently particularised; and that it is not sufficiently particularised if the facts pleaded are consistent with innocence: see Kerr on Fraud and Mistake 7th ed (1952), p 644; Davy v Garrett (1878) 7 Ch D 473, 489; Bullivant v Attorney Genera; for Victoria [1901] AC 196; Armitage v Nurse [1998] Ch 241, 256. This means that a plaintiff who alleges dishonesty must plead the facts, matters and circumstances relied on to show that the defendant was dishonest and not merely negligent, and that facts, matters and circumstances which are consistent with negligence do not do so. 186. The second principle, which is quite distinct, is that an allegation of fraud or dishonesty must be sufficiently particularised, and that particulars of facts which are consistent with honesty are not sufficient. This is only partly a matter of pleading. It is also a matter of substance. As I have said, the defendant is entitled to know the case he has to meet. But since dishonesty is usually a matter of inference from primary facts, this involves knowing not only that he is alleged to have acted dishonestly, but also the primary facts which will be relied upon at trial to justify the inference. At trial the court will not normally allow proof of primary facts which have not been pleaded and will not do so in a case of fraud. It is not open to the court to infer dishonesty from facts which have not been pleaded, or from facts which have been pleaded but are consistent with honesty. There must be some fact which tilts the balance and justifies an inference of dishonesty, and this fact must be both pleaded and proved.[33]He also referred to JSC Bank of Moscow v Kekham [2015] EWHC 3073 where Flaux J stated at §20:
“The claimant does not have to plead primary facts which are only consistent with dishonesty. The correct test is whether or not, on the basis of the primary facts pleaded, an inference of dishonesty is more likely than one of innocence or negligence. As Lord Millett put it, there must be some fact “which tilts the balance and justifies an inference of dishonesty”
. At the interlocutory stage, when the court is considering whether the plea of fraud is a proper one or whether to strike it out, the court is not concerned with whether the evidence at trial will or will not establish fraud but only with whether facts are pleaded which would justify the plea of fraud. If the plea is justified, then the case must go forward to trial and assessment of whether the evidence justifies the inference is a matter for the trial judge. This is made absolutely clear in the passage from Lord Hope’s speech at [55]-[56] which I quoted above.”[34]He says that the Claimant has not put forward with any or any sufficient particularity any primary facts from which the dishonesty alleged could be inferred and there is nothing (in the pleading) which would tilt the balance and justify an inference of dishonesty other than his animus against Gravity.[35]Next, he noted that any allegation short of fraud/dishonesty would be insufficient to found a remedy for the Claimant. The Claimant does not suggest (now) that he did not sign the FA/Lease or that he is not bound by their terms. Clauses 2.6 and 32.4 are clear that liability for misrepresentation is excluded. 2.6 The Franchisee and the Individual have been advised by the Franchisor to obtain and their own legal and professional advice and perform their own due diligence on the Branded Business and the Franchisor does not make any representation or warranty as to any levels of potential sales or profits under this Agreement. The Franchisee acknowledges that the success of the Franchisee's Business will depend on many factors outside the control of the Franchisor and the Franchisor makes no representation or warranty as to the success of the Franchisee's Business. 32.4 [see §11 above].[36]Mr Nicol referred to Springwell Navigation Corp v JP Morgan Chase Bank [2010] EWCA Civ 1221 at §144: 144. So, in principle and always depending on the precise construction of the contractual wording, I would say that A and B can agree that A has made no pre-contract representations to B about the quality or nature of a financial instrument that A is selling to B. Should it make any difference that both A and B know at and before making the contract, that A did, in fact, make representations, so that the statement that A had not is contrary to what each side knows is the case? Apart from the remarks of Diplock J in Lowe v Lombank, Mr Brindle did not show us any case that might support the proposition that parties cannot agree that X is the case even if both know that is not so. I am unaware of any legal principle to that effect. The only possible exception might be if the particular agreement between A and B on the certain state of affairs concerned contradicts some other specific or more general rule of English public policy. 161 Like Moore-Bick LJ in Peekay 162 I see commercial utility in such clauses being enforceable, so that parties know precisely the basis on which they are entering into their contractual relationship.[37]He also referred to the authority cited by the Claimant - AXA Sun Life Services plc v Campbell Martin Ltd [2011] EWCA Civ 133 – in which Stanley Burton LJ quoted Lightman J in Inntrepreneur Pub Co v East Crown Ltd [2000] 2 Lloyd’s L Rep 611: 7. The purpose of an entire agreement clause is to preclude a party to a written agreement from threshing through the undergrowth and finding in the course of negotiations some (chance) remark or statement (often long forgotten or difficult to recall or explain) on which to found a claim such as the present to the existence of a collateral warranty. The entire agreement clause obviates the occasion for any such search and the peril to the contracting parties posed by the need which may arise in its absence to conduct such a search. For such a clause constitutes a binding agreement between the parties that the full contractual terms are to be found in the document containing the clause and not elsewhere, and that accordingly any promises or assurances made in the course of the negotiations (which in the absence of such a clause might have effect as a collateral warranty) shall have no contractual force, save insofar as they are reflected and given effect in that document. The operation of the clause is not to render evidence of the collateral warranty inadmissible in evidence as is suggested in Chitty on Contract 28th ed. Vol 1 para 12-102: it is to denude what would otherwise constitute a collateral warranty of legal effect.[38]Later Rix LJ at §94 stated:
