Barron Industrial Services Ltd v Hargreaves & Ors

At the interlocutory stage, a claim should proceed where it has a real, rather than fanciful or imaginary, prospect of success. The claimant need not show that success is probable. A claim for loss of a commercial opportunity may have more than nominal value even where proof of causation and loss presents substantial difficulties. Those difficulties ordinarily raise issues for evidence, cross-examination and trial. Permission to amend pleadings is a matter for the first-instance judge’s discretion. The Court of Appeal will not interfere where there are no arguable grounds for doing so, and prejudice capable of being addressed by costs or explored at trial will not necessarily justify refusing the amendment.

Barron Industrial Services Ltd alleged that its former employee, after joining a competing company, misused confidential information and sabotaged Barron’s tender for a public contract. It claimed damages for the lost chance of obtaining the renewed contract and further work. The first-instance judge permitted Barron to amend its pleaded tender figure and refused the defendants’ application to strike out the claim or obtain summary judgment, while striking out the claim for exemplary damages.

The defendants renewed their application for permission to appeal. The central questions were whether the amendment should have been allowed and whether the pleaded claims had no reasonable prospect of success or were otherwise unsustainable.

1. Permission to amend. The decision to permit amendment was discretionary. Although the amended figure was advanced after disclosure and created difficulties for Barron, those matters provided material for cross-examination and submissions at trial. They did not necessarily establish prejudice requiring refusal of the amendment. There were no arguable grounds for interfering with the judge’s exercise of discretion.

2. Strike out and summary judgment. Under Civil Procedure Rules 1998 Parts 3 and 24, a claim may be struck out where it discloses no reasonable grounds or is otherwise an abuse, and summary judgment may be given where the claim has no reasonable prospect of success. The respondent need show only some prospect of success, provided that prospect is real. It need not show that the claim will probably succeed. False, fanciful or imaginary prospects are disregarded.

3. Loss of chance. The claim was not limited to the profits Barron would have made at a particular tender price. It concerned the alleged loss of two commercial chances: obtaining the renewed contract and obtaining further work. Whether those chances had more than nominal value depended on the evidence. The difficulties in proving the claim did not make it false, fanciful or imaginary.

4. The renewed application for permission to appeal was refused. Application dismissed.

• Court of Appeal (Civil Division): The applicants renewed their application for permission to appeal against orders made by His Honour Judge Boggis QC in the Chancery Division, Birmingham District Registry. Permission was refused and the application was dismissed.