Sian Participation Corp (In Liquidation) & Anor v Domidias Limited & Anor

On a summary judgment application, the claimant must show a realistic prospect of success, meaning more than a merely arguable case. The court must avoid a mini-trial, but it need not accept factual assertions contradicted by contemporaneous documents. It must consider evidence reasonably expected to be available at trial, while refusing speculative claims that merely hope disclosure will produce support.

Contractual interpretation is a unitary exercise. Text, context, the agreement as a whole and commercial consequences must be balanced. An automatic contractual extension takes effect after expiry of the existing term; wording preventing extension after a specified anniversary may therefore prevent the next term from arising.

The defendants applied for summary judgment under Civil Procedure Rules 1998, rule 24.2, or alternatively to strike out parts of the Particulars of Claim under rule 3.4(2)(a) and PD3A.1.5.

The claim concerned two call and put option agreements relating to shares in Merbau Synergy Ltd. The claimants alleged that they had exercised the 2012 option and that a 2019 option agreement had been concluded with Hellicorp. They also relied on alleged conspiracies as background and contended that, if the 2012 agreement had expired, an interim binding arrangement had preserved it.

The issues were whether the 2012 agreement expired on 28 November 2019, whether the alternative preservation case had a realistic prospect of success, and whether the 2019 agreement was binding. The proposed strike-out issue did not arise for determination.

1. Summary judgment principles. The court applied the principles summarised in Easyair Limited (Trading As Openair) v Opal Telecom Limited [2009] EWHC 339 (Ch). A realistic prospect requires some degree of conviction and more than a merely arguable case. The court must avoid a mini-trial, but may reject factual assertions lacking substance, particularly where contradicted by contemporaneous documents. It must consider evidence reasonably expected at trial, while distinguishing a properly supportable case from speculation.
2. 2012 Option Agreement. The agreement was construed as a whole. Textual and contextual analysis formed one unitary exercise, guided also by commercial consequences, in accordance with Wood v Capita Insurance Services Ltd [2017] AC 1173. The term ran from 29 November 2018 to 28 November 2019. Because the automatic extension would otherwise begin on 29 November, the provision stating that the agreement should not be extended automatically after the seventh anniversary prevented any further term from arising. The agreement therefore terminated on 28 November 2019, and the call option notice was served after termination.
3. Alternative preservation case. The claimants had no realistic prospect of proving an agreement, variation, promise, representation or common understanding preserving the 2012 option. The contemporaneous correspondence showed that Sian’s lack of good standing prevented it entering an extension, and that the parties instead pursued a new agreement with Hellicorp. The incomplete correspondence did not provide reasonable grounds to expect disclosure to alter that conclusion.
4. 2019 Option Agreement. The claimants had no realistic prospect of establishing that Hellicorp accepted Domidias’s offer. The correspondence showed that Hellicorp had not executed the put and call when the relevant information for the supporting pledge remained outstanding. Subsequent emails pursued execution of revised documents and did not indicate that the earlier version had already been accepted. The alleged conspiracy did not make disclosure sufficiently likely to change the result.
5. Summary judgment was granted on the 2012 and 2019 option claims. The question of striking out the conspiracy averments did not arise.