“In my judgment, this jurisprudence confirms my provisional conclusion on the wording of Clause 24. No doubt all such cases are only authority for each clause’s particular wording; nevertheless, it seems to me that there are certain themes which deserve recognition. Among them is that the exclusion of liability for misrepresentation has to be clearly stated. It can be done by clauses which state the parties’ agreement that there have been no representations made; or that there has been no reliance on any representations; or by any express exclusion of liability for misrepresentation. However, save in such contexts, and particularly where the word “representations” takes its place alongside other words expressive of contractual obligation, talk of the parties’ contract superseding such prior agreement will not by itself absolve a party of misrepresentation where its ingredients can be proved.”
[39]In the light of the lack of particularisation of the alleged misrepresentation, the failure to identify the basis to infer dishonesty and the contractual exclusion clauses, he argues that the Claim stands to be struck out pursuant to CPR 3.4.[40]However, he also noted that the factual assertions contained within the Representations do not stand up to any comparison with the documentary evidence. For instance, he points to the witness statement from Mrs Gibbons which confirmed that the Claimant took professional legal and accountancy advice, and that Mr and Mrs Gibbons relied on their own assessment of the figures provided (Mrs Gibbons at §9 stated that she took a “…more prudent approach in calculating profits, drawing on my own experience as a management accountant.” D3[41]Mr Taczalski addressed many similar points as Mr Nicol in his skeleton as well as providing the legal framework. He also touched on the question of the courts’ approach to any further amendment to cure failings in the pleadings. However, the Claimant did not seek permission to amend his Claim further relying on the current pleading and the evidence he had filed.[42]During submissions Mr Taczalski concentrated on the factual issues as opposed to the legal arguments that Mr Nicol had addressed. However, he first dealt with the issue of D3’s personal liability. He noted the Claimant’s reference to Natural Life Health Food Stores Ltd [1998] 1 WLR 830 where he argued that the there is “…volumes of evidence to support” a special relationship (assumption of responsibility) and reasonable reliance. Mr Taczalski referred to an extract from the judgment of Lord Styen:
“In the present case a triangular position is under consideration: the prospective franchisees, the franchisor company, and the director. In such a case where the personal liability of the director is in question the internal arrangements between a director and his company cannot be the foundation of a director's personal liability in tort. The enquiry must be whether the director, or anybody on his behalf, conveyed directly or indirectly to the prospective franchisees that the director assumed personal responsibility towards the prospective franchisees.”
[43]He stated that there was nothing in the Claimant’s case, other than references to D3’s role acting for D1, which could be said to provide evidence that D3 was assuming a duty of care towards the Claimant on his own behalf as opposed to on behalf of D1.[44]He then addressed the separate representations. Rep1 at §3.1 he does not allege that D3 made that specific representation referring to unspecified other “company representatives”. Although more detail is given at §4.1 and it is asserted that the “costs would not exceed £1.5 million” he argued that it does not plead a potentially actionable representation against D3. He then set out 7 issues with the allegation including that there were various different costings including in prospectus at 1.3-1.8M and that the LOI indicated that it could exceed the 1.5M. Also, he pointed to the fact that when the Claimant asked for an assurance that the budget would not exceed £1,405,115 no such assurance was given, and although there were solicitors on both sides, the assurance was not chased up.[45]Other evidence includes the mail on 25 March 2020 where the Claimant stated that he was “already alarmingly over budget already” at 1.8M. The Claimant’s WS alleges an assurance from Mr Lang that the project refurbishments and costs would be capped at £1.5M and goes on to make several other allegations of oral statements by the Ds which are not the pleaded misrepresentations.[46]Finally, he addresses the allegation of falsity. §4.1 of the APOC refers to “a similar project in Northampton, built pre-covid reportedly cost £3.2 million to build…” and that the Ds must therefore have known that the project would have exceeded the £1.5M (or the undefined clear limit to the resources which could be invested). It is notable that the allegation of falsity is not specific to D3.[47]In answer to Rep 2 he notes that although there is no doubt that the profit levels forecast were not achieved, that was a forecast, and not a representation that it would achieve that level. More importantly, the details of the representation are not set out in the pleading. Similar points were made as to Rep 1 including that the spreadsheet [2/226] was provided to enable due diligence and was subject to the limitations on reliance.[48]Rep 3 makes no allegation against D3 specifically and cannot even on its face establish that the representation (if made) was false. Similarly Rep 4 does not address D3 specifically and the representation must be some form of contractual agreement post the FA (the date alleged in the WS is 14 January 2020 which post-dates the FA).[49]As to Rep 5 he noted that there was an inconsistency between the APOC at §3.4 and then at §4.5 – initially he alleges there was an agreement to provide the finance, and then that D3 promised to provide a guarantee. He then pointed to §130 of the Claimant’s witness statement where he said that: “JENKINSON gave me his personal guarantee that the company he effectively ran would stand right behind me and guarantee any finance we needed to get the project over the line.” and compared that to the email of 5 June 2020 where the assurance is “As discussed, I can confirm that Gravity and myself are 100% confident we can assist in securing the finance you need for this project”.[50]Finally, he noted that by the time the Lease is entered into (16 July 2020) the attempt to arrange finding had failed so there can have been no inducement to enter into the Lease.

