“First, that the entire arrangement between the parties was subject to an implied “umbrella agreement”, whose terms constrain RCI from terminating the agreements. Second, that there are terms implied into the express agreements which have that effect. Third, that the true construction of the express terms of the written agreements gives them a different meaning from their apparent meaning, so that they do not have the effect that they appear to have. Fourth, that RCI is estopped from exercising its contractual rights by reason of representations made to [MMBL]. Fifth, that the terms of the agreements by which RCI seeks to act contravene the Unfair Contract Terms Act. The first four of these are new claims, which are raised for the first time in the DAPOC.”
“… in summary, that the entire arrangement between all of these parties should be viewed as being subject to an implied “umbrella” contract. This implied contract should be taken as covering all of the services provided by all of the parties, both those covered by the existing agreements and those provided outside those agreements. This implied contract should be regarded as a “relational” contract, importing a good faith obligation, and the effect of that obligation ought to be that the relationship as a whole should only be terminable on two years notice. What is argued is that the termination of the RCI contracts has the effect of – in practice - immediately terminating the distribution agreements, since in practice a distributor cannot operate without finance, and finance obtained from other sources would be prohibitively expensive. This must therefore be a breach of the implied good faith obligation and/or a term of the implied contract. The position of [MMBL] is that this is a sufficiently arguable case that it should be allowed to go to a full trial. “[16] [MMBL] also argue that this umbrella agreement exists not only between the parties hereto, but also embraces Renault, Nissan and Dacia. They therefore seek to join those entities as parties in this litigation.”
“It seems to me, that the parties might well have acted exactly as they did without an umbrella agreement being in place. Having said that, in principle, it is possible to see that the provision of the database services and the platform services were central to the performance of the Dealership Agreements. If a dealer cannot gain access to the means of ordering cars and parts, it is not difficult to see that it may become impossible for them to meet the obligations under the Dealership Agreements. In circumstances in which 90% of vehicle sales are funded on credit and [MMBL] was required to offer RCI finance to its customers, it is also possible to see that the provision of customer finance and the ability to check a customer’s credit position on the database might also have been central to [MMBL’s] business and the performance of the Dealership Agreements. Whether that might result in an umbrella agreement for the provision of those services rather than a claim that terms as to the provision of those services should be implied into the Dealership Agreements themselves (something which is not pleaded) is another matter.”
“The fatal flaw in [MMBL’s] case, as the judge identified, is the absence of any arguable legal route by which to fix RCI with an obligation to continue to provide [MMBL] (or its customers) with any specific level of finance. In practical terms, [MMBL] may well have been dependent upon the provision of finance by RCI in order to be able to carry on its business in accordance with the Dealership Agreements. But that situation is no different from any in which the provider of the essential finance is an independent financial institution such as a bank; the continuing need that the customer has for the provision of the funds does not make it necessary that the financier should be contractually obliged to continue to provide them.”
“56.1. the profit MMBL would have made in continuing to operate its business between24 November 2021 , the date on which any of the Services were first withdrawn, and24 November 2023 , the earliest date on which any period of reasonable notice of termination would have expired; or “56.2. the difference in value between what MMBL received for the sale of its premises to Parks of Hamilton and the value MMBL would have received in an open market sale of its premises and business before, on, or after24 November 2023 following the proper notice period (i.e. had 24 months been given to MMBL on the date services were first withdrawn by Renault and Nissan) in the Renault and Nissan Agreements.”
“45.1. RCI would make available all database and platform services necessary to enable MMBL to comply with its contractual obligations under the UVSA, including making relevant payments pursuant to the UVSA. 45.2. Insofar as RCIFS took possession and sold the Stock pursuant to clause 14.2, it would use reasonable endeavours to obtain a fair market value for the Stock.”
“3.1. MMBL has no arguable claim to recover the damages identified in paragraph 56: (1) In the [Previous] Claim, it was MMBL’s own case (as confirmed by Mr Mackie in statements verified with a statement of truth) that RCI either (a) withdrawing the credit line which it provided to MMBL to purchase cars, and car parts (Dealer Finance); or (b) refusing to provide further finance to customers of MMBL who wished to buy new or used cars from it (Customer Finance), would have been fatal to its business, and each such action would therefore have been sufficient to force MMBL to sell its business to Parks (the Parks Sale). (2) The CoA Judgment confirms that RCI had an unfettered contractual right to do both these things – which it did (a) by serving notices terminating its various contracts with MMBL on7 December 2021 ; and (b) refusing to provide any Customer Finance to MMBL’s customers from around that date. (3) The essence of the complaint in the POC is that MMBL was wrongfully deprived of access to the platform services. However, those services were systems which facilitated MMBL acting as a Renault/Nissan dealer and service centre – a business which, by its own admission, MMBL was prevented from carrying on by RCI’s lawful withdrawal of Dealer Finance and Customer Finance. (4) The sole effective cause of any losses arising from disruption to MMBL’s business was therefore a lawful exercise by RCI of its contractual rights.”
“I subsequently became aware that alternative funding arrangements were readily available in the open market, which could have offered competitive— potentially more competitive—terms than RCI. MMBL was a highly profitable, creditworthy business with a robust balance sheet. We already had relationships with, and could have expanded facilities via, independent finance providers such as Santander and Northridge Finance. I had not previously explored this possibility because, again, I had been conditioned over the years to believe, based on communications with the Defendants, that manufacturer-backed RCI finance packages were uniquely competitive and structurally superior. I now know that was simply not true.”
