Mayer Cars and Trucks Limited v Jaguar Land Rover Limited

An unlawful means conspiracy must be pleaded with clear allegations of the combination, the intention to injure and the identified unlawful means. A court may give a final opportunity to amend rather than strike out a claim where the case can be clearly articulated. On an application for reverse summary judgment, the court must avoid a mini-trial but may evaluate the evidence cautiously and ask whether the case carries some degree of conviction. An unjust enrichment claim may be arguable where expenditure was incurred in anticipation of a contract that did not materialise, particularly where assurances were given. A no oral variation clause is effective unless a properly pleaded estoppel is established. Security for costs may be ordered where non-production of readily available financial evidence supports a reason to believe that the claimant cannot pay.

The claimant had been an approved importer of Jaguar vehicles in Israel under an agreement with the defendant. It alleged that the defendant represented that it would be awarded a further Jaguar and Land Rover importing contract, causing it to incur substantial promotional expenditure. The claimant pursued claims in unlawful means conspiracy and unjust enrichment, together with a contractual claim for reimbursement of Jaguar F-Pace launch costs.

The defendant applied to strike out the claims or obtain reverse summary judgment. It also sought security for costs and further particulars. The central issues were whether the pleadings disclosed reasonable grounds, whether the evidence justified summary disposal, whether the contractual marketing obligation defeated the unjust enrichment claim, whether an oral variation was effective despite a no oral variation clause, and whether security for costs was just.

1. The claims were not struck out and reverse summary judgment was refused. The claimant was required to provide clear particulars of the alleged unlawful means conspiracy and security for the defendant’s costs.

2. The essential elements of unlawful means conspiracy had to be distinctly pleaded. The pleading needed clearly to identify the alleged combination, the intention to injure the claimant and the unlawful means relied upon. Those matters could not be left to inference or guesswork. Although the existing pleading was materially deficient, the claim could be articulated in argument, so a final opportunity to amend was appropriate.

3. It was arguable that a misrepresentation could constitute unlawful means. The issue required consideration of JSC BTA Bank v Ablyazov and another (No.14) [2020] AC 727, but it was not appropriate to determine it finally on the present application.

4. The contemporaneous correspondence raised substantial doubts about the alleged representation and reliance. Nevertheless, evidence from witnesses who attended the relevant meeting could reasonably be expected at trial. The court therefore could not resolve those factual issues summarily. A case supported by an assertion that evidence existed was just sufficient to carry some degree of conviction, and caution was required to avoid a mini-trial.

5. The unjust enrichment claim was at least arguable. Benefits transferred in anticipation of a contract which did not materialise formed an established category, or a possible basis for principled analogy. The claim should be determined on facts found at trial, particularly in a developing area of law.

6. The contractual obligation to advertise and promote the products might retain content despite the absence of an agreed business plan. The effect of clause 12.1, and whether the expenditure exceeded the contractual obligation, required factual and legal determination at trial.

7. The no oral variation clause was effective. Under MWB Business Exchange Centres Ltd. v Rock Advertising Ltd. [2019] AC 119, an estoppel would require words or conduct unequivocally representing that the variation was valid notwithstanding the clause, together with something more than the informal promise itself. The pleading contained no such case, but it was nevertheless inappropriate to determine the discrete F-Pace claim summarily where related issues would be tried.

8. For security for costs, the ultimate legal burden remained on the applicant to establish a reason to believe that the claimant would be unable to pay. However, where the claimant had been given repeated opportunities to produce financial evidence and deliberately failed to do so, the court could draw an inference of inability to pay. The evidence justified that inference, and it was just to order security of £184,355.