C’s Submissions – v D1&2

[51]In his skeleton responding to D1 & D2’s application the Claimant argued that: i) The claim raises multiple serious and clearly triable issues of fact; ii) The Court will need to determine: “15.(a) what representations were made regarding the franchise opportunity;(b) what representations were made regarding the project cost, profitability, appointment of One Shot Construction, the strip out and the finance guarantee.” iii) He had provided sufficient detail of the representations. iv) Contractual terms do not prevent a party from relying on pre-contractual misrepresentations (see AXA Sun Life Services PLC v Campbell Martin Limited) and clause 31 of the FA which does not exclude fraudulent misrepresentations[52]He then addressed the 5 Reps. As to Rep 1 he referred to MGB Printing Ltd v Kall Kwik UK Ltd [2010] EWHC 624 (QB) where he submitted a Franchisor was liable in negligence despite exclusion clauses. Rep 2 the Claimant referred to Papa Johns v Doyley[2011] EWHC 2621 (QB) where a decision related to the projections and was strikingly similar to this claim.[53]Rep 3. The Claimant repeats his case that he was told that OSCL was “trustworthy, honest, competent and professional. And that they had the required expertise to deliver the project on time and within budget.” Apart from asserting that OSCL were untrustworthy, incompetent and unprofessional, the Claimant also alleges that OSCL were negligent and/or fraudulent. He refers to Hedley Byrne v Heller and states that D1&D2 “…assumed responsibility for the competence of OSCL and their recommendation amounted to negligent advice”. He did not either in his skeleton or submissions refer to the absence of such a claim within the pleadings.[54]Rep 4. The Claimant claims that there was an agreement that he would receive an additional £100k contribution plus 4 weeks rent/service charge reduction. He alleges that he did not get the rent/SC reductions, and that this was dishonest of the Defendants. Indeed, he argues that the Defendants stole the money. He referred to Central Properties Trust Ltd v High Trees House Ltd [1947] K.B. 130 but with no explanation.[55]Rep 5. The Defendants guaranteed they would secure the £400,000 by standing as a guarantor. He referred to Walton Stores Ltd v Maher (1988) 164 CLR 3878, an Australian case dealing with promissory estoppel. Again, he did explain how this applied (there is no pleading of estoppel).[56]He finally referred to a decision of Saini J in Nova Leipzig Sari v Gravity Fitness Limited (2025) EWHC 1262 (Comm) which was a claim by GFL to stay proceedings on the grounds of forum non conveniens. However, the relevance is according to the Claimant that Mr Jenkinson had signed a guarantee for a Leipzig trampoline park but then claimed to have signed the “parent” guarantee by mistake. However, the hearing did not hear oral evidence from D3, nor were any findings made about D3.

C’s Submissions – v D3

[57]The Skeleton for D3’s application is substantively similar to that for the other Defendants - the submissions on Rep 1-5 mirror those set out above. As for the personal involvement of D3 the only point made appears to be:
“14 The Claimant’s case is that the Third Defendant was personally involved in making the representations relied upon by the Claimant. 15 The third defendant positioned himself as an expert in the industry, gave personal assurances and guarantees forming a close relationship with the Claimant in order to establish that his personal opinion could be relied upon in inducing courses of action.”
[58]He referred to Smith v Land & House Property Corp LR 28 ChD 7 in support of his case that D3’s actions are “culpable based on how he represented himself”. Smith v Land & House Property Corp is a decision from 1884 dealing with “puffs and statements of opinion” (in that case a representation that the tenant was “…most desirable”) but does not address the issue of the personal liability of a Director of a Company making representations as a Director or personally.

