‘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 PharmaceuticalCo 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 .’
‘(1) The application notice must — (a) state that the application is for summary judgment; (b) identify concisely any point of law or document relied upon; … (3) If a party wishes to rely on written evidence at the hearing, other than in a claim under rule 24.4(3), they must file and serve copies of such evidence on every other party at least — (a) 7 days before the hearing in the case of a respondent’s evidence, or evidence of any party where the hearing is fixed by the court of its own initiative; (b) 3 days before the hearing in the case of an applicant’s evidence in reply, or reply evidence of any party where the hearing is fixed by the court of its own initiative.’
‘[43] Rule 24.5(1) requires a respondent who wishes to rely on written evidence at the hearing, to file that written evidence and serve copies on every other party to the application at least 7 days before the summary judgment hearing. Thus in an idealised case, a claimant can issue and serve an application for summary judgment to be heard in 14 days’ time. The defendant must serve his evidence 7 days before the hearing, and the claimant must serve any evidence in reply at least 3 days before the hearing. If all this is done, the hearing can go ahead on the appointed day. The overall object of the rules and practice direction taken together is to ensure a fair hearing of the summary judgment application within a short time scale. The procedural safeguards, such as requiring notice of the rule under which the application is brought, identification of issues and/or a statement in the application notice or the evidence referred to in it that the applicant believes that the respondent has no real prospect of successfully defending the claim or issue are important protections aimed at ensuring that the overall procedure is fair.’
‘[29] The relevant general principles are authoritatively explained by Lord Hodge JSC in his judgment in Wood v Capita Insurance Services Ltd[2017] AC 1173 at paras 10-15. So far as relevant to the present case, they may be summarised as follows: (1) The contract must be interpreted objectively by asking what a reasonable person, with all the background knowledge which would reasonably have been available to the parties when they entered into the contract, would have understood the language of the contract to mean. (2) The court must consider the contract as a whole and, depending on the nature, formality and quality of its drafting, give more or less weight to elements of the wider context in reaching its view as to its objective meaning. (3) Interpretation is a unitary exercise which involves an iterative process by which each suggested interpretation is checked against the provisions of the contract and its implications and consequences are investigated.’
‘Mutual Confidential and Non Disclosure Agreement This Mutual Confidential and Non Disclosure Agreement (“Agreement”) is made and entered into, as of22nd August 2017 , by and between Shenzhen Kaiyan Medical Co. Ltd … hereinafter referred to as Kaiyan AND I-SMART Marketing Services … (hereinafter referred to as “I-SMART”) Hereafter collective referred to as “Parties” and individually as “Party” RECITALS A/ The Kaiyan conceives [healthcare and related products] (the “Products”) … C/ The Healthcare division of Kaiyan wishes to hold discussions with I-SMART in order to explore the opportunity to enter into subsequent business activities regarding its new electro medical devices treating psoriasis and others; D/ During the course of such discussions for the Business Purpose [not defined], Kaiyan may disclose to I-SMART certain proprietary information and data relating to its Products and its Project and I-SMART may disclose to Kaiyan certain proprietary and confidential information relating to Light Therapy for treatment of several indications (“Confidential Information” as further defined below): NOW, THEREFORE, the parties agree as follows: 1) Definitions “Affiliate” of a party shall mean [definition set out] … “Discloser” means the Party disclosing information to the other Party and such other Party will be referred to as the “Recipient” “Confidential Information” shall mean: [definition set out] … 2) Recipient hereby agrees to each of the following as it pertains to the Confidential Information received pursuant to this Agreement: 1. to hold the Confidential Information in strict confidence; 2. to use the Confidential Information only for the Business Purpose; 3. not to disclose the Confidential Information to any third party except (i) in accordance with article 4 hereof, or (ii) as authorized by the Discloser in writing; 4. not to copy or reproduce the documents or media that embody the Confidential Information, unless necessary for proper assessment thereof or for the purposes of article 7 hereof; 5. not to apply for or claim any intellectual property right based on the Confidential Information; and 6. not to disclose the existence, the content and the purpose of this agreement to a third party. 3) Confidential and restriction of use obligations as contained herein shall not apply for such information that the Recipient can demonstrate through appropriate written evidence :- 1. now or hereafter becomes generally known or available to the public through no act or omission on the part of Recipient; 2. was rightfully acquired from a third party who did not obtain it directly or indirectly from Discloser or one of its Affiliates; 3. was in Recipient’s lawful possession at the time of disclosure by Discloser and which was not acquired directly or indirectly from Discloser or one of its Affiliates; 4. was developed independently by Recipient without use of or reference to the Confidential Information provided by Discloser pursuant to this Agreement; … 4) Recipient may disclose the Confidential Information only to those of its employees and Affiliates who need to know the same but only to the extent necessary to evaluate the Business Purpose and only if such employees and Affiliates are advised of the confidential nature of such Confidential Information and the terms of this Agreement and are obligated to protect the confidentiality of such Confidential Information. … 12) All rights and obligations under this Agreement shall come in force as of its Effective Date and remain in full force for a period of 3 years.’
‘1.— Right of third party to enforce contractual term. (1) Subject to the provisions of this Act, a person who is not a party to a contract (a “third party”) may in his own right enforce a term of the contract if — (a) the contract expressly provides that he may, or (b) subject to subsection (2), the term purports to confer a benefit on him. (2) Subsection (1)(b) does not apply if on a proper construction of the contract it appears that the parties did not intend the term to be enforceable by the third party. (3) The third party must be expressly identified in the contract by name, as a member of a class or as answering a particular description but need not be in existence when the contract is entered into.’
‘… for purposes other than those permitted by the NDA, in particular for the purpose of: (a) [filing applications for the Registered Designs] and (b) claiming, and alleging infringement of, intellectual property rights based on the designs for the Kaiyan Neck Bib and Kaiyan Face Mask against third parties, including Currentbody …’
‘Kaiyan disclosed the Kaiyan Designs to I-Smart on the basis and understanding that it was doing so pursuant to the Kaiyan NDA and in accordance with its terms, in particular clause 2. I-Smart accepted that disclosure on the same understanding and on the same basis, and to further Business Purpose of the Kaiyan NDA, eventually leading to a customer/supplier relationship.’