Tripwire South LLC v Astor International Limited & Ors

A court may give summary judgment on a discrete claim where the defence has no realistic prospect of success and no other compelling reason requires a trial. It may assess the evidence rather than accept assertions at face value; speculation that further evidence may emerge does not suffice. A counterclaim or set-off does not automatically prevent judgment. The court must examine its nature and prospects, and whether an equitable set-off is sufficiently connected to the claim.

An interim payment requires the applicable threshold to be met and a sufficiently reliable basis for identifying a reasonable sum. Unresolved questions about performance, income from a related contract, resale value or whether the transaction would have made a loss may leave no irreducible minimum suitable for payment before trial. A claimant cannot introduce unjust enrichment as a new basis for an application confined to contract damages.

Tripwire South LLC contracted to buy TNT from Astor International Limited and resell it to Global. Tripwire paid Astor an advance of USD 9.45 million, but Astor delivered no TNT to Tripwire. Astor admitted a breach by delay but disputed that the breach amounted to non-delivery and relied on a counterclaim alleging that Tripwire’s proceedings and freezing injunction had prevented performance.

Tripwire applied for summary judgment and an interim payment on its pleaded contract claim for the profit it said it would have earned on resale to Global. The application did not rely on its separate claims in fraud, conspiracy or unjust enrichment. The court had to decide whether Astor had a real prospect of defending the contract claim, whether its counterclaim could prevent judgment, and whether the evidence established a sum suitable for interim payment.

1. Summary judgment. Summary judgment was entered for Tripwire on its pleaded claim for breach of contract, with damages to be assessed. The defence had no real prospect of success and there was no other compelling reason for a trial.

2. Nature of the breach. The breach was non-delivery, not merely delay. Astor had received the advance but made no deliveries or attempt to acquire TNT for Tripwire. By June 2025, Astor had contracted directly with Global and Global had purported to terminate its contract with Tripwire. The evidence showed that the direct Astor–Global arrangement replaced the back-to-back contracts and cut Tripwire out of the supply chain. Tripwire did not need to terminate the Astor–Tripwire contract before its loss of the contract’s benefit accrued. The freezing injunction and proceedings began months later and did not prevent Astor’s performance.

3. Counterclaim and set-off. The counterclaim did not provide a defence to summary judgment. The allegations that Tripwire had joined a conspiracy to injure Astor or had brought abusive fraud claims lacked evidence and had no real prospect of success. The judgment did not strike out the counterclaim because no such application was before the court. As to set-off, the counterclaim was not a legal set-off and lacked the close connection required for equitable set-off, such that it would be manifestly unjust to allow the contract claim to be enforced without taking it into account: Geldorf Metaalconstructie v Simon Carves [2010] EWCA Civ 667.

4. Interim payment. The application for an interim payment was refused. The claimed USD 48 million depended on the original resale price, although the Global contract had been amended to a lower price. The alternative profit claim of USD 8 million also depended on assumptions that could not be resolved without a trial. Tripwire’s pleadings in the US proceedings raised material questions about Global’s own performance, conditions precedent, force majeure and whether the expected income stream would have materialised. Those allegations could not be compartmentalised merely because they arose in another jurisdiction. There was also insufficient evidence of an alternative buyer or market price. The court could not identify an irreducible minimum that Tripwire would recover, whether as lost profit or wasted expenditure.

5. Alternative bases of recovery. Wasted expenditure may be recoverable as contract damages, including money paid to the contract-breaker, subject to the possibility that due performance would not have yielded equivalent value: Havila Kystruten v Abarca [2022] EWHC3196 (Comm). But the evidence did not establish a minimum recoverable sum here. Tripwire had confined its application to contract damages and could not add unjust enrichment at the hearing or bring it in through the discretion stage, particularly given the pleaded concern about election. An account of profits is an exceptional remedy; its possible availability for a commercial contract was left for trial. It had not been pleaded and was not a basis for an interim payment.

6. Discretionary observations. Since the threshold for an interim payment was not met, the court did not exercise its discretion. It observed that a freezing injunction is not security or an advance payment, and that the risk of irremediable harm from a payment is a relevant factor rather than a decisive rule. The court refused interim payment under either CPR 25.23(b) or (c).

No appeal is described. The judgment records that a freezing injunction was granted by Constable J, continued by Cotter J on the return date, and maintained after a later discharge application before Mansfield J.