Applicable Principles

[59]I was referred to the recent decision of Henshawe J at [36] – [37] in Matthew Williams v Richard Merrick, Merricks Solicitors Limited (sued as Merricks Solicitors) which referred to the Court of Appeal’s decision in The LCD Appeals [2018] EWCA Civ 220: “36. The Court of Appeal in The LCD Appeals [2018] EWCA Civ 220 §§ 38-39 set out the principles to be applied to applications for summary judgment under CPR 24.2 and strike-out under CPR 3.4(2)(a): "The court may strike out a statement of case if, amongst other things, it appears that it discloses no reasonable grounds for bringing the claim: CPR 3.4(2)(a). It may grant reverse summary judgment where it considers that there is no real prospect of the claimant succeeding on the claim or issue and there is no other compelling reason why the case should be disposed of at trial: CPR 24.2(a)(i) and (b). In order to defeat an application for summary judgment it is only necessary to show that there is a real as opposed to a fanciful prospect of success. Although it is necessary to have a case which is better than merely arguable, a party is not required to show that they will probably succeed at trial. A case may have a real prospect of success even if it is improbable. Furthermore, an application for summary judgment is not appropriate to resolve a complex question of law and fact." 37. The Court of Appeal quoted with approval the following considerations applicable to summary judgment applications, taken from passages in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) and Swain v Hillman [2001] 1 All ER 91 at 94: i) the court must consider whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success: Swain v Hillman [2001] 1 All ER 91; ii) a " realistic " claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 § 8; iii) in reaching its conclusion the court must not conduct a "mini-trial": Swain v Hillman; iv) this does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases, it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel § 10; v) however, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550; vi) although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus, the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 3; vii) on the other hand, it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725 "; and viii) a judge in appropriate cases should make use of the powers contained in Part 24. In doing so he or she gives effect to the overriding objective as contained in Part 1. It saves expense; it achieves expedition; it avoids the court's resources being used up on cases where this serves no purpose; and it is in the interests of justice. If the claimant has a case which is bound to fail, then it is in the claimant's interest to know as soon as possible that that is the position: Swain v Hillman [2001] 1 All ER 91 § 94.[60]Mr Taczalski also cited the decision of Lewison LJ in Calland v FCA [2015] EWCA Civ 192 at [28] which stressed the need for a “critical examination of the raw material” to deter whether there was in fact a real prospect of success. He stated that “The fact that some factual or legal questions may be disputed does not absolve the judge” from the “duty to make an assessment of the claimant’s prospects of success”. He also referred to the decision of Asplin LJ in Elite Property Holdings v Barclays Bank PLC [2019] EWCA Civ 204 at [42] that:
“The court is entitled to reject a version of the facts which is implausible, self-contradictory or not supported by the contemporaneous documents and it is appropriate for the court to consider whether the proposed pleading is coherent and contains the properly particularised elements of the cause of action relied upon.”
[61]As to Strike Out, the decision of Henshawe J in Williams v Merrick also dealt with the appropriate test: “40. Pursuant to CPR 3.4(2), a claim may be struck out if it discloses no reasonable grounds for bringing the claim or is likely to obstruct the just disposal of the proceedings, or if there has been a failure to comply with a rule or practice direction.41. CPR 16.4(1)(a) provides that particulars of claim must include "a concise statement of the facts on which the claimant relies". The Defendants cited two authorities indicating the application of this requirement in the context of a professional negligence claim.42. In Pantelli v. Corporate City Developments [2010] EWHC 3189 (TCC), [2011] PNLR 12 Coulson J said: "CPR r.16.4(1)(a) requires that a particulars of claim must include "a concise statement of the facts on which the claimant relies". Thus, where the particulars of claim contain an allegation of breach of contract and/or negligence, it must be pleaded in such a way as to allow the defendant to know the case that it has to meet. The pleading needs to set out clearly what it is that the defendant failed to do that it should have done, and/or what the defendant did that it should not have done, what would have happened but for those acts or omissions, and the loss that eventuated. Those are "the facts" relied on in support of the allegation and are required in order that proper witness statements (and if necessary, an expert's report) can be obtained by both sides which address the specific allegations made." (§ 11)43. Similarly, in Andrews v. Messer Beg [2019] EWHC 911 (Ch), [2019] PNLR 23, Stephen Jourdain QC (sitting as a High Court Judge) said: "The function of a pleading which asserts a claim, including an additional claim, is to set out a concise statement of the facts on which the claimant relies as giving the claimant a cause of action against the defendant: see CPR r.16.4. The claimant should state all the facts necessary for the purpose of formulating a complete cause of action against the defendant. Such a pleading needs to give the defendant such reasonable and proportionate information about the facts alleged as is required to enable the defendant to understand the case he has to meet and to prepare his defence." (§ 20)44. An adequately particularised statement of case meeting these requirements is necessary so that the defendant can understand the case he has to meet, and so that the court can identify the issues and, hence, the disclosure and evidence it is likely to require. The lack of such a statement of case is thus not only a breach of the CPR but also likely to obstruct the just disposal of the proceedings. Discussion Misrepresentations

