CM Telecom UK Ltd v Richard David Buck

On an application for summary judgment, the court may decide a short point of law where it has the evidence necessary for proper determination and the parties have had a fair opportunity to address it. A defendant must show a real, rather than fanciful, prospect of success. A submission that further evidence may emerge at trial is insufficient without evidence of its nature, likely availability and an explanation for its absence. Under Dutch law, a contractual term may be disapplied only where enforcement would be unacceptable according to standards of reasonableness and fairness. The threshold is especially high in a sophisticated commercial contract between professional parties. Relevant factors include the contract and clause, the parties’ relationship and bargaining position, how the term was agreed, awareness of its scope, and the consequences of enforcement.

Necto Future Group Limited owed the claimant approximately £3 million under an advance payment agreement. The defendant guaranteed that debt and defended the claim by relying on a damages-based set-off said to be available to Necto. The agreement, governed by Dutch law, contained a clause requiring payments without deduction, set-off, counterclaim or suspension.

The claimant applied for summary judgment, alternatively strike out. The central issue was whether the clause could be disapplied under section 6:248(2) of the Dutch civil code, which permits a contractual rule to be disapplied where enforcement would be unacceptable according to standards of reasonableness and fairness.

1. Summary judgment. The claimant obtained summary judgment. The defendant had no real prospect of defending the claim, and there was no other reason for the matter to proceed to trial. The strike-out application therefore did not require determination.
2. The court applied the principles in Royal Brompton Hospital v Hammond (No.5) [2001] EWCA Civ 550 and Easyair v Opal Telecom [2009] EWHC 339 (Ch). The court must avoid a mini-trial but may consider evidence reasonably expected to be available at trial. Where the issue is a short point of law or construction and the evidence is sufficient, the court should decide it summarily.
3. The defendant’s proposed further evidence amounted only to a hope that something might emerge. The defendant gave no real evidence about the consequences for Necto of enforcing the clause, what occurred after the agreement, or why the suggested evidence was unavailable at the hearing. Those omissions were important.
4. On the agreed evidence of Dutch law, section 6:248(2) permits disapplication only where enforcement would be unacceptable according to standards of reasonableness and fairness. The threshold is very high, particularly for a term agreed by professional parties in a commercial contract. The assessment is fact-sensitive and may take account of the contract, the clause, the parties’ relative position and relationship, the way the term was agreed, the other party’s awareness of its scope, and the consequences of enforcement.
5. The clause was clear and contained in a bespoke suite of sophisticated commercial agreements. Although the parties were unequal in size and financial strength, Necto remained a commercial enterprise, had an opportunity to comment on the clause, and chose not to do so. Its failure to read or understand the clause did not assist it. The clause was therefore not liable to be disapplied.
6. The court distinguished the application from the discretionary relief considered in Koza Altin Isletmeleri AA v Koza Ltd [2025] EWHC 2304 (Ch); alternatively, applying that approach would produce the same result.