"Given your client's creditworthiness . . . it is entirely clear that it has performed, and will continue to be able to perform, its obligations pursuant to the Dealer Agreements, utilising alternative financing and/or utilising its own substantial financial resources."
“I was aware that Alice Altemaire and Lee Wheeler met with both Renault and Nissan around the third week of November to persuade them to stop supply and come ‘on side’ to RCI’s thinking. Geographically we are all on the same site, so it was easy for them to meet in person. That said, I know that there were a number of email exchanges between RCI and Renault and Nissan as well as emails setting up meetings. There was also a substantial amount of emails between RCI and Parks, the incumbent.”
“[a]s I set out in paragraphs 49 to 54 of my first witness statement, this financing is provided on favourable terms to enable MMBL to acquire the stock required to fund MMBL’s operations as a franchised dealership. Equivalent Dealer Financing is simply not available from alternative finance houses and, without the provision of the Dealer Financing from RCI, MMBL would not be able to perform its obligations under the Dealership Agreements”
“In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”
“Henderson v. Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in early [sic] proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. …While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice.”
“I agree that the question in a case of this kind is whether the second set of proceedings is an abuse of process and that that question must be decided by the application of the principles set out in Johnson v Gore Wood & Co[2002] 2 AC 1 . Thus, as Lord Bingham of Cornhill observed, the crucial question is whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it an issue which could have been raised before. The burden is on the party asserting the abuse to establish it. Moreover, as Lord Bingham put it, there will rarely be a finding of abuse unless the later proceedings involve what the court regards as the unjust harassment of a party. There may be such harassment if, as Wigram V-C put it in the passage from Henderson v Henderson 3 Hare 100, 115 quoted by Lloyd LJ at para 25, a party fails to rely upon a point which properly belonged to the first litigation and which, with reasonable diligence, he might reasonably have brought forward at the time. However, the question must be resolved by a consideration of all the circumstances of the case.”
“53. The applicable principles of law relating to an application to strike out for abuse of process can, therefore, be summarised as follows: 1 Although historically it was said that, absent special circumstances, a second claim could not be brought if it could have been brought in earlier proceedings (Henderson v Henderson), that is too dogmatic an approach (Johnson v Gore Wood). 2 Instead, what is required is “a broad merits-based judgment which takes account of the public and private interests involved and all the facts of the case, focussing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before” (Johnson v Gore Wood). 3 The burden rests on the defendant to establish that it is an abuse of process for them to be subjected to the second action (Johnson v Gore Wood, Michael Wilson). Because the focus is on abuse, it will be rare for a court to find that a subsequent action is an abuse unless it involves “unjust harassment or oppression” (Lord Clarke MR in Dexter and Lloyd LJ in Stuart v Goldberg Linde). Putting the same point another way, the courts will not lightly shut out a genuine claim unless abuse of process can clearly be made out (Lloyd LJ in Stuart v Goldberg Linde, and Simon LJ in Michael Wilson). 4 In ongoing litigation, a party who realises that he may have connected claims which are not currently pleaded must follow the Aldi guidelines, and at least raise with the court the existence of such new claims. A breach of those guidelines will give rise to a “high risk” that the second action will be found to be an abuse of process (Stuart v Goldberg Linde) and will always be a relevant factor to be taken into account in any application to strike out (Gladman). 5 However, a breach of the Aldi guidelines does not automatically mean that the second action is an abuse of process and will be struck out. The Aldi guidelines are simply one facet of the broad merits-based evaluation (Okritie). 6 A decision as to whether a claim is an abuse of process is not a matter of discretion, but the decision will turn on an evaluation which is ‘very similar’ to the balancing exercise undertaken when a judge exercises his or her discretion (Aldi, Stuart v Goldberg Linde). 7 That evaluation must consider, not only whether there has been a misuse of the court’s process, oppression or harassment (Dexter), but also the causative effect of the failure to follow the Aldi guidelines (Otkritie). This may involve, for example, consideration of hypothetical consequences and possible case management outcomes (Barrow, Otkritie). 8 The evaluation will also consider the public interest, as set out in Johnson v Gore Wood and Aldi, which is unchanging from case to case (the efficient use of court resources, the needs of other users, finality etc.), and the legitimate private interests involved, which will always vary, depending on the particular facts. This may therefore involve a consideration of the consequences of striking out or not, in a broadly similar way to the third part of the test in Denton. 9 This court will be reluctant to interfere in the evaluation carried out by the judge at first instance, and will only do so if the judge took account of something he or she should not have done, failed to take into account something he or she should have done, erred in principle, or reached a conclusion that was so perverse as to be “plainly wrong” (Aldi, Stuart v Goldberg Linde).”
“The correct approach on applications by defendants is, in my judgment, as follows: i) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman[2001] 2 All ER 91 ; ii) A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel[2003] EWCA Civ 472 at [8]; iii) In reaching its conclusion the court must not conduct a “mini-trial”: Swain v Hillman; iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10] v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5)[2001] EWCA Civ 550 ; vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd[2007] FSR 63 ; vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd[2007] EWCA Civ 725 .”