Discussion

[62]The Pre-contractual representations (Rep 1-5) are briefly set out in the APOC at §3. In considering whether the Defendants’ applications should succeed, there must be sufficient particularity of the cause of action being pursued. The pleaded allegations are limited to the misrepresentations, and although there are each described as being fraudulent/negligent/innocent §4 refers to “falsity” and “negligent advice”. Despite the lack of clarity, it must be assumed that the Claimant avers that the representations are either fraudulent or negligent.[63]Rep 1. This is an allegation that the Defendants represented that the cost would be no more than £1.5M. Ms Gibbons refers to SIG/24 which gave a total cost of £1,405,115. She does not say that she was told this was an exact costing or a limit, nor does she refer to any assurance about the £1.5M.[64]Mr Gibbons appears to take the £1.5M figure from the LOI which stated the cost of the franchise could be “…as much as £1.5M”. However, he then went on in the email of 28 November 2019 to state that the budget was nearer £1.6M, and when warning that costs of more than £1.5M would bankrupt him and so would need assurances about this figure he did not receive one.[65]Further, the LOI is clear that the estimate was subject to “…local market conditions” and could exceed that amount, and the Prospectus had given a range for capital of £1.2M to £1.8M.[66]It is also notable that in his WS the Claimant states in relation to the emails between 23 and 26 August 2019 that he had (as per his notes) asked “I will be guided by you in relation to the project for the refurbishment costs due to experience and expertise. Any project management budgets would need capping and to be accurate. For example, you inform me the build and investment required is £1.5 million”. The response was “Agreed, we will run through all figures, estimates and project costings” and “We will provide you details for our approved suppliers and builders. These guys have done the fit outs on multiple centres and are well aware of the requirements / time frames.”[67]He then asserts that he “took this as LANG agreeing that Gravity would take the lead on the project refurbishments and costs would be capped at £1.5million...” however it is hard to see how this conclusion could realistically be drawn. He then refers to a discussion with D3 on 28 October 2019 where he states that “I reiterated that staying on budget was a priority and question that Gravity could deliver all of the above in their vision for £1.5m to which JENKINSON said, “Easily”. Later he refers to another discussion with D3 on 8 November 2019 where he asked:
“If I allow £1.6million for everything will that be more than sufficient?” and D3 responded “Easily, you will have change”
. He says that: “I took this as a guarantee from JENKINSON personally”.[68]At best the representation must either be the provision of SIG/24, or the reference to the build and investment being £1.5M to which it is said that Mr Jenkinson responded “easily”. That is not what the APOC sets out but it is arguable that such an assurance was a representation on which the Claimant relied (even though he entered into the Lease after it was clear that the costs has exceeded that sum). To that extent there is an arguable case. However, if it is the Claimant’s case that this was false and the Defendants knew or were reckless to that, then there must be sufficient pleaded to identify the primary facts on which the Court can draw an inference of fraud.[69]The basis on which fraud is pleaded is that a project in Northampton “reportedly” cost £3.2M and therefore the Defendants must have known that the assurance of £1.5M was wrong. However, the assurance of £1.5M was not made by reference to the costs of the Northampton premises, and there is no evidence to suggest that the fact that another project cost considerably more (which is not accepted) means that the costings provided to the Claimant were deliberately lowered to induce the Claimant into signing up. The costs asserted by the Claimant for Warrington was £2.4M, well below the £3.2M cost of Northampton. No other facts are advanced to show that the Defendants knew that the budget were wrong but continued to rely on them.[70]I am not satisfied that there is any prospect of this alleged representation succeeding on the basis that it was fraudulent and that the best the Claimant can argue is that the Defendants were negligent in the figures provided. I am further satisfied that the Claimant has not complied with the CPR on pleading fraud (although that failure could be vitiated by requiring the allegations to be re-pleaded).[71]The final point made by the Defendants is that by the time the Lease was signed in July 2020 the costs already exceeded the £1.5M, and so the earlier assurances (of £1.5/1.6M) cannot have induced the Claimant into entering into the Lease. That must be correct and so to the extent that any alleged representation made by the Defendants induced the Claimant to enter into any agreement, it can only relate to the FA and so such representations must have predated its completion.[72]Rep 2. There are two elements to this allegation. Firstly, that the Defendant’s business model would yield an average of 20% EBITA (Earnings before Interest Taxes and Amortisation). Secondly, that the business would make a profit of £55,409 in year one, and £393,061 and £336,122 in the subsequent years. No particulars are given about this representation (or which agreement it induced). The falsity at §4.2 simply states that the financial information was “inaccurate” and that the Claimant was told they could be relied on as accurate (by D3).[73]In his WS the Claimant refers to the meeting on 1 November 2019 at which SIG/24 and 25 were provided by Richard Lang and discussed with D3 and Mr Harrison. Those figures were then reviewed by the Claimant and his wife.[74]SIG/24 includes the following table from which the Claimant’s figures are taken:[75]The figures are not accompanied by any contextual documents other than a spreadsheet with Main Profit and Loss Projection. Within that main projection are “EBITDA” (Earnings before Interest, Taxes, Depreciation and Amortisation figures (not in %)). The Claimant states that he reviewed those figures and prepared questions for a meeting (SIG/27). The full extent in his evidence is that he asked D3 “…how accurate the Profit & Loss forecasts in the park were. Again, JENKINSON was very confident in the accuracy of the information provided as it was based on other park performances, the demographics of Warrington and their experience in the industry. JENKINSON was very reassuring and put my mind at rest due to the size of the investment.”[76]No further details of those discussions are given, or about where the 20% EBIT[D]A figure came from. Indeed, in the light of the work which the Claimant and his wife state they had carried out, it is surprising that no questions about the figures appear to have been asked.[77]I consider that this representation is wholly lacking in detail. The Claimant does not plead the necessary facts, and his WS goes little further in identifying what exactly was said and about which figures. With so many tables being provided and forming the basis of discussion, the Claimant’s case remains opaque as to what he was told the nature of these figures were. No explanation of why these were not mere projections based on contingencies is provided. The high point of the Claimant’s evidence is that he was assured that the information provided “was accurate”, but he was not told that the figures were not estimates or projections. The Claimant does not say whether he was told that these were minimum P&L figures, or best estimates, or what the parameters were. He simply asserts that he found the assurances reassuring.[78]Even were I satisfied that the Claimant had pleaded and evidenced the representation sufficiently, there is no primary fact on which, if the Claimant had pleaded it adequately, it could be concluded that the representation was false/fraudulent. The allegation is insufficiently pleaded and cannot be maintained.[79]Rep 3. This relates to OSCL. The issue with this allegation is that the pleaded representation was that OSCL was “trustworthy, honest, competent and professional” and they had the required “expertise to deliver the budget on time and withing budget”. It is hard to see how such a representation can be anything other than a statement of opinion. Statements of opinion can only amount to a statement of fact if not honestly held. There is a clear overlap with the test for a fraudulent misrepresentation, and therefore the Claimant would have to show some primary fact from which it can be concluded that the representation was false. No such fact has been pleaded. The pleading refers to failings of OSCL at some length but does not identify the basis on which it is asserted that the Defendants’ selection of OSCL as a competent contractor was wrong.[80]Further, no details are provided in the pleading as to who made the representation, when or in what circumstances, or how the described assurances were conveyed. His WS at §59 does not identify what part of the quoted comments it is alleged were representations (or how they were false). He relies on the email of 17 December 2019 (as per §4.3 of APOC) where he said: “With my lack of experience in building the leisure facility I am relying on your expertise and honesty in relation to the Capex costs. You all seem very confident that we will be under the budget of £1,405,115 (excludes VAT). If we go over budget, I will potentially be bankrupt before I even get started. What written assurances can you give me that the Capex costs will not go over budget?” but did not get any such written assurance. In any event it does not constitute the representation which he has pleaded about the capabilities of OSCL.[81]I am satisfied that this allegation does not establish any actionable representation whether fraudulent or negligent.[82]Rep 4. The pleaded representation is that the Defendants would give £100,000 towards additional strip out works plus a 4-week rent/SC reduction (at §4.4 of APOC this is termed as passing on rent and SC reliefs). No details of the representation are pleaded, and the representation appears to relate to the decision to undertake a strip out of the premises – not entering into the FA or the Lease.[83]In his WS the Claimant states at §71:
“In exchange for agreeing to the additional strip out responsibility I would receive an additional £100k, 4 weeks rent free period and 4 weeks service charge free period. I was asked if I agreed to One Shot Construction undertaking the strip out works. LANG stated the key saving areas would be in the Air Handling and Electrical works.”
. He does not state when the strip out works were completed (i.e. before the Lease was signed or after).[84]The evidence in support of this allegation is contained in an email of 16 January 2020 where D3 stated:
“Basically, the lease will start early and the strip works will be the your responsibility along with the contractor. 4 Weeks rent and 5/ C free period will be added to the agreement as well as £100k + VAT contribution.”
However, at 734 in Bundle 2 is a licence permitting C&G Leisure Limited to enter into the premises early to carry out the strip out works. The Rent and SC are specifically payable from Wednesday 15 July 2020. At Schedule 1 of the Lease (755) are provision for the £100,000 rebate by the landlord.[85]Despite the opportunities the Claimant has been given to clarify his case, this allegation remains unclear: i) It is pleaded as an agreement (collateral) between the Claimant and the Defendants to pay the £100,000 plus remit rent and SC not as some form of representation. ii) It is unclear who was liable to pay the £100,000 and the rent/SC rebate. The parties to the Lease were the C&G, the Claimant and D2, and Schedule 1 provided for payment by D2 to the Claimant of the £100,000 paid by the Superior Landlord, with provisions for additional fit out costs to be claimed by the Claimant. iii) There does not appear to be any agreement for the Rent/SC reduction within the Lease (or the early entry to the premises) – there is a whole agreement clause in the Lease. iv) There is no explanation why the Claimant did not include the terms offered by the Defendants in the Lease agreement.[86]There is no prospect of this allegation succeeding as currently pleaded. Either the Claimant’s case is that there was an agreement that these sums would be paid, in which case his remedy would by a breach of contract claim, or they are discussions which did not make their way into the final agreement.[87]Rep 5. As noted above this allegation is unclear in the APOC. §3.5 alleges that the Defendants agreed (represented) that they would “…secure £400,000 finance…by way of them standing as guarantor” but later states that the “…the defendant agreed to arrange the finance required for the project”. By §4.5 that position has shifted and the allegation of falsity is firstly that the Defendant failed to [secure the finance needed], then that they failed to stand as Guarantor.[88]In his WS the Claimant states:
“JENKINSON gave me his personal guarantee that the company he effectively ran would stand right behind me and guarantee any finance we needed to get the project over the line. The wording in my email to JENKINSON is clear. As is his reply which states, “As discussed, I can confirm that Gravity and MYSELF are 100% confident we can assist in securing the finance you need for this project”
. This represented what we had discussed on numerous occasions.” (§130)[89]In fact, the Defendants’ response to the Claimant by the email of 5 June 2020 states:
“As discussed, I can confirm that Gravity and myself are 100% confident we can assist in securing the finance you need for this project. We will commit to assisting you through the process even to the extent of looking to guarantee the funding you need with the lender if that is required, which I do not think it will be.”
The Claimant’s response to that is:
“Thank you for the support on this. Hopefully once I amend and resubmit the BP & cashflows you standing as a guarantor will not be required. It does give me comfort that you are willing to do this and work together during worst case scenarios. Hopefully increased confidence comes back in all sectors within the coming weeks.”
[90]By 13 July 2020, the attempt to obtain funding with the first Defendant as guarantor had been unsuccessful and the response from the Claimant was to discuss an injection of shareholder funds. Perhaps of more relevance, assuming that the Claimant’s case is in fact that he was induced into entering into the Lease by this representation, is that the attempt to use the Defendant as a Guarantor had failed before the Lease was executed (and Mrs Gibbons stated that the advice from his Solicitor was not to sign without funding in place).[91]As to any allegation of fraudulent misrepresentation, it is clear from the evidence between the June emails and the 13 July 2020 that the Defendants were in fact attempting to assist the Claimant to put funding in place. No primary fact has been identified from which it could be inferred that the Defendants had been dishonest.[92]Again, this allegation of negligent/fraudulent misrepresentation has no real prospect of success.

Alternative Claims

[93]It is apparent from the Claimant’s WS (and to a degree the APOC) that he seeks to expand his claim beyond misrepresentation into allegations of negligence. So, at §4.3 the Claimant also alleges that “The evidence supports the conclusion that the defendant’s recommendation and advice to use OSCL was negligent.” The Claim is not pleaded in breach of contract, and no basis for the assumption of a duty of care has been set out. However, in his skeleton at §50 the Claimant asserts that:
“The principles of Hedley Byrne v Heller are present in this case. In which the Defendants assumed responsibility for the competence of One Shot Construction and their recommendation amounted to negligent advice.”
[94]It is unclear to me how the Claimant contends that the First and Second Defendants (who were of course a contracting party and had contractual obligations towards the Claimant) had also assumed some additional responsibility to the Claimant when identifying a contractor to carry out works. In his oral submissions the Claimant referred to collusion between the Defendants and OSCL which stated that he had not been able to get to the bottom of it in the absence of disclosure from the Defendants. But his pleaded case is not that there was some form of conspiracy to defraud, but that the Defendants owed him a duty of care in recommending OSCL.[95]The FA provides that:
“16.3. 6 be responsible for the project management of the refurbishment of the Premises including project timelines and all fees and expenses relating to this shall be the responsibility of the Franchisee”
. There was no requirement that the Claimant use OSCL. It appears that the Defendants did introduce OSCL to the Claimant but that in itself is not sufficient to give rise to a duty of care. Although it was not raised before me some guidance can be taken from Henderson v Merrett Syndicates Ltd [1995] 2 AC 145in which Lord Goff stated that the case was:
“most unusual; in many cases in which a contractual chain comparable to the present case is constructed it may well prove to be inconsistent with an assumption of responsibility which has the effect of short-cutting the contractual structure so put in place by the parties … [for example, under] the ordinary building contract, [where] the main contractor sub-contracts with sub-contractors or suppliers (often nominated by the building owner) … it will not ordinarily be open to the building owner to sue the sub-contractor or supplier direct under the Hedley Byrne principle.”
[96]As pleaded, I do not accept that any claim for economic loss has been founded by the Claimant against the Defendants as submitted in the Claimant’s skeleton and before me.

Exclusion Clauses

[97]The Defendants rely on the exclusion clauses contained in the various documents provided to the Claimant. They accept that they are not able to exclude liability for fraudulent misrepresentation but rely on the relevant parts of the Prospectus, the LOI and the FA set out above.[98]The Claimant did not address the exclusion clauses within his Skeleton or his oral submissions preferring to pursue the allegations that the representations were fraudulent rather than negligent. However, applying the test set out above (from Inntrepreneur Pub Co) it is clear that the operative clauses restrict the Claimant’ ability to bring a claim for misrepresentation only to claims in fraud/deceit: i) Clause 2.6 of the FA clearly excludes liability for any representation as to the success, potential sales, or profit of the Franchise. ii) Clause 32.4 of the FA excludes from it any previous agreements, warranties, representations whether oral or written, and makes the written terms of the FA the entire agreement. iii) The LOI at clause 6 stated:
“The Franchisee acknowledges that the investment to open a gravity location could be as much as 1.5 million GB. This will largely be dictated by local market conditions, and the investment could exceed this amount. Franchisee acknowledges this and confirms that the Franchisee has taken professional advice before it all necessary due diligence. The Franchisee is not relying on any statement made by gravity in relation to the Branded Business. The Franchisee acknowledges that Gravity cannot guarantee any revenue return under the Formal Agreement and acknowledges that any new business opportunities have risk potential and has taken professional advice.”
[99]Further the Claimant was advised by solicitors throughout the run up to the FA and later the execution of the Lease and can be assumed to have been advised about the effect of the exclusion/entire agreement clauses. In the commercial context within which the FA was signed (and the Lease) there is no real prospect of the Claimant avoiding the effect of those terms – even had he sought to argue any such basis.[100]To the extent therefore that there is any arguable claim that the Reps were negligent (or innocent) misrepresentations, such a claim would be excluded by reason of the contractual terms agreed by the parties.

Defective Pleadings

[101]There is no doubt that the APOC as it currently stands does not comply with the Rules, particularly in the light of the absence of any proper response to the Part 18 request. As noted by the Defendants, and despite the Claimant’s observations in oral submissions, litigants in person are not exonerated from following the rules and any indulgence should only be exercised “at the margins” (Barton v Wright Hassall [2018] UKSC 12). It cannot be said that the failure properly to set out the necessary elements of the Claimant’s claim is “at the margins” and latitude should be given to the Claimant. The Defendants are entitled to know the case against them and the elements of the Claimant’s claim must be set out in adequate detail to allow the Defendants to understand the claim against them. It is not sufficient for the Claimant to say, as he does in his reply to the Part 18 request, ‘here is all the documentation’ and a trial is necessary to determine the Defendants’ failings. Further, the Claimant is not entitled to say that his case will become clear once he has cross-examined the Defendants’ witnesses.[102]I am satisfied that the APOC do not enable the Defendants to know the claims being brought against them, and that is not only a breach of the CPR but also likely to obstruct the just disposal of proceedings.

Amendment

[103]The Claimant in his oral submissions referred to CPR 17 and the Court’s power to permit amendments. He also referred to Fong v Montgomery (t/a Raemoir Trout Fishery)[2025] EAT 31 a case in which the EAT criticised the Employment Tribunal for not permitting an amendment by a claimant. Mr Taczalski referred to the 4-stage test set out by Males LJ in Geo-Materials GT Limited v Downing [2023]EWCA 648:
“The relevant principles in respect of amendments which are outside a statutory limitation period are governed by section 35 of the Limitation Act 1980 and CPR 17.4. There is a four stage test, as explained in Ballinger v Mercer Ltd [2014] EWCA Civ 996, [2014] 1 WLR 3597 at [15] and Mulalley & Co Ltd v Martlet Homes Ltd [2022] EWCA Civ 32 at [38]: (1) Is it reasonably arguable that the opposed amendments are outside the applicable limitation period? (2) Did the proposed amendments seek to add or substitute a new cause of action? (3) Does the new cause of action arise out of the same or substantially the same facts as are already an issue in the existing claim? (4) Should the Court exercise its discretion to allow the amendment?”
[104]He then quoted from the Court of Appeal decision in Kawasaki Kisen Kaisha Ltd v James Kemball Ltd [2021] EWCA Civ 33:
“17. The court will apply the same test when considering an application to amend a statement of case, and will also refuse permission to amend to raise a case which does not have a real prospect of success. 18. In both these contexts: (1) It is not enough that the claim is merely arguable; it must carry some degree of conviction: ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472 at paragraph 8 ; Global Asset Capital Inc v Aabar Block Sarl [2017] EWCA Civ 37; [2017] 4 WLR 163 at paragraph 27 (1). (2) The pleading must be coherent and properly particularised: Elite Property Holdings Ltd v Barclays Bank plc [2019] EWCA Civ 204 at paragraph 42 . (3) The pleading must be supported by evidence which establishes a factual basis which meets the merits test; it is not sufficient simply to plead allegations which if true would establish a claim; there must be evidential material which establishes a sufficiently arguable case that the allegations are correct: Elite Property at paragraph 41.”
[105]The Claimant has refused to amend his APOC further despite the opportunities given to him by the Defendants, and despite the Part 18 request that sought to flush out the detail of the allegations. Absent a draft or any explanation from the Claimant as to what he intends to argue/plead it is impossible to carry out an assessment of the prospects of success of any (re)amended claim.[106]It is not therefore open to the Court to refuse the Defendants’ application on the basis that the Claimant might seek to amend. D3[107]There are clear issues with the Claimant’s failure to identify in what circumstances D3 can be said to have assumed personal liability when on his own case, D3 (with other employees/Directors of D1/2) were making promise/representations on behalf of the companies. However, it is not necessary for me to go further into this issue.

Counterclaim

[108]The counterclaim seeks payment under the Franchise Agreement and Lease in the sum of £849,288.07 plus interest. In his Defence to the Counterclaim the Claimant asserted:
“The claim brought before the court by the claimant will form the defence to the "counterclaim". I believe none of the claims brought forward by the defendant under the franchise Agreement or lease are valid. All are refuted. This is due to the clear misrepresentations made prior to the agreements being entered into.”
[109]Despite the Reply making it clear that the Claimant did not adequately plead to the counterclaim, the Claimant has not sought to expand or identify any defence to the counterclaim (save that he asserts that the agreement/lease are not binding). In those circumstances, I am satisfied that the defence to the counterclaim does not disclose any valid defence and that there should be judgment on the counterclaim.

Conclusion

[110]I grant the Applications by the Defendants. I do not consider that the claims advanced by the Claimant have any real prospect of success and therefore “reverse” summary judgment should be granted against him. I also have concluded that the allegations as pleaded should be struck out pursuant to CPR 3.4(2).[111]I invite the parties to agree an order consequent on this judgment which can be approved at the same time as this Judgment is handed down without the necessity of a hearing. If an order cannot be agreed or if there are other matters which will need to be determined at a hearing, then the parties should provide with their corrections a time estimate (agreed if possible) and availability.